THE FIRST AMENDMENT
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 of the right of the people peaceably to
ASSEMBLE, and to PETITION the government for a redress of grievances.
WHAT IS FOIA?
The FREEDOM OF INFORMATION ACT was written to give access to public records to ANYONE who requests.
WHY WAS IT ESTABLISHED and DESIGNED?
It was written to allow PUBLIC access to GOVT RECORDS in order to hold our public officials ACCOUNTABLE
for their actions because we live in a DEMOCRACY.
WHY AS CITIZENS SHOULD WE BE AWARE OF IT?
To hold the GOVERNMENT and PUBLIC OFFICIALS accountable, to INFORM themselves
HOW IT CAN BENEFIT BROADCASTERS?
Research for stories, allows access to controversial material, hold power accountable, speak the truth
WHAT ARE THE NINE EXEMPTIONS TO FOIA?
1) CLASSIFIED national defense/foreign policy docs requiring clearance
2) DOCS that might risk INVESTIGATIONS 3) Disclosure of docs SPECIFICALLY PROHIBITED by law
4) Confidential/Privileged COMMERCIAL/FIN INFO that might hurt transactions
5) Certain LITIGATION privileges (Might hurt cases) 6) Docs constituting clear unwarranted PRIVACY INVSN
7) LAW ENFCMT docs that could create harm/risk
8) Oversight of FINCL INSTITUTIONS by REG AGENCY
9) Docs citing GEOPHYSICAL/GEOLOGICAL info regarding OIL WELLS
HOW DOES ONE GO ABOUT FILING AN OPEN RECORDS REQUEST?
Be SPECIFIC, put it in WRITING… DATES, TIMES, NAMES, as much as possible, req is NOT a FISHING EXPEDN
WHAT DOES THE 1996 ELEC FREEDOM OF INFO ACT AMENDMENT MANDATE OF GOVT AGENCIES?
Makes records ACEESSIBLE via the INTERNET (reading rooms, etc)
DO EXEMPTIONS REQUIRE AN AGENCY TO WITHHOLD INFORMATION?
NO – it AUTHORIZES them to do so, but you should always ask, because it might work.
WHAT IS THE APPEALS PROCESS IF SOMEONE IS DENIED AN INFORMATION REQUEST?
File appeal with JUSTICE DEPT or he can SUE, they have 20 DAYS to respond, 3 in KY (Mul bureaus 30 fedly)
DOES FOIA ONLY APPLY TO FEDERAL AGENCIES?
YES – but ALL 50 STATES have similar provisions for STATE and LOCAL GOVERNMENT
FOIA does NOT create the RIGHT OF ACCESS to records held by CONGRESS, COURTS, STATE/LOCAL govts
WHAT DOES FOIA REQUIRE OF FEDERAL AGENCIES IN RESPONDING TO FOIA?
Federal agencies must respond to FOIA requests within 20 DAYS.
WHAT DOES THE ADMINISTRATIVE PROCEDURE ACT REQUIRE OF GOVERNMENT AGENCIES?
They must PUBLISH their NEW RULES or REGULATIONS in the FEDERAL REGISTER.
WHAT DOES THE SUNSHINE LAW PROVIDE?
Requires that all GOVT BUSINESS (Agencies) be conducted in the OPEN and be open to the PUBLIC unless it
concerns one of the exemptions. 24 HOUR notice to the MEDIA that an agency is going to hold a
meeting where a forum is present (Mariah’s – quorum (more than half), biz could occur)
WHY DID THE KY LEGISLATURE PASS THE OPEN MEETINGS LAW IN 1974 & OPEN REC ACT IN 1976?
Because PUBLIC RECORDS are the PEOPLE’S RECORDS; Powerful TOOL; Makes you a more EFFECTIVE
WATCHDOG
WHY SHOULD BROADCASTERS BE AWARE OF THEM?
Adds DETAIL to MUNDANE STORIES, uncovers documents you didn’t know EXISTED, truth to POWER
EXAMPLES OF AGENCIES & DOCS/RECS THAT FALL UNDER THE LAWS
ELECTION records, BIDS of public agency, PROPERTY records, DEEDS, MORTGAGES filed with clerk,
emails of PUBLIC OFFICIALS, POLICE reports, HEALTH DEPT records
EXAMPLES THAT WOULD BE EXEMPT
PRIVACY info (including certain police recs), CONFIDENTIAL FINANCIAL info, business relocation hopes,
An agency can move into closed session in cases of : LITIGATION, REAL ESTATE ventures, PERSONNEL matts
Rules concerning NOTIFICATION for special MEETINGS:
PRIVATE ENTITY considered SUBJECT to the provisions when it receives 25% of FUNDING from TAX $/budget
VIOLATION of the OR/OM laws are CRIMINAL OFFENSES – Crime, misdemeanor, grounds for contempt
To make an OR REQUEST in KENTUCKY – In WRITING, SPECIFIC, name and SIGNATURE plus the DATE
To appeal a DENIAL – Letter to the AG or file appeal DIRECTLY to CIRCUIT COURT (30 days)
If the AG gives OPINION and AGENCY doesn’t COMPLY, you STILL have to go to court to make them comply,
but you take the AG LETTER with you.
PRACTICE POINTERS What records do you need to TELL YOUR STORY, Becomes FAMILIAR WITH EXCEPTIONS, Call
after 3 BIZNESS DAYS if you get no reply, APPEAL to the AG, Make sure DENIAL includes REASON & SPEC EXCPTN
We have a COPYRIGHT LAW because of 1.8 in US CONSTITUTION – INTELLIGENT PROPERTY of authors/scientists
IDEAS, HIST FACTS, PUBLIC DOMAIN are NOT PROTECTED, only the CONCRETE EXPRESSION of ideas
The RIGHTS of Copyright OWNERS are the “BUNDLE OF STICKS” (Sell, buy, trade, give away, rights controlled)
Exemptions to COPYRIGHT PROTECTION are those that AREN’T FIXED/TANGIBLE (Boston Mara, Christmas Par)
and TITLES, NAMES, SHORT PHRASES, SYMBOLS, DESIGNS
1909 COPYRIGHT ACT combined 28 and 28 years (56 w renew) and then DEAD. 1976 Act extended that from
LIFE of AUTHOR plus 50 YEARS (Another gen). BONO extended from last renew date of 1909+95yrs
Work for HIRE protection lasts 95 years after CREATION or 120 years after PUBLICATION, whichever first
Elements of Copyright NOTICE: C with CIRCLE, symbol/word copyright, year of first pub, name/owner of copyr
FAIR USE: 1) PURPOSE/CHAR of use (educate), 2) NATURE of the copyr work (complexity), 3) PORTION of the
work used (10% or less FU), IMPACT on MARKETABILITY of the ORIGINAL
TRADEMARKS are Names, words, phrases, images, logos, design, distinctive info; ACT of 1946, renew ev 10yrs
BRANDEIS and WARREN wrote “RIGHT OF PRIVACY” in Harvard Law Review – idea of privacy, common law
DIFFERENCE between INVASION OF PRIVACY & DEFAMATION (IOP centers on HUMILIATION, SHAME or
EMOTIONAL distress… DEF is FALSE INFORMATION that DEFAMES someone)
GOVT PRIVACY ACTS: 1974 defines how INDIVIDUALS are protected from GOVT invasions of privacy;
ELEC COMM PRIV ACT of 1986 provides ADDTL protection for ELECTRONIC transmsns from THIRD
PARTY monitoring and interference
ROBERSON V. ROCHESTER FOLDING BOX CO: 1902 (Woman on FLOUR BOX wo consent, leads to law of p, lose)
MANOLA V. STEVENS: FIRST case for recovery on basis of PRIVACY (Actress in theater in tights – 1903 consent l)
PAVESICH V. NE LIFE INSURANCE CO: Newsp ad photo in GA urging purchase – GASC estab common ROP law)
GRISWOLD V. CONNTCT: 1965 (Planned Parenthood, no state law prohibit contraceptives, penumbral rights)
ZACCHINI V. SCRIPPS H: FIRST SC case of APPROPRIATION (Human cannonball)
MEMPHIS DEV FOUNDTN V. FACTORS (Presleys, Memphis, TN – first Descendibility(Intrusion) case
PENUMBRAL RIGHTS and ZONES of PRIVACY are ONE, THREE, FOUR, FIVE, and NINE (Enumeration)
PROSSER’S FOUR areas of PRIVACY RTS: Appropriation/Right of pub, Intrusion, Embarrsg Facts, False Light
RED FLAGS OF INTRUSION: Private Property, Illegal Activity, No Consent
DEFENSES FOR PRIVACY INVASION: Consent, Newsworthiness, Public Figure, Truth
RULE OF SIDIS: Once newsworthy, always newsworthy/public eye – regardless of time of relevance
JAMES HILL CASE (Time v. Hill) – REMANDED to lower court, issue was FALSE LIGHT, they said we aren’t going
to set a NEGLIGENCE STANDARD and that EACH STATE will set its own level. (Robbery-hero-wrong)
LIFE acted with RECKLESS DISREGARD for the TRUTH.
Difference between LIBEL and SLANDER… Lib is PUB/BCAST of FALSE INFO injurious to rep, SLANDER written
LIBEL PER SE is DIRECT… LABELS (murder, thief, liar), PER QUOD is IMPLIED (wordplay)
THREE ELEMENTS must be present before LIBEL SUIT can move fwd (Identification, Pub, Falsehoods – Actnbl)
TOUCHING BOOK (Bindrim v. Mitchell) – NAME ALONE doesn’t mean IDENTIFICATION, can be done in other w
COMPLICITY RULE: If you helped produce in any way/shape/form, coop w/others injurious to rep, you LIBELED
COMMON LAW LIBEL DEFENSE: Truth, Fair Comment (Criticism), Libel Proof (so bad), Privilege, Consent
CONSTITUTIONAL DEFENSE: First Amendment – Extended qualified privilege, indiv rep yields to free report
TIMES V. SULLIVAN: Impact is setting the standard of ACTUAL MALICE for public officials; right to CRITIQUE
public officials without FEAR of lawsuit unless it’s proved (private is negligence)
CURTIS PUB V. BUTTS—A.P. V. WALKER (1967): One ruling, BUTTS rule was pub figures, not officials but in
public eye, can sue for defamation but must prove ACTUAL MALICE (Coach, SEPost negligent),
WALKER lost because they couldn’t ESTABLISH it
GERTZ V. WELCH (1974): Estab’d the VORTEX TEST: Private indivs REMAIN private unless they THRUST themsvs
into LIMELIGHT, try to PERSUADE on an issue, get directly involved in its resolution. He didn’t INVITE
the coverage, didn’t SOLICIT it, news covering trial doesn’t make him pub figure when doing job
HUMOR, SATIRE, PARODY, FAIR COMMENT are all DEFENDABLE against claims of DEFAMATION
FALSE LIGHT is TRUE INFO presented in a MANIPULATED way to call falsity (Herpes -Duncan v. WJLA)
SCHENCK: Mailed brochures to draftees (God rather than country, avoid), COMPELLING GOVT INTEREST is
right to raise a military. ARRESTED/UPHELD because of that interest. RULE OF LAW: CAPD Doctrine:
Ev case judged on own merits & only if presents CAPD should govt act to censor info
ABRAMS: Russian immigrants tossing brochures off skyscraper calling for people to rise up and strike against
capitalism, make a difference and help Russia in its civil strife. ARRESTED/LOST but HOLMES writes
DISSENTING OPINION: Even though at war, they weren’t INCITING VIOLENCE, there was NO DANGER.
Just bec we don’t like msg, we can’t shut it up, MKTPL of IDEAS – all compete & be heard, only threat
should govt act (It’s content based) – move forward, release.
FCC: Julius Genachowski, Mignon Clyburn, Michael C. Copps (resigning), and Robert McDowell
SC: John Roberts, Sam Alito, Antonin Scalia, E Kagan, S Soto, C Thomas, RB Ginsburg, Ant Kennedy, S Breyer