SMAD 370 Exam 4
Terms in this set (93)
Freedom of Information Act
Adopted in 1966, Agencies covered include
or other establishments of the executive branch.
Does NOT apply to the
Members of the president's cabinet
Members of congress
agency can't confirm or deny existence of info
agency must: 1. identify each document that was withheld and 2. say how release of info would harm the interest of exemption
a doctrine a non-party may be bound to the judgement in a previous case if certain factors are met
government whistleblowers who want to get money, not because they are good people
Exemptions from FOIA
Agency Rules and Practices - related to how the agency works
Statutory - applies to documents that congress has declared in other statutes to be confidential ("Catch-all")
confidential business information
agency memoranda - working documents within the agency
personnel - personal files
law enforcement investigations,
info about wells
Problems with FOIA
Transparency message not distributed evenly among executive branch messages
High court costs associated with getting information from the government.
Legally sanctioned removal of information - redacting
Certain agencies (FBI/CIA) have made concerted efforts to weaken the FOIA
Glomarization of data
Computerization of information has led to higher fees for access to information that was once free.
False Claims Act - allow private persons to file suits on behalf of the government against federal contractors, such as government contractors who are doing fraudulent activities.
The law excludes claims to the plaintiff if the claims are based on news reports or other information.
A question came up if the information came from an FOIA claim, could the plaintiff claim damages.
Federal Sunshine Act
This legislation was passed in 1976 and calls for federal agencies to meet in public.
This act pertains to the same agencies that are subject to FOIA.
This act has 10 exceptions which would allow "closed sessions."
You may file suit to prevent a closed meeting in federal district court.
You may file suit to stop future closed meetings.
You may sue for a copy of the transcript of the closed meeting, if suit is filed within 60 days of closed meeting.
May sue agency, but not the individuals involved in the illegal meeting.
Privacy for Gov't
1974 Privacy Act - designed to protect personal information by government agencies.
Computer Matching + Privacy Protection Act of 1988 - Allows government agencies to transfer info about individuals between agencies
Zemer v Rusk (1964)
reporter wanted to go to Cuba despite travel ban.
Importance: ruled that the right to publish does not carry with it the unrestrained right to gather info
EPA v Mink (1973)
Facts: Representative Patsy Mink requested access to classified documents used to decide the issue of nuclear testing in Alaska.
Importance: The USSC rejected Representative Mink's request.
This decision motivated Congress to amend FOIA to allow court review of classified documents, e.g., "in camera."
Gave power to reclassify in the coutrs.
US v Nixon (1974)
Nixon wanted to prevent the release of White House tapes,
USSC ruled that executive privilege can be asserted only when the material in question consists of military or diplomatic secrets
Dept. of Air Force v Rose (1976)
the personnel privacy exemption of FOIA should not be read as an absolute barrier against disclosure of info just because people in the agency was involved. Rose had a reasonable request.
Chrysler Corp v Brown (1976)
an official may release info covered by one of the exemptions specified in FOIA.
The "catch-all" exemption is the only one that is mandatory to be followed
Kissinger v Reporters Committee for Freedom of the Press (1980)
Facts: A request was made for access to the transcripts of Henry Kissinger's telephone conversations when he was secretary of state and national security adviser. Library of Congress possessed notes.
Importance: The term "agency" does not apply to the Library of Congress. This means that FOIA does not apply to this institution.
Forsham v Harris (1980)
Facts: The Committee on the Care of Diabetics wanted the FDA to request specific data from a team of consultants on the effectiveness of various diabetes treatments.
Importance: The USSC held that FOIA can not be used to compel a federal agency to obtain data from a private contractor if the agency does not want to.
Consumer Product Safety Division v GTE (1980)
Facts: GTE wanted to prevent information being released to consumer publications on television sets exploding .
Importance: The USSC upheld the "catch-all" exemption. Because the CPSD fell under the "catch-all" exemption.
FBI v Abramson (1982)
Facts: The Nixon administration requested the FBI gather information on the "enemies" of the President.
Importance: The USSC held that law enforcement information does not lose its protection when summarized or reproduced for another reason.
Pell v Procunier (1974)
members of the media have no constitutional right of access to prisons or their inmates beyond that of the general public
Houchins v KQED (1974)
extended the Pell decision by limiting the access of press in jailhouses
Computer Matching + Privacy Protection Act of 1988
Allows government agencies to transfer info about individuals between agencies
1st amendment calls for a free press, 6th amendment calls for a fair and impartial jury
Potential Prejucicial Pre-Trial Publicity
Prior criminal records
Results of lie detector tests, blood tests, ballistics tests and other investigatory procedures
Character flaws or life-style
Potential witnesses, testimony or evidence
Speculation by officials
Other sensational or inflammatory statements
Change of venire
change the jury pool and use non-locals to decrease bias
Change of venue
move the trial from Harrisonburg to Staunton
move the trial to a later date in order to remove bias
Individuals charged with the same crime charged separately
questioning jurors to see if they are selected for trial
lock out the jury from the outside media/world
Rules for a jury to avoid things like the media or any coverage of the case.
write of habeas corpus
legal doc saying a person needs to be told what they are charged with
Irvin v Dowd (1961)
Facts: Leslie Irvin was convicted for a murder in Evansville, Indiana. Case received extensive publicity. Press called defendant "Mad Dog Irvin," and "Confessed Slayer of Six."
Importance: The USSC stated that statements by jurors could be given little weight when so many jurors admitted to prejudice against the defendant so many times.
Rideau v Louisiana (1963)
Facts: Wilbert Rideau confessed to murder. His filmed confession to a sheriff was aired by a local television station and seen by an estimated 100,000 people in Lake Charles, Louisiana.
Importance: The USSC declared that the televised confession in a very real sense was Rideau's trial and further court proceedings would be pointless.
Potential Prejudicial Pre-trial Publicity
confessions, criminal records, results of lie detector tests, character flaws or life style, potential witness, speculation by officials, sensational or inflammatory comments
may be made without any reason or cause, determined by state laws as to how many of the challenges attorneys may have
Sheppard v Maxwell (1966)
Facts: Dr. Sam Sheppard was convicted for murdering his wife, Marilyn. The television series and the movie, The Fugitive, were based on this case.
Importance: The USSC stressed that judges must ensure a dignified atmosphere in the court, including control over the behavior of journalists.
Murphy v Flordia (1975)
Facts: Murphy was arrested for robbery and assault. Before his trial on these charges, he was convicted of murder and interstate transportation of stolen securities. He argued his criminal record prevented him from receiving a fair trial.
Importance: The USSC held that members of the jury need not be "totally ignorant of the facts and issues" of a case. Justice Marshall went on to say that a mere familiarity with a defendant did not equal a predisposition against him/her.
Prior Restraints on Media
Gag orders on the media - Ruled unconstitutional
Gag orders on news sources - primary method
Courts must consider three things before issuing a gag order on the media sources:
1. quantity and content of media coverage
2. potential effectiveness of alternatives to a gag
3. the likelihood that a gag would remedy the harmful publicity
Nebraska Press Association v Stuart (1976)
Facts: Six members of a family were killed. A neighbor confessed to the killings. Judge issued an order prohibiting the publication of news obtained during public pretrial proceedings.
Importance: The USSC ruled that gag orders on the media are a prior restraint and should only be used after less restrictive alternative methods are used.
Federated Publications v. Swedburg (1981)
Only in the state of Washington
IF the people agreed to a voluntary restraint, then turning it mandatory is fine.
Importance: The state supreme court ruled that Judge Swedburg's order was not a prior restraint because no punishment was associated with a lack of compliance.
Landmark Communication v VA (1978)
If a judge is under investigation, they should be able to be reported on just like anyone else.
Importance: The USSC held that accurate reporting of the conduct of public officials falls under the protection of the First Amendment.
Cameras in the Courtroom
14 states and DC allow cameras in courtrooms
30 states allow some access (VA included)
4 states access with permission
2 states no access (MS and VT)
New Jersey v Hauptmann (1935)
Facts: Bruno Hauptmann was accused of kidnapping and killing the 18-month-old son of Charles Lindbergh. Over 800 journalists covered the trial.
Importance: The media coverage outside the courtroom motivated the ABA to establish Canon 35.
Estes v Texas (1965)
Facts: Estes became the focus of national media attention when he was charged with fraudulently inducing farmers to buy nonexistent fertilizer tanks and property. A two-day pretrial was broadcast live by both radio and television.
Importance: Justice Clark declared that cameras in the courtroom would adversely impact jurors, defendants, attorneys and the judge.
Chandler v Florida (1981)
Facts: Two Miami Beach police officers were charged with burglarizing a restaurant. Two minutes and 55 seconds of the trial were broadcast--depicting only the prosecution's side of the case.
Importance: The USSC ruled the presence of cameras in the courtroom does not automatically jeopardize a defendant's right to a fair trial.
A defendant must prove the harm that the cameras will cause.
pretrail hearings, trial, jury selection, court records
Nixon v. Warner Communications (1978)
Facts: A record company wanted the right to copy the Nixon tapes for broadcasting and sale to the public.
Importance: The USSC ruled the record company did not have a right of access to the tapes.
Gannett v Depasqale (1979)
Facts: A judge prohibited the press from attending pretrial hearing in a police officer shooting case. The pretrial hearing concerned a confession and the evidence that resulted as "fruits" of the confession. Gannett used a 6th Amendment right of public trial argument.
Importance: The USSC declared that the press and the public do not have a constitutional right to attend pretrial hearings.
Richmond Newspapers v VA (1980)
Facts: Before beginning the fourth trial attempt of accused murderer John Stevenson, Judge Richard Taylor closed the trial at the request of the defense.
Importance: The USSC held that the public and the media have a First Amendment right to attend trials, which are presumptively open unless the state can document an overriding interest in closure.
Globe Newspaper v Riverside County (1982)
Facts: A judge ordered a rape trial closed because two of the victims were 16-year-olds and a third was a 17-year-old.
Importance: The USSC ruled that a court should not be closed if the names of the minors were already in the public record or if the minors indicated they were willing to testify in the presence of the press.
Press Enterprise I v Riverside County (1984)
Importance: The USSC declared the press had a right of access to a transcript of a preliminary hearing so long as it didn't invade or potentially invade the privacy of jurors' voir dire information.
Press Enterprise II v Riverside county (1986)
Importance: The USSC claimed defendants must provide specific evidence that an open courtroom would present a "substantial probability" of endangering their rights to a fair trial.
Civil - to get someone to do something.
Criminal - punishes disrespect for the court.
Direct contempt - in the courtroom that disrupts the legal process.
Indirect contempt - away from the courtroom. (ruled inconstitutional)
Bridges v. California (1941)
Facts: An official of the International Longshoremen-Warehousemen's Union was held in contempt after he called a judge's decision in a union dispute as "outrageous."
Importance: The USSC ruled that punishment for criticism of pending court cases can occur only if there is an extremely serious evil imminent threat.
Pennekamp v. Florida (1946)
Facts: The Miami Herald published a series of inaccurate editorials that accused judges of protecting criminals more than the law-abiding public.
Importance: The USSC held that editorials that contain inaccurate information did not pose a clear and present danger to the administration of justice.
Craig v. Harney (1947)
Facts: Craig was held in contempt for comments made about a judge outside the courtroom.
Importance: The USSC ruled contempt powers should not be used to punish the media for what they communicate "unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice."
Where they established that indirect contempt is unconstitutional.
Dickinson v. U.S. (1973)
Facts: Two reporters violated a judge's order not to publish testimony in a murder conspiracy case in Baton Rouge, Louisiana.
Importance: U.S. Court of Appeals for the Fifth Circuit declared that an injunction must be obeyed, regardless of the ultimate validity of the court order.
Protection of a Confidential Source
1st amendment, state shield laws, common law
Garland v Torre (1958)
Facts: Judy Garland wanted to know who at CBS revealed to Marie Torre that Garland was released from her contract. Torre refused and jailed for contempt.
Importance: Journalist must reveal his/her source if the government or plaintiff can meet the following "Three Part Test."
3 Part Test
Journalist must reveal his/her source if the government or plaintiff can meet the following
1. if alternative sources have been exhausted
2. if the info goes to the heart of the matter
3. if there is probable cause that the journalist has info that is relevant to the plaintiff's claim
Branzberg v Hayes (1972)
journalists, like members of the public, have no 1st amendment right to refuse to testify before a grand jury
in re Farber (1978)
journalists must turn over notes or names of sources to protect significant social interest
Herbert v Lando (1979)
journalists's "state of mind" could be questioned and info could be required to be turned over
Baker v F&F Investment (1973)
the source did not have to be revealed because the 3 part test that justice steweart created had not been met, other sources had not been exhausted
Farr v Superior Ct of CA (1971)
CA shield law was ignored
Brown v. Commonwealth (1974)
The court ruled that the plaintiff had to prove that the information sought goes to the heart of the matter
Riley v. Chester (1979)
Applied Rule 501 to protection of confidential sources
Charles v Commonwealth (1974)
the plaintiff has to prove that info sought goes to the heart of the matter
Zurcher v Stanford Daily (1978)
law enforcement agencies could use a search warrant to search newsrooms for evidence
Press Privacy Protection Act of 1980
law enforcement must meet a burden of proof before a search warrant can be issued. a subpoena should be issued first
Minneapolis Star + Tribune v US (1989)
the FBI had to pay damages + attorney fees after FBI agents destroyed the camera and film of a journalist
Cohen v Cowles Media (1991)
Minnesota's promissory estoppel law was not in violation of the 1st amendment. reporters need to be careful about what is promised to news sources
likely to mislead, could deceive a reasonable consumer, contains a material statement or omission that deceive's
Printer's Ink Statutes
found in 47 states, false advertising is a misdemeanor
FTC v Raladam (1931)
the FTC had no authority on behalf of the consumers. motivated congress to pass amendment in 1983 to empower the FTC to act against all unfair + deceptive practices
Valentine v Crestensen (1942)
commercial advertising is not protected by the first amendment, thus creating the "commercial speech doctrine"
FTC v Colgate Palmolive (1965)
fake demonstration or mock ups are illegal when the faked portion attempts to prove the products claim
Pittsburg Press v Human Rights Commission (1973)
employment discrimination is an illegal commercial activity
Bigelow v VA (1975)
speech does not lose protection of the 1st amendment because it appears in the form of a commercial advertisement
VA State Board of Pharmacy v VA Citizens Consumer Council (1976)
recognized a constitutional protection for purely commercial speech motivated by a desire for profit
Bates v State Bar of Arizone (1977)
attorneys have a constitutional right to advertise the prices of routine services
Zauderer v Office of Disciplinary Counsel (1985)
constitutional protection extended to illustrations and pictures in attorney's ads
Central Hudson + Electric Corp. v Public Service Commission (1980)
established a 4 part test to determine the constitutionality of regulations on commercial speech
4 Part Test - commercial speech
1. must determine whether the speech in question is commercially eligible for 1st amend protection
2. examine whether the government asserts a substantial interest in regulating the expression
3. whether the regulation directly advances the government interest
4. sufficiently narrow
Posades de Puerto Rico Associates v Tourism Co of Puerto Rico (1986)
allowed the ad ban of gambling directed at non tourists, extended the 4 part test
State University of NY v Fox (1989)
upheld SUNY's rules and stated that the government doesn't have to use least restrictive means to regulate commercial speech - tupperware parties
US v Edge Broadcasting (1993)
states can regulate specific restrictions to broadcasting advertisements that cross state borders
44 Liqormart v Rhode Island (1994)
RI was unable to support the assertion that the price ad ban will significantly advance the state's interest in curbing alcohol consumption
Greater New Orleans Broadcasting Association v US (1999(
these types of ads can't be banned in states where gambling is legal, the FCC has stopped enforcing restrictions on casino ads
Watson v Philip Morris (2007)
states could allow cigarette lawsuits to proceed instead of being fought in federal courts
First National Bank v Bellotti (1978)
corporations have 1st amendment rights to express itself and therefore a state can't stop a corporation from placing their issue oriented ads
Citizens United v FEC (2010)
held that corporations share with citizens the same 1st amendment rights when it came to political speech. In dissent, Justic Stevens stated that corporations have no beliefs, thoughts, etc. and corporation spending can easily drown the speech of citizens
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