mass comm law test 2

STUDY
PLAY

Terms in this set (...)

Law as Entertainment
Limitations on recording devices at trial, and the difference between access for journalistic purposes and access for entertainment
Public Interests
"The people"
Sovereigns with interest in self-government and public discourse
Mass audiences
Media usage for entertainment and catharsis
Adversarial Judicial System (AJS)
Three roles - Prosecutor, Defense Attorney and Judge
Set up to be intentionally adversarial
Judge as referee
Assumes that truth will win if each side advocates zealously for his side
Assumes that the witnessing of the process by the judge will lead to the ultimate truth
Therefore judge (or jury) must be free from any outside influence and absolutely consistent procedure must always be used
procedural due process
whereby any person accused of a crime can receive the opportunity to obtain justice
Gag orders
A restraining order (prior restraint) that forbids media coverage
Almost uniformly been declared unconstitutional
Posttrial publication restraints also unconstitutional
Restrictive orders
Non-disclosure orders
Prohibits trial participants from disclosing information
Constitutional, to ensure cases not "tried" in the press
No 1st A. presumed right of access to:
Search warrant material
Grand jury proceedings
Preliminary Hearings (except for California-style Preliminary Hearings)
Presentence Investigation reports
1st A. presumed right of access to:
Motion to suppress if Δ moves or objects, otherwise closed (no right of access)
Voir dire jury selection proceedings
Sentencing hearings
Access toJuvenile Courts
Many states also have expungement statutes which allow juvenile records to be destroyed after a certain amount of time without subsequent incident
Access to Civil Trials and Records
Presumed open
Court follows criminal trial example from Richmond Newspapers case
Also find statutes speaking directly to the issue in many states, as well as state constitutions
Creppy Directive
requires that all proceedings in special interest deportation cases be closed to the press and public, including family members and friends
Record not available to anyone except attorneys, and even then, not always
Came on the heels of 9/11/01
Secret Courts
Always closed
Locations and times not even disclosed
No records kept
Generally used to circumvent 4th Amendment
To obtain electronic eavesdropping (wiretapping) search warrants in secret
Foreign Intelligence Surveillance Act courts which facilitate surveillance of US citizens as well with no public or press scrutiny (expanded by the PATRIOT Act)
Court of Public Opinion"
Guilty until proven innocent?
truTV, CNN...
Pretrial publicity
Litigation limitations
Prosecutors have inherent advantage
Before case filed, very few restrictions as to what can be said
Pre-trial and beyond, restraining orders can be filed and even PR folks must obey them
Most states follow ABA rules
History & Principles of Regulation
•Proper role of representatives
Independent delegate (trustee) & committed delegate (instructed) views
•Motivation of individual citizens
Homo economicus view (self-centered, immediate personal benefits) & the homo politicus view (greatest good for the largest number of people)
Regulation of the business of broadcasting
The power of the U.S. Congress to regulate electronic media comes from Article I of the U.S. Constitution
•Section 8 allows Congress to regulate interstate commerc
First commercial radio station
KDKA in Pittsburgh, PA in 1920
The FCC
was to maintain control of channels of radio transmissions and provide licenses for limited periods of time.
The FCC
Charged with developing and enforcing communications regulations, as regards radio and TV broadcasting, and all interstate and international communications by wire, satellite, cable, or other communications technology
Deregulation
A shift away from the public interest directive
Probably as much for practical administrative oversight issues as for a desire to control budgets and allow more of a free market feel
FCC Licensing
All local broadcast stations must have an FCC license to operate

In general, stations east of the Mississippi have call letters beginning with "W" and those west begin with "K"
Was a 3-year license, now an 8-year maximum
FCC Licensing 2
The current system is called electronic simultaneous multiple-round auctions
Contested Applications
When there are two or more mutually exclusive applicants and only one available license
Radio/TV cross-ownership rule
Enacted in 1970s, limiting number of stations that could be owned together, changed in 1999 (now called the duopoly rule) to a three-tiered market system, but being phased out
Newspaper/broadcast cross-ownership rule
Developed in 1975, no such cross-ownership allowed because would give too much journalistic power to single entity, being phased out in light of FCC interpretation of 1996 Act
National TV multiple ownership rule
Developed in 1953, originally called the "7-7-7 rule", it limited the total number of stations that could be owned nationally by a single entity. In 1984, changed to 12-12-12, changing again in1992 to a more complicated sliding scale, then 1996 Act changed to 35% rule...
Cable TV
Began as Community Antenna Television (CATV) systems in 1960s
Carry-one, carry-all rule (2002)
must carry all requesting stations in the area
A La Carte rule (2000)
allows satellite providers to offer local broadcast stations to subscribers either individually or as a single package
The Internet
Originated with the military's ARPANET
Internet Law is a misnomer in that there is no special category of law that is unique to the internet
Internet Principles
Copyright, defamation, privacy, obscenity, indecency
Fairness Doctrine
Motivated largely by same issues guiding the pubic interest directive
Required broadcasters to give coverage to controversial issues of public interest
Required coverage of those controversial issues to be fair, including an obligation to permit presentation of conflicting views
Balance was required but equal treatment was not
Modified over the years with corollaries and doctrines
Equal Opportunity Rule
Essentially says that if a station allows a political candidate to use its access to the airwaves to talk about the candidacy, then it must make the same opportunity available to other candidates for that office
But, no station has to make that available to any candidate
And, just the appearance of a candidate in a bona fide newscast, etc., does not invoke the rule
Content Control
Sponsorship identification rules
Closed-captioning requirements
Children's television mandates
Access to Private Property
The Supreme Court has repeatedly ruled that the press is not guaranteed any greater right to information than the general public enjoys
Therefore no right of access to private property
Denying access to private land, or a government restricting travel to protect safety is not a concern of the First Amendment
Newsworthiness does not invoke the First Amendment
Numerous "Access to Information" cases
Usually involve competing interests:
Governmental entity
Interests of public being served by entity
Interests of media attempting to gain access
General interests of the public
Examples include:
access to polling places, military facilities and jails, prisons & inmates
Access to military facilities
Authority in base commanders to restrict access is absolute
The Court has heard several cases over the past four decades involving this issue and has consistently held that such restriction is not a violation of any constitutional amendment
Jails, Prisons and Inmates
The media have no greater right of access to prisons or prisoners than does the general public
Neither the public nor the media have any specific First or Fourteenth Amendment right of access to specifically named inmates for interviews
Federal Open Meetings Law
All meetings of federal agencies must be open to public observation, except for 10 subject matters that justify private meetings (see p. 169 in text for the list)
Act applies only to the Executive branch
Therefore leaves out Congress and the judiciary
Requires affected agencies to give one-week public notice of meetings (published in the Federal Register)
There are also many state open meeting laws (all have some sort)
Alabama was first in 1907
Florida next in 1967
Privilege
Often misused; very specific meaning at law:
Particular types of communications or information about which certain parties cannot be forced to testify or to disclose materials relating to that information, because their communications are legally exempt from public scrutiny
Two types of privilege held over from British Common Law:
Attorney-client (client owns the privilege)
Spousal
Constitutional privilege
Fifth Amendment protection against self incrimination
Presidential Privilege
Primarily concerned with statements associated with decision making by the president (a qualified privilege)
Immunity
Refers to an exemption for certain people
Under appropriate circumstances, these people are exempt from the normal operation of law, therefore do not have to come into court to answer for their actions or communications
Can be criminal or civil or both
Federal legislators, President, etc - but only within scope of official duties
Prosecutorial Grants of Immunity
Given by federal or state prosecutors in criminal cases
Testimony cannot be used against the witness
Entirely discretionary
Shield Law (State Statutory Privileges)
State statutes, two types:
Limited or qualified protection from testifying to some class of individuals
Children, rape victims, reporter sources
Limited media liability for defamation when there has been a retraction of a defamatory statement
Affirmative Defense
A justification or legal excuse for some behavior or communication
Δ is responsible to prove
Subpoenas
General
Requires person to appear to give testimony
Duces Tecum
Requires person to collect information and to appear with it
Contempt
Criminal
Used by government for gross/egregious behavior in failing to or refusing to respond to a subpoena (defiance of the court - punitive sanctions)
Civil
Purely coercive; some jail time & fines (usually after lots of warnings