MMC4200 Exam 3

STUDY
PLAY

Terms in this set (...)

Remember the scarcity doctrine and Red Lion v. FCC. How does this case help you understand how the government can regulate broadcasting? (Hint: Refer back to Chap. 7).
Government can adopt regulations which inform the public so people can govern themselves; No individual right to discuss public issues.

Physical limitations in the broadcast spectrum justify government licensing of
broadcasters who can then be required to serve the public interest.

Red Lion v. FCC (1969)
• U.S. Supreme Court upheld FCC's right to
regulate broadcasters because of spectrum scarcity.
• Broadcasters required to operate in public interest.
• First Amendment rights of viewing and listening public, and not the broadcasters, which are paramount.
What is the definition of obscenity? Know the three-part test courts must use in order to determine if a work is obscene.
Obscenity: (Miller v California) Obscene if, as a whole, appeals to the prurient interest of the average person applying contemporary community standards. Must be patently offensive AND lack serious literary, artistic, political or scientific value.

The Miller Test:
• Three part test developed in Miller v. California (1973)
• 1 "Average person" would agree that work as a whole "appeals to prurient interest" AND
• 2. Work depicts or describes in a patently offensive
way" sexual conduct specifically defined by applicable
state law AND
• 3. Work as a whole lacks "serious literary, artistic, political, or scientific value."
What level of First Amendment protection does obscenity get?
Level 3: Fighting words, threats, obscenity, false ads
a. None. No protection.
b. Public order. Stability issues.
c. Does not align with goals of the 1st Amendment.
What is the definition of indecency and how is it different from obscenity? What level of First Amendment protection does indecency get?
Indecency: Language that describes in terms patently offensive by contemporary community standards for the broadcast medium sexual or excretory activities or organs at times when children may be in the audience.

Different from obscenity b/c Indecency does not arouse a prurient interest in sex. An indecent broadcast can have serious value and still violate the law.

2nd level , sexual expression (see FCC v. Pacifica: filthy words broadcast)
What does "prurient interest" mean? How do courts define "community standard?" What is "patently offensive"?
Prurient interest: lascivious, shameful or morbid interest in sex.

Community standard: juries draw on their own
understanding of average person's views. Can be juror's city, county or state.

Patently offensive: more than pornographic (Playboy)
What does "channeling indecency" mean? What is a "safe harbor"?
Channel indecency into safe harbors; broadcasters can air indecency only during hours when children won't be expected to listen; this safe harbor is currently defined as between 10 p.m. to 6 a.m.
Following the Janet Jackson episode, what is happening in terms of indecency regulation now? (Hint: fleeting expletives and fining indecency)
FCC overrules staff and declares F-Bomb incident indecent and profane but not when CNN airs it

Congress looking to boost fines

Broadcasters are working on their own code of conduct

Stations using short time delays

Howard Stern moved to satellite radio
What is the difference between a broadcaster, a cable operator and a common carrier?
Why is the difference important?
a. Broadcasters licensed to use limited public resource (airwaves) and required to serve the public interest

b. Common Carriers (telephone) transmit to anyone who pays for service. Government grants a monopoly and guarantees profit. Not responsible for content.

c. Print: newspaper and magazines are not licensed and not subject to government oversight

d. Cable:
a. Cable communications policy act of 1984 and 1992; cable subscribers select cable voluntarily and can block channels
Why is the Telecommunications Act of 1996 important?
Requires cable operators to scramble/block sexually explicit adult programming that is indecent between 6 am and 10 pm

Passed by congress and signed by Clinton
What is the Communications Decency Act and is it constitutional?
a. Banned transmission of indecent or patently offensive material to people under 18 online

b. Anyone who creates and transmits material which is obscene, lascivious, filthy, or indecent with the intent to annoy, abuse, threaten, or harass another person will be fined $250K and imprisoned for 2 years or less

c. If the producer of the obscene or indecent communication knows that the recipient is under 18, they don't need to have any intent

d. overbroad - Reno V ACLU
What level of First Amendment protection applies to the Internet?
Internet has the same level of First Amendment protection as print media.
What about the Child On-Line Protection Act (COPA)? What is it and is it constitutional?
Child Online Protection Act (1998) - prohibits commercial material "harmful to minors" online -- required work as a whole to appeal to prurient interest of minors, be patently offensive and lack serious value

Act violated First Amendment because software filters were more effective than age verification to restrict access to minors; also constitutionally vague
What about the Children's Internet Protection Act (CIPA)? What is it and is it constitutional?
Libraries that receive public funds can restrict indecency; upheld by Supreme Court
What are the effects of pornography? Violent pornography? What are the issues/concerns regarding women and violent pornography? Are violent video and Internet games ruining the young people of this country?
Case: Brown v. Entertainment Merchants Association

California statute imposes fine of $1,000 on stores that sold violent video games to anyone under 18

Outcome: UNCONSTITUTIONAL

Result: Video games are a protected form of communicating ideas, just like movies and book.

No evidence to support complaints against violent video games.
What constitutional provisions are in conflict when the media want to cover the courts?
Fair Trial versus Free Press
(6th Amendment) (1st Amendment)
What are the judicial remedies for prejudicial publicity? What case do
Judicial Remedies
i. Change of venue (Rideau v. Louisiana)
ii. Change of venire (jury pool)
iii. Continuance
iv. Severance (2 separate trials for people involved)
v. Voir Dire
vi. Sequestration
vii. Judicial Admonition (warnings)
viii. New Trial

Sheppard v. Maxwell
When can a court overturn a verdict because of pretrial publicity?
If the court finds identifiable bias in individual jurors
How does the U.S. Supreme Court define bias?
Bias = If they are so affected by prejucicial publicity that they cannot set aside preconcieveed ideas and decide a case soely on the evidence presented during a trial
How should reporters respond if a judge wants to close a courtroom?
Supreme Court held that the public and press have a qualified First Amendment right of access to trials and the jury selection process, as well as pretrial hearings.

Richmond Newspapers v. Virginia - public has limited First Amendment right to attend criminal trials.

Court can be closed only if the state interest in a fair trial overrides the rights of the press and public to attend. Requires compelling interest.
What are the rules regarding cameras in the courts? Is there a difference between state and federal courts? How many states allow cameras in their courtrooms? (Make sure you get this info from book. Videotape was a little dated on this.) What's the rule in Florida?
Cameras in the courtroom
See: Estes V. Texas, Chandler v. Florida;

Cameras allowed in court unless defendants can prove their 6th amendment rights violated.

45 states allow television coverage of trials. 5 states - Delaware, Illinois, Indiana, Louisiana and New York limit camera coverage to appellate arguments.

Federal courts do not allow cameras in criminal trials. Pilot program began recording civil proceedings in 2011.

in Florida if the person asking the judge to not allow cameras produces evidence to prove: (i) that the presence of the cameras has a qualitatively different effect on that person than on other people and (ii) that effect is qualitatively different from the effect of other types of media (such as print or radio). If the person trying to exclude the cameras is a criminal defendant, she must produce evidence to demonstrate the cameras prevent her from getting a fair trial.
What can judges do to control prejudicial publicity? What can't they do?
-Reporters can't be punished for reporting lawfully obtained info. about the judicial process
-Katzenbach rules condemn information purposefully released to influence a trial
-Judges can ban trial participants and lawyers from providing info. to the press
-Lawyers comments about criminal proceedings can be restricted
-Gag orders can be enacted but need to meet heavy burden of proof
What is a gag order? Who can and cannot be gagged?
Gag order = issued by a judge commanding REPORTERS and EDITORS not to publish stories about a legal proceeding; also called a "restraining order" a gag order may also restrict trial participants from talking with journalists

Any trial participant can be gagged whether it means to not publish info. or not talk to journalists
What test for gag orders did the court establish in the Nebraska Press Assoc. v. Stuart case?
What three factors did the Nebraska Court say courts must consider before issuing a gag
order?
Three part test:
i. Nature and extent of pretrial news coverage
ii. Whether other measures would mitigate the effects of that publicity
iii. How effective a gag on the press would be in diminishing the effect of pretrial publicity
Do the media have a First Amendment right to attend judicial proceedings? When can
judicial proceedings be closed? Which proceedings are open to the public?
Yes, see Richmond v. Virginia
What kinds of statements are likely to raise a strong presumption of prejudice?
a. Confessions
b. Prior criminal records
c. Results of scientific tests
d. Character flaws or lifestyle rumors
e. Potential witnesses, testimony, or evidence
f. Speculation by officials
Can journalists be forced to testify in court? Can they protect their news sources, notes and tapes? Under what circumstances?
-They can be forced on a case by case basis
-They have right to withhold names unless the government provides a heavy burden of overcoming privilege
-Journalists have limited privilege, but are not completely protected by the first amendment
-Court orders demand journalists to testify and reveal confidential sources, release notes and tapes, but journalists argue their ability to protect news sources is critical to news gathering and investigative reporting
What did the Court say about a reporter's privilege in the Branzburg v. Hayes case?
The Supreme Court rejected the idea that there is a First Amendment privilege for journalists in these situations.
Where did the First Amendment limited privilege that protects journalists come from?
-Reporters have the limited privilege to withhold the identity of a source
-Came out of Branzburg V. Hayes case
-38 states and DC have adopted statutes that protect journalists, but each statute varies
What is the Branzburg test and how does it work?
a. First amendment protects journalists right to withhold names unless government satisfies "Heavy burden" overcoming privilege

b. Government must demonstrate:
i. Reporter has "clearly relevant" information
ii. Info cannot be obtained by alternative means
iii. Compelling and overriding interest in info
Is the privilege widely recognized and accepted by courts?
Courts disagree on if or how a privilege exists.
---> So, many states, including Florida, have adopted a statute protecting journalists.
---> As of 2012, 38 states and DC have adopted shield laws
What are shield laws? Why are they necessary?
Protect journalists from giving up sources
Is there a federal shield law? What's the current state of protection for journalists against
federal subpoenas?
NO;

a. Free Flow of Information Act
i. Passed House in March 2009, Senate Judiciary Committee in Dec 2009
ii. Pending before full senate
iii. Most contentious issue:
1. Definition of a journalist: person with intent to disseminate info to the public
b. Attest version introduced in 2013
i. Supported by white house, but many journalists do not believe it protects them adequately
What does Florida's Shield law say? Are students protected?
-A professional journalist has a qualified privilege not to be a witness concerning and not to disclose information, including the identity of any source that the professional journalist has obtained while actively gathering news
-Does not apply to physical evidence, eyewitness observation, or audio/visual recording of crimes

Students NOT protected
Can confidential sources sue the media when they break their agreement and disclose their
names?
YES --- When newspapers/journalists "promise" confidentiality, they create a contract and can be sued if they violate that contract.

(-Journalists are not protected by confidential sources
-Promissory estoppel: Requires that courts enforce a promise if breaking the promise creates an injustice that should be remedied by law)

---> Cohen v. Cowles Media Co.
What's happened to the reporter's privilege in the last few years? Has it been strengthened
or weakened?
More states are passing shield laws but reporter's privilege has weakened.

-On Federal level, they almost never subpoenaed reporters, now they are jailing journalists.
Have journalists been jailed in the U.S.?
YES.
Review your notes from the Frontline News Wars episode shown in class.
...
What is the Free Flow of Information Act? Will it pass Congress soon?
it is an attempt by Congress to pass federal shied laws.
-Not likely to pass.
-Espionage Act, wikileaks



• Free Flow of Information Act
-Passed House in March 2009; Senate Judiciary Committee in December 2009
-Pending before full Senate
-Most contentious issue:
•Definition of a "journalist"
- A person who has the intent to disseminate information to the public
•In Aug. 2010, the Wikileaks scandal prompted lawmakers to consider changes to the bill that would exclude sites like Wikileaks. Still not passed.
• Latest version introduced in 2013
-supported by White House, but many journalists do not believe it protects them adequately.
What famous whistleblowers did we talk about in class. Why are whistleblowers important?
When they they be punished? When are they protected?
Snowden and (Chelsea/Brad) Manning, Snowden fled and Manning was punished --- On August 21, 2013, Manning was sentenced to 35 years' imprisonment
What does the Constitution (the First Amendment) say about access to information?
The right to access info about our government's activities is part of 1st Amend. and protected by Constitution

-Constitution does not guarantee communicator's access to information; protects media's right to publish information about public issues, but not the right to gather this information

-Journalists have no greater right of access to info. than anyone else
Why is freedom of information important?
- In a truly democratic state, information is knowledge.
- Knowledge doesn't just enable and enrich, it empowers.
- With that power, people can hold their government accountable, protect against corruption and inefficiency and ensure our democracy.
Does the First Amendment guarantee the right of access by the press and the public to courts?
First Amendment guarantees access to courts, but not to prisons. (See Pell v. Procunier)
What are the limitations on gathering news and access to public and quasi-public property?
-Common law right for everyone to observe, photograph and record what can be easily seen or heard in public places
-Public officials have the authority to deny access to public property (car accident)
-Quasi-public property is land that serves a public purpose but is not available for general use by public
-Administrator can restrict use on the purpose for which the property is dedicated
Where does the right of access to governmental records come from?
Federal Freedom of Information Act and Federal Public Records Law (Sunshine Law)
What is the Freedom of Information Act? Who can use it? When would you use it? What
type of information is covered by FOIA (hint: Which federal entities are excluded?)? What
information is exempt (hint: focus on exemption we discussed in class)?
• Freedom of Information Act
• Requires agencies to make records available for inspection and copying unless the records fall into one of nine exemptions ‐ where public interest might outweigh disclosure.
• Applies to executive branch ‐ NOT White House, Congress or Federal Courts

Nine exemptions
• National Security
• Agency Rules and Practices
• Statutory Exemptions
• Confidential Business Information
• Agency Memoranda
• Personnel, Medical and Similar Files
• Law Enforcement Investigations
• Banking Reports
• Information about Wells
What is the Buckley Amendment and what does it protect? What is the Family Education Rights and Privacy Act (FERPA)?
FERPA = Buckley Amendments.

This law states that federal funds can be withheld from any educational institution that a) fails to provide parents access to their child's educational records or b) disseminates any information from a student's educational records to any third party without the parent's permission

Protects student education records. Directory information is permitted.
• Grades, health information is private

The law gives parents or "eligible students" (those who are over 18 years old) certain rights with respect to a student's educational records.
What law gives you access to federal meetings?
Government in Sunshine Act or Federal open-meetings law
What are the recent changes to FOIA? (See class discussion on new administration's
approach.)
...
What does the Florida Sunshine Law (Open Meetings Law) require? What governmental
bodies are covered by the Florida Sunshine Law? When does the law apply?
"All meetings of any board or commission of any STATE agency or authority or of any agency or authority of any COUNTY, municipal corporation, or political subdivision. .. at which OFFICIAL ACTS are to be taken are declared to be public meetings open to the public **at all times. .."

--Applies to ANY gathering when 2 or more officials are discussing public matters. These matters must be discussed in public
What is a public record in Florida? Are computer records public records?
- All materials made or received by an agency in connection with official business which are used to "perpetuate, communicate or formalize knowledge."
-All documents, papers, letters, maps, books, tapes, photographs, letters, maps, sound recordings, data processing software or other material, regardless of physical form, or characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

- Yes, computer records are public records in FL
How does someone get a public record in Florida? How much can they charge for a public
record in Florida?
Through the FL public records law
.-Actual cost of copying, not to exceed $.15 per page, $1 for certified copy.
- Clerk of the Court may charge $1 per page
-Can charge for extensive use if you request a ton of pages. Have to pay staff to go through all the paperwork
Are there exemptions to the Florida Public Records Law? Where do the exemptions come from?
Yes.
- Almost 1,000 exemptions specifically listed in statutes. Everything is a public record unless it is exempt.
-Most exemptions come from lobbyists
- The burden is on the public agency claiming the exemption to prove it
- All exemptions must be specifically spelled out in the statute
Can records custodians be penalized if they refused to comply with the Florida Public Records Law? With the Florida Sunshine Law (Open Meetings Law)?
Yes for both laws. Can be penalized with fines, prison, removal of office
Red Lion v. FCC
• Author Cook Criticized Pres. Goldwater in book; Penn. Radio station ran broadcast criticizing Cook.
• Supreme Court upheld FCC doctrine; stations should allow a criticized person on station to respond.
• Court of Appeals upheld FCC
Changes to the Communications Act of 1932 and other interpretations of FCC have repealed Fairness Doctrine
Miller v. California
• Mass mail campaign ads adult material violated Cali obscenity law
• Miller test for obscenity;
o Consider work as a whole, not few, isolated passages
o A reasonable person not an average person must determine if the work has any artistic, literary, political or scientific value.
N.Y. v. Ferber
Ferber like Gerber, kids

• Prohibits the selling of children performing sexual acts because it is obscene.
• Not protected at all
Ashcroft v. Free Speech
• Struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Govn. By the Free Speech Coalition,
• Its not real (virtual) so its not illegal.
FCC v. Pacifica
• Kid hears curse word on "7 dirty words" broadcast
• FCC CAN specifies time, manner, and place for adult broadcasting, but can't altogether ban it.
• FCC deemed indecent: expletives, sexual innuendos, and descriptions of sexual activities or organs, descriptions of excretion.
FCC v. Fox
• Fleeting expletive case; BONO dropped F-bomb on Golden Globes
• Channel fined; Fine reversed in 2012
CBS v. FCC
• Nipplegate
• CBS was fined by FCC for Janet Jackson exposing breasts
• Delayed live television


- Carter requested time for three networks and was denied
- upheld section 312, benefits of it outweigh first amendment
Turner Broadcasting System v FCC
- held that 'new' must carry requirements
Turner Broadcasting System, Inc. v. FCC
• Cable received more than broadcasters
o Newspapers/magazines
o Cable
o Broadcasting

Turner 1: cable operators were required to carry signals of local broadcast stations, even though the cable operators believed that the must-carry provisions violated their First Amendment rights
Turner 2: the must carry law supposedly violated the First Amendment, but the FCC argued that the must carry requirement is content-neutral. The must-carry requirement was upheld

(You must carry Turner)
Reno v. ACLU
• United States Supreme Court case in which all nine justices of the court voted to strike down anti-indecency provisions of the communications decency act, finding they violated the freedom of speech provisions of the 1st Amendment.
• Banned common decency act and made it unconstitutional
ACLU v. Mukasey
• COPA was ruled unconstitutional in favor of CIPA
Sheppard v. Maxwell
• Guy in the 50s (Shappard) killed his wife apparently
• Carnival like atmosphere
• Court overturned the verdict after he spent 12 years in prison because his right were violated by the media
Murphy v. Florida
• Jewel thief felt the jury was bias of him and claimed the trial to be unfair.
• Thurgood Marshall said that jury needs not to be totally ignorantt* of the facts in the case.
• We want informed and current event savy people
• Must put aside your difference
Patton v. Yount
• The court said that the effects of publicity had diminished between the occurrence and the trial being 4 years.
• Not overturned




case determined this about an impartial juror:
-the relevant question is not whether the people in the community remember the case, but whether the jurors had such a fixed opinion they could not judge impartially the guilt of the defendant.
Irvin v. Dowd
• Overturned murder conviction because of bias in the trial
• 8 of the 12 jurors thought he was guilty before the trial began.

Dowd = doubt, Jurors had pre-conceived doubt
Chandler v. Florida
• Cameras became okay in the court room in Florida
• Police were involved in theft ring
• The officers felt it was a violation of their 6th amendment rights.
• Each state can make their own camera laws.
Richmond Newspapers, Inc. v. Virginia -
• Reporters have a limited 1st Amendment right to attend trials.
• The Supreme Court decided that there is a 1st Amendment right of access to criminal trial records.
Globe Newspaper v. Superior Court
• Journalist and media do not have to leave when a sexually abused child is on the stand.
• Judges must close courtrooms on a case-by-case basis.
Press Enterprise v. Riverside Superior Court (Press Enterprise I) Press Enterprise II
• Closed Jury Selection and right to privacy. (PEI)
• If a jury-selected person does not feel comfortable speaking with the media, he or she can go speak privately. (PE I)
• Open during pre-trials (PE II)
• Open to the public and the press (PE II)
• Supreme Court ruled that the public and the press have 1st amendment right to attend pretrial hearings held to determine whether there is probable cause to believe a suspect has committed a crime. (PE II)
Nebraska Press Association v. Stuart
• 3 part test began due to this
• Started with the murder of 6 members of a family by a neighbor
• The judge did not want the media to print things about the court
• Supreme Court ruled it unconstitutional
Gentile v. State Bar of Nevada
• Lawyers cant go about saying whatever they want to say
• They need to be limited because they have access to a wealth of information
Branzburg v. Hayes
• 408 U.S. 665 (1972), was a landmark US Supreme Court decision invalidating the use of the 1st Amendment as a defense for reporters summoned to testify before a grand jury.
• They must ask 3 questions
o Clearly Relevant
o Info cannot be obtained by alternative means
o Compelling and over riding interest in the information.
Cohen v. Cowles
• 501 US 663 (1991), was a case in which the Supreme Court of the US held that freedom of the press does not exempt journalists from generally applicable laws.
• Media made promise, broke it, and reporters now have to get editors and paper approve if anonymous sources could still be okay, considering they could get sued over the issue.
U.S. Department of Justice v. Reporters Committee for Freedom of the Press
• FBI computerized rap sheet on private individuals are not public record because gathering all of this information although plausible is an overriding and therefore, and invasion of privacy.
Procunier v. Pell
• Interviewing prisoners does not abridge 1st amendment rights of reporters.