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Mass Media Law FINAL EXAM
Terms in this set (153)
FALSE - does have the right
T or F: in Florida v. BLF (1989) the US Supreme Court ruled that the media does not have the right to publish lawfully obtained info if the info was supposed to be private
FALSE - promote not endorse
T or F: the Booth Rule (Booth v. Curtis Publishing 1962) allows a magazine or television program to use a celebrity's photograph or video to endorse the magazine or TV program even if the photo or video was taken only to appear with a story about the celebrity
T or F: the US Supreme Court ruled in Tinker v. Des Moines School District (1969) that individual students in K-12 retain their 1st Amendment rights at public school as long as exercising that right does not disrupt school discipline or infringe on another's right to free speech
FALSE - there is a statute of limitations
T or F: like murder and other violent crimes, there is no statue of limitations on libel
T or F: commonly, a summary judgment enables a defendant to request an immediate decision by the judge prior to a trial, contending that based on the agreed upon facts there is no way a reasonable juror would find for the plaintiff
T or F: when a person participates in a reality TV show such as "the bachelor," "the amazing race," or "big brother," they sign a consent agreement that essentially relieves the producers of potential libel and invasion of privacy lawsuits
T or F: libel tourism is when public figures receive 1st amendment rights in places such as China and Saudi Arabia because they are US citizens
FALSE - illegal
T or F: under the Buckley v. Valeo (1976) US Supreme Court decision, limiting the spending of a candidate for public office is legal under the 1st amendment
T or F: the Telecommunications Act of 1996, in part est. that telephone companies could now be in the cable TV business and that cable TV companies could now be in the telephone business
FALSE - is permitted
T or F: censorship by the government--particularly during wartime--is not permitted under the 1st Amendment
T or F: rhetorical hyperbole is legal term to describe verbal exaggerations that are so over the top that a reader/listener/viewer knows that they are opinion, not an assertion of fact
FALSE - can demonstrate
T or F: the US Supreme Court has ruled (Snyder v. Phelps, 2011) that a church group--claiming US servicemen are being killed as an act of God because this country is tolerant of homosexually--cannot demonstrate near a military funeral
T or F: one of the many reasons book burning/banning incidents happen on a yearly basis is because there has been no definitive case on the subject ruled on by the US Supreme Court
T or F: in Hustler Magazine v. Falwell (1988) the US Supreme Court decided that negligence is the standard for public and private individuals to win an intentional infliction of emotional distress lawsuit
FALSE - criminals not crime victims
T or F: so-called "son of sam" laws are designed to prevent crime victims from profiting by selling their story to the media
that threats posted on FB can only be prosecuted if you can prove they were "true" threats both objectively and subjectively
the 2015 US Supreme Court decision in Elonis v. US est. ...
after all other legal remedies have been exhausted
normally, a case arrives before the US Supreme Court...
assembly, petition, speech, press, religion
the 5 elements of the 1st amendment are...
is applied to over the air broadcasting--radio and TV
the internet should receive as much 1st amendment protection as the print media
when the US Supreme Court ruled that the 1996 Communications Decency Act violated the US Constitution (Reno v. American Civil Liberties Union 1997), the Court said...
est. as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance--so, prior restraint is the exception not the rule
in Near v. Minnesota (1931) the US Supreme Court...
it was ruled that students in K-12 advocating breaking the law do not have 1st amendment rights and may be censored
in the "Bong Hits for Jesus" case (Morse v. Frederick 2007) involving public schools...
on a military base
public property that is NOT a public forum includes...
a media company may publish materials received from a third party that were illegally obtained by that third party if the matter is of public significance
Bartinicki v. Vopper (2001) est. ...
permits a brief or fleeting use of an individual's name or likeness in some kinds of commercial creations (TV shows, movies, etc.)
the doctrine of incidental use...
Saderup mass-produced his painting of the 3 Stooges, who are owned by Comedy III Inc., on t-shirts. Comedy III Inc. sued Saderup. The Court ruled that because the painting was a literal depiction of the 3 Stooges, it was not protected by the 1st Amendment for mass-production. If it had been a parody depiction it would have been protected by the 1st Amendment.
Misappropriation was the subject of Comedy III Inc. v. Gary Saderup (2001). Explain.
This case established the "fighting words" doctrine, which claims that speech meant to intimidate or cause public disruption may be censored, restricted, or punished. In a later case, it was established that "fighting words" only included face-to-face speech.
the Chaplinsky v. New Hampshire (1942) US Supreme Court decision established a very important concept. Name and explain it.
It is a form signed by all the students upon entering MSU. It allows for a student to decide if a parent or guardian will have access to that student's university records and grades.
What is FERPA or the Buckley Amendment? How does it affect students and parents?
The US Supreme Court ruled that the park, on which the religious group was requesting to have their religious monument built, was government property. So the park falls under government speech, which can determine whether a monument is built or not. Because of space restrictions, which means there is not room for every group to have a monument built in the park, not every group will be fully represented on all government public property.
In Pleasant Grove v. Summon (2009), the US Supreme Court ruled about monuments on public property. Explain.
The Court had a 2-part ruling. Part one stated that crosses, which are burned with intent to intimidate, may be qualified as a threat and are punishable. However, part two stated that not all burning crosses can automatically be assumed to be burned with the intent to intimidate.
Virginia v. Black (2003) was about cross-burning incidents. Explain what the court ruled.
One provision states that all e-mails must have an "unsubscribe" or "opt-out" option.
A second provision states that all e-mails must have a clear "to" and "from" address.
A third provision states that all e-mails sent by commercial retailers or businesses must include a physical address in the e-mail.
Name three provisions of the 2003 Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM).
The Court ruled that The Reflector was a private entity and was not related or associated to the university. So, the editor must treat The Reflector how any other private entity newspaper would be treated; therefore, the editor has the right to censor what advertisements are included in it.
The case of the Mississippi Gay Alliance v. Goudelock (1976) involved The Reflector. What was the ruling by the court?
1. Absolute Privilege— anything said during public proceedings/meetings; "immunity from libel suits granted to government officials & others based on remarks uttered or written as part of their official duties"
2. Qualified Privilege— "...the privilege of the reporter to publish a fair & accurate report of the proceedings in a public meeting or public document & be immune from lawsuit for the publication of libel uttered at the meeting or contained in the document"
Define (and explain the difference between) absolute privilege and qualified privilege to libel law.
1. intrusion upon seclusion or intrusion upon the solitude or seclusion of another - the invasion or intrusion by a person on another person who is in a private or secluded place
3. public disclosure of private facts
False light and misappropriation are 2 of the 4 types of invasion of privacy. List and explain the other two.
1. fault guidelines for public officials -
2. public officials must prove actual malice -
3. actual malice - knowledge that is was false or with reckless disregard of whether it was false or not
The New York Times v. Sullivan (1964) US Supreme Court decision established "fault" guidelines for libel cases. Explain.
-Vincent Foster, a high-ranking White House lawyer involved in the investigation of possible fraud by the Clinton family in the Whitewater real estate venture was found dead in a Virginia park. Two government investigations subsequently found that the death had been a suicide.
-Allan Favish questioned the findings of the government investigations, claiming that they were part of a government cover up of murder. Under the Freedom of Information Act, Favish requested access to 150 photos of Foster's body in the park and during the autopsy. He reduced his request to 129 photos.
-The government initially denied him access to all the photos, but eventually gave him access to 118 photos
National Archives and Records Administration v. Favish (2004)
-While enacted in 1966, it was amended in 1974, and had additional revisions in 1976, 1986, and 1996, and was followed by the Open Government Act of 2007.
-The FOIA requires records of the federal government be made available to the public.
1. It applies to all executive federal government agencies, but not to Congress; federal courts; courts-martial; and the military during wartime.
2. It requires each federal agency to publish in the Federal Register a description of is organization and a list of its personnel who can be contacted.
3. It requires each agency to publish the procedures by which records could be obtained.
4. It requires that all records be segregated so that an entire record cannot be classified as exempt, only parts of it.
Freedom of Information Act (1996) & its requirements
• National Security
• Internal Agency Rules
• Disclosures forbidden by other statutes
• Trade secrets
• Agency memoranda
• Personal privacy
• Law enforcement records
• Financial records
• Geological information
-Exemptions of the FOIA (what the public is NOT entitled to see)
-State open meetings and open records laws
-All 50 states have statutes governing open meetings and open records, and as the book says, "...These laws range from good to awful."
"Sunshine Laws" or the state versions of FIOA
• Must disclose topics that are going to be discussed and why the topics to be discussed need to be private
• If the reporter thinks the meeting is being closed improperly—she/he should formally object and ask what provision of the law allows it to be close. Make sure members of the body agree by majority to close the meeting.
• Inform the public when the body will reconvene in public
"Sunshine Laws" requirements to close a meeting
• Personnel Matters
• Collective bargaining discussions
• Discussions with agency attorneys
• Discussion of the acquisition or sale of public property
"Sunshine Laws" specific reasons
• Trespass—reporters do NOT have the right to trespass on private property nor government-owned property
• Harassment—reporters do NOT have the right to harass, hound, follow, intrude, frighten, terrorize, or ambush people
• Fraud—reporters do NOT have the right to pas themselves off as something they are not
• Misrepresentation—reporters do NOT have the right to misrepresent themselves with promises that they do not keep
Journalists and the Law: Frequent Violations
• In 1982, Dan Cohen - who was associated with the Republican party - approached the media in Minneapolis with previously unpublished info about Lt. gov. candidate - and democrat - Marlene Johnson. Cohen gave info (13-year-old court records about her arrests for unlawful assembly and petty theft) after the media involved agreed not to use his name. The media outlets decided that since it was close to an election, they would publish the info but also publish the name of the source so readers could evaluate the story better. Cohen lost his job and sues for breach of contract.
• After various courts making various ruling (including the U.S. Supreme Court sending it back to Minnesota courts), the Minnesota Supreme Court awards Cohen $200,000 in damages. The doctrine of promissory estoppel (pronounces e-stah-pel) - meaning a legal promise - is argued and effectively won by the plaintiff.
• Failure to keep a promise becomes a legal means to hold the media accountable.
Cohen v. Cowles Media (1992)
• Clear and definite promise
• Defendant intended to induce the plaintiff's reliance on a promise, and that the plaintiff did rely on the promise to his/her detriment.
• The promise made by the defendant must be enforced by the court to avoid an injustice to the plaintiff.
For Promissory Estoppel, Plaintiff Must Prove What
"A court document that requires a witness to appear and testify or to produce documents or papers pertinent to a pending controversy."
"A written order, signed by a judge or magistrate, that may take many verities, such as a search one that allows a law enforcement officer to search for and seize property or possessions that constitute evidence of the commission of a crime."
State laws that protect journalists from being found in contempt of court for refusing to reveal a source; Forty states and DC have them (Both MS (Conservative) & Massachusetts (Liberal) do not
• After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper.
• On two occasions, he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources.
• U.S. Supreme Court voted 5-4 in favor of Hayes
• The Court found that requiring reporters to disclose confidential information to grand juries served as a compelling and paramount state interest and did not violate the First Amendment.
• Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no constitutional violation.
Set the precedents for reporters testifying in front of grand jury: must answer questions
Branzburg v. Hayes (1972)
-In applying reporter's privilege, a U.S. Circuit Court defined journalist as:
• Engaged in investigative reporting
• Gathering news
• Possessing the intent at the beginning of the news gathering process to disseminate this news to the publics
-This will not be the definitive word - the Internet deeply complicates things.
-In 1999, a D.C. Court ruled the cyber-journalist Matt Drudge was protected by journalistic privilege in a libel suit against him.
Who is a Journalist?
1. Failure to pay a judgment in a libel or invasion of privacy case
2. Failure to obey a court order (ex. - no cameras in the courtroom)
3. Refusal of the journalist to disclose the identity of a source or testify in court or before a grand jury
4. Tampering with a jury—a reporter tries to talk with jurors during a trial, asking questions about their views, etc.
Contempt: Most Common Situations that the Media Run into Problems
Dickinson Rule (Collateral Bar Rule)
all court orders—even those that appear to be unconstitutional or may later be deemed unconstitutional by an appellate court—must be obeyed until overturned
• In 1971, officers of the Palo Alto, CA PD obtained a warrant to search the main office of the Stanford Daily, the student newspaper at the university. It was believed that the Stanford Daily had pictures of a violent clash between a group of protestors and the police; the pictures were needed to identify the assailants. The officers searched, but no materials were removed from the office. This case was decided together with Bergna v. Stanford Daily, involving the district attorney who participated in the obtaining of the search warrant.
• In a 5-3 decision, the Court held that the "third party" search of the newsroom did not violate the Fourth Amendment. The Court held that such searches, accompanied by warrants were legitimate when it had been "satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises."
• The Court also found that the Framers of the Constitution "did not forbid warrants where the press was involved."
Zurcher v. Stanford Daily (1978)
-Strike a balance between public's interest and dissemination of ideas and info and the public interest in effective law enforcement when determining whether to subpoena a reporter
-Reasonable attempted should be made to obtain the information from alternative sources,
-Negotiations should be held with the news media whenever subpoenas against the news media are being contemplated
-If negotiations fail, the attorney general has some guidelines to follow in order to approve the subpoena, including the info must be essential - and great caution must be used in seeking unpublished materials
Federal Guidelines because of Zurcher v. Stanford Daily (1978)
• A Nebraska state trial judge, presiding over a widely publicized murder trial, entered an order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that this measure was necessary to guarantee a fair trial to the accused
-US Supreme Court voted 9-0 in favor of the Nebraska Press Association
• The court agreed with the trial judge that the murder case would generate "intense and pervasive pretrial publicity." However, practical problems associated with implementing a prior restraint on the press in the case would not have served the accused's rights.
• Chief Justice Burger reasoned, "a whole community cannot be restrained from discussing a subject intimately affecting life within it."
Nebraska Press Association v. Stuart (1976)
• After a series of mistrials in a murder case in the state of Virginia, a trial judge closed the trial to the public and the media. Defense counsel brought the closure motion the prosecution did not object. Two reporters of the Richmond Newspapers, Incorporated challenged the judge's action.
-US Supreme Court, 7-1, in favor of the judge's action.
• The Court held that the right to attend criminal trials was "implicit in the guarantees of the First Amendment."
• The Court held that the First Amendment encompassed not only the right to speak but also the freedom to listen and to receive information and ideas
• The court also noted that the First Amendment guaranteed the right of assembly in public places such as courthouses
Richmond Newspapers v. Virginia (1980)
-case inspired "The Fugitive" TV show and movie and made F. Lee Bailey famous
• After suffering a trial court conviction of second-degree murder for the bludgeoning death of his pregnant wife, Samuel Sheppard challenged the verdict as the product of an unfair trial
• Sheppard, who maintained his innocence of the crime, alleged that the trial judge failed to protect him from the "massive, widespread, and prejudicial publicity" that attended his prosecution
• Supreme Court voted 8-1 that Sheppard did not receive a fair trial
• Noting that although freedom of expression should be given great latitude, the court held that it must not be so broad as to divert the trial away from its primary purpose: adjudicating both criminal and civil matters in an objective, calm, and solemn courtroom setting. The court concluded that the trial judge should have either postponed the proceedings or transferred them to a different venue
Sheppard v. Maxwell (1966)
• Two Miami Beach police officers were charged with burglarizing a local restaurant. Local TV stations televised a small portion of the trial, thanks to a Florida Supreme Court decision which permitted (with certain restrictions) electronic media to record judicial proceedings.
• Officers Chandler and Granger objected to the coverage and were found guilty.
-Supreme Court voted 8-0 found no constitutional violation in this case
Chandler v. Florida (1981)
• Voir Dire—prospective jurors are questioned before being impaneled to discover if there is any bias
-Challenge for cause: asking for a potential juror to be excused based on something such as deep-seated prejudice or knowing one of the parties involved
-Preemptory challenge: asking for a juror to be excused for no reason (the number is always limited)
• Change of Venue—relocation of a trial in order for a non-partial jury to be selected
• Change of Venireman—not changing the location of the trial...but impaneling a jury selected from another location
• Continuance—trial delayed for weeks or months hoping that the publicity and emotions will die down. If granted, the defendant is giving up his or her right to a speedy trial.
• Admonition to the Jury—jurors may be asked not to read newspapers, watch TV news or read news online during the trial. Judges tell juries to come to a verdict solely on the evidence in the case
• Sequestration of the Jury—jurors are not allowed to go home day to day. They are housed in a hotel, eat meals together, relax together and go to the courthouse together. In this case, telephone calls, email, texting, etc. are either screened or not allowed.
• "Gag" orders—limit the discussion of the case outside of the courtroom
• Anonymous juries—rarely used. Normally only to protect jurors from harm
• Protecting potential witnesses from outside influences
• Limitation on attendance from the media—sometimes "press pool"
• Retrial if the process has been "contaminated" by the media coverage
Pre-Trial Publicity Remedies - First v. Sixth Amendments (Free Press/Fair Trial)
• All 50 states allow television or some still photographic coverage of some court proceedings
• Only 41 states allow camera coverage of criminal trials and a few only allow with the consent of the defendant
• At least 35 states allow trial judges to admit cameras even if the defendant objects
State Court Systems Cameras in the Courtroom Rules
• There have been experiments—1991 in two U.S. Circuit Courts of Appeal-and the 2nd and 9th Circuit Courts have voted to admit cameras in some cases
• In 2007, Judicial Conference approved a voluntary program to allow federal courts to post audio recordings of proceedings online
Federal Court Systems Cameras in the Courtrooms Exceptions and Rules
Justice Souter said that cameras would NEVER be allowed in the Supreme Court, but in 2010-2011 the Supreme Court began to release audiotapes at the end of each week of the arguments made before the high court
Rules for Cameras in the US Supreme Courtroom
-Mississippi's Rules for Electronic and Photographic Coverage of Judicial Proceedings, permit electronic media coverage of judicial proceedings in Mississippi's Supreme Court, Court of Appeals, chancery courts, circuit courts, and county courts
-Electronic coverage is subject to the authority of the presiding judge who may limit or terminate coverage at any time if there is a need to:
• Control the conduct of the proceeding
• Ensure decorum and prevent distraction
• Ensure fair administration of justice
-Any party may object by written motion, filed no later than 15 days prior to the proceeding
Mississippi's Rules for Cameras in the Courtroom
-original obscenity law—there was no law but rather "the eyeball test"
-"I know it when I see it"
Justice Potter Stewart's Definition of Obscenity
• Marvin Miller is convicted of violating a California Penal Code (making it a crime to distribute obscene materials) for sending brochures advertising four erotic books and one film. One recipient of the mailing complained and Miller was arrested and convicted.
• The U.S. Supreme Court voted 5-4 that obscene materials are NOT protected under the First Amendment. And, a "modern-day" definition of "obscenity" is created by the majority opinion
• created the Miller Test
-Overall: The "open to interpretation" nature of the definition has led to much case law to further define obscenity
Miller v. California (1973)
o Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest
o Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
o Whether the work, taken as a while, lacks serious literary, artistic, political, or scientific value
U.S. Postal Service
its censorship has historically been an important means used by the US government to control the flow of obscene material in the US.; Today it is less aggressive and permits postal patrons to block solicitations for adult materials and other obscene publications
1873 Comstock Act
declared that all obscene books, pamphlets, pictures, and other materials were not allowed in the mail; No definition of obscene was given at the time...but the law still stands with amendments
• The owner of a Long Island luncheonette sold magazines that contained female nudity to a 16-year-old boy. New York had a law against selling such materials to minors.
• US Supreme Court voted 6-3 upheld the New York law. Justice Brennan wrote that a state can have a different definition for obscenity between adults and minors in order to protect the welfare of children
-The concept remains today—but there are exceptions when the definition is vague or to narrow
Ginsburg v. New York (1968)
• Police searched a suspected bookmaker's home for gambling evidence. Police confiscated three films found in a desk—viewed the films and decided they were obscene—then charged the bookmaker with possession of obscene materials
• U.S. Supreme Court, 9-0, ruled that there are reasons to have obscenity statutes, but those reasons do not allow authorities to "react into the privacy of one's own home."
Stanley v. Georgia (1969)
• Congress passed the Children's Internet Protection Act (CIPA) in 2000, requiring public libraries to install internet filtering software on their computers in order to qualify for federal funding
• The American library association and others challenged he law, claiming that it improperly required them to restrict the First Amendment rights of their patrons.
• In a 6-3 vote, the court held that because of public libraries use of Internet filtering software does not violate their patron's first amendment rights, CIPA does not induce libraries to violate the Constitution and is a valid exercise of Congress's spending power.
United States v. American Library Association (2003)
CONTENT of the materials - regardless of whether it is a producer, distributor, or someone in possession
-The logic is that it is difficult to catch the people making the materials—though law enforcement does investigate and arrest those who do—so making distribution, sale and possession a crime will reduce the amount of materials on the market, slow production, and therefore result in fewer children being exploited and abused
child pornography laws focus on what? and why?
Miller Test and a jury's interpretation of the materials, adult or minor
obscenity statutes rely on what?
• Paul Ferber and Tim Quinn owned an adult bookstore in Manhattan. Ferber came to the attention of the police when he sold to an undercover cop two films depicting young boys performing a sexual act. Ferber was arrested.
• The U.S. Supreme Court ruled 9-0 that Ferber's claim of first amendment right was not protected in this case was not valid. The court said that preventing the sexual exploitation of minors was a compelling government importance.
New York v. Ferber (1982)
• An amendment to the federal law barred the sale and distribution of any image that "appears to be, of a minor engaging in sexually explicit conduct" (so-called simulated child pornography).
• This was aimed at protecting children from pedophiles and child molesters—who authors of the amendment said may be stimulated by such images and therefore commit crimes against children
1996 Child Pornography Prevention Act
using cellphones, computers, and other digital technologies, taking sexually explicit pictures, and transmitting them to others
-As of 2015, 20 states have laws aimed at "sexting"—the practice of sending sexually explicit or nude or semi-nude photos of minors by cell phone
-ALL states have some type of enforcement
-Some states have adopted lighter sentences for minors sexting "child pornography" than adults.
-Mississippi attempted to create a sexting law but the proposal never became law
-The states that do not have cyberbullying laws are: AL CO HA IN MA MI MO NM ND OH SD TN TX VT WV, WI
-Mississippi Senate Bill 2015, approved by the Governor on the 13 April 2010, requires each school district to adopt anti-bullying policies including cyberbullying and to educate students, parents, and school employees about the dangers of bullying
• the first amendment does NOT protect obscene materials
• Indecent speech is protected in the print media, movies, recordings, and the Internet. It is protected for "premium" cable television channels such as HBO and Showtime, etc., and standard cable (to an extent). However indecent speech is NOT broadcast (over the air) by radio or television during most hours of the day (or if directed towards children over the telephone)
How protected are obscene and indecent materials?
1. Must describe or depict sexual or excretory activities or organs
2. Must be patently offensive as measured by contemporary community standards for the broadcast medium
2 indecent matter requirements
• During a mid-afternoon broadcast, a New York radio station aired George Arlin's monologue, "Seven Dirty Words." Carlin said the words that could not be said on the public airwaves. The station listeners that the monologue included "sensitive language which might be regarded as offensive to some."
• The FCC received a complaint from a man riding in the car with his young son.
• Supreme Court voted 5-4, ruled that limited civil sanctions could constitutionally ne invoked against a radio broadcast of patently offensive words. The words need not be obscene to warrant sanctions. Audience, medium, time of day, and method of transmission are relevant factors in determining whether to invoke sanctions.
• US Supreme Court also upholds the FCC rule that between 6 am to 10 pm broadcasters cannot air "adult" material on over the air radio and TV.
FCC v. Pacifica Foundation (1978)
when an uncontrolled celebrity curses on TV randomly
FCC v. Fox (2012)
-fleeting expletives case
-the decision voids the fines imposed for 3 past instances of so-called fleeting expletives & momentary images of nudity
-the Fox Court did not decide whether the FCC's broadcast indecency policy, under which the fines were imposed, chills free speech
-the V-Chip was created by Congress, but the rating system was created by the industry
-over the air & cable broadcasters use the system voluntarily
Telecommunications Act of 1996: Ratings & V-Chip
area of law that protects INTELLECTUAL property in a tangible medium; ownership of the PHYSICAL property does not give you ownership the INTELLECTUAL property
1. Right to reproduce a work
2. Right to make derivative works
3. Right to distribute the work publicly
4. Right to publicly perform a work
5. Right to publicly display a work
6. Right to transmit information
what may be copyrighted?
1. Literary works (including computer software)
2. Musical works (often lyrics)
3. Dramatic works, including accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic, or sculptural works
6. Motion pictures & other audio/visual works
7. Sound recordings
what variety of items may be copyrighted?
1. Trivial materials
3. Utilitarian goods—things that exist to produce other things
4. Methods, systems, mathematical principals, formulas, and equations
what cannot be protected under copyright law?
1. Inventions that have utility—a machine or a process
2. Designs—the appearance of an article of manufacture
3. Plants—ones that are reproduced through means other than seeds
3 types of patent protections
1. Works are protected for the life of the creator plus 70 years
2. Works created by more than one person are protected for the life of the last living member plus 70 years
3. Works for hire are protected for 95 years after publication
Copyright Act of 1976 & 1998 changes
Sony Bono Copyright Term Extension Act of 1998
act that lengthened many of the copyright periods from the 1976 copyright acts
Copyright Act of 1976
US Constitution gives the right for copyright & patent law "for limited times," but this act put in place a number of years in which certain kinds of intellectual property was protected
• Congress amended the Copyright Act to conform US copyright law with the US's international treaty obligations
• Congress restored copyright protection for certain foreign works that had fallen into the public domain in the US
• The law applied mainly to works first published abroad from 1923-1989 that had earlier not been eligible for copyright protection under US law
• Plaintiffs = orchestra conductors, teachers, & film archivists who had relied on the free availability of these works in the public domain
• Supreme Court upheld a federal law that restored copyright protection to works that had entered the public domain
o They rejected arguments based on the 1st Amendment & Constitution's copyright clause but said that the public domain was not a "category of constitutional significance" & that copyright protections might be expanded
Golan v. Holder (2012)
1) Should be brief - under 1000 words
2) Should be spontaneous - there would be no time to get permission
3) Should not occur more than 9 times per term - with a limited number of copies from a single author
4) Should carry the copyright notice.
5) Should not be a substitute
how does the 1976 Copyright Act clearly define fair use?
• Universal Studios could not come to terms with Miller for the rights to the book, but they made the docudrama The Longest Ride, which is similar to Miller's book
• Universal even included some of the mistakes Miller made
• Miller sued for copyright infringement
• The court rules that research and facts cannot be separated—so Miller does not have the right to copyright facts he researched
• This clearly allows for the use of facts and other people's research in creative endeavors
Miller v. Universal City Studios (1981)
• Nash wrote several books about John Dillinger—claiming he did not die but retired to California
• Most historians agree that he died in a shoot-out with the FBI in 1934
• Producers of the TV series "Simon and Simon" created an episode using some of the ideas from Nash's work
• Nash sues for copyright infringement
• The court sided with "Simon and Simon" saying that Nash portrayed it was history so facts and research are not copyrightable
• Had Nash claimed his work was historical FICTION he would have won
Nash v. CBS (1990)
• AP charged INS (owned by William Randall Hearst) for bribing AP reporters to receive reports gathered by AP reported & copied the articles from bulletin boards & published them in his afternoon newspapers
• Supreme Court ruled that there is a fundamental difference between taking news from the AP & publishing it for readers & taking that news and transmitting it for commercial use in competition with the plaintiff
• Redistributing news & info in competition with another similar news-gathering organization for profit is prohibited
Associated Press v. International News Service (1919)
permits limited copying of an original creation that has been properly copyrighted and is not in the public domain
1. The work must be something that can be copyrighted
2. The original authorship or creation is only protected
3. Protection does not last forever
4. FAIR USE
what are the 4 limitations on the exclusive rights granted by copyright?
1) The purpose and character of the use.
2) The nature of the copyrighted work.
3) The amount and sustainability of the portion used in relation to the copyrighted work as a whole
4) The effect the use has on the potential market for or value of the copyrighted.
4 things courts consider for fair use
1. Is the copyrighted work still available? If out of print, more flexibility to copy.
2. Is the copyrighted work what is called consumable work? Is it used just once? Copying chapters from a book, versus a news article,
3. Is the work an information work or a creative work? Safer to copy a news article than a novel, play or poem.
4. Is the work published or unpublished? The courts passionately protect the author's right to first publication.
1976 Copyright Act est. 4 guidelines for the nature of the copyrighted work
FACTS - news and facts
what can't you copyright?
1. A person trying to pass his work off as the work of someone else
2. A person trying to pass off the work of someone else as his work
unfair competition or misappropriation
unfair competition or misappropriation
has its origin in common law, not in federal statutes; the critical issue is the "likelihood" that people will be confused about the source of the info
Plaintiffs in this case, all major publishing houses, alleged that Kinko's infringed their copyrights when they copied excerpts from books, whose rights were held by the plaintiffs, without permission and without payment of required fees and sold the copies for a profit.
• At issue in the case was the question of who may profit form the reproduction of an author's work, particularly with regard to the practice that Kinko's called anthologizing, which is the copying of book excerpts into course "packets" sold to college kids.
• Kinko's argued that it was covered under fair use.
• Citing the commercial interests involved - namely, the fact that Kinko's made a significant amount of money from the sale of course packets, and that packet sales completed with book sales - the court found that Kinko's was guilty under copyright infringement.
• It ordered the company to pay $500,000 in damages to the publishers and issued an order forbidding it to prepare anthologies without securing permission from and prepaying fees to the appropriate publishers
Basic Books v. Kinko Graphics (1991)
1) The composition - music and lyrics
2) A recorded song is a sound recording - the words and music performed by musicians embedded into a CD, DVD, audiotape, or other recording medium
listening to music is listening to 2 copyrighted works
American Society of Composers, Authors, & Publishers, began in 1914
Broadcast Media, Inc., began in 1939 by radio stations facing increased fees from ASCAP
Society of European Stage Authors & Composers more recently began operations in the US
ASCAP, BMI, & SESAC
said to collect about $2 billion annually for member publishers and composers; grant licenses only for the performance of copyrighted music (including live performances & playing recorded music)
• Simon Tam & his band, The Slants, sought to register the band's name under trademark
• The Trademark Office denied the application because it found the name to likely be disparaging towards "persons of Asian descent"
• The office cited the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that "consists of immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute"
• Supreme Court rules 8-0 in favor of Tam & "The Slants"
• "the Disparagement Clause prohibits trademarks & violates the Free Speech Clause of the 1st Amendment. The court held that, the plain meaning of the text clearly indicated that the clause applied to racial & ethnic groups, & therefore the clause applied to the mark at issue in this case"
Matal v. Tam (2017)
-All radio transmitters and radio operators must be licensed by the federal government. In 1910, all U.S. passenger ships were required to have radios.
-As radio developed in the 1920's essentially anyone could have a radio a station at their desired frequency and location. This caused chaos on the airwaves—stations broadcasting on the same frequency close to one another therefore interfering with one another
-Unlike the print media—newspapers and magazines—radios ceased to be a "right"
-Because of the finite nature of radio waves and frequencies holding a radio station license is a privilege. The technical side of electronic communication is the chief task of the Federal Radio Commission.
-The FRC can't censor content and the public owns the radio spectrum and broadcasters must serve the public interest, convenience, and necessity.
The Federal Radio Commission -in a sense—is regulating content! The Federal government rules over the air waves, not the states.
Radio Act of 1912
-created "order" out of the airwaves
-radio ceases to be a "right" (not like television)
-cleared up the frequencies
Radio Act of 1927
-Repeals and replaces the Radio Act of 1927
-Includes some of the exact same language, but also includes telephones and telegraphs as well as radio
Federal Communications Act of 1934
Federal Communications Commission (FCC)
a body of seven commissioners (now it is five serving five-year terms) regulating interstate & international electronic communication in the country by radio, television, wire, satellite, & cable
-licenses and regulates U.S. television broadcast stations
-Stations are either full power or low power stations.
-Television stations are licensed as either commercial or noncommercial educational
-prohibits indecent programming, puts limits on the number of commercials aired during children's programming, and issues rules involving candidates for public office
-Issue: The FCC established its chain broadcasting regulations to correct eight network abuses in 1941
• RCA dominance of the broadcast industry led to government scrutiny in the late 1930s when the FCC began to investigate the legitimacy of networks, or "chain broadcasting" as it was then called
• The result was the 1941 publication of the FCC's report on Chain Broadcasting
• The FCC orders NBC to sell off one of its two networks...and NBC challenges the edict in court.
• The US Supreme court voted 5-2 in favor the FCC. The licensing system established by congress in the Communications Act of 1934 was a proper exercise of its power over commerce. The standard it provided for the licensing of stations was the "public interest, convenience, or necessity..."
• In 1943 RCA sold its Blue network to Edward J Noble, and this network eventually became ABC. (Museum of Broadcasting)
NBC v. US (1943)
1. Must be a US citizen - Non-US citizens and non-US companies may not own more than 20 percent of a company awarded by a BROADCAST license
2. Must have sufficient funds to build and operate the station for at least three months without earning any advertising revenue.
3. Must either possess or be able to hire people who possess the technical qualifications to operate a broadcasting station
4. Must be honest and open in dealing with the FCC, and have good character. Making fraudulent statements on applications can doom the applicant to failure. Character relates to matters that violate FCC policy as well as felony convictions of owners and/or managers.
-Radio—a single company may own five to eight radios stations in one metro area, depending on the number of radio stations in that area.
-TV—a single company may own TV stations reaching a maximum of 39 percent of the country's television households; The FCC forbids a company from owning more than one of the over the air networks—that is ABC, NBC, CBS, and FOX
licensing: radio & television commercial station ownership
• A letter of reprimand that is put in the licensee's file and may be material at renewal time
• Cease and desist order, which is rarely used but can be used to stop a broadcaster from doing something the FCC does not believe should be done
• Forfeiture or fine. There is a maximum fine per offense, per station
• Short-term renewal, from six months to two years, while the FCC studies the broadcaster's record to determine whether the license should be renewed at all.
• Non-renewal or revocation of the license...rarely used as a sanction
forms of regulation of program content
-if a broadcasting station offers and permits one legally qualified candidate use of its airwaves then it must offer and permit other qualified candidates to use the airwaves, as well.
-Equal means equal
-But it does not allow right of access to ALL candidates
• Congress MUST be allowed on airwaves
• Local elections don't have a right
-Section 315 also bars broadcasting stations from censoring material in broadcasts made by political candidates. (Stations are therefore immune from libel suits on a political candidate's remark.)
-Ballot issues, such as school bond levies, referendums, initiatives, and amendments, are among election related matters NOT covered under Section 315
Section 313 of the Communication Act of 1934 (amended in 1959) or Equal Time/Opportunity Rules
• News interview programs
• Spot news coverage of a news event
• News documentary is not a use if the appearance is incidental to the presentation of the subject of the program
situations NOT covered under the Equal Time/Opportunity Rules
if a broadcaster permits a supporter of a candidate appear in behalf of the candidate, then the station must provide equal opportunity for supporters of other legally qualified candidates for the same office
-The Telecommunication Act of 1996 established how the FCC would issue licenses to offer advanced television services (or digital TV) adding ATSC (Advanced Television Systems Committee, 1982, digital broadcasting) to NTSC (National television system committee, 1940, analog broadcasting) BASICALLY SWITCHED US FROM ANALOG TV TO DIGITAL TV
-Congress authorized the distribution of an additional broadcast channel to each broadcast TV station so that they could use it for digital broadcasting while simultaneously continuing their analog broadcast channel.
-All full power TV stations must be converted to digital by June 12, 2009
Digital Television Transition and Public Safety Act of 2005
-Designed to foster growth of the cable TV industry...and in some ways deregulated the industry.
-unlike over the air broadcasting, CATV is regulated by local and state governments along with the federal government
-flaws in the act quickly surfaced—CATV had monopoly power in communities; could raise rates without limitations; could prevent competition & provide poor customer service with no consequence'
Cable Communications Act of 1984
Cable Television Consumer Protection and Competition Act of 1992
-Developed rate regulations, directed the FCC to create mandatory service standards; and strengthened the local stations over the air presence
BASICALLY, FIXED THE CABLE COMMUNICATIONS ACT FROM 1984
has almost 30 million subscribers worldwide
Direct Broadcast Satellite
a communication link that transmits directly from the transmitter to the user; the end user receives data from a high frequency satellite in geosynchronous orbit (GEO)
-the first entertainment service in the US to deliver all digital-quality, nation's leading digital multi-channel television service provider. Leading nation's digital multi-channel television service provider, 2015
-21 million subscribers
-12.1 million subscribers, 2015
2 main direct broadcast satellite companies
-Broadcasters can't completely block access of candidates for public office form the airwaves.
-In 1971, Congress passed Section 312 of the FCA which states that reasonable access or purchasing of reasonable amounts of times is required for both candidates running for office
-CONGRESS ALWAYS PROTECTS THEMSELVES
candidate access rules
• The Internet Corporation for Assigned Names and Numbers is responsible for managing and coordinating the Domain Name System (DNS) to ensure that every address is unique and that all users of the Internet can find all valid addresses. It does this by overseeing the distribution of unique IP addresses and domain names. It also ensures that each domain name maps to the correct IP addresses
• ICANN is also responsible for accrediting the domain name registrars "Accredi" means to identify and set minimum standards for the performance of registration functions, to recognize persons or entities meeting those standards, and to enter into an accreditation agreement that sets forth the rules and procedures applicable to the provisions
• ICANN's role is very limited, and it is not responsible for many issues associated with the Internet, such as financial transactions, Internet content control, spam (unsolicited commercial email), Internet gambling, or data protection and privacy.
what is ICANN?
Until 1942, the US Supreme Court never considered any case about advertising being protected by the First Amendment
what can be said about advertising and the 1st Amendment?
• It is false and misleading
• It is for unlawful goods and services
when may the government regulate advertising?
• There is a substantial state interest to justify the regulation
• There is evidence that the regulation directly advances this interest
• There is a reasonable fit between the state interest and the government regulation
when may the government regulate truthful advertising for legal goods and services?
• F.J. Chrestensen had a surplus Navy submarine on display and was advertising it with handbills passed out on NY streets
• A city ordinance ONLY allowed political handbills
o US Supreme Court ruled 9-0 "that the Constitution imposes no restraint on government as respects purely commercial speech"
• FIRST ONE RELATED TO FREE SPEECH AND ADVERTISING!!!!!
Valentine v. Chrestensen (1942)
• In 1971, Virginia Weekly published an ad for the Women's Pavilion of NYC which essentially urged women with "unwanted pregnancies" to have the Pavilion assist them with low cost abortions. Abortions were legal in NY, but illegal in Virginia (Roe v. Wade 1973)
• Director and Managing Editor Jeffrey Bigelow is charged with violating a law making a misdemeanor for encouraging or prompting an abortion or miscarriage through advertising.
• The US Supreme Court voted 7-2, overrules the law: "The existence of commercial activity in itself is not justification for narrowing the protection merely because it appears as a commercial advertisement."
• Bigelow sets in motion First Amendment protection for advertising and leads to cases that ultimately form the "commercial speech doctrine."
Bigelow v. Virginia (1975)
• The pharmacy board prohibited licensed pharmacists from advertising the price of any prescription drug. The reason was to keep "professionalism" in the field. Consumers sued, saying people had first amendment rights to RECEVING pricing and discount information.
• The US Supreme Court voted 7-1 agrees with the Citizens Council, but still does not definitely identify when commercial speech could be regulated WITHOUT offending the First Amendment
o Free speech is for the speaker and the receiver
o First Amendment protection never denied to speech merely because it was commercial
o First Amendment is not forfeited because speech is paid for
o Speech suggesting a commercial transaction does not automatically lack 1st Amendment protection
o Consumer interest in the free flow of info may be as high or higher than interest in the day's news
o In a free enterprise society, it is of a public interest that economic decisions be intelligent and well-informed
o As with other categories, some forms of commercial speech may be regulated
Virginia State Board of Pharmacy v. Virginia Consumer Citizens Council (1976)
-Rhode Island passed a statute banning the advertisement of retail liquor prices in places where liquor is not sold.
-Petitioners filed suit claiming that the statute violated their First Amendment right to freedom of speech.
-The district court found the ban unconstitutional, noting that it did not serve any interest Rhode Island might encourage drinking
• In a unanimous opinion, Justice Stevens found Rhode Island's statutory ban liquor price advertising to be an unconstitutional infringement of the liquor seller's First Amendment right to freedom of speech
44 Liquormat Case v. Rhode Island (1996)
-Most recognize the act as the statute that protects trademarks
-businesses that advertise are also familiar with Section 43 C for that act, which is the short but broadly phrased provision permitting business competitors to sue one another for false advertising, among other things
-prohibits any use of false or misleading description or presentation in commercial advertising or promotion that "misrepresents the nature, characteristics, qualities or geographic origin of goods, services or commercial regulations"
Federal Trade Commission (FTC)
the primary enforcer of the consumer protection and was created in 1914
-there are other agencies such as the Food and Drug Administration (FDA) that also help enforce consumer related matters related to advertising.
-made up of five members appointed by the President and confirmed by the Senate for seven-year terms.
-No more than three commissioners can be from the same political party.
-cannot regulate ALL advertising but regulates almost all advertising
-Congress created it to regulate interstate commerce—products or services sold in interstate commerce or the advertising medium affected by interstate commerce.
• Testimonials—celebrity or expert endorser must be a bona fide user of a product at the time of the endorsement and they must sue the product more than just "now and then" or "once in a while"
• Bait and Switch Advertising—it is illegal to advertise goods or services with the intent not to sell them as advertised or to advertise goods and services with the intent not to supply reasonably expected public demand, unless limited quantities are noted in the ad
2 special cases of deceptive/false advertising
• Deceptive advertising of fraudulent cure-all claims for dietary supplements and weight loss products.
• Deceptive Internet marketing practices that develop in response to public health issues.
• Enforcement strategies for new advertising techniques and media, such as word of mouth marketing.
• Advertising food to children, including impact of practices by food companies and the media on childhood obesity
• Industry practices regarding marketing of violent movies, music, and electronic games to kids
• Alcohol and tobacco marketing practices
FTC recent focuses for false advertising
Public Health Cigarette Smoking Act of 1969
took cigarettes off the air broadcast; One section banned the advertising of cigarettes on broadcast radio and TV stations
Tobacco Master Settlement Agreement (1998)
After a class-action suit involving 46 states (the others had already settled), the tobacco industry agreed to discontinue billboard and transit ads (among many other provisions) AND funded an anti-smoking campaign, as well as abolished several tobacco promoting institutes (Then Mississippi Attorney General Michael Moore was the lead negotiator)
Food and Drug Administration
the principle agency for prescription drug advertising & regulation; the FTC & the FCC may have some say though
• A North Caroline radio station wanted to air lottery ads from Virginia, but NC had a law against running lottery ads because lotteries were illegal at the time in NC
• US Supreme Court upheld the constitutionality of the law, saying that there was a substantial state interest in discouraging gambling and that the law was a reasonable fit to achieve that state interest
US v. Edge Broadcasting (1993)
• The greater New Orleans broadcasting association wanted to run advertisements for lawful private casino gambling in Louisiana and Mississippi. The Association challenged the federal government's prohibition against such radio-and television-based advertising.
• The US Supreme Court voted 9-0 that the advertising restrictions unconstitutional insofar as they applied to Louisiana-based advertisers, where the gambling activities being promoted are legal. The law, the court wrote, would not "materially" prevent harm from gambling (that was the state interest argued by the federal government.)
• This ruling did not directly overrule individual state statutes, but effectively this ended the broadcasting ban on advertising for casino advertising!!!!!
Greater New Orleans Broadcasting Association v. US (1999)
THIS IS ON THE FINAL
• The Arizona State Supreme Court—in regulating attorneys—banned advertising.
• Bates was a partner in a law firm, which sought to provide low cost legal services to people of moderate income who did not qualify for public legal aid. Bates' firm decided it that it would be necessary to advertise its availability and low fees. Bates challenges the law.
• The US Supreme Court voted 5-4 that the law banning attorneys from advertising violated the first and fourteenth amendment. The court also held that allowing attorneys to advertise would not harm the legal profession or the administration of justice, and in fact, would supply consumers with valuable information about the availability and cost of legal services.
Bates v. State Bar of Arizona (1997)
National Do Not Call Registry (2003)
created by the FTC to carry out the wishes of the Do-Not-Call Implementation Act of 2003
-Preferred Communication's asked the city of LA for a cable television franchise, but the City refused to grant it one, stating that the respondent had failed participate in an auction that was to award a franchise in the area.
-Preferred files suit alleging that cable operators are First Amendment speakers, that there is "sufficient excess capacity and economic demand" in the south-central area of Los Angeles to accommodate more than one cable company.
-Result: Ninth Circuit Court of Appeals rules that LA violated the first amendment by re-using to issue a franchise to more than one cable television company when there was "sufficient excess physical and economic capacity"
-US Supreme Court ruled 9-0 upholding the circuit court ruling
Preferred Communications v. City of Los Angeles
Digital Millennium Copyright Act of 1998 or UCLA Online Institute for Cyberspace Law & Policy
makes it a crime to circumvent anti-piracy measures built into most commercial software; Outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software
-it is a video delivery service provided by a cable operator to subscribers via a coaxial or fiber optic cable
-Originally, Community Antenna Television (CATV) Service Electric Company builds a large antenna in the Appalachian Mountains of Pennsylvania to receive signals from Philadelphia TV stations.
-It runs a wire to a building and from that building it runs multiple wires tot homes with TV sets.
-Cable TV is born!
-John Walson, 1948, is recognized by the CATV Association as the founder of CATV
explain the origin of cable television
1. any willful disobedience of a court order
2. any misconduct in court
3. any action that interferes with the judge's administration of justice
-they must be followed even if found unconstitutional upon appeal
3 types of contempt orders
-usually compels an individual to do something - name a source, turn over interview notes, produce outtakes of a broadcast program
-normally it occurs aware from the actual court room, but it also could be directly disobeying a court order
any conduct in or near the court that directly disobeys a court order or obstructs court proceedings; individuals that face more than six months in jail for contempt have a right to a jury trial.
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