Law Exam 2


Terms in this set (...)

All four privacy torts - not consistently applied or accepted in all states
False Light
Private Facts
What a false light plaintiff must prove
Must prove:
Publication- widespread distribution
Identification- the material was of and concerning the plaintiff
The published material put the plaintiff in a false light that would be highly offensive to a reasonable person
actual malice, or negligence.
Difference (and similarities) between false light and libel
Libel protects a persons reputation
False light protects a person from emotional distress.
Right of publicity
a property right - means it survives a person's death (heirs still have claim to it)
Using someone's image, voice or likeness for commercial purposes without permission
Avoiding appropriation by including disclaimer saying you used an impersonator
Right of publicity
Why "transformative use" is a defense in a right to publicity suit
a use which is not a literal reproduction of the plaintiff's likeness, but a use in which the defendant has added a creative element to the likeness, like making it a parody of the likeness.
What is intrusion - what might result in a successful intrusion lawsuit
Interfering with another persons solitude or meddling in a persons private affairs.
If the intrusion would offend a reasonable person
Photographers (like paparazzi) who go too far might be sued for harassment
Journalists can't illegally record conversations but they can legally use illegally recorded conversations provided to them anonymously
FERPA stands for the Family Educational Rights and Privacy Act of 1974. Under FERPA, when a student enters university in the U.S. at any age, all rights and responsibilities to privacy of educational records are transferred to the student. Educational records can include grades, financial aid records, disciplinary records, student account information, Dean's Office files, and Residential Program files.

HIPPA is the Health Insurance Portability and Accountability Act. HIPAA protects the privacy of student information in health and medical records, including electronic files.
Government in Sunshine law
affects just Federal government, but many states adopted similar laws
Journalists promises of confidentiality - and consequences of breaking those promises - promissory estoppel
Promissory estoppel is a legal principle that a promise is enforceable by law, even if made without formal consideration, when a promisor has made a promise to a promisee who then relies on that promise to his subsequent detriment.
Food Lion v. Capital Cities (ABC News) case
ABC got away with using hidden cameras, but it was on shaky grounds - not a very safe thing for news organizations going forward
Know about shield laws.
There's no federal shield law for reporters protecting confidential sources, but most federal courts apply a limited First Amendment protection in such situations. Many states DO have shield laws, however.
Former NY Times reporter Judith Miller
jailed for not revealing source to a grand jury
Search warrants of newsrooms are NOT considered a violation of the First Amendment (so they're OK)
Supreme Court three-part test rejecting reporter privilege
Three-part test to determine whether a reporter's privilege can be rejected (requiring a reporter to testify): (1) The reporter possesses information of significant interest; (2) information is clearly relevant to a legal proceeding; (3) information cannot be obtained by alternate means.
Courts are using contempt citations more often these days to force journalists to reveal sources
Branzburg v. Hayes test to determine whether a reporter's privilege protects right to withhold information from courts
duty to testify to first-hand knowledge; test similar to Press-enterprise
Qualified, uncertain protection
(Reporters Privilege)
When can a judge close a court proceeding
Before closing a courtroom (making a trial or certain proceedings within a trial not public), a judge must show: (1) Openness threatens a fair trial; (2) no alternatives to closure exist, and (3) closure will eliminate the threat and will be narrowly tailored to assure maximum public access.
Why broadcast regulation is considered OK - what Titanic has to do with it
Radio Act of 1912
Communications Act of 1934 created FCC - Section 315
still regulates broadcasters to this day.
When one legally qualified candidate for an elective office uses a radio or tv station or cable system.
any other legally qualified candidate for the same office may ask for equal opportunity to use the station or system.
Spectrum scarcity (justification for broadcast regulation)
Public interest - what the FCC concerns itself with in regulating broadcasting
Regulates technologies using electromagnetic spectrum
Regulates wireline and wireless long-distance phone companies
FCC equal time rules for candidates just before an election
Equal opportunity is chance to reach approximately same type and size of audience as opponent had
Multichannel program distributor
like Dish Network or DirecTV
reasonable expectation of privacy
Private facts
information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person.
US v. Jones
GPS transmitter mounted on car violated Fourth Amendment
False light - actual malice?
lots of exceptions - government often doesn't completely fulfill requests
One party vs. two party states - how many participants in a conversation have to know it's being recorded for it to be legal. Lots of variation. You don't need to memorize which states do what, but just know how it varies.
Privacy Protection Act
protects journalists and newsrooms from search by government officials. The act protects "work products" and "documentary materials." A subpoena must be ordered by the court to gain access to the information.
Cable and MVPD laws
Content-based regulations are tested under strict-scrutiny analysis
Content-neutral regulations are tested under intermediate-scrutiny analysis.
Cable and direct broadcast satellites considered MVPD.
An MVPD is an entity that makes available for purchase multiple channels of video programming.
Internet First Amendment protection
Protects internet content as completely as it does print media content.
FCC has considered its role in internet regulation since 2005.
FCC regulations regarding political ads
Stations and systems cannon censor or edit political ads
Which is an area of privacy tort law?
False light
Private Facts
How is the element of "publication" different in false light than in libel?
With false light, publication has to be widespread
Which is part of the tort law of appropriation?
Right to publicity and Right to privacy
What is the best defense for a defendant sued for appropriation?
What is a defense against a suit for intrusion by trespass?
What facts about a person are almost never considered private?
Information contained in public records
What is an example of "quasi public" property?
A military base
What would be an obvious violation of open meetings laws?
Members of a government board deciding behind closed doors what they're going to do
What does FOIA stand for?
Freedom of Information Act
In simple terms, what is promissory estoppel?
Breaking a promise
When are police ride-alongs a problem legally?
When reporters enter private property with police
What agency most directly regulates the use of drones?
When is it OK for the media to publish information from illegally intercepted calls?
If the media played no role in the illegal intercept and the content has legitimate news value
What does the Sixth Amendment to the U.S. Constitution guarantee?
Right to a fair trial
Who is supposed to benefit from an open, public trial?
The defendant (person accused of a crime)
The public (people living in a society free of governmental tyranny)
Before closing a courtroom, a judge must show what?
Openness threatens a fair trial
No alternatives to closure exist
Closure will eliminate a threat to a fair trial
Closure is narrowly tailored to assure maximum public access
What's the significance of the Court's ruling in the Sheppard case?
It established ways to prevent media coverage from making trials unfair
The Branzburg v Hayes case set a standard that reporters must testify before a grand jury if...
There is probable cause to believe the reporter has clearly relevant information
The information can not be obtained by other means
There is compelling, overriding interest in the information
Do the courts consider search warrants of newsrooms a violation of the First Amendment
No, they're considered OK -- not a First Amendment issue