COMMUNICATIONS LAW OUTLINE
FIRST AMENDMENT AND GOVERNMENT REGULATION
First Amendment and the Media
1) Generally
a) First Amendment
i) Addresses only Congress
ii) Now applies to state because of 14th action
b) Common law
i) Treason
ii) Licensing
(1) Free speech beginning
iii) Seditious libel
(1) Criminal action used against criticism of government or government officials
(2) Truth wasn't a defense, but an aggravating factor
(3) Judge decided subjectively what counted as seditious
(4) Jury decided whether publication occurred
(5) Prosecutor didn't need grand jury indictment
(6) Zenger trial - jury basically assumed power to decide whether the speech was actually libelous and
wrongful
iv) Prior restraints generally held invalid in both England and US
2) Speech and Press Clauses
a) “Or of the Press” – Potter Stewart
i) The press clause gives independent power to the press in recognition of its structural importance to the
country
(1) Protects an institution rather than an individual
(2) Creates a fourth institution outside the government as an additional check
b) Miami Herald Publishing Co. v. Tornillo (1974)
i) The First Amendment Speech and Press Clauses bar a FL state statute granting a "right of reply", i.e. forced
access to the media, to a candidate for political office.
(1) The force of precedent is that any compulsion to publish that which 'reason' tells a newspaper should
not be published is unconstitutional
(2) FL statute fails to clear barriers of First Amendment because of its intrusion into the function of editors
(3) A content-based regulation that acts as a penalty via a chilling effect
3) Electronic Media
a) Red Lion Broadcasting Co. v. FCC (1969)
i) FCC can implement personal attack rule for political candidates because of the scarcity of broadcast
resources, which significantly limits the number of potential voices that can be heard over the airwaves
ii) Purpose of First Amendment is to preserve an uninhibited marketplace of ideas, and monopoly of that
market, either by the government or by private interests, must be avoided
(1) It is the right of the viewers and listeners that is “paramount”
(2) Licensees treated as proxies for the general public, obligated to give suitable time and attention to
matters of great public concern
iii) Vacated in 2000, and not followed for cable (Turner Broadcasting System, Inc. v. FCC (Turner I)) or internet
(Reno v. ACLU).
b) Other justifications for disparate treatment
i) Public ownership
ii) Intrusiveness
iii) Pervasiveness
1
iv) Inability to control access
v) Power (dissemination?)
vi) Vividness
vii) Glorification of violence
viii) Impact on children
4) Standards of review
a) Literalist
i) No law means no law – not used today
b) Balancing
i) Strict Scrutiny – narrowly tailored or least restrictive means to achieve a compelling government interest
(1) Restriction is presumptively invalid
(2) Content-based regulations, unless targeting only low value speech
ii) Intermediate Scrutiny – substantially related to an important government interest
(1) Content-neutral, or content based but targeting only low-value background
(2) Regulations that affect expression but do not target expression
iii) Rational basis – rationally related to a legitimate government interest
(1) Restriction is presumptively valid
c) Time, place, and manner restrictions
Forms of Government Regulation
1) Content-Based vs. Content-Neutral
a) Content-Based
i) Always implicate First Amendment concerns and generally requires strict scrutiny analysis
ii) Simon & Schuster Inc. v. N.Y. State Crime Victims Board (1991)
(1) Strikes down NY law requiring criminal’s income from works depicting their criminal acts be deposited in
fund for victims
(2) Rejects argument that content-based laws only face strict scrutiny when they intend to discriminate or
target the media
(3) Interests advanced by the state rejected
(a) Depriving criminals of the profits of their crimes (compelling, but statute is too broad)
(b) Compensating victims (compelling, but statute too broad)
(c) Ensuring that criminals don’t profit from storytelling before victims have a chance to be
compensated (narrow, but not compelling because no reason storytelling should be any different
than any other profits)
(4) Kennedy concurrence
(a) Rejects strict scrutiny in favor of an absolutist approach – once CBR is established, invalid unless
speech is categorically excluded, e.g. obscenity
iii) Landmark Commc’ns, Inc. v. Virginia (1978)
(1) VA law imposing criminal sanctions for disclosing information on confidential proceedings of commission
charged with investigating judicial misconduct is facially invalid because the restriction on the freedom
of speech is too great for the justification given.
(a) Injury to official reputation is an insufficient reason for repressing otherwise protected speech
(i) Institutional reputation of the courts is entitled to no greater weight
(b) 40 other states have similar commissions and have not used criminal sanctions against
nonparticipants to enforce confidentiality
(i) i.e., there are alternative ways to accomplish the policy goal of confidentiality
(c) Reporting on government affairs is one of the core purposes of the 1st amendment
(2) Stewart concurrence in the judgment
(a) Statute is not facially invalid, but it is unconstitutional as applied to a newspaper because of the 1st
amendment
2
(3) Categorical approach urged by Landmark, that all truthful reporting about matters of public concern is
protected by the 1st amendment, is deemed "unnecessary"
iv) Smith v. Daily Mail Publ’g Co. (1979)
(1) If a newspaper lawfully obtains truthful information about a matter of public significance then state
officials may not constitutionally punish publication of the information, absent a need to further a state
interest of the highest order (strict scrutiny).
(a) WV law making it a crime for a newspaper to publish the names of juveniles in connection with
delinquency proceedings without a written court order
(i) Newspapers learned of killing over police radio, and obtained the name of the suspect by asking
witnesses, police, and prosecuting attorney
(b) State action to punish the publication of truthful information seldom can satisfy constitutional
standards
(c) Doesn’t matter if the law is considered a prior restraint or penalty after the fact
(i) Prior restraint – once the truthful information is publicly revealed or in the public domain, a
newspaper cannot be constitutionally restrained from publication
(d) Interest in juvenile anonymity is important, but subordinate to Sixth Amendment right to
confrontation; also subordinate for First Amendment
(i) Moreover – law not sufficiently tailored, since it only targets newspapers, not radio or anything
else. Means don’t serve the ends.
b) Content-Neutral
i) Turner Broadcasting System, Inc. v. FCC (1994) [intermediate scrutiny applied]
(1) Principle inquiry in determining content neutrality is whether the government has adopted a regulation
of speech because of agreement or disagreement with the message it conveys
(a) Content-based purposes may be sufficient, it is not always necessary
(2) Must-carry rules are neutral
(a) Burdens imposed are unrelated to content of speech, e.g. manner of speaking (broadcast v. cable),
number of channels (does not distinguish between cable programmers)
(b) Purpose is to ensure the continued availability of free local broadcast television
(i) The fact that such stations have local content that congress finds important does not render the
regulation content-based; instead only that congress thinks such stations have some intrinsic
value worthy of preservation
(3) The First Amendment does not disable the government from taking steps to ensure that private
interests not restrict, through physical control of a critical pathway of communication
(4) United States v. O’Brien (1968) test
(a) CNR will be sustained if
(i) Furthers an important or substantial governmental interest
(ii) If the governmental interest is unrelated to the suppression of free expression
(iii) If the incidental burden on First Am freedoms is no greater than is essential to the furtherance
of that interest
1. Need not be least-restrictive means, but rather promotes an interest that would be less
effectively absent the regulation
c) Prior Restraints
i) Near v. Minnesota (1931)
(1) Strikes down MN law that authorized abatement as a public nuisance of a newspaper that published
malicious or scandalous information.
(a) Newspaper published a series of articles saying that a Jewish gangster was doing shit and the cops
weren't doing anything to stop him.
(2) Liberty of the press has meant, principally although not exclusively, immunity from previous restraints or
censorship.
(a) In colonial America, that liberty was esp cherished for the immunity it afforded from previous
restraint of the publication of censure of public officers and charges of official misconduct.
3
ii)
iii)
iv)
v)
vi)
(3) Madison: "Some degree of abuse is inseparable from the proper use of everything, and in no instance is
this more true than in that of the press. It has accordingly been decided by the practice of the states,
that it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them
away, to injure the vigour of those yielding the proper fruits."
(a) Government has gotten more complex, and the liberty is more important than ever
(4) Opportunity for publisher to prove his story's truth and his good motives is meaningless protection
from the infringement on liberty. If he has to bring it before a judge, the legislature could just as easily
make it an executive officer, which is just censorship.
(5) Four Horsemen dissent
(a) This isn't a prior restraint in the historical sense of that term. Prior restraints were akin to England's
censors, which had to approve ANY publication beforehand. This statute authorizes an injunction
preventing FURTHER publication of specific material if the government can show it was defamatory
or scandalous.
(b) Problem with dissent is that it ignores the fact that it still allows the government to prohibit speech
before it is made.
Alexander v. United States (1993)
(1) Operator of adult entertainment businesses was convicted of transporting multiple copies of obscene
magazines across state lines. These convictions established a pattern of racketeering, which formed the
basis of a RICO conviction. Forfeiture order allowed government to destroy all of Alexander's inventory,
including millions of dollars of books and other speech material.
(2) Forfeiture is a punishment, not a prior restraint
(a) No more likely to chill speech than a prison sentence or a large fine
Overcoming presumption of unconstitutionality
(1) New York Times Co. v. United States
(a) Injunction barring publication of Pentagon Papers unconstitutional.
(b) Prior restraint generally not acceptable unless disclosure will surely result in direct, immediate, and
irreparable damage to our Nation or its people.
(2) United States v. The Progressive, Inc. (W.D. Wis. 1979)
(a) Article assembled data on how to construct a nuclear bomb
(b) Injunction issued, analogizing article to publications of troop movements or locations in time of war,
thus falling within the narrow category of acceptable prior restraint
(3) Copyright infringement, trade secret law, preclearance of motion pictures (see Freedman)
(a) Freedman v. Maryland
(i) Procedural safeguards for exercising prior restraints
1. Censor bears the burden of proving that the speech is unprotected
2. A prompt judicial determination is required to validate the final restraint
(4) Statements that have been found to be defamatory are not protected by the First Amendment, and can
therefore be subjected to prior restraint. Tory v. Cochran (2005) (Johnny Cochran coercion deal); Balboa
Island Village Inn Inc. v. Lemen (Cal. 2007) (cranky neighbor complaining about bar)
Disobeying injunctions
(1) Collateral bar doctrine – one charged with contempt for disobeying an injunction cannot defend on the
ground that the injunction itself was unconstitutional
(a) Transparently invalid injunction
(i) Must have a good faith effort to seek emergency appellate review, then can proceed to publish
and challenge the constitutionality of the order in the contempt proceedings
1. What counts as a timely appellate decision? Who knows
Be aware of difference between injunctions and criminal penalties after the fact
Due process requires that reporters have notice of restraining order before they can be held in contempt for
violating it. In re Court Order Dated October 22, 2003 (R.I. 2005).
Speech about Judicial Proceedings
4
1) Generally
a) Mere exposure of a juror to information or even predisposition on the question of guilt is insufficient to
establish prejudice
b) Two types of prejudice
i) Actual prejudice (Urban v. Dow (1961))
(1) Publicity surrounding confession
(2) 8 of 12 jurors had a preconcieved notice
ii) Inherent prejudice (Doe case (1963))
(1) Extensive pre-trial publicity
c) Sheppard v. Maxwell (1966)
i) Extensive publicity before and during trial – “carnival atmosphere”
ii) Possible options for restricting speech
(1) Close courtroom doors or at least tell people to shut up and sit down
(2) Insulate witnesses
(3) Make an effort to control the release of lakes by cops, witnesses, and counsel
iii) Interpreted as a mandate to indirectly restrict news coverage before and during trials by restricting what the
participants could tell the press
iv) Cf. Skilling case re Enron – larger jury pool in Houston, less prejudicial information, time between press
coverage and trial, acquittal on some counts means jury wasn’t brainwashed
2) Restraints on Media
a) Nebraska Press Ass’n v. Stuart (1976)
i) Gag order on press
ii) Test
(1) Nature and extent of pretrial news coverage
(2) Whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity
(a) Sheppard options
(b) Change of venue
(c) Postponement of trial
(d) Intense jury screening
(e) Clear jury instructions
(f) Sequestration of jurors
(3) How effectively a restraining order would operate to prevent the threatened danger
(a) Lack of jurisdiction over some of the media personnel
(b) Small community was going to talk about it anyway
iii) With respect to the order entered in this case prohibiting reporting or commentary on judicial proceedings
held in public, the barriers have not been overcome and the restraining order is invalid.
b) BA post-Sheppard
i) Prohibited all pre-trial out of court statements by attorneys
ii) During trial, prohibited statements reasonably likely to interfere with fair trial
(1) Still used by ~10 states
iii) Post-Nebraska Press
(1) Amended rules to require "serious and imminent danger"
(2) 5 states and DC
iv) In 1980, MRPC 3.6 (now used by 35 jurisdictions)
(1) Substantial likelihood of material prejudice
3) Restraints on Participants
a) Gentile v. State Bar of Nevada (1991)
i) Lawyer’s speech can be regulated under a less demanding standard than that established in Nebraska Press
Association
(1) State may demand some adherence to the precepts of criminal justice system by regulating lawyers’
speech as well as their conduct
5
ii) Adopts the ‘substantial likelihood of material prejudice’ standard
(1) Limitations on speech aimed at two evils
(a) Comments that are likely to influence the actual outcome of the trial
(b) Comments that are likely to prejudice the jury pool
6
PUBLICATION
Defamation
1) Common Law
a) Publication = Communications to a third person who reasonably understands the defamatory meaning
i) NOT strict liability at common law - intentional or negligent required
b) Defamatory meaning
i) A defamatory statement is one that is false and injurious to the reputation of another or exposes another
person to hatred, contempt, or ridicule, or subjects another person to a loss of the good will and confidence
in which he or she is held by others. Romaine v. Kallinger (N.J. 1988) (statement in a book suggesting P
sought information about a junkie in prison not defamatory).
(1) Restatement definition: one that tends so to harm the reputation of another as to lower him in the
estimation of the community or to deter third persons from associating or dealing with him
(2) New York definition: one that tends to expose a person to hatred, contempt, or aversion, or to induce
an evil or unsavory pinion of him in the minds of a substantial number in the community
(a) Community narrowed to include only right-thinking and respectable people, e.g. not prisoners
ii) Fair and natural meaning which will be given the statement by reasonable persons of ordinary intelligence,
considering the publication as a whole and the particular context in which the statement appears
(1) Plaintiff allowed to show extrinsic facts that would explain why the statement would be understood in a
defamatory sense by those who knew the unstated facts
c) Slander
i) General rule in slander - defamatory statement that causes pecuniary loss, or “special harm”
(1) Slander per se exceptions – allegations that:
(a) Plaintiff committed a crime
(b) Tend to injure the plaintiff in his trade, business , or profession
(c) Plaintiff has contracted a loathsome disease
(d) Impute unchastity to a woman
(2) In libel, existence of damages is conclusively presumed from publication itself, unlike slander
ii) Defamation broadcast by means of radio or television should be classified as libel
(1) Greater potential for wider harm
2) Fault
a) Actual Malice
i) Public officials
(1) New York Times Co. v. Sullivan (1964)
(a) Absolute privilege - Constitutional guarantees in 1st and 14th amendments require a federal rule
that prohibits a public official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with actual malice - with (1)
knowledge that it was false OR (2) with reckless disregard of whether it was false or not.
(i) Convincing clarity - proof to show actual malice must have convincing clarity
(b) The constitution delimits a state's power to award damages for libel in actions brought by public
officials against critics of their official conduct.
(i) Presumption of malice for general damages is inconsistent with federal rule because malice
must be proved according to the rule.
1. Because the jury verdict returned a general verdict that did not distinguish general and
punitive damages, there is no way to tell whether they found actual malice.
(ii) Absolute privilege analogous to protection given to officials for charges of libels against them
1. Barr v. Mateo - utterance of public official absolutely privileged if made within the outer
perimeter of his duties
2. Threat of damage suits would inhibit effective administration of government
3. It is as much the citizen's duty to criticize as it is the official's duty to govern
7
4. It would give public servants an unjustified preference over the public if critics of official
conduct did not have a fair equivalent of the immunity granted to the officials themselves.
5. Democratic basis
(c) NYT did not have actual malice
(i) Corporate secretary believed the advertisement to be substantially correct
(ii) Subsequent retraction not evidence of actual malice
(iii) Mere presence of stories tending to prove the ad false does not prove malice
(d) Advertisement was not "of or relating to" Sullivan
(i) No explicit reference by name or official position
(ii) Referring to the police alone does not provide that they were talking about the commissioner as
an individual
(e) There is no allowable action for libel against the government, and the states cannot transmute
criticism of government into personal criticism of the officials of whom the government is composed
(i) Strikes at the very center of the constitutionally protected area of free expression
ii) Public figures
(1) Sullivan standard should apply to public figures. Curtis Publishing Co. v. Butts & Associated Press v.
Walker (1967).
(a) Public figures have equal access to media and influence on society
(b) The blending of positions and power has resulted in individuals who are not elected but are
nevertheless intimately involved in the resolution of important public questions or, by reason of
their fame, shape events in areas of concern to society at large
iii) Concepts
(1) Actual malice
(a) Expanded to criminal libel in Garrison v. Louisiana
(i) Standard focuses on subjective awareness of falsity, thus bore little resemblance to tort law
concept of recklessness
(b) Defendant must actually entertain serious doubts as to the truth of his publication. St. Armant v.
Thompson.
(c) Reckless disregard
(i) High degree of awareness of probable falsity
(ii) Entertained serious doubts as to the truth of the publication
(iii) Story fabricated by defendant, product of his imagination
(iv) Story based on an anonymous uncorroborated phone call
(d) Harte Hanks Communications, Inc. v. Connaughton
(i) Dirty tricks allegation by newspaper - damages affirmed
(ii) Failure to interview one witness that both sides claimed would verify the truth
(iii) Paper's failure to listen to tape that paper was told exonerated plaintiff
(iv) Earlier editorial establishing bias
(v) Discrepancies in testimony of defendant's witness which would support a finding that the failure
to conduct a complete investigation involved a deliberate effort to avoid the truth
(e) Deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity
unless the alteration results in a material change in the meaning conveyed by the statement.
Masson v. New Yorker Magazine.
(2) Convincing clarity
(a) Much more than preponderance of the evidence
(3) Independent review
(a) Appellate courts must exercise independent review to assure sufficiency of proof
(4) Common law malice vs actual malice
(a) Common law = state of mind vis-a-vis the plaintiff (ill will or spite)
(b) Actual = state of mind vis-a-vis the truth or falsity of the statement (knowledge or reckless
disregard)
8
(5) Recklessness for actual malice is a subjective standard, as opposed to the objective negligence standard
b) Negligence
i) Private plaintiffs
(1) Gertz v. Robert Welch, Inc. (1974)
(a) P is an attorney representing family of youth killed by cop, D published for John Birch Society and
alleged that P was a major architect of a plot to frame the cop, and other false assertions.
(b) Editor said he had no reason to doubt but did not verify
(c) No constitutional value in false statements of fact
(d) Private plaintiff burden should be lower than Sullivan
(i) Private plaintiffs have less opportunity for self help, so the public interest in protecting them is
greater
(ii) Private plaintiffs have not voluntarily exposed themselves to greater scrutiny
(iii) High punitive damage awards can chill protected speech
(e) States can design their own standards, but must not impose liability without fault
(i) Actual malice standard for presumed or punitive damages
ii) Courts are split over a reasonable man standard or a professional negligence standard
iii) Restatement on reasonableness
(1) Time element (crunch deadline?)
(2) Nature of the interest promoted by the publication (gossip v politics)
(3) Potential damage to plaintiff of falsity
c) Liability without Fault
i) Dun & Bradstreet v. Greenmoss Builders (1985)
(1) Rejects distinction between media and non-media defendants
(2) States may award presumed and punitive damages without proof of actual malice to private plaintiffs
who are defamed in speech on matters of purely private concern
3) Public vs. Private
a) Public officials
i) Rosenblatt v. Baer (1966)
(1) P had been hired by county commissioners to supervise a public recreation facility – counts as a public
official
(a) Strong interest in debate on public issues, and those persons who are in a position to influence
resolution of those issues
(b) Label applies to those among the hierarchy og government employees or have or appear to the
public to have, substantial responsibility for or control over the conduct of government affairs
(i) Public must have independent interest in the qualifications and performance of the person who
holds it
ii) Candidates (on matters touching on an official’s fitness for office), police officers, former public officials (for
their previously public purposes)
b) Public figures
i) Time, Inc. v. Firestone (1976) – P was a member of “one of America’s wealthier industrial families”, Time
reported on his divorce = PRIVATE
(1) Did not thrust herself into public dispute
ii) Wolston v. Reader’s Digest Ass’n (1979) – P was a listed incorrectly as a one in a group of people convicted
of espionage and perjury, but he had only been convicted of contempt = PRIVATE
(1) P did not voluntarily thrust nor inject himself into the forefront of the controversy surrounding the
investigation of soviet espionage in the U.S.
(2) Did not engage the attention of the public to influence resolution of the public interests involved
iii) Hutchinson v. Proxmire (1979) – P was a scientist who received a grant of federal funds, D was a senator
who criticized the grant as wasteful government spending on unjustifiable scientific research = PRIVATE
(1) Those charged with defamation cannot create their own defense by making the claimant a public figure
through their own conduct
9
iv) General-purpose public figures
(1) Well known celebrity, household word of a name. the public follows his words and deeds, either
because it regards his ideas, conduct, or judgment as worthy of the attention or because he actively
pursues that consideration
v) Limited-purpose public figures
(1) WFAA-TV, Inc. v. McLemore (Tex. 1998)
(a) McLemore was a reporter during the Waco siege who was present at the site and may have tipped
off the Davidians = PUBLIC
(i) Thrust himself to the forefront of the controversy surround the failed ATF assault
(b) Test
(i) Controversy must be public in that people are discussing it and that people outside the
immediate participants are likely to feel the impact of its resolution
1. Scope of controversy – must be some specific question, not just a general concern or
interest, and then see if the press was attempting to cover the debate and help the public
formulate some judgment
(ii) P must have more than a trivial or tangential role in the controversy
(iii) Alleged defamation must be germane to the P’s participation in the controversy
vi) Involuntary public figures
(1) Dameron v. Washington Magazine (D.C. Cir. 1985)
(a) Air traffic controller on duty when a plane approaching IAD crashed into a mountain, testified later
in related proceedings = PUBLIC
(b) P played a central, if involuntary, role in the controversy surrounding the cause of the crash
4) Falsity
a) Burden of proof
i) Philadelphia Newspapers, Inc. v. Hepps (1986)
(1) Newspaper published stories alleging that stores owned by Hepps were connected with the mob.
(a) State statute gave media defendants the burden of proving truth
(2) Plaintiff must prove falsity as well as fault before recovery
(3) Applies in suits against media defendants for speech of public concern
(a) Lower courts have generally treated non-media defendants similarly
(b) Lower courts disagree over independent appellate review
(c) Lower courts disagree over convincing clarity showing of falsity
b) Material falsity – must be not merely technically false, but materially so
5) Fact vs. Opinion
a) Depend on the marketplace of ideas for the correction of false opinion (from dicta in Gertz)
i) Powell opinion was read broadly to say that the distinction between fact and opinion was a critical one, and
that opinion was absolutely privileged and not actionable
(1) Defense attorneys then claimed that everything was opinion
(2) Judge would then make that determination
b) Ollman v. Evans (D.C. Cir. 1984)
i) Column in WaPo against appointment of Marxist professor, calling him an activist
ii) Trial court dismisses on basis of privileged opinion
(1) Common usage or meaning of the specific language
(2) Statements' verifiability
(3) Full context of the statement
(4) Broader context or setting in which the statement appears
iii) As a matter of constitutional law, the publications could not have a defamatory meaning
(1) Publication has a constitutional dimension
c) Milkovich v. Lorain Journal Co. (1990)
10
i)
Milkovich was coach of a HS wrestling team, team got into a brawl with another team. Athletic ass'n had a
hearing and then censured Milkovich and placed team on probation. Parents sued for injunction against
probation. At injunction hearing, Milkovich testified.
(1) Columnist accused Milkovich and Scott, superintendant, of lying under oath about their role in the
brawl.
ii) Hepps ensures that a statement of opinion relating to matters of public concern which does not contain a
provable false factual connotation will receive full constitutional protection
(1) There is also protection for statements that cannot reasonable be interpreted as stating actual facts
(satire and rhetorical hyperbole)
iii) There is no wholesale exception for “opinion”. The question becomes whether the statement, opinion or
not, implies an assertion of actual fact whose demonstrable falsity would render the statement defamatory.
(1) The perjury asserted by the columnist is a demonstrably true or false assertion of fact.
iv) Independent appellate review is required, according to at least one circuit.
6) Republication
a) Republication vs. distribution
i) Distributors are like booksellers, and are only liable if they know or have reason to know of the defamatory
content
ii) Publishers need not have specific knowledge of the defamatory content
b) Cyberspace
i) Zeran v. Am. Online, Inc. (4th Cir. 1997)
(1) Internet service providers are clearly immunized by the CDA § 230 from liability for information that
originates with third parties.
(2) Lawsuits seeking to hold an ISP liable for exercise of a publisher’s traditional editorial functions – such as
whether to publish, withdraw, postpone, or alter content – are barred.
ii) CompuServe case in NY (1991)
(1) CS has a contract with contract provider
(2) CS was held to be a distributor
iii) Stratton Oakmont (NY 1995)
(1) Prodigy was a AOL-like interactive computer service (ISP) that held itself out as family-friendly
(2) Held to be a publisher because it advertised its practice of controlling content, then screened and edited
messages
c) Neutral Reportage
i) Neutral reportage doctrine only accepted by 6 or so jurisdictions, and many have explicitly rejected it
ii) When a responsible prominent organization makes serious charges against a public figure, the First
Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s
private views regarding their validity
7) Common Law Privileges
a) Absolute privilege for high government officials to speek freely on matters relevant to their obligations
b) Absolute privilege for broadcasters required by statute to grant equal opportunity on the airwaves to all
candidates for the same office
c) Fair comment privilege
i) Protects literary, artistic, and similar kinds of criticism, regardless of merit, as long as it is made honestly as
measured by the accuracy of the descriptive observations
d) Fair and accurate report privilege
i) Privilege to publish a fair and accurate report of official proceedings
ii) Medico v. Time, Inc. (3d Cir. 1981)
(1) Newsmagazine enjoys a privilege to publish a summary of FBI documents identifying the plaintiff as a
member of an organized crime family
(2) Restatement
11
(a) Publication of defamatory matter concerning another in a report of an official action or proceeding
of a meeting open to the public that deals with a matter of public concern is privileged if the report
is accurate and complete or a fair abridgement of the occurrence reported
(3) Underlying policies
(a) Agency for public
(b) Public supervision of judicial proceedings
(c) Public’s inherent interest in important things
(4) No abuse
(a) Account fails to be fair and accurate, e.g. embellishment
(b) Account published for the sole purpose of causing harm to the person defamed
12
Public Disclosure
1) Tort of Public Disclosure
a) Privacy
i) Four traditional torts at common law
(1) Intrusion, physically or technologically- Restatement § 652(b)
(2) Appropriation, i.e. commercial exploitation of a person’s name or likeness- § 652(c)
(a)
(3) Unreasonable publicity and disclosure of private facts § 652(d)
(a) One who gives publicity to a matter concerning the private life of another is subject to liability to the
other for invasion of his privacy, if the matter publicized is of a kind that
(i) (a) would be highly offensive to a reasonable person, and
(ii) (b) is not of legitimate concern to the public.
(b) Differences with defamation
(i) No fault provision
(ii) No falsity requirement
(iii) Objective standard
(4) False light § 652(e)
b) Public Disclosure of Private Facts
i) Haynes v. Alfred A. Knopf, Inc.
(1) Book described P as a drunk, unfaithful husband. Allegations were true, but were 25 years ago. P sues
for invasion of privacy
(a) People who do not seek the limelight have no legal right to extinguish it if the experiences that have
befallen them are newsworthy
(2) Criteria for claim
(a) [Deep] Offensiveness to a reasonable person
(b) Facts of no legitimate interest to the public
ii) Public concern
(1) Wide leeway
(2) Account must be taken of the customs and conventions of the community
(3) Is it a morbid and sensational prying into private lives for its own sake?
(4) Scope of public concern obviously larger for public figures
2) Constitutional Limitations
a) Cox Broadcasting Corp. v. Cohn (1975)
i) First Amendment prohibits sanctions for accurate reporting of publication of the name of a rape victim
obtained from judicial records
ii) Protection eventually extended to any information gleaned from public judicial records
b) Florida Star v. B.J.F. (1989)
i) First Amendment prohibits civil liability for publishing the name of a rape victim which it had obtained form
a publicly released police report
ii) Daily Mail clearly requires reversal
iii) No showing of narrow tailoring to meet a compelling state interest
(1) First of all, government itself provided the info – so how narrowly tailored could it be?
(2) Per se negligence theory is essentially being applied
(3) Underinclusive – doesn’t cover the person shouting on the street corner
Other Liability
1) Emotional Distress
a) Hustler Magazine, Inc. v. Falwell (1988)
i) IIED claim still has to meet Sullivan standard to recover reputational damages
13
ii) Holding limited to public debate about public figures
b) Howell v. New York Post – no IIED liability for reporter who trespassed on to the grounds and used a telephoto
lens to get a photo of a patient
c) Esposito-Hilder v. SFX Broadcasting – bride singled out on radio during “ugliest bride” contest stated a valid IIED
claim
i) P worked for rival broadcaster, and D deviated from normal rules because of it
ii) PRIVATE figure
iii) No public interest
d) Roach v. Stern – P gave a box of her sister’s ashes to a friend, who then went on Stern and did rude things – valid
IIED claim against Stern
i) Stern is a dick, the friend was weird, against express wishes of family
2) Economic Harm
a) Breach of Promise
i) Cohen v. Cowles Media Co.
(1) First Amendment does not protect media from laws of general applicability
(2) Liability flows for disclosure of source’s name in violation of confidentiality agreement because of
promissory estoppel
(a) Not reputational damages, but economic damages from loss of income, etc.
(b) Compensatory damages are not punitive
3) Physical Harm
a) Incitement
i) Herceg v. Hustler Magazine, Inc. (5th Cir. 1987)
(1) Orgasm of death
(2) First amendment protection is not eliminated simply because publication of an idea creates a potential
hazard
(3) Factors for finding incitement (from Brandenburg)
(a) When the material was read
(b) Psychiatric testimony about likely effects on normal, similarly-situated individuals
(c) Evidence about probable state of mind
(4) Test
(a) Lawless act
(b) Advocacy of the fact [this is where Herceg fails most obviously]
(c) Beyond mere advocacy tantamount to incitement
(d) Directed to imminent action
b) Aiding & Abetting
i) Rice v. Paladin Enterprises, Inc. (4th Cir. 1997)
(1) Hit man books
(2) D stipulated to facts establishing aiding and abetting unless the First Amendment absolutely bars the
imposition of liability upon a publisher for assisting in the commission of criminal acts
(a) Why stipulate? Causation, other issues far from clear
(3) Speech that constitutes criminal aiding and abetting does not enjoy the protection of the First
Amendment – applies with equal force to civil liability
(4) Two possible constitutional limitations
(a) Some speech not deserving protection is sometimes to protected to prevent chilling valuable speech
(i) Does not apply where “specific, if not criminal, intent” is shown
(b) Might have to be more than “mere advocacy”, but this was more anyway
(i) Not abstract because of its specificity
(5) No liability for copycat crimes because the requisite intent to assist in the commission is lacking. Also,
there’s a legitimate purpose in news of violent acts.
(6) No necessary liability on mere foreseeability or knowledge that instructions might be misused for a
criminal purpose
14
(7) Question of imminence
c) Negligence
i) Braun v. Soldier of Fortune Magazine, Inc. (11th Cir. 1992)
(1) Gun for hire ad
(2) Risk-utility balance – liability flows only if the advertisement on its face would have alerted a reasonably
prudent publisher to the clearly identifiable unreasonable risk of harm to the public that the
advertisement posed
(3) First amendment limitations
(a) Incidental burden on protected speech if editor has to reject ambiguous ads
(b) No duty to investigate the ads printed, must appear from the face of them that there is a substantial
danger of harm to the public
(4) Independent appellate review on constitutional fact, i.e. whether the ad, on its face, showed a
substantial danger of harm to the public
ii) Other examples
(1) Jenny Jones case – men who have secret crushes on men – no liability
(2) Dallas Morning news – published address information of suspect in gang shooting, people murdered
suspect’s sister – no liability
(3) Video games – violence causes school shootings? – no liability
15
NEWSGATHERING
Newsgathering Torts
1) Trespass
a) No trespass where the entry is under circumstances form which the consent of the owner may be implied
i) Longstanding practice in FL for news media to enter upon private premises where a disaster of great public
interest has occurred, as long as they are invited by law enforcement and cause no damage. Fletcher (not
widely followed)
ii) Most jurisdictions hold that a law enforcement officer is not endowed as a matter of law with the right to
invite media to invade private property
b) Liability flows for news crew barging in with cameras rolling to a restaurant, causing patrons to leave without
paying the bill
2) Intrusion
a) Dietemann v. Time, Inc. (9th Cir. 1971)
i) Story about crazy veteran doing weird medicine – reporters used hidden cameras and a wire after arranging
situation with local DA’s office
ii) Recognizes cause of action for invasion into spheres from which an ordinary person in P’s position could
reasonably expect that the particular D should be excluded, e.g. eavesdropping newsmen
(1) Difference between repetition to others and transmission of your words as they happen
iii) First amendment does not prohibit liability
(1) Newsgathering is important, but hidden tools are not indispensible to newsgathering
iv) Publication does not insulate defendant from antecedent tort nor does first amendment preclude using
publication to amplify damages
b) Galella v. Onassis (2d Cir. 1973)
i) Paparazzo harassing Jackie O
ii) Modified injunction approved enjoining P from coming within 25 feet, from impeding D’s movement in
public places, placing her life and safety in jeopardy, harass alarm, or frighten D, similar restrictions
regarding D’s children
c) Wilson v. Layne (1999)
i) Ride-along case
ii) Fourth Amendment requires that police actions in execution of a warrant be related to the objectives of the
authorized intrusion
(1) Presence of reporters inside the home is not related
(2) Relation in a general sense to improving law enforcement is insufficient – must be particular to the
warrant at issue
(3) Keeping tabs on the police is also insufficient, because that’s not what they were doing. These were
private media personnel acting for their private business purposes, not police quality control.
iii) Media liability for ride-alongs
(1) Berger v. Hanlon (9th Cir. 1997)
(a) CNN entered into contract with federal agency to tape and record poisoning of eagles
(b) CNN held to be a state actor, which means they escape liability for the intrusion tort but faced
Bivens liability as state actors. Did not receive qualified immunity like the officials.
d) Shulman v. Group W Productions
i) Helicopter rescue case – cameraman on board helicopter and nurse wore microphone
ii) Liability for intrusion
(1) Seclusion
(a) Accident scene - No expectation of privacy, so cameraman could not have intruded
(b) Inside the helicopter – acting as an ambulance, so there’s a triable issue there
(c) Conversations with nurse – medical information deserves privacy, and microphone compromised
that privacy
16
(2) Offensiveness
(a) Extent to which the intusion was, under the circumstances, justified by the legitimate motive of
gathering the news
(b) Mere pursuit of a story is not enough, though – very fact specific
iii) First amendment offers limited or no protection from laws of general applicability
3) Eavesdropping & Wiretapping
a) Deteresa v. ABC (9th Cir. 1997)
i) TV producer secretly taped conversation with a woman who refused to appear on his show, interview
happened at the threshold to the P’s front door
ii) State law provided
(1) Intentionally and without the consent of all parties
(2) Confidential communication
(3) By means of any elecotrinic amplifying or recording device
iii) Confidential communication
(1) Under circumstances as may reasonably indicate that any party to the communication desires it to be
confined to the parties thereto
(2) Excludes situations involving reasonable expectation of someone overhearing or recording
iv) Court rules not confidential because P had no reasonable expectation that a TV producer wouldn’t repeat
what she said, but that’s not necessarily the issue, since it was recorded, not just relayed after the fact
b) Most state statutes and federal ECPA are one-party consent statutes, usually precluding liability in
newsgathering situations, as journalists are usually parties to the conversations they record
c) Sanders v. ABC (Cal. 1999) [effect of eavesdropping decisions on the intrusion tort]
i) Reporter gained employment as a psychic and wore a hidden camera, videotaping coworkers
ii) Zone of privacy is flexible – just because some coworkers might overhear a comment, that doesn’t mean
that the speaker has accepted the risk that the world at large might hear it
(1) Evaluation is very fact-specific – if the building was regularly open to visitors or whatever, that might be
different
4) Use of Tortiously-Obtained Information
a) Bartnicki v. Vopper (2001)
i) Unidentified person recorded phone conversation between teacher’s union negotiator and union president;
tape made its way to a taxpayer’s organization guy, who gave it to a radio host, who played the tape, which
was then picked up by another station and local newspapers
ii) Recording assumed to be intentional, and therefore unlawful, meaning the media defendants had reason to
know that it was unlawful
(1) Media obtained the information lawfully, even though it was originally obtained unlawfully
iii) A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a
matter of public concern
iv) Government interests asserted
(1) Deter interception of private conversations – insufficient, because criminal sanctions already in place
(2) Minimizing harm to persons whose conversations have been illegally intercepted – important, but not
more important than First Amendment
5) Other Torts
a) Fraud and Breach of Fiduciary Duty
i) Food Lion, Inc. v. Capital Cities/ABC, Inc. (4th Cir. 1999)
(1) Reporters acquired jobs at grocery chain with false identities, etc., and used tiny cameras and
microphones to secretly record questionable practices at best
(2) Rejects fraud claim, affirms duty of loyalty and trespass claims, rejects unfair trade practices claim,
affirms ruling that P not entitled to prove publication damages
(3) Duty of loyalty
(a) Interests of ABC were adverse to Food Lion
(4) Trespass
17
(a) Consent defeated as a defense if the entry is done in excess of and in abuse of the authorization
(5) First Amendment does not provide immunity from laws of general applicability
(a) These are tort laws that have at most an incidental effect on newsgathering
(6) Publication damages
(a) Cannot seek publication damages under non reputational tort claims, while holding to the normal
state law proof standards for these torts. See Hustler Magazine v. Falwell.
(b) Reputational damages from non-reputational tort claims are not allowed. In Cowles, the damages
sought were for breach of a promise resulting in loss of employment and lowered earning capacity.
In Hustler, it was for emotional distress from the mere fact of publication. Here, like in Hustler, the
damages claimed are reputational.
(c) The fact that the information was acquired unlawfully, i.e. through breach of duty of loyalty and
trespass, does not dispense with the Sullivan standard for defamation damages.
b) Negligence
c) Inducing breach of contract
Reporter’s Privilege
1) Privilege
a) Branzburg v. Hayes (1972)
i) Grand jury subpoenas information from reporters – one federal (no shield law), one Massachusetts (no
shield), one Kentucky (shield inapplicable)
ii) Reporters have no lesser obligation to respond to grand jury subpoenas as other citizens do and to answer
questions relevant to an investigation into the commission of crime
(1) No recognition of privilege at common law
(2) Constitutional view focuses on importance of grand jury having broad powers
iii) Burden on newsgathering does not outweigh the public interest in the functioning of the criminal justice
system
iv) Only applies where news sources themselves are implicated in crime or possess information relevant to the
grand jury’s task
(1) First Amendment does not protect newsgathering at the expense of effectively fighting crime
(2) Regarding informants, the burden on newsgathering is simply uncertain, and regardless, justice
outweighs news
v) Conditional privilege is of limited value anyway, since sources will not be placated by putting their fate in the
hands of a judge
vi) Constitutional privilege would be difficult to administer
(1) Who counts as a reporter?
(2) How can you differentiate between crimes to reach a “compelling” interest?
vii) Powell concurrence
(1) Official harassment of the press in bad faith would not stand
viii) Stewart dissent
(1) Court invites authorities to annex the journalistic profession as an investigate arm of the government
(2) Proposed test
(a) Probable cause to believe that the reporter has information clearly relevant to a specific probable
violation of law
(b) Demonstrate that the information sought cannot be obtained by less onerous means
(c) Compelling and overriding interest in the information
b) In re Grand Jury Subpoena, Judith Miller (D.C. Cir. 2006)
i) Sentelle
(1) Branzburg applies because the privilege asserted is identical
(a) Zerelli, a DC Circuit case, distinguished on the grounds that it involved a civil subpoena, rather than a
grand jury investigation
(2) Common law claims
18
(a) Federal common law privilege does not exist post-Branzburg, despite Powell’s concurrence; even if
it did, it was overcome here
(b) Due process violation – ex parte proceedings in privilege cases, in addition to grand jury secrecy
generally, suffice to defeat the claim
(c) Prosecutor’s failure to observe DOJ internal guidelines immaterial, since the guidelines don’t confer
rights upon individual media defendants
ii) Tatel concurrence
(1) Believes that Branzburg is more ambiguous, and is inclined to recognize a federal common law privilege
(2) Exhaustion and need for the evidence are not sufficient safeguards when the leak itself is being
prosecuted, because that IS the central evidence
(a) Instead, courts should balance harm caused by the leak against the leaked information’s value
(i) Criticized by Judge Henderson in concurrence as lacking analytical rigor because the result is
foreordained
2) Application
a) Many courts have read a constitutional privilege into Branzburg because of Powell’s concurrence
b) Motions to quash, in camera inspections, waiver by source
c) Consequences of noncompliance
i) Contempt
(1) Civil – committed to jail until compliance
(a) Some courts hold that after a point it becomes penal
(2) Criminal – specific term or fine
d) Materials covered
i) Gonzales v. NBC (2d Cir. 1999)
(1) Qualified privilege applies to nonconfidential materials, but Ps must make a less demanding showing
(a) P must show that the materials at issue are of likely relevance to a significant issue in the case, and
are not reasonably obtainable from other available sources
ii) McKevitt v. Pallasch (7th Cir. 2003)
(1) Highly critical of extension of First Amendment privilege to nonconfidential materials, as well as
recognition of the “federal common law” privilege generally, since it’s an over-reading of Branzburg.
(2) Media should just rely on FR Crim. P 17(c), requiring reasonableness of subpoenas
e) Types of reporters
i) Usually defined narrowly – contractual arrangements, employment with a publication, press association or
wire service, etc.
(1) DE – any journalist, scholar, educator, polemicist, or other individual who spends at least 20 hours a
week in obtaining or preparing information for dissemination with the aid of facilities for the mass
reproduction of words, sounds, or images in a form available to the general public
(a) Crazy broad
f) Types of proceedings
3) Shield Legislation
a) Considered unnecessary by some as an obstacle to truth, by others as a concession that the First Amendment
isn’t enough
b) Absolute vs. qualified
Access to Judicial Proceedings
1) Access to Courtrooms
a) Criminal proceedings
i) Gannet Co. v. DePasquale (1979)
(1) Sixth Amendment guarantees public trial to defendant, not to the public
(2) Any First Amendment right to access that exists, if any, may be outweighed by defendant’s right to a fair
trial
ii) Trials
19
(1) Richmond Newspapers, Inc. v. Virginia (1980) (plurality)
(a) State statute authorized court to exclude from the trial any persons whose presence would impair
the conduct of a fair trial. Judge closed the courtroom.
(b) Absent an overriding interest articulated in specific findings, the trial of a criminal case must be
open to the public
(i) Trial historically open to all those who cared to observe
(ii) Obvious importance to community
(iii) Media acts as surrogates for public
(iv) Free speech carries a freedom to listen (?)
(v) First Amendment prohibits government from summarily closing courtroom doors which had
long been open to the public at the time the amendment was adopted
(c) Stevens concurrence
(i) First time that the court has recognized newsgathering has some constitutional protection
(2) Globe Newspaper Co. v. Superior Court (1982)
(a) Strikes down MA statute requiring that the courtroom be closed during the testimony of minor
victims of sexual offenses
(i) Compelling interest, but should be evaluated case-by-case to ensure narrow tailoring
(3) Applies to voir dire. Press-Enterprise Co v. Superior Court (1984)
(a) Jurors may have a compelling need for privacy, but that can be accomplished without closing the
doors altogether
(b) When the right to a fair trial itself is compromised, the doors can be closed. (Don King trial)
iii) Pretrial
(1) Press-Enterprise Co. v. Superior Court (II) (1986)
(a) Question is regarding transcript of closed pretrial hearing from a criminal prosecution
(b) Right of access applies to preliminary hearings as conducted in California
20