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Title: Communication Law Notes
Description: In depth, detailed notes on Communication Law.

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Communication Law

EXAM 1

1

January 22, 2014
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances
...
S
...
Sonia Sotomayor – October Term 2009



Justice Elena Kagan – October Term 2010

Who’s Next…


Ruth Bader Ginsburg – 81



Anthony Kennedy – 77



Antonin Scalia – 78

Does Anyone Care?


Supreme Court seeing lowest popularity numbers in history

Cell Phones


For years, the National Security Agency has been monitoring phone calls, emails and Internet
use of private citizens and Edward Snowden is in trouble for making that known
...
S
...
C
...




The Sixth Circuit issued a contrary ruling in a similar case
...
S
...


Facebook


Is it speech to “like” a Facebook page?
o



Hampton Sherriff tried to fire employees who “liked” his opponents Facebook page
...
Commonwealth, 2013 WL 3123446 (Ky
...
)

o

Sluss v
...
W
...
2012) (Being a “friend” does not
establish juror bias
...
S
...
It would make more underage
individuals drink illegally
...

The discovery was based on the common customs of the times, thus the term “common
...
S
...

-- William J
...
Vernon
o



States were quarreling over boundary lines without any set way to settle issue
Dispute between states of Virginia and Maryland over control of the Potomac River

1786: Conference to discuss vesting with Congress all regulations regarding commerce
o

Only five states showed

o

Alexander Hamilton from New York convinced them to have another meeting and
each state send a representative



May 1787: Constitutional Convention begins in Philadelphia
o
o

Rhode Island never sent one

o


At no point were all 13 state representatives present
States could sent as many representatives as they wanted, but only had one vote

September 17, 1787: Convention ends
o

Did not result in rewrite of Articles of Confederation, but an entire new document

o

42 delegates present, 3 refused to sign constitution despite Ben Franklin’s plead to
get them to do so

o

George Mason from Virginia would not sign it

The Constitution


Article 1: Powers of Congress



Article 2: Powers of the President



Article 3: Powers of Judiciary



Article 4: Powers of the State
o

Extradition

o

Admission of new states

o

Guarantee of a republican form of government for each state and protection from
invasion



Article 5: Constitution can be amended by a vote of three fourths of the states



Article 6: Constitution is supreme law of the land
o
o



Oaths of office
Religious tests not allowed

Article 7: The constitution is ratified upon a vote of nine states

Communication Law

EXAM 1

6

James Madison and the Bill of Rights
Bill of Rights: The first ten amendments to the U
...
Constitution


Madison’s provisions
o

“The people shall not be deprived or abridged of their right to speak, to write, or to
publish their sentiments; and the freedom of the press, as one of the great bulwarks
of liberty, shall be inviolable
...




13 Amendments made in the original Bill of Rights

Constitutional Timeline
Constitution: A document outlining the organization of a government specifying the rights, responsibilities
and limits of that government


September 17, 1781: Constitutional Convention concludes
o



Constitution sent to the new states

1788: Nine states approve the Constitution (it becomes law); New York and Virginia become
10 and 11



September 25, 1789: The Bill of Rights is sent to the states



December 15, 1791: Virginia adopts the Bill of Rights
o

Becomes part of the Constitution

The Judicial System
Disputes Are Settled In Court


There is a court system for every state and territory and for the District of Columbia

Criminal Suits
Criminal Libel: A malicious publication that exposes or tends to expose a living person or the memory of a
deceased person to hatred, contempt ridicule or obloquy in violation of statue; A prosecutor brings the
criminal charges against the publisher of the publication


Arise from a violation of some rule
o



A violation of statutory law

The government is a party to the suit

Civil Suits
Civil Action: A lawsuit alleging a private wrong, as opposed to a criminal wrong


Involve disputes that fall outside criminal law



The government is not a party, but acts as referee

Communication Law


EXAM 1

7

A civil wrong is called a “tort”

Tort: A civil wrong by one person against another

January 29, 2014
“The freedom that the First Amendment protects is not… an absence of regulation
...
” – Alexander Micklejohn
Jurisdiction
Jurisdiction: The area over which a court has authority; The power and authority of a court to hear and
determine a judicial proceeding; The area may be geographic or based on subject matter of the case
...
Putney Pornographer – Commonwealth v
...
Commonwealth

ú

Reaches Supreme Court: Pornographer v
...
S
...
Some state supreme courts also use the
term
Writ: An order by a court requiring some action or giving authority and commission to that act


Cert is granted
o

Takes four votes for the court to accept the case

o

Dissent from the denial of court may be written by a justice as to why he or she did
not vote to accept the case



Oral Arguments
o

30 minutes per side

o

Partying bringing the case speaks first



Discussion at conference



Opinions circulated to the justices



Opinion delivered

Supreme Court Opinions


Tells us the outcome of the case and the rationale of the outcome of the case



Opinion of the Court: The majority, and therefore, controlling opinion
...

- Justice Sandra Day O’Connor
The First Amendment


Congress shall make no law abridging the freedom of speech or of the press

Congress


The House of Representatives



The Senate

Madison’s Provisions


“No state shall violate the equal rights of conscience, or the freedom of the press, or the trial
by jury in criminal cases
...


The Fourteenth Amendment


Section 1
o

“All persons born or naturalized in the United States and subject to the jurisdiction
thereof are citizens of the United States and of the State wherein they reside
...


Individual Guarantees


The 5th Amendment
o

“…nor shall any person be deprived of life liberty or property without due process of
law
...


Gitlow v
...
” – Fourteenth Amendment



“For present purposes we may and do assume that freedom of speech and of the press –
which are protected by the First Amendment from the abridgement by Congress – are among
the fundamental personal rights and ‘liberties’ protected by the due process clause of the
Fourteenth Amendment from impairment by the states
...
” – Justice William Brennan

First Amendment of Not?


NC Central University
o

Students won court case

o

Newspaper is there to be voice of opinion for the students and you are not allowed
to close it down



Baylor University
o
o

Newspaper advertised for female Baylor students to go photograph

o

President cut off funds to newspaper

o


Playboy College Football Issue

President would have one because it is a private university

Chick-Fil-A and gay marriage
o



Owner stated he didn’t believe in gay marriage and thought it was wrong

The Beatles and God
o

“The Beatles are more popular than God”

Communication Law
11



EXAM 1

Virginia Tech Professor
o

English professor questions the “Support the Troops” mantra

o

Virginia Tech administration says he has the right

The Freedom of Speech


“That which is spoken; utterance, remark, etc
...
Des Moines School District


1969



Two high school students and one junior high student



Black arm bands worn to school to support Christmas cease fire in Vietnam and oppose war



School said they could not wear arm bands



Filed suit and court upheld they could not



Supreme Court fund it was protected speech



“… direct, primary First Amendment rights akin to ‘pure speech
...
S
...
O’Brien


1969



David Paul O’Brien



Burning of the draft card



Against federal law to damage draft card



Pure conduct
o



Conduct that is pure speech
o



Actions with no communicative elements
Actions without any practical purpose

Mixed conduct
o

Conduct that combines practical and communicative elements

Communication Law
12

EXAM 1

Expressive Conduct and the Court


Is the conduct expressive?
o
o



Is there an intent to express a message?
Is a likelihood the message will be understood by witnesses?

Is the regulation aimed at suppressing speech?
o

Yes: Strict Scrutiny

o

No: Intermediate Scrutiny

February 5, 2014
“Assassination is the most severe form of censorship” – Oscar Wilde
Strict Scrutiny
Strict Scrutiny: A test to determine whether a regulation is constitutional; The test is used when
regulation is directed at the suppression of expression; Under the test, the regulation is constitutional if it
meets a compelling government interest and is narrowly tailored


Does the regulation advance a compelling government interest?

Compelling Government Interest: AN overriding interest advocated by the government that must
be proved in order for a regulation aimed at suppressing expression to be found constitutional
...
Johnson


1989



Was the conduct expressive?
o

“The expressive, overtly political nature of this conduct was both intentional and
overwhelmingly apparent
...
California
o

1971

o

“Cohen’s absurd and immature antic… was mainly conduct and little speech
...
In fact, words are often chosen as much
for their emotive as their cognitive function
...
New Hampshire
o

1942

o

Fighting words “are no essential part of any expression of ideas” and are of slight
social value



Terminiello v
...
and nothing I could say tonight could
begin to express the contempt I have for the slimy scum that got in by
mistake
...
It is happening
here,…Millions more… are being murdered… being raped and sent into
slavery
...


§

“Now, this danger which we face – let us call them Zionist Jews if you will,
let’s call them atheistic, communistic Jewish or Zionist Jews, then let us not
fear to condemn them
...
Village of Skokie
o
o



1977
Use of Nazi symbols in a parade does not constitute fighting words

R
...
V
...
City of St
...
Black


2003



Commonwealth v
...
Commonwealth



Virginia v
...
Black


Watts v
...
S
...
Indiana
o
o



1973
There must be advocacy rather than hyperbole

NAACP v
...

– Justice John Marshall Harlan
License Plate


North Carolina Plate



“First in Freedom”



Changed to “First in Flight”

Or of the Press


“The primary purpose of the constitutional guarantee of the free press was teo create a
fourth institution outside the government as an additional check on the other three official
branches
...
’” – Hugo Black



“The issue is not whether lines shall be drawn regulating expression, but where those lines
shall be drawn
...
” – Oscar Wilde
“The issue is no whether lines shall be drawn regulating expression, but where those lines shall be
drawn
...


Prior Restraint Cases


Near v
...


o


1931
First case in which state law was struck down because of Gitlow v
...
United States
o

1971

o

A “likelihood of direct, immediate and irreparable harm to our nation
...
Stuart
o

1975

o

Prior restraint is “the most serious, least tolerable” infringement of First Amendment
rights

Communication Law
17



EXAM 1

Rosenberger v
...


Prior Restraint Summary


Prior restraint is a violation of the First Amendment and is the most serious and least
tolerable version



Any system of prior restraint comes into court presumed to be unconstitutional



In certain circumstances, prior restraint may be tolerated

February 16, 2014
Pornography
“I may not be able to define obscenity, but I know when I see it
...
Brennan via Potter Stewart
Obscenity


“I may not be bale to define obscenity, but I know when I see it
...
” – John
Marshall Harlan



“I am forced to conclude that the concept of obscenity cannot be defined with sufficient
specificity and clarity to provide fair notice to prevent substantial erosion of protected
speech… and tot avoid very costly constitutional harm
...
California and, therefore, lies outside of
First Amendment protection
Timeline


1868: The Hicklin Rule



1842: Importing obscene material prohibited



1878: Mailing obscene material illegal



1930s: Hicklin rule dies



1940s: Mailing restrictions curbed

Hannegan v
...
” That didn’t give Postmaster General Frank C
...
Post Office


1970



“The right of every person to be let alone must be placed in the scales with the right of
others to communicate”



Resulted in form 2201
o

Can keep material from being sent to you

Roth v
...
S
...

o



Material is not obscene just because it’s about sex

First time court said obscene material is not protected by the first amendment

Communication Law
19

EXAM 1

Miller v
...
U
...
the majority of the court reached an agreeing opinion on
obscenity



Three prong test: The Miller Test
o

The average person applying contemporary, local, community standards must find
the work, taken as a whole, appeals to the prurient interest
§

o

Local standard

The work depicts in a patently offensive way sexual conduct specifically defined by
applicable state law
§

o

State standard

The work lacks serious, literary, artistic, political, or scientific value
§

National standard

Obscenity in Virginia


“Considered as a whole material has as its dominant theme or purpose an appeal to the
prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct,
sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and
which goes substantially beyond customary limits of candor in description or representation
of such matters and which taken, as a whole, does not have serious literary, artistic, political,
or scientific value
...
New York
American Booksellers v
...
Pacifica

Communication Law
20



EXAM 1

The Internet

Internet: An international network created by high-speed, broadband connections and satellite
links
o

Indecent material cannot be restricted for adults in order to protect children
§

o

Reno v
...
Free Speech Coalition

Filtering can be required of public computers, particularly if an agency receives
federal funds
§

o

U
...
v
...
S
...
Williams

Communication Law

EXAM 2 – PART 1

1

February 24, 2014
Copyright
Congress shall promote the progress of sciences and the arts “by securing limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries
...
S
...
” – William O
...
Acuff-Rose Music
1994

The Nature of the Original

3
o

The Amount and Substantiality of the Copying
§

Harper and Row v
...



The Simpsons and Jon Else



Eric Eldred and the Copyright-come-lately



Authors Guild v
...

o

Denny Chin, 2nd U
...
Circuit Court of Appeals
§
§

o

Would not approve deal in 2011
But in 2013 approved when parties came back a second time

The project is highly transformative
§

It makes snippets, rather than entire works available

§

Google does not sell snippets

o

The copyrighted works are books that remain available to the public

o

While the entire works are copied, only snippets are made available

o

A reasonable fact finder could only find that Google Books enhances the sales of the
books

A Path Not Taken


Lawrence Lessig’s solution
o

50 years after a work is published, the copyright owner must register the work and
pay a small fee

o

The copyright owner would then have the full term of the copyright

o

Otherwise the work would fall into public domain

Public Domain: Available for anyone to use without authorization

4
J
...
Rowlings Adventures


Larry Potter
o

Nancy Stoffer sued J
...
Rowling for copyright because of her children’s book Larry
Potter and the use of the word “muggles”

o


Court said you are unable to copy right words

Harry Potter Lexicon
o

Steven Vander Ark loses bid to publish a Harry Potter Lexicon

o

J
...
Rowlings asked for no porn to be added

Mickey Mouse


Steamboat Willie



Author claimed Disney did not own the copyright to early version of Mickey Mouse

Copyright and the Growth of the NFL


Clint Murchison says thank you to George Preston Marshall
o

Gave copyright to “Hail to the Redskins” song



George Preston Marshall says thank you to Clint Murchison



And the Dallas Cowboys are part of the NFL

March 3, 2014
Advertising
Advertising is Different


It is persuasive



The speaker has a vested interest in your response to the message



It bought and paid for before it reaches the consumer



The consumer helps pay for the message



The interest of the source makes the message particularly sturdy
o

Caused increase in regulation

Conditions of Modern Advertising


Brand Names



Improved Transportation



Mass Media

5
Advertising and the Supreme Court


Valentine v
...
Sullivan
o

1964

o

Most important First Amendment case

o

Began when an organization published an advertisement in the Times soliciting
money

o

Someone else paid for the advertisement
§

Commercial Speech

Commercial Speech: Communication intended to promote a business or service
or sell a product


Bigelow v
...
Virginia Citizens Council
o

Purely commercial advertising

o

Council wanted to post in pharmacies in the chart with prices of name brand and
generic drug costs

o
o


First time court ruled commercial speech is protected by the First Amendment
If commercial speech is deceptive it might not be protected by the First Amendment

Central Hudson Gas and Electric Corp v
...
Is that advertisement accurate and does it advertise a legal product?
2
...
Does the regulation directly advance that interest?
4
...
Kasky
o

Nike responds to criticisms of its treatment of workers in foreign plants

o

Attorney Mark Kasky sues Nike for unfair and deceptive practices

o

California Court of Appeals says Nike’s response is part of a debate on matters of
public concern

o

This issue didn’t have to do with sales but rather with a debate over the way Nike
treated workers—that’s a matter of public concern (Court of appeals)

o

California Supreme Court says a commercial speaker is talking to a commercial
audience

o

The Supreme Court says nothing…But it will sooner or later

o

Commercial speech is protected by the First Amendment but it can be more
regulated than other kinds of speech

The Federal Trade Commission (FTC)


Established by Congress in 1914 to prohibit “unfair methods of competition in commerce”



In 1924 a court case allowed the FTC to regulate the unfair marketing of candy to children



In 1938 the FTC Act amended to prohibit “unfair methods of competition in commerce and
unfair or deceptive acts or practices in commerce
...
D
...
It contains the pain relieve
most recommended by doctors plus an extra active ingredient (caffeine) not
found in leading buffered aspirin”

o

Representation or omission must be likely to cause harm

Federal Trade Commission Remedies Before the Fact


Staff Opinion Letters
o
o



Quick free advice from someone who works there
Informal opinions

Advisory Opinions
o



Formal requests and responses for the record

Industry Guides
o

FTC interpretations of the law written for the industry in the form of general
statements



Policy Statements
o



Provides the FTC stand on its regulatory policy

Trade Regulation Rules
o

They have the force of law

o

Violators may be sued for engaging in deceptive acts

o

Violators may be required to refund money, return property or pay damages and
penalties

8
Federal Trade Commission Remedies After the Fact


Consent Decrees
o
o

Asks advertiser to change their ad

o


The FTC and advertiser agree on how the complaint will be resolve
Almost 90% of their cases settled this way

Cease and Desist Order
o

Order to stop the advertising following a complaint filed by the FTC

o

Field if the order is in the public interest and issued by an administrative law judge
§



An order can be appealed to the full commission and then into federal courts

Injunction
o
o

Orders and immediate halt of an ad

o


Orders by federal judges
Usually when the public health might be at risk

Affirmative Disclosure
o

An order requiring statements in future advertising designed to provide certain
information that was not provided in previous advertising



Corrective Advertising
o

A requirement that an advertiser use language specifically designed to correct
impressions that may have been caused by misleading language in previous
advertising



Civil Penalties



Criminal Penalties

Advertising and the Law


Advertising is a “particularly sturdy” form of speech



Commercial speech enjoys limited First Amendment protection



The Supreme Court established the Central Hudson test to determines when regulation is
constitutional



The Federal Trade Commission regulates speech

March 5, 2014
“Red Lion adopted and Pacifica reaffirmed a legal rule that lacks any textual basis in the Constitution…
Moreover, traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms
they once were
...
Pacifica

9
“…As public convenience, interest or necessity requires
...
Does not apply to
candidates appearing in newscasts, documentaries, or news-event coverage


If a broadcast station allows one legally qualified candidate for public office use of its
facilities it must allow all legally qualified candidates for the same office the same opportunity



Once you do it for one, you must do it for all



Only legally qualified
o
o



Must publically announce they are running
Must meet qualifications for office

If it is for the same position and party, both have the same equal opportunity but not for the
other party

10
Indecency Over the Airwaves


Federal Communications Commission (FCC) considers something indecent if it has to do with
sex or bodily functions

Federal Communications Commission: The principal communications regulatory body


1978: FCC v
...
FCC

Administrative Procedures Act

Administrative Procedures Act: Federal agencies are not allowed to change the rules and
regulations without doing certain things
o

Cher saying “Fuck ‘Em’” in 2002

o

Nicole Ritchie saying “… Its not so fucking simple”
§

FCC v
...


o

It cannot be said today that broadcasting holds a “uniquely pervasive presence” in
society



In FCC v
...
ABC (NYPD Blue episode),
the court holds that the FCC violated the networks’ due process rights by not giving fair
notice of a change in policy
o

Justice Ginsburg wrote, “FCC v
...
Fox TV Stations I and II
§

The FCC reduces its backlog of indecency complaints by 70%

§

And issues a public notice for comments on whether to change its indecency
policies

Criteria For Licensure


U
...
H
...
Easton Area School District


725 F
...
2013), cert denied 2014 WL 901854 (2014)



The speech was on a political or social issue



The bracelets were not plainly lewd under Bethel School District v
...
Des Moines
Independent School District (1969)

How Has the Internet Changed Your Life?


Watching movies



Shopping



Google

Telecommunications Act 1996
Telecommunications Act of 1996: First major regulatory overhaul of telecommunications since 1934,
designed to open the industry to greater competition by deregulating many aspects of it


Telephone Companies



Direct-to-Home Services Satellite TV



Wireless Cable



Digital TV



Interactive and Other Video Services

Slamming: The illegal practice of switching a person’s long-distance service provider without permission

13
Ownership and Cross-Ownership Rules


Broadcast license renewal



Internet Service Providers cannot be held liable for posting to their services
o

Section 230

Reno v
...
Pacifica does not apply”



Also distinguished
o
o



Ginsburg v
...
Playtime Theatres

The Communications Decency Act is a content based regulation, so vagueness is important
because of the obvious chilling effect on free speech



The breadth of the act is “wholly unprecedented”



“… It may extend to discussions about prison rape or safe sexual practices, artistic images
that include nude subjects, and arguably the card catalogue of the Carnegie library
...
” – Justice O’Connor

March 19, 2014
“Each medium of expression… may present its own problems
...
Conrad (1975)
Internet Privacy and Other Issues


Inappropriate use of the Internet



Privacy



Spam

The Changing Nature of Privacy


Traditional Rule
o

If it occurs in public, it cannot be private



“The law of publicity is in a state of complete disarray because of video game cases
...
Electronic Arts
o

9th Cir
...
Nor is it suggested that newsgathering does not qualify for First Amendment
protection; without some protection for seeking out the news, freedom of the press could be
eviscerated
...
Hayes (1972)

But…


Journalists don’t have rights over citizens don’t have also: Branzburg



Journalists have no rights to interview prisoners: Pell v
...
Washington Post, Houchins
v
...



Access to military bases and the battlefield has been limited by the Supreme Court



Trespassing laws apply to journalists just as they do to non-journalists



Law-enforcement officers cannot give journalists special access rights

The Ride-Along Cases


Wilson v
...
Berger
o

CNN and U
...
Fish and Wildlife agents

o

CNN accompanied agents to ranch in Montana in search of eagles that may have
been poisoned by pesticides

o

Ranch owners sued agents who had invited the journalists along

2
Restrictions on the Government


Landmark Communications v
...
Des Moines Register
o

Des Moines register published a story about deaths and mistreatment of clients at a
home for retarded children and adult

o

Howard was a woman identified in the story and filed a private facts suit against the
newspaper

o

Howard won at trial court level
§

Lost at Iowa Supreme Court
ú

Newsworthy

ú

Public Information

ú

Not morbid, sensational, or prying information

ú

Without her name story would not have been as credible

The press cannot be punished for publishing the name of a rape victim

March 26, 2014
Confidential Sources
Supreme Courts Stance


The press has the right to gather news and keep sources confidential



Must give up information essential to protecting the rights of others



Journalist does not have the right to refuse to testify to grand juries when the reporter has
direct evidence of criminal activity involving their sources
o

Branzburg v
...
Wilson criticizes the Bush Administration



Robert Novak identifies Wilson’s wife, Valerie Plame, as a CIA agent
o

Judith Miller of the New York Times and Matthew Cooper of Time magazine receive
information on Plame

o

Miller and Cooper refuse to identify their sources for special prosecutor Patrick J
...
Hayes


Do journalists have a First Amendment right to keep their sources confidential?
o

No

o

Societal interests in law enforcement outweigh
§

Media harassment will not be tolerated
ú
ú

Blackmun

ú

Rehnquiest

The holding is limited
o

Powell concurs

The right exists
o



Powell

ú



Burger

ú



White

Douglas dissents

A privilege exists but a three part test must be met by the government
o

Stewart Test

5
Stewart Test


The government can require testimony from a journalist only if
o

It can show probably cause that the journalist has information clearly relevant to a
specific violation of the law

o

It can show the information is not available anywhere else

o

It can demonstrate and compelling and overriding interest in the information

The Brown Test


The privilege must yield
o

When the information is not available from other sources

o

When one of three additional criteria is met
§

The material is needed to prove an element of a criminal offense

§

The material is needed to prove a defense

§

The material is needed to mitigate the penalty



Virginia’s privilege has been extended to civil actions



It has not been extended to non-confidential sources



Nor is there a right to renege on promises made to confidential sources
o

Cohen v
...
Stanford Daily



Under the Privacy Protection Act, law enforcement officers must seek subpoenas instead of
search warrants unless
o

There is probable cause to believe the person with the material has committed or is
committing a crime to which the material is related

o

There is reason to believe immediate seizure of the material is necessary to prevent
death or serious harm

o

There is reason to believe the subpoena will cause the material to be destroyed

Subpoena: A command to appear in court at a certain time to testify about a certain matter
Subpoena Duces Tecum: Requires that the subpoenaed party bring certain documents or other materials
to the hearing
o

The material is not supplied following the subpoena, other remedies have been
exhausted, and further delay with threaten the interests of justice

6
March 31, 2014
Free Press v
...
Maxwell (1966)
Nature of the Problem


Pretrial Publicity
o

May make it difficult to find impartial jurors who have not made up their minds about
the defendant’s guilt before the trial begins
§
§

Confessions or other admissions by a defendant

§

Results of investigative procedures or tests

§

Opinions regarding the character, personality, guilt, or innocence of accused

§


Prior criminal records

Speculation on evidence of witness

During-trial Publicity
o

May taint a sitting jury causing jurors to base a verdict on what they read, see, or
hear in the media or information they gather on the Internet rather than solely the
evidence presented at trial



Presence of Journalists
o

Equipment in courtroom may be cause a physical and/or psychological distraction
and disruption

Sixth Amendment Guarantees


A speedy trial



A public trial by



An impartial jury



Of the state and district where the crime occurred

Voir Dire
Voir Dire: The process through which attorneys and a judge question potential jurors to determine
whether they are qualified to serve


To see, to say



Speaks the truth



A speedy and public trial by an impartial jury

7
The Constitutional Conflict


“Congress shall make now law… abridging the freedom of speech or of the press
...
” –
Sixth Amendment

Prejudicial Publicity


Two broad categories of remedies designed to deal with problems created by media
coverage of trials
o

Measures designed to compensate for the existence of prejudicial publicity
§

Change of Venire or Venue

Change of Venire: The transfer of a jury pool from a distant jurisdiction to a
location in which a crime was committed in order to seat jurors who have not
been biased by publicity about case
Venire: The potential jurors in a trial
Change of Venue: The moving of a trial to a location other than that in which the
crime was committed in order to seat jurors who have not been biased by
publicity about the case
Venue: The place in which a trial occurs
§

Postponement

§

Voir dire

§

Admonitions to the jury

§

Sequestration

Sequestration: The isolation of members of a jury during the taking of evidence
and/or the deliberations on the facts of a case
§
o

Emphatic and clear instructions

Measures designed to prevent or diminish prejudicial publicity and to control the
presence or activities of journalists in the court room
§

Gag orders on the media

Gag Order: An order by a court not to speak or write about matters before the
court
§

Restrictions on trial participants

§

Post-publication sanctions

§

Denial of access to court records

8
The Courts


Sheppard v
...
Stuart
o

1976

o

Prior restraint is now allowed, but a court should consider
§
§

Possible alternative measures

§


The nature and extent of possible publicity
The effectiveness of the gag order

Gannett v
...
Virginia
o
o



1980
There is a First Amendment right of access to trials

Globe Newspaper Company v
...
Riverside Company Superior Court
o

1986

o

Pre-trial hearings are presumptively open

Prejudicial Information


Statements about the character of reputation of the accused



The results of any test



Contents of statements made by the accused
o

Except a denial of the charges



Statements about the character or reputation of possible witnesses



The possibility of a plea bargain



Comments about the evidence



Prior criminal records

9
Non-Prejudicial Information


Factual information about the accused



The substance and text of the charge



Any action by a judge in open court



Anything in official records not sealed by a judge

Cameras in Courtrooms


Estes v
...
Florida
o

1981

o

Estes distinguished
§

o

Technology has improved

The Constitution does not prohibit a state from allowing cameras

Cameras in Virginia Courtrooms


The presiding judge controls



Certain photography is not allowed



Discussions at the counsel tables may not be recorded



There must be pool arrangements



Equipment and personnel are limited



Courtroom decorum must be maintained

April 2, 2014
Access
Access and Information After September 11, 2001


Became more difficult to
o
o

Access information from government websites

o


Get information from federal agencies under FOIA
Review presidential records

Agencies were encouraged to withhold many types of information formerly available to the
public



USA Patriot Act
o

Law passed by congress that allows the FBI and other intelligence agencies to access
personal information and records without consent from targeted individuals

10


Homeland Security Act
o

Provides mandatory confidentiality for information submitted to the government by
business

o

Criminalizes agency disclosure of critical infrastructure information without the
consent of the business

o

Designed to protect information about the vulnerabilities of the country’s critical
infrastructure

o

Companies that voluntarily share information with government are guaranteed
government will keep information secret and become immune from civil liability if
information reveals wrong doing
§



Have immunity from antitrust suits from sharing information

The Freedom of Information Act
o

Law that gives you the right to access information
§

o

Every state has one

Required deferral government agencies to make their records available for inspection
and copying unless the records fall into one of nine categories

o

Does not apply to congress, courts, or president’s staff

o

Same information must be published
§

Other information can be requested

o

An agency can charge reasonable search and copy fees

o

Shall be liberally construed

o

And exceptions or exemptions shall be narrowly construed

The Virginia Freedom of Information Act


1968



To ensure “… the people of the Commonwealth ready access to records in the custody of
public officials and free entry to meetings of public bodies wherein the business of the people
is being conducted
...
Publication
2
...
That are defamatory
4
...
Publication
2
...
Defamation
4
...
Falsity
6
...
Hepps
1986

What are matters of public concern?

Damages
Damages: Compensation recovered by a plaintiff from a defendant


A plaintiff must prove actual injury
o

Actual damages
§
§

o

Depression
Anxiety

Special damages
§

Can quantify
ú

§

Actual dollar amount

Punitive damages

Punitive Damages: A monetary reward designed to punish a defendant in a
lawsuit for some action
Compensatory Damages: A monetary award in a lawsuit for actual injury or loss,
such as harm to reputation, emotional distress or mental suffering
ú

Punish the publisher

4
Fault
Fault: Culpability; Must be proved in order for an individual to prevail in a libel action


Culpability
o



Something other than honest error

Negligence
o
o



Failure to exercise reasonable or ordinary care
Carelessness

Actual Malice
o

Knowledge of falsity or reckless disregard for the truth

o

Highest level of fault

April 16, 2014
Actual Malice
New York Times v
...
S
...
Sullivan


The committee to defend Martin Luther kind and the struggle for freedom in the south



Ad was published to highlight what was going on with King and to ask for money



Took place in state court, went to state supreme court
o

Diversity of Citizenship
§

When you have parties that live in two different states

o

Should have gone to federal district court

o

New York Times filed a motion complaining this should have been in a federal court
and were not properly served

LB Sullivan


Pubic service commissioner
o



Montgomery, Alabama

Sullivan won half a million dollars

Why Actual Malice?


Citizens have a duty to criticize their governors
o

Protection of this duty is the central mean to the First Amendment



The burden for a public official should be greater than that of a private person



False statements of fact are protected to guard against self-censorship in the course of public
debate

5
Actual Malice
Actual Malice: Knowledge of falsity or reckless disregard for whether material is true or false
Common Law Malice: Ill will, hatred, or spite


Knowledge of Falsity
o
o

Easier to define but harder to prove

o


Lying
The publisher knew at the time of publication that the material was false

Reckless disregard for the truth

Reckless Disregard: Extreme indifference to the truth or falsity of defamatory statement
o

Not easy to define but easier to prove

o

The publisher in a reckless behavior does not care if the material is true

o

The recklessness must be tantamount to lying

o

Reckless disregard is a subjective standard

o

There was an intent to harm through falsehood

o

Reckless disregard for the truth is
§

Publishing with a high degree of awareness of probable falsity

§

Publishing through the defendant “in fact entertained serious doubts as to
the truth of this publication”

§

The purposeful avoidance of the truth

Butts and Walker Compared


Butts
o

Source in Butts was unreliable

o

Post has ample time to double check the story

o

There were some red flags
§



Coach meaning “man of integrity”

Walker
o

Stringer in Walker was a veteran with a reliable history
§

Did not know it was false

o

The story was on deadline

o

The story was in line with Walker’s reputation

April 21, 2014
Harte-Hanks Communications v
...
Sullivan
o

1964

o

Public officials must prove actual malic

7


Curtis Publishing Company v
...
Metromedia
o
o



1971
Private persons must prove actual malic when involved in matter of public concern

Gertz v
...

o

1974

o

Gertz was not a public figure

o

Private persons must prove fault
§

At least negligence

o

They must prove actual malic in order to win punitive damages

o

Key public figure case

o

“Hypothetically, it may be possible for someone to become a public figure through no
purposeful reason…for the most part, those who attain this status have assumed
roles of especial prominence in the affairs of society, some occupy positions of such
pervasive power and influence that they are deemed public figures for all purposes
more commonly those classes as public figures have thrust themselves into the
forefront…”

Negligence is What?


Failure to act as an ordinarily careful person or as a reasonably prudent person would act
under the same or similar circumstances



Failure to adhere to standards of reporting and writing common to the news industry



Failure to have reasonable belief in the truth of public material or publishing with reasonable
doubt as to truth

Negligence in Virginia


Failure to act as a reasonable prudent journalist would act



Failure to investigate
o

Richmond Newspapers v
...
Harris
§

Harold F
...
Comments must be newsworthy and related to public controversy
2
...
They must be about a public official or public figure
4
...
They must be reported impartially

Harte-Hanks and Neutral Reporting


The charges by Patsy Stephens about Dan Connaughton were newsworthy and about a
public controversy



She was a responsible person
o

Or so thought Justice Blackmun



The comments were about a public figure



They were reported accurately and both sides were reported



They were reported impartially

Opinion
Opinion: A communication that cannot be proved to be true or false and therefore cannot be the subject
of a successful libel action


Opinion is protected in two ways
o

The common law defense of fair comment and criticism

Fair Comment and Criticism
Fair Comment and Criticism: A common law defense against defamation claim in which the defendant
avows a right to express and opinion, based on well-known or truthfully stated facts, without common
law malice against a person who has entered the public sphere


Protects high risk statements



Protects statements that appear factual but are actual opinions in issues involving the state



The comment must concern something of legitimate public interest



The facts upon which the opinion is based must be truly stated or well known



The opinion must be the writer’s honest opinion
o

Only occurs when you’re dealing with an editorial opinion or things with writer’s
opinion



The expression must be made without common law malice
o

Ill will

o

Spit

o

Hatred

13
Gertz, Milkovich, and Pure Opinion


“There is no such thing as false idea
...

o



Gertz v
...
Prosser and Privacy

o

48 Cal
...
Rev
...
Layne

o

Hanlon v
...
Must be intentional or reckless
2
...
It must cause emotional distress
4
...
And for public persons the publication must be made with actual malice
Hustler v
...

§

“Outrageousness” is an insufficient measure of liability

§

Hustler is a “distant cousin and rather poor relation” to the great cartoonists
and satirists of history

§

Weird ruling because satirists are dealing with statements of opinionà cant
prove that it was published with knowledge of falsity

§
§


Bottom of the page: “ad parody—not to be taken seriously”
Contents: “fiction: ad and personality parody”

Was able to prove knowledge of falsity
o

The publisher published something with knowledge of falsity in means to trick you

o

EXCEPT Here – Hanks v
...
Falwell prescient for the “Director of Butt Licking” VT Collegiate Times case

Chappaquiddick Island, Massachusetts


July 19, 1969



Picture of Volkswagen sitting on the lake
o
o



Car is air tight
Man drove his car into the river and drowned

1973 National Lampoon published National Lampoon Encyclopedia of History and published
an ad with the phrase “If Ted Kennedy drove a Volkswagen, he’d be President today”



Volkswagen sued National Lampoon and they were required to remove the page and apology
and retraction

Snyder v
...
V Hill

Private persons must prove actual malice in order to win punitive damages
o



Curtis Publishing Co
...
Butts

Plaintiffs in false light invasion of privacy cases must prove actual malice
o



Garrison v
...
V Sullivan

Gertz v
...
Greenmoss
§

o

Coughlin v
...

1986 Burger, dissenting from denial of cert
...
Falwell (1988)
§

Expanded it to include another group of people

Private Places


Court said that Virginia only recognizes appropriation



Virginia has ways privacy can be protected (places rather than people)



It is illegal to:
o

Photograph without permission a person who is nude or partially nude;

o

Spy into an occupied structure

o

Trespass on private property

o

Intercept communications
§
§

o

Eavesdropping
Wire tapping

Picket or disrupt the tranquility of a home


Title: Communication Law Notes
Description: In depth, detailed notes on Communication Law.