Week one, Chapters: 1,2,3
Seditious Libel is communication meant to incite people to change the government and or criticism of the government.
Core Values of speech
– individual Liberty
– Limited Government power
– Attainment of Truth
– Safety Valve
– Its Own End
-What we think of as good old garden-variety censorship. When Government prohibits publication or suppresses particular material this is prior restraint and exists when:
Any government body or representative REVIEWS speech or press prior to distribution AND stops the dissemination of ideas BEFORE they reach the public.
– In Near v. Minnesota The Supreme Court suggested that government prior restraints of speech may be found constitutional when they are necessary to prevent the following:
-Obstruction of military recruitment
– Publication of troop locations, numbers and movements in time of war
– Obscene publications
– Incitements to violence
– Forcible Overthrow of government
– Fighting words likely to promote imminent violence
Probable cause- The standard of evidence needed for an arrest or to issue a search warrant.
content based regulations:
“cant say or publish something” single-out message if you challenge this law, the judge will use a rigorous test called strict scrutiny
example: compelling government interest.
content neutral: unintentionally affects speech.regulates time or place you can manifest your message
Challenge to content neutral: obrian test
-law is constitutional if it’s not related to the oppression of freedom of speech advances an important government interest if it fails it will then be ruled unconstitutional
different ways the court decides whether a way of speech is protected or is up for restriction..
supreme court never said what the freedom of expression offers against government regulation or speech after world war i
– government had the right to restrict speech vs government.
brandenburg v ohio appellant
Cohen v California: a jacket that said “fuck the draft”, he was convicted for disturbing peace.
The first amendment does not protect fighting words, fighting words are considered to be directed towards individual and trigger violence
Fighting Words- words not protected by the First Amendment because they cause immediate harm or illegal. directed at an individual and inflict
Hate Speech- A category of speech that includes name-calling and pointed criticism that dimasn others on the basis of race, color, gender, ethnicity, religion or national origin, disability, intellect or the like
True Threat speech directed toward one or more specific individuals with the inter of causing listeners to fear for their safety.
The constitution protects the right to express ideas in an o?ensive manner bc e?ective speech has both cognitive and emotional content but the SC established fighting words as a disfavored category of speech.
Court said that laws that target highly o?ensive speech are constitutional only if they are extremely tailored to address real and demonstrable harm
SC has developed the concept of true threat
Protect an individual’s reputation… seek for compensation for the damages done.
Libel laws is one area where the First Amendment protects to some extent.
The first amendment protects us from government action NOT private entities.
SLANDER- spoken word
7 elements that a plaintiff must prove in a libel case:
1- statement of fact that was published (seen or heard info in question and the info must be defamatory- words that are false and injurious to the other)
libel are so defamatory that they need no debate STATEMENT MUST BE FALSE RATHER THAN WASTING ENERGY PROVING IT’S TRUE
2- DEFENDANT NEEDS TO BE AT FAULT… showing defendant was negligent.
if false statement is about a public figure the plaintiff must prove malice. (NYT Vs Sullivan)
What documents do you have a right to access?
In addition to having the first amendment right to gather the news we also in a lot of cases have the same right to be on public property.
Reporters have no right to enter jails, although they’re paid by taxpayers but aren’t a public space.
Public figures and damages
Fair report privilege: info obtained from public record or official l proceeding.even if the info is wrong.
Ex) if the police report was wrong, you cant be sued for libel but have to provide source to be protected
– Fair comment and criticism mean that an opinion is protected from a libel suit because of the right to criticism
– only available in some jurisdictions is neutral reportage sometimes it depends on the news value, so you will be reported on reporting on the subject the story must be relevant to public interest or controversy and reporting has to be neutral
Ride alongs with police: once wrongly considered permission to enter private property without permission from the owner and thought they were protected from trespassing because they were tagging along with the police.
You cannot enter someones property just because you are with police, their search warrant is for them and does not apply to reporters
Harassment and Misrepresentation: how close you can get to subject
Misrepresentation: lying about who you are or your affiliations for information
two reporters went undercover to a grocery store chain and used hidden cameras to expose violations to health code.
-The grocery store sued and won because the reporters did not disclose their identity
The grocery chain sued and won because producers lied about who they were.
Recording others without their knowledge or consent: depends on state and federal laws
Some allow for One party consent meaning you just need the consent for the person who’s recording
Federal law allows one party consent in interstate phone calls as long as ur not committing a crime.
FCC requires that all parties have consented to a conversation if the conversation is going to be broadcasted.
SLAPP (strategic lawsuit against public participation)
– a lawsuit whose purpose is to harass critics into silence, often to suppress this critics First Amendment Rights.
PLAINTIFFS LIBEL CASE a statement of fact that is published and is about or concerning the plaintiff. It has to be defamatory and false which causes damage that the defendant is responsible for ,
Communications Decency Act
– The 1996 telecommunications act that was an attempt to regulate internet content.
when the defense is anonymous
Must notify the anonymous party that he or she is the subject of a
identify the precise, alleged actionable speech made by each anonymous poster
-show evidence that the case has enough basis to withstand a motion to dismiss
if the case can withstand the motion to dismiss, the court must then try and juggle the defendants first amendment right to anonymous speech against the the case presented by the plainti? and the need to identify the defendant for the case to proceed.
Libel per se: a statement whose injurious nature is apparent and requires no further proof.
Actual Malice: in libel law, a statement made knowing it is false or with reckless disregard for its truth
-urgency: do you have the time to verify the information?
Reliability: is the source trustworthy?
is further examination necessary?
-Serious mental anguish.
You can sue for infliction of emotional distress even if caused accidentally, but only if it was because of negligence on the defenses side
Most jurisdictions find the media do not owe a duty to individuals because the media cannot know which particular individuals will hear or see the mass medium***
Journalists have protections
– can report on events without being guilty of libel as long as thee reporting is fair and accurate
-opinion is considered a basic first amendment right and is not subject to libel
– Satire, rhetorical hyperbole, parody
– only usable if its clear that they shouldn’t be taken seriously
libel per quod: a statement thats injurious nature requires proof
Libel defenses that allow for a kind of republication- neutral reporting and the wire service defense.
The U-S Constitution doesn’t explicitly give us a right to privacy but the fourth, fifth, and 14th amendment do it well enough that the court has granted the idea of privacy at times although it is not explicitly said
false, public information that a person can find highly o?ensive.
False light- for emotional distress caused by emotional distress.
needs for false light claims
-material was published
– plainti? was identified
– published material was false for created false impression
4 put plainti? in false light that could be identified by a reasonable person and proofs the defendant was aware/negligent
Not all states recognize false light.
use of somebody name or voice for commercial use without permission.
Commercialization: misappropriation to protect people who want privacy this prohibits using someones name or likeness for advertising without permission
Right of Publicity: protects celebrities right to use identity or voice for commercial, so if someone uses a celebrities voice or face to make money it is illegal
Plainti?- it concerned mainly the plainti? without permission, and was widely distributed
Only real people can sue for false light as opposed to corporations
– up to juries to decide whats considered offensive
– Newsworthiness, public domain, first amendment, etc
– intrusion upon seclusion.
Physically or through technology disturbing someones privacy.
– consent: permission to invade personal private space both physically and technology wise
Newsworthiness is not considered a valid defense
– publishing truthful but private information that is considered to be o?ensive or embarrassing.
-Medical info, domestic issues, financial information, sexual history
UNLESS, it is newsworthy and of public concern.
ex: suspected of distributing STDs or evading taxes etc.
first ammendment protects publishing accurate and truthful info of private information only if it is obtained in a lawful manor
Intentional Infliction- plainti? must show that defendants wreck less conduct was outrageous and caused the plainti? sever emotional distress
If plainti? was a public figure, he or she must proof the defendant had actual malice because opinions of public figures are different
Negligence: plainti? must prove defendant negligently ignored duty and caused emotional distress.
Plainti? must proof proximate cause…. prove defendant caused the emotional distress.
***reaction of defendant to be outrageous no defendant if plainti? proves the case **
OBSCENITY AND INDECENCY
Obscene material is not protected by the first amendment
What does constitute obscene material?
Must pass the Miller Test
must incite sexual arrousement
Has nothing of social value
Be considered Pornography
Child pornography does not receive any First Amendment protectionIndecency can receive some protection but is open to regulation. Indecent speech is protected in internet, tv, etc.
It’s not protected if TV and Radio air between 6-am-10pm
A dad complained that his son heard a broadcast story indecent.
IN 1993- Safe Harbor Policy 10pm-6am Stations may air content that is considered to be indecent but not obscene
Broadcast is considered cable
– illegal to broadcast indecent material, but the FCC allows it between 10pm and 6pm
supreme court touched on this: non conformance with accepted standards of morality
FCC- language or material that in context depicts o?ensive by community standards like sex or sexual organs
in 1978— court upheld the right of the FCC to regulate indecent material …
– confidential sources and warrants.
Journalists privilege to withhold information is upheld unless the government can prove
-that he or she has important information to a specific violation of law
no alternative means obstructive to 1st amend.
compelling interest in that information
Congress and state laws
-in Arizona a reporter is shielded from having to reveal confidential sources to authorities.
there are no federal shield laws
shield laws are in 40/50 states
Do you have to give up a confidential source?
source can sue you for breach of contract or you can go to jail for contempt of court.
It is very tricky and you should always discuss with news director or editor and get it approved before promising confidentiality to your source or else it could land you in trouble with both the law and your job
“Government o?cials sometimes think of documents as its exclusive to the agency”
Important to know exactly what you’re asking for so that the information you receive is precise and can be gotten for you faster ‘
Always pay fees upfront
Get an attorney if your FOIA request is denied because they will be able to help you get what you need/ know the tips and tricks
Court considers newsworthy defense only if it is not used in an advertisement, Court recognized a First Amendment defense in cases celebrity bring for right of publicity.
-must determine if the celebs name or identity was used to give message of public concern
– must determine if using the celebs name or identity was considered artistically needed
– must show if the content changes the way the celebs are perceived or gives a bad name
The plaintiff in a private facts case must show that the distributed facts were indeed private personal matters that were not of publics concern.
Regulating the media to achieve a fair trial
– a jury that doesn’t know anything about the case and can provide a verdict only on the evidence presented in trial
– can improve the quality of testimony
can encourage witnesses previously unknown to come forward who would not have come forward
people involved in the trial will be more conscious and give the public the opportunity to experience the judicial system.
Not everyone likes open trials because they can sway decisions
Media coverage can change how the public sees witness and victims.
The public has access to trials and rules against personal privacy that are about the witness or the defendant aren’t in action inside of a closed courtroom
Judges must prove certain things to close a courtroom
-An open court threatens the proceedings
-There are no better alternatives to solve the issue
-The threat can be eliminated by closing the courts
-Closing the courts can still allow public access
Federal and state courts do not view judicial proceedings as opened.
Mass Media all has different mediums of getting to the public and are therefore regulated differently like broadcasters using airways are limited to things that people on the internet are not limited to. FCC uses the idea of public interest standard to regulate mass media
The question is if it is in the publics interest
FCC Federal Election- if a candidate running for o?ce uses a radio or tv station, the station needs to give the same opportunity to the opposing candidate
-SECT. 315 1954 COM ACT : must give same opportunity, paying the same price as the opponent for broadcasting
Legal qualified candidate- can be voted into o?ce, is on the ballot or is a serious candidate.
Both broadcast and cable, when a candidate’s picture is seen or it’s heard…
Advertisement and Shows fair use rule but has exceptions:
– regular newscast
-regularly scheduled and regular interviews
-live coverage of news event (campaign speeches and debates)
-candidates appearance in documentaries only if its incidental to the topic if he appears as ex expert of topic its ok
HOW DO THEY FIGURE HOW MUCH TO CHARGE?
Lowest unit rate- best advertiser has to pay for an ad. goes into e?ect 45 days before primary and 60 days before election
Sponsor must be included in ad according to the FCC
Encourages people to create NEW work.
Constitution followed England’s lead by allowing Congress to adopt copyright and patent laws which hoped to encourage people to create new and original work
19th Century- Congress amended the copyright law to protect musical compositions, photographs, and paintings.
The Berne Convention spurred major revision of U-S copyright law in 1909
The law extended copyright protection to 28 years with a renewal period of another 28 years.
As entertainment and new technology emerged the public pressured Congress to pass the Copyright Act of 1976 took e?ect in 1978 but amended it in 1988 so the US
could join the Berne Convention.
Berne Convention- primary international copyright treaty adopted by many countries in 1886 and by the US in 1988
-Intellectual property law includes copyrights, trademarks and patents.
– First US Copyright statue revised in 1870, 1909, and 1976
The 1976 Copyright Act
“Applies to original works of authorship, that are fixed in any tangible medium expression.”
WORKS PROTECTED: literary works, musical including words, dramatic works and comp music, pantomimes and choreo, pictorial, graphic, sculptures, motion pics, sound recordings, architect. work
Computer software is considered a literary work and protected by copyright law
-What may be protected by copyright
– What rights that protection includes
– restrictions on those rights
– formalities necessary to exercise the rights.
1998 Digital Millenium Copyright Act in order to address media and internet use.
– Bans software and hardware that facilitates circumventing copyright protection tech with some exceptions.
– prohibits removing or changing copyright info like the copyright owner’s name
– protects creators but important—sometimes creators sell their work AND
their copyrights to corps
Ej: Author sells copyright of novel to publishing company in exchange for sales revenue.
Main difference of TIME copyright lasts corp vs. individual
-Collection of previously created works can be protected if there is originality in the choice or arrangement of the works .. “compilation”
In tangible medium: work must be capable of being seen, reproduced or otherwise communicated, directly , etc.
Facts aren’t protected but this doesn’t allow for misappropriation= “unfair competition” decided in 1918 in the International News Service v. Associated Press… Unfair competition is not a copyright infringement … it is actionable under common law of individual states.
Misappropriation of news when:
1- a new organization spends money to gather news
2- the info is time sensitive
3- a competing person or company uses info w/o permission or payment
4- the news organization’s ability to gather news is threatened by others using the info.
-Using someone’s work without identifying the source is plagiarism rather than copyright violation.
HOT NEWS DOCTRINE**
When does it take e?ect?
One must fix the original work in a tangible medium. Registration with the US Copyright
O?ce is only needed if a copyright is infringed.
– Copyrights may be given away, sold, or leased
– Copyrights on works created on or after Jan 1, 1978 last for the creator’s life plus 70 years.
– A work made for hire lasts for 95 years from publication or 120 from creation,
whichever is shorter.
– Works protected under 1909 law and still in copyright when the current law took e?ect are protected for 95 years from the date they first are copyrighted.
PROVING COPYRIGHT INFRINGEMENT
– Copyright must be filed before suing
To determine whether there was infringement or not, some courts have established an
extrinsic or instinct” test. Extrinsic compares similarities between two works expressive qualities.
consider whether a reasonable person would judge the two works to be conceptually similar.
***Copyright protection you don’t have to register, but if you want to sue it must be
COPYRIGHT HOLDERS HAVE THE FOLLOWING RIGHTS:
6-TRANSMIT SOUND RECORDING
First-Sale Doctrine- may not control copy of document after sold
before needed copyright stamp 1989- if the user didn’t know the material/work was copyrighted and the court believes him, the copyright holder might only succeed under statuary damages .
Copyright are property rights and copyrights are multiple rights
CHAPTER 13 ADVERTISING
—-Supreme Court has denied advertising or commercial speech, constitutional protection because advertising advanced protect, not free speech values—-
“Commercial speech”: paid messages that do “no more than propose a commercial transaction”
COMMERCIAL SPEECH DOCTRINE
NYT v. Sullivan gave advertising its First Amendment Protection.
-The government may regulate advertising that is false, misleading or deceptive
– the government may regulate advertising for unlawful goods and services. Even accurate advertising for legal goods and services may be regulated if the government demonstrates:
A substantial state interest behind the regulation
The regulation directly advances the state’s interest.
A reasonable fit between the state’s interest and the regulation
THE FREE FLOW OF COMMERCIAL INFORMATION
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
Supreme Court said:
“Freedom of speech” does not lose its First Amendment because money is spent to project it, as in a paid advertisement
Speech that only proposes a commercial transaction is not so removed from such ideas. that it lacks all protection
need to make intelligent, etc decisions in a free-enterprise economy drives
public interest in entirely commercial information.
Commercial speech, including deceptive or misleading ads, maybe regulated by the government
CONTROLLED SUBSTANCES AND ACTIVITIES
Tobacco Advertisements: Public Health Cigarette Smoking Act, banned cigarette adv on broadcast tv and radio station but doesn’t violate 1st Amendment rights because there’s other means to advertise.
FCC regulates o?ensive broadcast advertising, but no federal agency or law controls o?ensive advertising
CORPORATE SPEECH REGULATION
political speech more protection than commercial speech
Citizens United v. Federal Election Commission increased First Amendment protection of corporate speech.
standing: the position of a plainti? who has been injured or has been threatened with injury. No person is entitled to challenge the constitutionality of an ordinance or statue unless he or she has the required standing- that is, unless he or she has been a?ected by the ordinance or statue.
At fist the US Supreme Court didn’t want to grant protection to commercial speech BUT they have acknowledged that advertising contains important info that deserves some protection.
Central Hudson case determined the commercial speech doctrine and established a framework to determine when an advertising regulation is constitutional.
Commercial Speech deceptive or misleading speech can be regulated.
Government can regulate advertising: false, misleading or deceptive, unlawful goods and services.
– even lawful goods ONLY if the government can prove a substantial interest that justifies that regulation and that it achieves reasonably fit between interest and regulation.
Regulation of Advertising begins with legislative action
FCC deals with problematic broadcast advertising
FDA- OVERSEES SOME ADVERTISING PRACTICES FOR PRODUCTS WITHIN ITS PURVIEW, INCLUDING TOBACCO PRODUCTS.
FDA’S 2010 Enforcement Action Plan detailed how FDA would target tobacco advertising, especially ads directed at minors.
Court decision in 2013 ruled that FDA cant criminalize truthful promotion “o?-lable” uses of prescription drugs and suggested limits to the FDAspower over advertising”
Dealing with o?ensive content online- The Controlling the Assault of Non-Solicited
Pornography and Marketing Act to help prevent unsolicited e-mail mesages.
Many states have anti-spam laws, but in Virginia this has been considered unconstitutional.
FALSE AND MISLEADING?
FTC determines what is false and misleading in advertising:
– Ad must involve a material representation, omission or practice
– The representation must be likely to mislead a reasonable consumer acting reasonably in the circumstances
-Advertising of food to children, including its impact on childhood obesity
– marketing of violent media to children
-Alcohol and tobacco marketing
PREVENTIVE MEASURES: opinion letters, advisory opinions, industry guides, trade rules, voluntary compliance
CORRECTIVE MEASURES: cease and desist orders, consent orders, substantiation, litigated orders, corrective advertising, injections
Industry guides- in advertising, a FTC measure that outlines the FTCs places concerning a a particular category of product or service
Advisory opinion- a federal trade commission measure that o?ers formal guidance on whether a specific advertisement may be false or misleading and how to correct it.
Opinion letter- An informal FTC communication providing general advice about advertising techniques
FTC?- a federal agency created in 1914 its purpose is to promote free and fair competition in interstate commerce; this includes preventing false and misleading advertising.
LAHAM ACT STANDING- the US Suprmene court established that a plainti? has standing to bring suit under the LAHAM ACT when: the defendant’s actions occurred inside the zone of interest and the injury to the plainti? is proximately caused by the defendant’s action
THE COMMERCIAL SPEECH DOCTRINE
-government may regulate advertising that is false, misleading or deceptive
the government may regulate ads for unlawful goods and services
even accurate advertising for legal goods and services may be regulated if the government demonstrates:
a substantial state interest behind the regulation, the regulation directly advances the state’s interest and a reasonable fit between the state’s interest and the regulation.
State courts and state legislatures may limit access tp court records based on a privacy rights of this involved in legal issues/disputes
– Conclusions from Sheppard v. Maxwell to preserve fairness in criminal trials
– Limiting the trial participants ability to discuss the proceedings outside of court
– Extensive questioning of potential jurors to find out if they have developed pretrial opinions about the case
– Delaying the trial until the publicity has died down.
Although the court suggested limiting press attendance when necessary through measures such as using pool cameras in court to limit the impact o n the proceedings, the court does advocate completely closing the proceeding to press or media witnesses
-Impartial jurors CAN know the background of a case before trial, so long as the juror has not developed a fix opinion of guilt or innocence
– The FCC has taken the jurisdiction over the Internet, despite the fact that Congress has never explicitly given the commission statutory authority to do so… Despite the fact that Congress has never explicitly given the FCC jurisdiction over the internet, the FCC has claimed that jurisdiction anyway.
-The FCC has claimed ancillary jurisdiction to regulate the internet from the
34 Communications Act.
– -The 96 Act gave the FCC explicit authority to regulate telecommunications companies some of them provide internet service, but other non- telecommunications companies also provide internet service. The bcc claims ancillary jurisdiction over them.
– Advertisement most likely to survive scrutiny buy the FCC in a review for misleading advertising…. The Sing a-long microphone will make your daughter sound like BS. The reality is the microphone just distorts the voice of children, making them slightly higher pitched.
– Example of a Copyright violation- making a copy of your course textbook so your classmate does t need to purchase the book
– An original work does not need to be registered in order to receive copyright
Although a work must be registered in order to pursue a copyright infringement claim, it does not need to be registered to receive protection. As soon as it’s created and fixed in a tangible medium, eligible work
automatically receive protection
– EXAMPLE OF A SUCCESSFUL COPYRIGHT LAWSUIT:
A movie studio sues a website for its creation of a system that allows users to share the studio’s movies, but the website can also be sued to share non- copyrighted material.
– The Commerce Clause of the Constitution … gives Congress the authority to regulate advertising, because it largely deals with interstate commerce.
EXAMPLE OF PROCEED AS LIBEL PER QUOD:
A news report states that the plainti? was a frequent visitor to a business of the NW corner of MAIN and 4th in Plesanton. Although the report did not state the nature of the business, it is known by many in the community that an ilegal gabling parlor is located on the NW corner of 4th and main in pleasanton.
-The Sedition Act of 1798 made it a crime to write any false, scandalous, and malicious statements against the president or Congress….
The Supreme then ruled that the last violates the First Amendment
Defense of Section 230 is likely to succeed in protecting a reporter from a libel case.
– Section 230 of the Communications Decency Act states that no provider of an interactive computer service shall be treated as the publisher or speaker of the information provided by another information content provider. The courts have upheld this on the idea that it guarantees the free flow of information.
– Retraction can be viewed as an admission of guilt but often limit damages. Statues that bar libel claims after a retraction have not fared well in the courts.
– In a “one party consent” state, a reporter can use a hidden camera to record an in- person conversation with someone without permission by that person. 37 states and DC are one-party consent states, they allow someone to covert recored face to face conversation with someone else, as long as one party consents.
– The courts have generally ruled that police cannot prevent witnesses from videotaped police activity unless, the act of videotaping interferes with the public co?eciers’ actions
– Courts have generally upheld a witnesses right to document police action, unless that documentation interferes with what the police are doing. A witness does not need to be a journalist to have 1st Amend rights. If the action is taking place in plain view, while the witness is standing on public property the witness is protected and a pd o?cer desire to not be on camera is not a valid reason to prohibit a witness from documenting the scene.
– The courts view the First Amendment as granting newsroom some additional, but limited protections against searches by police, above and beyond what ordinary citizens are guaranteed under the Fourth Amendment is not true.