Media Law Outline
Fall 2006
I. First Amendment Foundations of Media Law
A. The Press Clause – Congress shall make no law … abridging the freedom of
speech or of the press… (U.S. Constitution, Amend. I)
1.
Significance of Press Clause – Differing Views
a. Stewart: Distinct from Free Speech Clause – If Press Clause were
equivalent to Free Speech Clause, Framers would not have
included both. Rules of construction dictate against redundancy.
i. Unique Role of Press – Keep tabs on the government and
act as the “Fourth Estate” to ensure democratic functions
are working properly
1. Important for media to be adversarial to
government
2. Media have special expertise, power in numbers
that individuals do not
3. “Constitution… establishes the contest, not its
resolution.” (J. Potter Stewart) – Press not
guaranteed success in obtaining information from
government, but playing field is leveled
ii. Structural Right – Only private institution protected in the
Constitution
b. Burger: No Distinction between Free Speech and Press Clauses
i. Press clause protects no more than the general right to free
speech
1. Too difficult to define “the press” – could be single
pamphleteer or organized press
a. Especially salient argument in the age of the
Internet, blogging, etc.
2. Giving the press special rights does not necessarily
protect the public, but rather the wealthy who
control the media
2.
Conflict between Freedom of Speech and Freedom of Press
a. Miami Herald Publishing Co. v. Tornillo – Florida statute
providing right of reply to political candidates violates FA because
it serves as a penalty on the newspaper and could lead to a chilling
effect
i. Compulsion to publish is as bad as prohibition from
publishing  Freedom to print includes freedom not to
print
ii. Press will serve as proper check on government because
readers serve as check on press
B. Values Served by Free Speech
1.
Individual-based/Non-consequentialist – Benefits individuals to have
freedom of speech without regard for the consequences of such a
freedom
a. Individual autonomy
b. Self-fulfillment and self-realization
2.
Society-based/Consequentialist – Benefits society as a whole and
provides positive consequences
a. Ability to criticize government without fear of reprisal
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Media Law Outline
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b. Marketplace of Ideas (J. Holmes) – When truth and falsity are
pitted against one another, truth will prevail and become even
clearer when juxtaposed against falsity
c. Necessity for survival as a democratic society
II. Government Regulation of Speech and the Press
A. State Action Requirement
1.
FA violation requires action by the state  Government censorship
2.
Application to States – Originally applied only to federal government,
then applied to the states by through incorporation of the 14th
Amendment
B. Methods of First Amendment Analysis
1.
Free Speech Absolutism (J. Hugo Black) – Government can only
regulate the time, place and manner of speech
a. Advantages
i. Bright-line rule is predictable and easy to apply
b. Disadvantages
i. TPM regulations require discretion on the part of an
individual
2.
Clear and Present Danger Test (J. Holmes) – Whether the words are
used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that
Congress has a right to prevent (Schenck v. US)
a. Factors:
i. Proximity
ii. Degree
b. Advantages
i. Provides a very narrow rule for restricting free speech
c. Disadvantages
i. Appears to be targeting a specific type of speech
ii. Difficult to apply – Not clear what type of proximity and
degree are required, what kind of evils are sought to be
prevented
3.
Balancing of Interests
a. Definitional Balancing – Considers value of category of “welldefined and narrowly limited classes of speech” (obscenity,
defamation, fighting words)
i. Advantages
1. Easy to apply because of discrete categorization
2. Clearly protects political speech
ii. Disadvantages
1. Difficult to define categories
2. Overbroad – Likely encompasses a great deal of
protected speech
b. Ad Hoc Balancing – Considers on a case-by-case basis government
interest versus speaker’s interest in expression
i. Advantages
1. Moves away from a bright-line rule
ii. Disadvantages
1. Difficult to assign weight to speaker’s interest and
value of the speech
4.
Current Approach
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Media Law Outline
Fall 2006
a. O’Brien Test
i. Strict Scrutiny – Applies to content-based regulations
and requires:
1. Compelling government interest (interest of the
highest order)
2. Restriction is necessary or the least restrictive
means of achieving the compelling government
interest
ii. Intermediate Scrutiny – Applies to content-neutral
regulations and requires:
1. Important government interest
2. Restriction is narrowly tailored to serve that
interest (does not require least restrictive
alternative)
b. Advantages
i. Directed towards government regulations seeking to
control the specific message contained within the speech
c. Disadvantages
i. Content-based regulations can potentially be disguised as
TPM regulations
C. Content-Neutral Regulations  Intermediate Scrutiny
1.
General Premise – There are generally applicable laws that everyone
must follow and that are not aimed at the content of speech
2.
Must-Carry Regulations
a. Turner I & Turner II – Must-carry regulations that apply to cable
operators and not to other broadcast media are constitutional
because the regulation is not directed at the medium and not at
the content of the speech.
i. However, government must show harms feared are real
and regulations will alleviate harms.
b. Alleviate the harm of the disappearance of local broadcast stations
c. Least restrictive alternative not required, merely narrowly tailored
3.
Taxation of the Press
a. Presumption: Tax scheme is constitutional absent bad intent on
the part of the legislature
i. Leathers v. Medlock – General sales tax applicable to cable
television but not to newspapers, magazines or satellite
services is constitutional because no discrimination based
on content or message
ii. Acceptable for states to impose taxes to raise revenue
b. Unconstitutional Taxes
i. Circulation limits (Grosjean)
ii. Supply tax, with high threshold (Minneapolis Star &
Tribune)
iii. Generally applicable tax with exemptions for particular
types of publications (Arkansas Writers’ Project)
D. Content-Based Regulations  Strict Scrutiny
1.
Prior Restraint
a. General Rule: Prior restraints on publication are presumptively
an unconstitutional violation of the First Amendment (Near v.
Minnesota)
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Media Law Outline
Fall 2006
i.
2.
Prior restraints were a primary consideration of the
Framers in drafting the First Amendment
ii. Prior restraints create fear of chilling effect on speech
b. Possible Permissible Prior Restraints
i. Matters of national security
1. But, in Pentagon Papers case, Court refused to
defer to Executive and declared restraint
unconstitutional because press interest was strong
and national security interest was not as strong
2. United States v. The Progressive – Not a violation
of the First Amendment to prohibit publication of
article about the technical aspects of H-Bomb
because matter involved national security.
Information was all public, but was decentralized.
ii. Obscenity
iii. Incitement of violence
iv. Fighting words
v. Serious privacy interests
1. Kobe Bryant Case – State Supreme Court upheld
gag order on press as constitutional because it was
narrowest means of protecting privacy interests of
the sexual assault victim
Speech About Judicial Proceedings
a. General Rule: Barring the press from publishing truthful
information gained in public judicial proceedings is
unconstitutional (Nebraska Press Association v. Stuart)
i. Truthful reports of public trial proceedings deserve special
First Amendment protection
ii. Transparency of judicial proceedings is important
iii. Factors Considered by Court:
1. The nature and extent of pre-trial news coverage
2. Whether other measures would be likely to mitigate
pre-trial publicity
a. Change of venue
b. Postponement of trial
c. Sequestration of jurors
d. Thorough voir dire process
e. Limiting instructions to jurors
f. Gag order on lawyers, police officers and
witnesses
3. Efficacy of restraint on press in securing a
defendant’s Sixth Amendment rights
b. Constitutional Conflict – Represents a conflict between First
Amendment right to freedom of the press and Sixth Amendment
right to a fair trial
i. Because the Constitution did not prioritize as between
these rights, the Supreme Court will not do so either
c. Speech about Crimes
i. Simon & Schuster v. Members of the New York State Crime
Victims Board – “Son of Sam Law” prohibiting people
convicted of crimes from profiting from speech about their
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Media Law Outline
Fall 2006
3.
crimes was an unconstitutional content-based regulation of
speech
1. Provided a disincentive to speak
2. Overinclusive – Included a great deal of protected
speech
3. Underinclusive – Garnished criminals’ profits from
storytelling; did not garnish all of criminals’ assets
Student Speech
a. General Rule: Where student speech substantially interferes
with a school’s educational mission or impinges on the rights of
other students, the school can regulate the speech
i. Tinker v. Des Moines – School rule prohibiting students
from wearing black armbands in protest of the Vietnam
War violated First Amendment
1. “Students do not shed their First Amendment
rights at the schoolhouse gate”
ii. Bethel School Dist. No. 403 v. Fraser – Punishing student
who gave speech at a school assembly that was heavily
laden with sexual innuendo was not unconstitutional
1. Where student’s activity substantially interferes
with school’s educational mission, school may
regulate speech
b. Student Newspapers
i. Hazelwood School Dist. v. Kuhlmeier – School can impose
restraints on student activities that are part of an integral
school function so long as the decision has a reasonable
basis grounded in legitimate pedagogical concerns
1. Distinguishes speech sponsored by school and
speech not sponsored by school
2. School is not a traditional public forum
3. Did not overrule Tinker, but expanded upon the
exception that permits regulation if speech
substantially interferes with the work of the school
ii. School can regulate student speech in school-sponsored
activities where:
1. The speech is lewd or obscene
2. The regulation is related to legitimate pedagogical
concerns
3. The speech is:
a. Ungrammatical
b. Poorly written
c. Inadequately researched
d. Biased/prejudiced
e. Unsuitable for an immature audience
f. Vulgar/profane
4. The expression advocates conduct otherwise
inconsistent with the shared values of a civilized
social order
iii. State Law
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Media Law Outline
Fall 2006
4.
1. Some states have passed laws overruling
Hazelwood and giving students full First
Amendment protection
c. Student Speech on College Campuses
i. Hosty v. Carter – Supreme Court held that Hazelwood
applies to college campuses as well as high schools because
of the public/non-public forum distinction
1. Ability to regulate has to do with control, funding
source, etc. rather than age of audience
2. Strong dissent – Argued Hazelwood inapplicable to
college students because of differences between
college and high school students
a. Mission of institutions are very different
Sexually Explicit Speech
a. Obscenity
i. Current Standard: The Miller Standard
1. Material is obscene when:
a. The average person, applying contemporary
community standards, would find that the
work, as a whole, appeals to the prurient
interest;
b. The work depicts or describes, in a patently
offensive way, sexual conduct specifically
defined by applicable state law; and
c. The work, taken as a whole, lacks serious
literary, artistic, political or scientific value
2. Based on a localized, community standard
ii. Once determined to be obscene, a work can be banned or
criminalized
1. Exceptions:
a. No pre-screening without procedures in
place to ensure a prompt decision and
speedy review
b. Mere possession in the home cannot be
criminalized
b. Child Pornography
i. Mere possession can be criminalized and banned
1. Government interest in preventing exploitation of
children is extremely high
c. Indecency
i. FCC v. Pacifica (“Seven Dirty Words” case) – Court upheld
fine against George Carlin for broadcasting his Seven Dirty
Words monologue
1. Indecent Speech – Not obscene, but usually
involves sex or excretory activities and is patently
offensive under a community standard, particularly
for children
2. Indecent speech is at the periphery of First
Amendment protection
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Media Law Outline
Fall 2006
3. Regulation based on forum, not on content – Carlin
could have broadcast his message using different
language
a. However, part of the message Carlin was
trying to make was political and was about
language itself
ii. Broadcast Speech – Interest in regulating indecency via
broadcast because broadcast is:
1. Uniquely accessible to children
2. Uniquely pervasive in the American home
3. Invades the privacy of the home
iii. Cable Television – FCC cannot require cable operators to
scramble or time-channel “signal bleed” on channels that
contain explicit material because regulation is contentbased (United States v. Playboy Entertainment Group,
Inc.)
1. Least-restrictive means of accomplishing
government interest does not have to be perfect
2. Opt-out provisions are better means of
accomplishing goal
3. First Amendment protects speech and then lets
individuals determine what has value and what
does not
iv. Safe Harbors – Congress required the FCC to establish safe
harbors for indecent speech to be broadcast during a time
when children are less likely to see it (10 p.m. – 6 a.m.)
v. Current FCC Policy – No action against “fleeting and
isolated profanity” on the airwaves
5.
Commercial Speech
a. Defining Commercial Speech: Commercial speech is:
i. Advertisement of some form; and
ii. Refers to a specific product; and
iii. The speaker has an economic motivation for the speech
b. Regulating Commercial Speech
i. The Central Hudson Test (intermediate scrutiny)
1. Does the speech concern lawful activity and is not
misleading?
2. Is the government interest substantial?
3. Does the regulation directly advance the
government interest asserted?
4. Is the regulation no more extensive than necessary
to serve that interest?
ii. Lorillard Tobacco Co. v. Reilly – Found point of sale and
outdoor advertising regulations of tobacco advertisements
unconstitutional using the Central Hudson test
III. Legal Issues Arising from Publication
A. Defamation
1.
Applicable Law – Involves mostly state law limited by First Amendment
protections
2.
Definition: Defamation is a false statement (written or spoken) that
causes harm to a person’s reputation (i.e., “exposes a person to hatred,
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Media Law Outline
Fall 2006
3.
4.
5.
contempt or aversion or induces an evil or unsavory opinion of him in
the minds of a substantial number in the community”).
a. Requirements for Defamation:
i. Falsity of statement
ii. Statement was defamatory
iii. Involved a statement of fact (not opinion)
iv. Concerned the plaintiff
v. Defendant guilty of some level of fault
vi. Plaintiff suffered some demonstrable harm
vii. [Some states require Plaintiff to comply with retraction
statutes]
b. Evaluating Defamatory Statements
i. Must evaluate language according to the fair and natural
meaning which will be given it by reasonable persons of
ordinary intelligence
ii. Punctuation can potentially make a statement defamatory
(i.e. putting quotation marks around a word)
iii. Liability can arise from repeating someone else’s
defamatory statement
Libel – Traditionally, written defamation
a. No need to prove special damages
b. Law treats libel more harshly than slander because of potential to
reach wider audience
c. Spoken defamation in a fixed format and that was scripted and
researched also likely to be considered libel (i.e. televised news
broadcasts, radio broadcasts, movies etc.)
Slander – Traditionally, spoken defamation
a. Special Damages – Victims of slander can only recover damages
covering specific monetary losses tied to the defamatory statement
i. Restatement: The loss of something having economic or
pecuniary value which must flow directly from the injury to
reputation caused by the defamation; not from the
emotional effects of the defamation. They must be
accurately and fully identified with sufficient particularity
to identify actual losses.
ii. Exception: Slander Per Se
1. Imputation plaintiff committed a serious crime
2. Imputations that tend to injure plaintiff in his
trade, business or profession
3. Imputation that plaintiff contracted a loathsome
disease
a. I.e., AIDS, venereal diseases, leprosy
4. Imputations of the unchastity of a woman
Fault
a. Public Officials/Figures – Statements made by defendant about
public officials acting in their official capacity are protected by the
First Amendment unless plaintiff can show actual malice (New
York Times v. Sullivan)
i. Actual Malice – Knowledge of falsity or reckless disregard
for the truth
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Fall 2006
1. Reckless Disregard – Requires sufficient evidence
to permit the conclusion that defendant in fact
entertained serious doubts as to the truth of the
publication
ii. Official Conduct – Anything that might touch on a
candidate’s fitness for office
iii. Public Official – A government employee of such apparent
importance that the public has an independent interest in
the qualification and performance of the person who holds
the position, beyond the general interest in the
qualification and performance of all government
employees
iv. Non-Governmental Employees
1. Athletic Supervisors – Public figures because the
public has a keen interest in what they do and in
their performance (Curtis Publishing Co. v. Butts)
2. Military Leaders
b. Private Plaintiffs – No need to show actual malice, but must show
at least negligence to prevail in a defamation action (Gertz v.
Robert Welch, Inc.)
i. Rationale: Public figures take affirmative steps to seek out
publicity and also have greater resources to rebut untrue
statements, so higher burden placed on them than on
private plaintiffs. Also important to be able to criticize
public officials without fear of being sued.
ii. Damages and Fault
1. Actual Damages – At least negligence (no strict
liability)
2. Presumed and Punitive Damages – Actual malice
c. Limited-Purpose Public Figures – With regards to the one
particular public controversy, plaintiff is a public figure and
therefore must show actual malice
i. Limited-Purpose Public Figure Test:
1. Controversy must be public in the sense that people
are discussing it and people other than immediate
participants feel impact of resolution
2. Plaintiff must have more than a trivial or tangential
role in the controversy
3. Alleged defamation is germane to plaintiff’s
participation in the controversy
d. Burden of Proof – Regardless of plaintiff’s status, the Constitution
requires that plaintiff bear the burden of proving falsity
(Philadelphia Newspapers, Inc. v. Hepps)
i. Rationale: Can be difficult to prove truth, and so requiring
D to prove truth would place a chilling effect on protected
speech
ii. Practically speaking, evidence of defendant’s fault (burden
already placed on plaintiff) will encompass evidence of
falsity
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Media Law Outline
Fall 2006
iii. Non-Media Defendants – Supreme Court declined to
allocate burden of proof in cases involving non-media
defendants
e. Falsity and Opinion – No separate First Amendment protection
for statements of opinion (Milkovich v. Lorain Journal Co.)
i. In distinguishing actionable language (statements of fact)
from opinions, courts examine:
1. Verifiability – Is the statement verifiable as either
true or false?
a. Statement must be provable as false to be
actionable
2. Context – Would a reasonable person interpret the
statement as making statements of fact?
a. “Loose, figurative or hyperbolic” language
can negate the impression that defendant is
making an actual statement of fact
ii. But, statements of opinion implying knowledge of facts
can still be actionable as defamation
iii. There has been a lot of confusion post-Milkovich in trying
to apply the standard
6.
Defenses and Common Law Privileges to Defamation
a. Truth – Absolute defense to defamation
b. Fair Comment – Assertions of fact relating to matters of public
interest are privileged if they are honestly believed to be true
Comments based on those facts are also privileged if honestly
believed.
i. Most often arises in the context of reviewing art, literature,
etc.
c. Fair and Accurate Reporting – Protects fair and accurate reports
of official proceedings (legislative, judicial, etc.), including
defamatory statements made during those proceedings
i. Absolute privilege for those participating in proceedings
B. Invasion of Privacy
1.
Public Disclosure of Private Facts
a. Elements:
i. Public disclosure
ii. That identifies plaintiff
iii. Revelation of matter that would be highly offensive to a
person of reasonable sensibilities
iv. And is of no legitimate public concern (or is not
newsworthy)
b. Distinction between disclosure and defamation
i. Disclosure involves disclosure of truthful information
1. Unusual because we hesitate to censor truthful
speech
ii. With disclosure, can’t do anything after the information
gets out. With defamation, there is the idea that it can
somehow be cured (through retraction, etc.)
c. Constitutional Limitations
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Media Law Outline
Fall 2006
i.
Cox Broadcasting Corp. v. Cohn – States may not impose
sanctions for accurate publication of the name of a rape
victim obtained from judicial records
ii. Florida Star v. BJF – Statute sanctioning publication of
truthful and lawfully obtained information is
unconstitutional
1. Newspaper legally obtained police reports made
public
2. Statute was targeted at the press, not at others who
disseminated the information
2.
False Light
a. Elements:
i. Publicity
ii. Plaintiff must be identified
iii. Falsity in fact or in implication
iv. Offensiveness
v. Intent
1. Most courts require all plaintiffs to show actual
malice
a. Supreme Court has not addressed issue
2. Respondeat superior can apply
b. Situations in Which False Light Arises:
i. Dramatization/Fictionalization
ii. Association
iii. Ambush Interviews
iv. Context
c. Varying State Laws
i. Some states have rejected false light, restricting actions to
the tougher defamation standard
d. Distinction between False Light and Defamation
i. Defamation provides recovery for reputational harm
ii. False light provides recovery for emotional harm
C. Liability for Emotional, Economic and Physical Harm
1.
Emotional Harm
a. Intentional Infliction of Emotional Distress
i. Elements:
1. Extreme or outrageous behavior by defendant
a. Behavior that goes beyond the bounds of
socially tolerable conduct
2. Behavior causes plaintiff severe emotional harm
3. Behavior was intended to inflict severe emotional
harm
ii. Public Figures – Public figures seeking damages for IIED
must meet the New York Times actual malice standard
(Hustler Magazine, Inc. v. Falwell)
1. Parody – Where speech is clearly a parody, plaintiff
will not be able to meet the actual malice standard
a. People have to be able to make fun of others
for their politics or religion as part of the
public debate
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Media Law Outline
Fall 2006
2.
3.
b. Negligent Infliction of Emotional Distress – Media can be held
liable for NIED under certain circumstances
i. Doe v. ABC – Television station liable for NIED where it
promised to conceal identity of rape victims for broadcast
interview, but victims were readily identifiable in broadcast
ii. Statute of Limitations Case – Television station not liable
for erroneously reporting that a judge had reduced statute
of limitations for murder because plaintiff (under
indictment for murder) could not reasonably rely upon the
news report in such a manner
Economic Harm
a. Breach of Promise
i. Promissory Estoppel – Application of generally applicable
laws does not violate the First Amendment (Cohen v.
Cowles Media Co.)
1. No First Amendment problem where media
promises not to reveal source’s name, and then
breaches promise, causing economic harm
2. Compensatory Damages Only – Provides damages
for purely economic harm
b. Negligence
i. No affirmative duty to avoid negligently causing someone
economic harm
c. Disparagement – Deals with harm to a thing or a product, not a
person
i. Reports on Food Safety – Generally matters of public
concern, and not the basis for liability
1. Media defendants should be able to reasonably base
their stories on scientific reports without fear of
liability (Auvil v. CBS)
ii. Product Disparagement Statutes – Generally requires false
information to be willfully or maliciously disseminated;
sets a fairly high standard.
1. False information = not based on reliable scientific
facts and reliable scientific data which the
disseminator knows or should have known to be
false
2. Most statutes require either knowing falsity or
reckless disregard of falsity
3. Statutes generally interpreted narrowly
Physical Harm
a. Incitement
i. Elements (Brandenburg v. Ohio):
1. Speech is directed to “inciting or producing” action;
2. Action must be imminent;
3. Action must be “lawless”; and
4. The speech is “likely to incite or produce such
action”
ii. Herceg v. Hustler Magazine, Inc. – Article describing the
practice of auto-erotic asphyxiation could not have been
reasonably read to incite readers to try the practice
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1. Article described the practice, but also discussed
the extreme dangers
2. Regulation is content-based because content must
be examined before it is known whether law is
applicable  strict scrutiny applies
b. Aiding and Abetting
i. Rice v. Paladin Enterprises, Inc. – Publisher of how-to
guide for hit men liable for aiding and abetting when
someone used the book to carry out a contract killing
1. Book could not be read as anything other than a
how-to manual that encouraged readers to commit
murder. Was more than general advocacy; gave
step-by-step instructions
2. Sufficient evidence of intent on the part of
publisher for people to read the book and commit
murders
3. Only genuine use of the book is to facilitate murder
c. Copycat Cases
i. Context is crucial to determine intent of the speech
1. Difficult to balance First Amendment rights with
strong evidence of but-for causation
d. Negligence
i. Braun v. Soldier of Fortune Magazine, Inc. – Defendant
magazine had a duty not to run an ad for a mercenary
1. Standard: Whether the ad was clear on its face
without further investigation that there is a
substantial risk of harm to the public
D. Intellectual Property Issues
1.
Copyright
a. Overview of Copyright Law
i. Constitutional Law – Grounded in the intellectual property
clause of the Constitution (Art. I, § 8)
ii. Protection – Copyright law gives authors of original works
the exclusive right to reproduce, perform in public, create
derivative works, license, assign
iii. Protected Works:
1. Literary works
2. Musical works
3. Dramatic works
4. Pantomimes and choreographic works
5. Pictorial, graphic and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings
iv. Non-Protected Works:
1. Trivial matters
2. Ideas
3. Facts
4. Utilitarian goods
5. Methods, systems and mathematical principles,
formulas and equations
v. Length of Protection
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2.
1. Individual copyright – Life of creator + 70 years
2. Work-for-hire – 95 years from publication
b. Fair Use Doctrine – Copyrighted material can be used without
liability for criticism, comment, teaching, scholarship or research
i. Four-Factor Test:
1. Purpose and character of the use
a. Newsworthy – May be fair use
b. Commercial – Weighs against fair use
2. Nature of the copyrighted work
a. Less protection under Fair Use Doctrine for
unpublished works
3. Substantiality of portion used in relation to
copyrighted work as a whole
a. Even if percentage taken is not great, can
still fall outside fair use if the “heart” of the
material is taken
4. Effect on potential market for/value of the
copyrighted work
a. If right of first publication is lost, more
likely that use was not fair use
ii. Harper & Row Publishers, Inc. v. Nation Enterprises –
Nation Magazine’s defense of fair use in excerpting 13% of
Gerald Ford’s autobiography failed because it was a
commercial use, published the “heart of the book” and
caused Time to break its contract containing right of first
publication.
iii. Unpublished Material – Congress amended the Copyright
Act so that unpublished works can be subject to fair use
Appropriation/Right of Publicity
a. General Principles
i. Right to control name, likeness, signature and voice
ii. Generally a violation to use name or likeness without
permission for advertising or publicity
iii. Can extend indefinitely beyond death (unlike copyright)
b. Court-Imposed Limitations
i. Pure Commercial Speech
1. Making a fair comment or parody of something is
not commercial exploitation (Hoffman v. Capital
Cities/ABC)
ii. Transformation
1. Standard: Whether a product containing a
celebrity’s likeness is so transformed that it has
become D’s own expression rather than the
celebrity’s likeness
c. Unauthorized Coverage of Entertainment Acts
i. Zacchini v. Scripps-Howard Broadcasting Co. –
Broadcasting 15 seconds of act without permission
constituted misappropriation because the broadcast was
the “heart of the show”
d. Self-Promotion – Publication can advertise itself by using the
content of its publication
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e. False or Misleading Promotional Material
i. An action for misappropriation may lie when a publication:
1. Publishes something that makes it look like a
celebrity spoke with the publication (Cher v. Forum
International, Ltd.; Eastwood v. National Inquirer,
Inc.)
2. Publishes false information about a celebrity as a
means of selling copies of the publication
(Eastwood v. Superior Court)
3.
Trademarks
a. Key Issue: Whether consumers are confused about the origin of a
product
i. Public Good
1. Protects product goodwill
2. Avoids consumer confusion
ii. Free Speech Costs
1. Removes words from public dialogue
2. Generic-ness – When a word is used widely to
reference a product generally, it becomes generic
and loses its trademark protection
b. Infringement
i. Parody – Material that is clearly parody or satire cannot be
held to infringe a trademark because consumers will not be
confused as to the origin of the product
ii. Fair Use – If trademark is the only way of referring to
something, it can be used nominatively to refer to the
product or service
1. Factors of Nominative Fair Use Defense:
a. Product or service in question must not be
one readily identifiable without use of
trademark
b. Only so much of the mark may be used as is
reasonably necessary to identify the product
or service
c. User must do nothing that would, in
conjunction with the mark, suggest
sponsorship or endorsement by the mark
holder
IV. Legal Issues Arising from Newsgathering
A. Newsgathering Torts
1.
Trespass – Unauthorized entry onto the property of another
a. Public Places
i. Le Mistral v. CBS – While restaurant was open to the
public, it was not open to the public for entering with
television cameras, and restaurant had a cause of action for
trespass against television station
b. Disaster or Accident Scene – Unclear the extent to which law
enforcement officials can permit others to come onto private
property
i. Florida Publishing v. Fletcher – Long-standing custom in
Florida that law enforcement officials have the right to
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2.
3.
invite media onto private property where there has been a
disaster of public importance, provided they don’t do any
damage
1. In most instances, this case has not been followed
c. Trash Digging – Generally no privacy interest in garbage because
one it is set out for pick-up, any privacy right is relinquished
Intrusion – Unlawful violation of one’s protective physical sphere of
privacy. Can be violated merely by newsgathering; publication not
required.
a. Elements:
i. Intrusion into a private place, conversation or matter
ii. Plaintiff must have an objectively reasonable expectation of
seclusion or solitude
b. Dietmann v. Time, Inc. – Plaintiff had a cause of action for
invasion of privacy where reporters entered his home with hidden
cameras and microphones and recorded interaction
i. People accept risk that conversations in their home will be
repeated, but not that they will be broadcast verbatim to a
wide audience
c. Paparazzi – Court does not protect the media from crimes
committed during the newsgathering process (Galella v. Onassis)
i. Generally applicable criminal statutes apply to the press
and do not violate First Amendment right
d. Ride-Alongs
i. Law Enforcement Liability – Police actions in execution of
a warrant must be related to the objectives of the
authorized intrusion
ii. Media Liability – Where media actions are so entwined
with law enforcement actions as to make them state actors,
media can be liable for 4th Amendment violations
e. Accident Scenes – Plaintiff may not have reasonable expectation of
privacy at the scene itself, but may have expectation of privacy in
the emergency medical vehicle and in conversations with medical
personnel (Shulman v. Group W Productions, Inc.)
Eavesdropping and Wiretapping
a. Standard: Whether there is an objectively reasonable expectation
that the content of the conversation is confidential
i. Deteresa v. American Broadcasting Companies, Inc. – No
reasonable expectation that conversation is confidential
where reporter identifies himself and conversation takes
place on plaintiff’s front porch
ii. Workplace – Individuals are entitled to have a reasonable
expectation of limited privacy in the workplace,
particularly where office is not open to the public (Sanders
v. American Broadcasting Companies, Inc.)
1. Fact-Based Inquiry – Whether an expectation of
privacy exists in the workplace is a question of fact
iii. Doctor’s Office – No reasonable expectation of privacy in a
doctor’s office where the office is open to the public and the
doctor held himself out as a service provider
b. Consent Statutes
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i.
One-Party (majority) – Consent of only one party to a
conversation is necessary for recording of the conversation
by one of the parties or a third party
1. Georgia
2. Federal
ii. Two-Party (minority) – Consent of both parties to a
conversation is necessary for recording of the conversation
4.
Using Tortiously Obtained Information
a. Bartnicki v. Vopper – Applied intermediate scrutiny to contentneutral wiretapping statute where media lawfully obtained
anonymous illegal recording. Even though law was generally
applicable, what it regulated was “pure speech.” Balancing the
newsworthiness of the story against the aims of the wiretapping
statute, Court determined that the First Amendment outweighed
other private concerns.
i. Truthful information of public concern weighs heavily in
favor of the First Amendment
ii. In this particular case, little or no interest in privacy
because the recordings contained threats and speakers
were limited purpose public figures
b. Boehner v. McDermott – Knowing acceptance of an illegally
intercepted tape can give rise to liability under wiretapping statute
i. Bartnicki didn’t apply in this case because D knew where
recording came from and how it was obtained
5.
Other Torts
a. Fraud and Breach of Fiduciary Duty
i. Food Lion, Inc. v. Capital Cities/ABC, Inc. – Network liable
for breach of duty of loyalty and trespass when reporters
falsified applications to get jobs at grocery store and then
secretly filmed on the job for a news report on health code
violations
1. Reporters breached duty of loyalty because they
acted in a manner that was at the store’s expense
2. Consent gained by misrepresentation is valid, but
breach of duty of loyalty vitiated consent, thus
giving rise to trespass action
3. No fraud because employees were at-will
b. Inducing Breach of Contract – Media might be liable for inducing
individuals to break employment contract and speak about
confidential matters to the media
c. No First Amendment Protection – Generally applicable tort law
applies equally to all defendants
i. Nothing singles out expressive conduct or speech
B. Reporter’s Privilege
1.
Privilege Claimed
a. Editors and reporters claim they have a testimonial privilege
similar to that of doctors and lawyers as to:
i. Confidential sources; and/or
ii. Unpublished information
b. Constitutional Privilege
i. Branzburg v. Hayes
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ii.
iii.
iv.
v.
1. Majority: There is no reporter’s privilege
a. Reporters have the same duty as other
citizens to respond to grand jury subpoenas
b. Reporters have same avenues of recourse in
resisting testifying before a grand jury
c. Law enforcement interests in building a case
are extremely high
2. Dissent: Qualified privilege exists
a. Reporters must at least reply to subpoena
with motion to quash
b. Balancing between right of free and open
debate, and prosecutor’s interest
c. Must be protection for newsgathering since
it is an essential part of publication (which
is protected)
3. Concurrence (Powell): Court does not hold that
journalists are without constitutional rights when
subpoenaed to testify before a grand jury with
respect to safeguarding confidential sources
a. Reporters must still appear and then move
to quash subpoena, like everyone else
b. Advocates balance of constitutional and
societal interests on an ad hoc basis
Interpreting Branzburg – Lower federal courts have
interpreted Branzburg three different ways:
1. Powell’s opinion controls (“narrowest grounds”)
a. Powell’s opinion represents the narrowest
grounds on which the majority agrees
2. Powell’s opinion is not controlling
a. Majority had five votes; whatever Powell
writes in concurrence is not binding
3. Dissent controls; privilege exists
a. Four dissenters recognized a privilege and
Powell recognized some sort of privilege;
thus, some sort of privilege exists
b. Overcoming privilege requires showing:
i. Compelling interest in the
information
ii. Information is relevant
iii. Information cannot be obtained
elsewhere
State Law
1. Most states recognize some form of reporter’s
privilege through statute, case law or constitutional
amendment
Federal Law
1. Federal legislation has been introduced numerous
times, but never passed
The Bottom Line – Confusing area for reporters and
attorneys alike because of the uncertainty of how local
rules or judges will operate
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c. Common Law Privilege
i. In re Grand Jury Subpoena, Judith Miller – No
constitutional or common law privilege
1. Federal Rule of Evidence 501 (promulgated after
Branzburg) – Permits Supreme Court to recognize
common law testimonial privileges as law develops
a. One judge advocated recognizing a privilege
under FRE 501 – Balance public interest in
compelling disclosure, measured by harm
caused, against public interest in
newsgathering, measured by leaked
information’s value
i. Privilege fails in this case anyway
ii. Leaks should be dealt with
differently
2. Majority: No common law privilege under FRE 501
a. Dealing with leaks in a different manner is
unnecessary because harm and
newsworthiness overlap in most cases
2.
Applying the Privilege
a. Non-Confidential Materials – Qualified privilege covers nonconfidential materials, but is less burdensome to overcome
(Gonzales v. National Broadcasting Company, Inc.)
i. Standard: Disclosure may be ordered only upon a clear and
specific showing that the information is:
1. Highly material and relevant;
2. Necessary or critical to the maintenance of the
claim; and
3. Not obtainable from other available sources
ii. Lower standard than that applied to confidential materials
(where court recognizes such a privilege)
C. Access to Information
1.
Access to Records
a. Freedom of Information Act (FOIA)
i. Generally – “Each agency, upon request for records, shall
make the records promptly available to any person.”
1. Applies to all federal agencies
2. Permits recovery of attorney’s fees for successful
plaintiffs who challenge wrongful withholding
ii. Disclosure Policies – Determined by administration
1. Regan – Ordered all information requested under
FOIA to be withheld if there is any “substantial
legal basis” for doing so
2. Clinton – Ordered all federal agencies to engage in
“maximum responsible disclosure”
3. Bush – Ordered that any discretionary decision “to
disclose information protected under FOIA should
be made only after full and deliberate consideration
of the institutional, commercial and personal
privacy interests”
iii. Exemptions
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1. Exemption (1): Information that relates to
protection of national security can be withheld
2. Exemption (2): Information having to do with
internal personnel rules and practices of an agency
can be withheld
3. Exemption (6): Documents that are “in the nature
of personnel and medical files and similar files, the
disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.”
a. Challenger case – After New York Times
requested voice recording of Challenger
flight prior to explosion, Court determined
there was a privacy interest that does not
warrant disclosure
4. Exemption (7)(A): Information that could
reasonably be expected to interfere with law
enforcement proceedings
5. Exemption (7)(B): Information that would deprive
a person of a right to a fair trial or an impartial
adjudication
6. Exemption (7)(C): “Records or information
compiled for law enforcement purposes, but only to
the extent that the production could reasonably be
expected to constitute an unwarranted invasion of
personal privacy.”
a. Receive more protection than records under
Exemption (6)
b. National Archives and Records
Administration v. Favish et al. – Family had
privacy interest in the burial arrangements
of deceased and requester of photographs of
deceased did not show any public interest in
disclosure
i. Objective Standard: Would a
reasonable person think there is a
public interest in revealing the
information?
ii. Break from general FOIA analysis
because it must be determined why
information is requested in order to
determine if the disclosure is
unwarranted
7. Exemption (7)(D): Information that could
reasonably be expected to lead to the disclosure of a
confidential source
8. Exemption (7)(E): Information that would disclose
techniques and procedures for law enforcement
investigations or prosecutions
9. Exemption (7)(F): Information that could
reasonably be expected to endanger the life or
physical safety of any individual
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2.
3.
b. Federal Sunshine Act (modeled on Florida law)
i. Generally – The public is entitled to the fullest practicable
information regarding the decision-making processes of
the federal government
1. All agencies (1) over a certain size, and (2) governed
by a board with two or more persons appointed by
the President, must hold “every portion of every
meeting” open to the public
2. Similar to FOIA in that it is very pro-disclosure
ii. Exceptions – Contains 10 exceptions
1. Meeting can only be closed after a vote of the full
board and requires release of a transcript of nonexempt portions of the meeting
iii. Constitutional Right of Access – Uncertain whether there
is a constitutional right of access to government meetings
c. State Laws – Almost every state has:
i. Some sort of statute providing access to public records
1. Most modeled on FOIA
ii. Some sort of open meetings act
Access to Institutions
a. Generally – Applies to prisons, military trials, accident scenes
where law enforcement is present, even countries government has
restricted access to
b. Prisons – No constitutional right of access for the media
(Houchins v. KQED, Inc.)
i. Press should not have any higher interest in gaining access
than any other member of the public
ii. But, has been suggested (in concurrence) that “equal
access” needs to be more flexible to give effective access to
the press (i.e. through permitting use of tools of trade) in
order to serve function of keeping public informed
Access to Courtrooms
a. Criminal Trials – Post-Nebraska Press Ass’n, many judges began
closing courtrooms to gag the media, since they couldn’t place
prior restraint on them by forbidding publication
i. Sixth Amendment – No Sixth Amendment right of access
to criminal proceedings for the media (Gannett Co. v.
DePasquale)
1. Sixth Amendment right belongs to the defendant
ii. First Amendment – First Amendment right of access does
exist for the media and the public (Richmond Newspapers,
Inc. v. Virginia)
1. Historical presumption of openness in criminal
trials
2. First Amendment right includes a freedom to listen
in addition to freedom of speech
3. Important as a structural function to have trials
open to the public and press
iii. Benefits to Public
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1. Therapeutic acceptance – People can be satisfied
that the result reached was a result of the fair
application of law and procedure
2. Prevents vigilante justice – If people can see the
trial being conducted fairly, less likely to take the
law into their own hands
3. Legal education for citizens – Citizens can learn
about the legal system through viewing trials
iv. Narrow Tailoring – Closure of courtroom must be
narrowly tailored to achieve the government interest
articulated (Globe Newspaper Co. v. Superior Court)
v. Pre-trial Proceedings – First Amendment right of access
for public and press to attend pre-trial proceedings (PressEnterprise II)
1. Presumption of Openness: Proceedings cannot be
closed unless specific, on-the-record findings are
made demonstrating closure is essential to preserve
higher values and is narrowly tailored to serve that
interest
2. Historical tradition of openness and accessibility in
pre-trial proceedings
3. Function – Public plays a significant positive role in
the functioning of the judicial process
b. Civil Trials – Question of whether there is a right of access in civil
trials has not been reached by Supreme Court
i. Lower courts are split
ii. Decision to revolves around justifications for keeping
criminal trials open to ensure that a criminal defendant is
guaranteed his Sixth Amendment right
c. Voir Dire – Trial court must look at other alternatives to closure
before deciding to completely close voir dire (Press-Enterprise I)
i. Closure might be justified where sensitive issues are
involved in juror questioning (racial bias, sexism, etc.),
provided trial court determines other alternatives won’t
work
ii. Releasing a transcript of closed voir dire proceedings is not
a satisfactory alternative to open voir dire where closure
has not been found to be warranted (ABC, Inc. v. Martha
Stewart)
1. Transcript cannot elicit information such as body
language, tone of voice or gestures
d. Courtroom Closure Factors After Richmond Newspapers and
Press-Enterprise II
i. Whether the proceeding has traditionally and historically
been open to the press
ii. Whether there is an overriding interest that is likely to be
harmed if the proceeding is open (i.e., a detriment to a
defendant’s Sixth Amendment rights or privacy of sexual
assault victims)
iii. Whether there is a substantial probability that interest will
be harmed if the proceeding is open
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4.
5.
6.
iv. Whether there are any reasonable alternatives to closure
v. Whether closure is narrowly tailored
Access to Judicial Records and Discovery Materials
a. Generally – Courts have typically allowed the press access to
judicial documents and evidence in court cases
b. Seattle Times Co. v. Rhinehart – Court determined newspaper
could not publish sensitive information gained through discovery
in litigation with church
i. Newspaper permitted to publish information if it could
obtain it through other means
ii. Balancing First Amendment rights of church members to
exercise their religion and peaceably assemble against the
First Amendment rights of the press
Access of Cameras
a. Access of Cameras in Judicial Proceedings
i. Constitutional Right of Access
1. Estes v. Texas (1965) – Supreme Court held that
televising a trial had prejudiced the criminal
defendant, but noted that television may eventually
become so commonplace that cameras in the
courtroom may not cause disparagement of the
judicial process
2. People v. Boss – Found New York statute banning
cameras in the courtroom unconstitutional
a. No high state interest in banning cameras
b. Television is the way most people get their
information, and so allowing cameras in the
courtroom is a way of making sure that
trials are made public
ii. State Law – Most states permit some form of cameras in
the courtroom, leaving trial courts a great deal of discretion
iii. Federal Courts
1. District Court – Cameras banned
2. Courts of Appeals – Cameras permitted at Court’s
discretion
3. Supreme Court – Cameras banned
a. Most Justices very opposed to cameras in
the Supreme Court
b. Access of Cameras in Executions – No special right of access to
proceedings to which the public has no right of access (Garrett v.
Estelle)
i. Scenario is more similar to prisons than to courtrooms
Access During Wartime
a. Balancing – Generally involves balancing the media’s First
Amendment rights against national security and the safety of
soldiers
b. Access to Information in the War on Terrorism
i. FOIA After 9/11
1. Ashcroft policy – Withhold information if there is
any “sound legal basis” for doing so
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2. Government began utilizing different exemptions
more:
a. Exemption (1): Information relating to
national security
b. Exemption (2): Information having to do
with internal personnel rules and practices
of an agency
c. Exemption (7)(F): Information that could
reasonably be expected to endanger the life
or physical safety of any individual
ii. Access to Names of Detainees – D.C. Circuit found that
government is entitled under FOIA Exemption (7)(A) to
withhold all information about detainees held at
Guantanamo Bay
1. Judiciary owes some measure of deference to the
executive in cases implicating national security
2. Disclosure might compromise efforts to weaken al
Qaeda because releasing information might provide
a “roadmap” of the United States’ investigation
c. Access to Military Operations
i. Methods of Coverage
1. The Pool System – Select members of the media
permitted to travel with military. All media
compile their reports from this pooled information.
a. Received a great deal of criticism from
members of the press
b. Pentagon exercises a lot of control over
information under this system
2. New Rules – After the Gulf War, the media
negotiate new rules with the Pentagon for future
conflicts
a. Permit broader access whenever possible
and prohibit military officers from
interfering
ii. Constitutional Right of Access – No constitutional right of
access exists for members of the press to be embedded with
military unit (Flynt v. Rumsfeld)
1. No historical tradition of openness like there is in
the courtroom
2. Embedded reporters place a burden on the troops
that have to protect them
iii. Operations on Military Bases – No constitutional right of
access of the media to military bases (J.B. Pictures, Inc. v.
Department of Defense)
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