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Media Law Exam One Study Guide
Material From Class Notes
1. Structure of the Court System
- Federal-State
- Federal court (in Chas—meeting and broad 3 in state?)
- Each town has a state court
- Federal—begins with i. Fact-finding — trial court, witnesses are used, exhibits are used, juries are used (witness, evidence, jury) ii. Law Relevancy — appeals court—was the judge applying the law correctly. iii. If appealing—go to Richmond because it’s the circuit appeals court—5 states in 4th^ circuit (SC, NC, VA, WV, Maryland)if you loose here—go to supreme in DC. Richmond doesn’t have to hear your case if they don’t want to. Appointed to supreme court—nominated by president and then voted in by congress—serve for life—we don’t elect them because they are supposed to follow the law, not the majority point of view, so if they were for reelection, they may not do the right thing regardless, because they could be worried about reelection—elect other officials, therefore these need to be a balance to the elected officials
- Appellate court i. In trial courts, if Mr. green is suing channel 5, he is the plaintiff, channel 5 is the defendants, the party initiating the case in Ap. court comes first, so the name switches—channel 5 v Mr. green ii. In ap—plaintiff is petitioner and defendants are respondents (appellant-appellee) Steps through supreme court
Takes years
- Unit of Certiorari (Cert) a. Write to court, request a writ of cert, asking them to reconsider the case, most of the time it is dismissed, 4/9 justices must approve to be placed on schedule. b. If lucky enough to be approved, the next major step…
- Written arguments a. Tell them to submit written arguments by certain dates 50ish pages per side b. Law clerks are used with justices to analyze arguments
- After months, oral arguments are scheduled on specific days and will give them maybe 30 minutes per side to argue your case. Stressful for even the most experienced-lots of media. a. Decision isn’t made immediately, the judges will analyze over months the written and oral arguments
- Schedule voting, months later, only justices and staff a. Senior member discusses first, then go around, then vote in opposite order b. Tells how they vote c. 6-3 to channel 5
- Written opinion explains why they voted the way they did a. How do you get this? If chief justice (John Roberts) assigns one of the other justices who also voted in this way to write up why they voted this way (majority opinion) b. The dissenters (against them) also must write up why they voted the way they did (minority opinion) c. Concurring opinion, “I justice ____ voted in the 6, but I voted for a different reason,” can also happen in the minority—it’s their explanation
- Exception rather than rule
- Statutory i. Legislative law—elected—injunction with state government. Congress is also involved. Enormous power. Much of our criminal law is this
- Equity—fairness i. Judge made law
- Idea is to prevent rather than solve a. Ex: judge giving man restraining order to prevent the man from beating his wife instead of arresting after the fact b. Ex Media Law: Judges wanted to hold back info from Vietnam, because it could jeopardize national security, some wanted to sue after, but doesn’t help if its already printed
- Common Law i. Based from England—respect for history of tradition
- Mr. Green has sued channel 5—tells jury to vote for 5 because of a past case— precedent the other attorney says that case is irrelevant and to look to another a. Idea of precedent is that one needs to follow what has been built up over the years—breeds predictability
- This can be broken with, but traditionally they follow precedent
3. Functions of Freedom of the Press
- Truth Seeking
- Supposed to helpclosely related with marketplace of ideas (we will give you a lot of competing points of view and then allow you to
sift through and find the truth—entrusts a lot in the public). Give the people enough points of view and they will find the truth
- John Milton (Paradise Lost, Areopagitica) argument that divorce should be allowed, but in particular that he should be able to publish a book making the argument of the right to divorce, and in return the Church of England could publish a book against it, and then the people could read them both and they could decide he said “ let truth and falsehood grapple” let them fight “who ever knew truth to be put to the worst in ….” If both ideas are fought-truth will emerge, trust the British people.
- Self-Governance a. Want the voters to have enough information for voting. Democracy is most important—especially at election time
- Checking (watchdog) a. Related to governing function—now we have elected them, so now we want to know how they are performing—honest? Effective? Etc. make sure they aren’t wasting $ and being effective
- Safety Valve a. There are people that don’t agree with the majority—let them have freedom of the press—let them have their sayif you don’t they may do something more extreme—if you don’t let them they get angry, often if you do, they don’t want to anymore
- Self-fulfillment a. Individual fulfillment—enjoying life
4. Prior Restraint v. Freedom of the Press: Drawing the Line
Prior restraint means censorship—we don’t like censorship, in some cases we allow, and sue after, but sometimes freedom of the press is not the important thing, and censorship is needed While we don’t like prior restraint, some issues we draw the line
- Fault —brought in 1964, very complicated must be proven, actual malice—knowledge of falsity, reckless disregard for the truth— (Times v. Sullivan-VERY IMPORTANT CASE, Mary Alice v. Firestone, Segmuller v. KSL-TV, Street v. NBC, Hutchinson v. Proxmire,
6. Differences in the Types of libel Plaintiffs
Fault Proven depends on the person:
- Private Person —only has to prove negligence —defined per state, but means careless
- Public Figure —must prove malice , for the public figure to prove to court. i. Must be paid by tax dollars ii. Well-known iii. Want to change laws etc iv. Voluntarily step in spotlight
- Limited Public Figure —split life, part public, part private— i. Must voluntarily step up ii. Voluntarily step in public, not private issues iii. Push to change the law on specific issues If suing under the issues you address publicly, must prove malice —if private issue, negligence This was started to try to make it harder for public figures (especially government officials) to sue, while protecting private persons Often causes a case within a case in court. (Mary Alice v. Firestone, (Fault) Segmuller v. KSL-TV, Street v. NBC, Hutchinson v. Proxmire, (Knowledge of Falsity) Mason v. New Yorker, (Reckless Disregard) AP v. Walker, Curtis Publishing v. Butts, (Negligence) Karp v. Miami Harold, Lequiri v. Republican, Garzau v. Hearst Newspaper, Jones v. Son, Applebee v. Daily Hampshire Gazette
7. Court’s Test Used to Determine “Reckless Disregard”
- Was there urgency or deadline pressure?
- Was there a reliable, credible source? i. Who was the source?
- Probability, that it could be true? (AP v. Walker, Curtis Publishing v. Butts)
8. Court’s Test to Determine “Public Figure” or “Private Person”
“Public Figure” “Private Person” Must be paid by tax dollars Well-known
Want to change laws etc Voluntarily step in spotlight
9. The Media’s Possible defenses when Sued for Libel
Privilege —
- channel 5 in chas and your lead story says sticky fingers has the lowest possible rating by SC board of health—that’s not true though —if you’re the owner of SF, and you didn’t get a 1, you got a 10, what would you do? Call the station angry. Station says oh no, its wrong, but you know how what happened, we took it off the report, and the guy circled 1, fax it over, so call health, and health made the mistake i. TV wins case —because infor came from government document—official report
- station reports accident wrong.—got the info off the report—media wins case though because error was only because police dept botched the report
- government proceedings also protect them—someone on witness stand reports something untrue and liable--but
10. Controversies in business libel
11. Differences Between “Negligence” and “Actual Malice”
Negligence, is defined per sate, but means reckless. Malice is the actual intent to do harm
12. Theories of Freedom of Expression
combines freedom of speech and pressdifferent people who have sat on court, or looked at it different ways
- Absolutism—they look at first amendment and see congress shall pass no law—they only see the NO, nothing, not some laws but none a. Most prominent—Hugo Black (?) and William Douglass (1946- 1975) long time
get the case, they begin preferring the press point of view, they want to offset the power of the gov with the free press i. Give the press an initial advantage (6,0), then listen to arguments of both sides and then decides
- Access a. Based on: “the freedom of the press has been misinterpreted and misapplied” i. They think this should be for individuals, not the powerful (owners etc). They believe John Doe should have the voice to be heard on TV etc. ii. Not as many supporters—argument against itwho decides what the press has to print/broadcast? The government would end up doing it—and we don’t want that, we want the press to decide. Do you support one of these points of view and why? At the end of the semester can you explain what you support and why?
13. Cases Reviewed
1. US v NYT (1976?) Pentagon Papers Case a. Government filed suit—Vietnam War in 1960s—Kennedy Presidency in 1961, asked Robert McNamara to be head of defense department—he felt he needed more information. He empowers Random (?) corporation to get some answers to critical questions. He wants to know if he can believe the casualty numbers (distrustful of numbers being told of enemy deaths) b. Daniel Elseberg was also a key figure, went to war as a Marine and was a Hawk fully supported the war—left to work for Ran corporation, doing research for McNamara, with his research he changed his views, he didn’t think we should be at war anymore. Elseberg has change of heart through the research
c. McNamera also wasn’t sure he should be supporting the S. Gov, and he found that surrounding countries may be being bombed which is violation of law. Elseberg leaves corporation and takes several thousand top secret papers from pentagon d. Takes the papers to NYT, and tells them the people aren’t getting the right info, he wants the people to not support the war after they get all the info e. NYT goes to lawyer and lawyer tells them to take the documents back because it’s illegal, NYT prints anyways, so law firm quits representation. Many editors and staff didn’t feel comfortable with the infor being in the office, and others said if they weren’t printed they would quit f. Start printing in mid June 1971, series of articles00sunday June 12 1971 was first, explaining we are wrong g. At this point we have Nixon in the office. NYT criticizes previous presidents—Kennedy and _____ (democrats)(Nixon republican). N is angry with printing top secret documents, concerned trust with outside countries would diminish because of this. h. He asks NYT to quit out of respect to the nation, NYT says no, so he files suit i. Nixon v NYT (plaintiff) Judge asks them to quit writing until judgment is made—they say no again, so he hits them with a temporary injunction j. First temporary injunction ever in the nation—forbid them to print, before long the supreme court took the case, rare instance that it was taken quickly by them because they saw others printing as well. k. Court Split, but voted for NYT, didn’t think Nixon made a strong enough argument, didn’t see soldiers being harmed. They also
iv. Specific law was violated AEO—Atomic Energy Act— said couldn’t go around talking about this stuff f. Judgment in US favor, after this the info was published in Canada, but as far as we know no country used the info to make bombs
3. JB Pictures v. Department of Defense a. Dealing with pictures in Iraq , we knew people would die, when happened deliver body to Germany, then to Dover DE, then on to their home b. Military doesn’t want JB on base to take pictures and interviews, JB says they have a right to be there under freedom of the press. They said that if the families wanted them to be involved, they could talk to them, without being on the base. c. Press thought some families weren’t being told the truth about their deaths, thought they were being killed by friendly fire, and the military was covering that up—so they thought being on the base they could get to people in the know and find the truth— they didn’t want individual pictures of people in caskets, they wanted a bunch at once maybe but not the individuals—military may have been covering up and also didn’t want the people to loose faith in the war d. As long as we’ve had wars, there have been issues with generals and press i. Civil war-Sherman hated reporters—5 reporters died in a battle he was told and he didn’t care e. Government won the case 4. Schenck v. US (1919 ) a. WWI was the issue-G started war, US is over there Woodrow Wilson is pres, trying to win the war b. Schenck tries to create problems—he’s a member of the Socialist Party—this party was against the war. Thinks its
misguided, people are being killed for no reason. Thinks we need out, socialist party uses that point of view—to promote it they distribute leaflets and pass them out on the street pointing that Americans are dying for nothing and bullet makers are getting rich c. Gov decides to prosecute S—Espionage and ____ acts had just been passed, and said he was undermining the war d. US had not had a sedition issue in over 20 years. The gov was esp annoyed with the pamphlets telling men not to go along with the draft, that when they were asked to go they should not show up, shouldn’t register for the draft. e. S’s lawyer would argue freedom of the press f. Gov argues we are IN the war, before the war is different, but once in we need united front. S’s lawyer says we need freedom of speech even when in war time, not only have freedom with unimportant issues g. Court votes for US i. Famous comments:
- Clear and present danger—value freedom of speech and press, but this should be bypassed if there is clear and present danger
- Justice Holmes “the right to freedom of speech and freedom of press is not the right to shout fire in a crowded theater” there are limits to freedom of speech and press—falsely yelling can endanger others and this is not allowed. 5. Dennis v. US (1951) —do members of American communist party have same rights? During Cold War, McCarthy (Joe) Era. a. Is it illegal to …. b. Violent overthrow c. If it isn’t using violent overthrow it isn’t illegal
g. This is still the law at this time, nothing has changed in 41 years, B is still the precedent
8. Snepp v US a. S is member of CIA—during Vietnam war in 70s b. After war writes Decent Interval—book arguing that US gov and military failed the people of V as war ended. In war, US backed S.V against NV. As it was ending, left too abruptly, should’ve stayed and protected them. A lot of our supporters in SV were killed because of this because we left too quickly and didn’t protect them c. Legal problem was CIA was very unhappy, saying he didn’t hold up his side of letting them see the book first, he signed legal agreement saying CIA could see anything written, or interviews etc he gave. d. Agreement is made for national security, so intentional or unintentional information couldn’t hurt the nation e. He argues freedom of press, other authors have more freedom than he did, he also argues nothing he wrote was national security threat, but CIA only argued that S didn’t get it reviewed, not that it was a threat, they needed to make an example of him for future issues. S felt it wasn’t always applied, if favorable book, didn’t matter, if not then they applied it. f. Wrote another book Irrepuble Damage in response to all the issues he had with the first one. Saying they could make you bankrupt with changes g. Supreme court felt he had contractual agreement, he signed and was in violation of the law. (Against him) 9. Near v. Minnesota (1931) a. Writer for paper—criticizes in flowery language police, prosecutor and mayor. Says illegal prostitution, alcohol, etc—
says prosecutors and police are being bought off. The gov was getting annoyed with him b. His boss was shot 4 times at a stop sign c. Near writes saying that if they think they can silence them by killing the boss it wont work, they will speak out even more, this annoys the gov more. d. Thug goes into dry-cleaning by Mr. shapirro, explains how it works, Mr. shapirro says we don’t need you, thug says you don’t understand, organized crime runs this business in miniappolous, and this is how its going to be, beat him up some, then some back and ruin $8,000 worth of clothes. Playing hardball to get him to cooperate, he notifies authorities, and nothing happens, therefore he goes to the press—just as Elesberg did e. Near takes up report saying how the man is upstanding man, with hard work etc, he told authorities and they do nothing. They authorities are angry again—prosecute Near and newspaper under nuisance law—can close if …. f. Go to supreme court, (5-4) in favor of newspaper—saying law goes too far, cant close newspaper because its criticizes the gov. Mn didn’t want to fine, or punish for one article, they wanted to shut them down. g. Think about : Chief justice of the US was Charles Evans Hughes (rep candidate for pres in 1916 lost to w. Wilson, later on World Court). He votes in favor, and writes Dicta (words) adds footnote (extra words not needed because not directly related to case) “Words endured in times of piece, are not necessarily words to be endured during times of war.” Telling people of media and gov, that he voted for freedom of press, against prior restraint, but don’t think that ill vote the same in a war time. Attitude is different in peace, then when dealing with national security.
d. High profile case, media follows, killer is arrested, they then begin to investigate Mr. Horn, he makes a tape of him and his gf, in CA sitting on the couch for an alibi, they prosecute him for paying someone to kill them e. As killers are prosecuted a book was involved, Hit man: A Techniqual Manual for Independent Contractors—book the killer had used to commit the hits, kind of a step by step guide to everything your going to need. f. Rice is sister of ex-wife—she sues the publisher of the book. g. Publishers view is that only one person used the book, where do we draw the line? Slippery Slope. h. Never went to Supreme court—did go to Appeals (Richmond, VA) i. One of the judges voted against freedom of the press, that the family could collect, and said this was a special case, it was action. j. Paladin also published many other books along these lines B&E from A to Z—what is the value of these books? Even if you have the right, what good could come out of this?—Rex Ferrow was the publisher of the book (this is a pen name—it was a woman)
12. Grosjean (Attorney) v. American Press (Lousiana 1936)—Houylaw (?) a. H was colorful in politics, ended up shot and killed (motto “let the good times roll”) b. Criticized by the media c. Brought about new tax for newspapers, if you sold more than a certain amount you had to pay taxes (H didn’t want to be criticized, News didn’t want to pay the tax) d. Press argues to supreme court its an unconstitutional tax. e. They vote it is unconstitutional—why? Politically motivated, normal taxes were established to raise $ for gov for services
provided—they felt this tax wasn’t going to raise much, and it also wasn’t for that reason. They also felt it was discriminatory, only certain businesses would pay, and only a few of those (newspapers) would pay that, because they had to sell 20,000. Why 20,000? Because the criticism was coming from big city papers, they could punish the enemies and not hurt the friends f. Court didn’t like this—what if you were selling 19,950? Don’t sell anymore cause don’t want to pay the tax. This is prior restraint, they are withholding the flow of information. Politically motivated g. Declare tax invalid, wont let it stand
13. City of Corona (CA) v. Corona Daily (1953) a. City gov enacts tax for business being held in city limits. Feel as though mayor is out to get them, newspapers don’t want to pay b. Paper argues precedent of Grosjean—court here votes against why would they loose? c. The tax was applied to everyone, not just newspapers, would also generate substantial funding. d. Court says newspapers and all media have to pay fair taxes because they want services like the rest of the people (fire dept etc.), not unfair politically based taxes 14. Simon and Schuster V NY Crime Victims Board (1986?) a. David Burkowitz had killed a number of people and hadn’t been arrested. He was taunting the police and press, signed himself “Son of Sam” became known as Son of Sam Killer b. Continued killing, eventually police arrest, tried, convicted and sent to prison c. Then we find he may write a book about his life and exploits d. NY sets law that if you come and kill and write books, you can profit from it, the profits will go to the victims. e. Should he be able to make $ off murder?
