Media Law-J705

What is the First Amendment?

“Congress shall make no law…abridging the freedom of speech, or of the press…”

Arguments the government has for making laws that restrict speech (for #1-3: You must look at the content of the speech):

1. Yes, but… (compelling governmental interest)
-There’s something on other side that’s so compelling & must look @ whole thing

2. Somewhat protected
-Gov't entitled to regulate this speech “more” than other speech (commercial speech)

3. Not protected (rational basis)
-When framers wrote FA, they didn't intend for X to be included in free speech (pornography, obscenity)

4. Time/Place/Manner
-Content neutral
-Reasonable
-No complete ban (has to be alternative ways to get msg across)

5. Expressive Conduct
Ex.: Burning a flag

6. Derivative/Secondary First Amendment Claim
Ex.: City council not letting a journalist into a meeting (Speech has not truly been “abridged”)

7. Criminal speech (blackmail, extortion)

Schenck v. U.S. (1919. First significant FA case)

Background: Schenck was secretary of Socialist party in PA, had a meeting, took minutes, printed a flyer w/ cohorts, printed more than 15,000 pamphlets. Used the other side, printed another pamphlet, got in trouble for what they wrote, were arrested & charged.

-Holmes issues “clear & present danger” test
-Holmes says “prior restraint” is implied in First Amendment. There should be NO prior restraint b/c of history of the times – censorship is what Britain did to them.
-This case is a tremendous expansion of what's protected

Abrams et al v. U.S.

Background: Defendants charged & convicted for inciting resistance to war effort & urging curtailment of production of essential war material. Urged fellow Russians to stop making munitions.

Marketplace of Ideas
-Justice Holmes upholds decision. Writes dissent in 1919 when laissez-faire is @ its pinnacle.
-Analogy w/ marketplace of goods & services:
---Driven by competition & will sort out good from bad
---Have to allow open access for everyone
---Marketplace determines value
---Competition driven
---Abrams should have right to say what he wants & it's up to marketplace of ideas to determine the value (the idea that gets accepted in the marketplace is idea that should get accepted. It’s the best test of truth)
-Remedy for bad speech is more speech
-No place for gov't intervention in truly free marketplace
---The gov't should intervene in free marketplace when there's clear & present danger & causes panic—causes a problem or possible harm to consumers. Marketplace can’t handle falsely saying “fire”

Brandenburg v. Ohio (Ku Klux Klan)

-New definition of clear & present danger @ state level
-Court gives states test to regulate speech based on 4 elements (that equal a compelling gov't interest):
---Incite
---Imminent
---Lawless action
---Likely to occur
-----Speech prosecuted only when inciting lawless action is likely to occur. If someone says it, they go. If no imminent threat, words can’t be punished by state on grounds that they had a tendency to lead to violence

Gitlow v. New York

Background: Criminal Anarchy Act/Syndicalism laws made it a crime to advocate overthrow of gov't or production of means by force or violence. Act punishes political speech, which is against First Amendment. Gitlow charged under act.

-Brought 14th Amendment & applied it to 1st amendment through due process clause (Gitlow argued that term “liberty” should be read more broadly)
-Declared speech as fundamental liberty
-From this case on, anytime a state tries to limit speech, the Federal court will probably get involved

New York Times v. U.S.

Background: Gov't stops NY Times from publishing series of articles called the “Pentagon Papers”

Had four options:
1. Do nothing
2. Court order to stop publication (**this is what happened)
3. Negotiate w/ NY Times
4. Force NY Times to stop

Plurality opinion (6-3) in favor of the newspaper. Six justices all wrote different opinions:
Black
-Read constitution as whole
-Bases op. on history of times… framers would want to protect medium (newspaper) used to keep citizenry informed

Douglas
-Inherent power of gov’ts executive branch not applicable b/c country not actually @ war

Brennan
-Gov’t, in diff. circumstances, might be entitled to prior restraint, not one of those times.
-Gives us modern-day def. of clear & present danger:
-Proof of:
---Inevitable
---Direct
---Immediate
---Catastrophe

Stewart
-Reluctantly sides w/ newspaper
-Court was given something executive branch should have done
-Only law to interpret in this case is FA; applies Brennan’s clear & present danger test
-No executive orde

Defamation

-Reputational injury
-Associational harm
-Harm occurs in minds of other people (not in the mind of person being defamed)

What does the plaintiff need to prove in a defamation case?

1. (Defamation) Prove that defamatory statement was made

2. (Publication) Published to a third party by defendant
-Negligence standard for publication (can’t pick a lock to get info.)
-When & where is big prob. for publication (what state to sue in, re-publication, etc.)

3. (Identification) Of & concerning the plaintiff
-The less info ab person being defamed, the harder it is to prove
-It matters if the people who know the person being defamed can i.d. them
-If group is larger than 30-35 people it's too large to sue for defamation

4. (Causation) Caused harm to reputation
-Has to show that the 1st 3 points (listed above) cause a problem
-Have to prove what was said is logical & timely cause of the harm (can we prove injury to plaintiff was caused by actions of defendant?)

5. (Compensation) Money damages
-Four kinds of compensation
1. Nominal-least amount
2. Special-out of pocket $ loss
3. Presumed-flows from harm which you need no evidence of

4. Punitive-used to punish defendant, $ not to compensate th

What are the two parts of defamation?

-Libel (written)
-Slander (oral)

Difference is in the fixedness.

All libel and slander can be separated into:

Per se: on its face
-If it's per se, hypothetically, all that's needed to make the case is show it to the jury

Per quod: “because”
-Have to bring in extrinsic evidence to prove it was defamatory

Slander per se

-Crime or criminal behavior
-Immorality
-Diseased
-Business, trade or calling

Who can be the defendant in a defamation case?

-Publisher of defamatory statement
-Re-publisher (reporter)

Defendant’s case in a defamation suit

2 lines of attack
-Attack that it's false
-Prove it's not their fault

4 Affimative Defenses

1. Truth
2. Privilege (Absolute or qualified)
3. Consent
-Did plaintiff consent to being defamed?
-Ex.: If plaintiff agreed to participate in a roast
4. Fair comment & criticism
-Has to be based on fact

2 Types of Privilege

Absolute
-Legislators in their official duty. Witnesses.

Qualified
-Journalists if reporting fully, fairly & accurately from a court document or meeting

New York Times v. Sullivan

Background: Civil Rights era late 50s, Sullivan was 1 of 3 elected commissioners of the City of Montgomery, Ala. Ad taken out in N.Y. Times to raise funds & support 4 black Ala. clergymen for 3 purposes:

1. Support of student movement
2. “The struggle for the right-to-vote"
3. The legal defense of MLK against perjury indictment then pending in Montgomery.

Ad was brought to Sullivan’s attention & he filed libel action suit against newspaper.

-Supreme Court changes fault standard: when public official is criticized in public capacity (b/c it’s political speech & protected by FA), public official must be able to show actual malice.

What is actual malice?

Knowing falsity (a deliberate lie) & reckless disregard of the truth (seriously doubted what they were publishing, but published it anyway).

Public Official

-Anyone who has the decision-making capability in gov't (“Designation applies @ very least to those among hierarchy of gov't employees who have, or appear to public to have, substantial responsibility for or control over conduct of gov't affairs.”)
-Teachers and Vice Principals aren't treated as public officials. A cop on the beat IS a public official.
-Public officials who are no longer public officials (past presidents), yes, if you’re talking about what they did while in office (b/c you’re criticizing them in their official capacity). But if criticizing what they’re doing now, no.
-Has to be being defamed in their official capacity

*In a defamation suit, must show common law 5 AND that defendant did w/ actual malice. And, they also add falsity.

Private Person

Has to show the common law 5 & @ least negligence.

Public Figure

-Has to show common law 5 + actual malice & falsity
-Broader than celebrities & politicians
-3 kinds of public figures (as defined in Gertz v. Welch)
1. Involuntary public figure (Sully, the pilot who landed plane on the Hudson)-very rare!

2. Limited/vortex public figure (voluntarily injects himself into matter of public controversy to influence resolution or outcome & has to be defamed in relation to controversy)

3. All-purpose public figure

3½. Publicity public figure

2 categories of defendants in a defamation case

-Media
-Non-media (strict liability)

Strict Liability

-Liability w/o fault
-Must get rid of w/ private people

Fault Standards

1. Not recognized
-Can't sue for defamation
2. Actual malice
3. Common law malice
-Disregard of the person (plaintiff)
-Ex.: DUI
4. Extreme recklessness
-Ex.: Curtis Pub.
5. Recklessness
6. Extreme negligence
-a.k.a malpractice (professional negligence
7. Negligence
-Common law

False Light

-Saying or publishing something ab someone that's false, but not defamatory
-Doesn't harm reputation
-Plaintiff can sue for both false light & defamation, but can't win both

Time v. Hill

-Precursor to Rosenbloom
-Needed new fault standard: actual malice

What are the subcategories of false light?

-Embellishment (Time v. Hill)
-Distortion (usually visual)
-Fictionalization

What must the plaintiff prove in a false light suit?

1. False statement must be made (not necessarily defamatory)
2. Published by defendant to third party
3. Of & concerning the plaintiff
4. Caused harm/mental anguish
5. Money
6. Fault Standard: negligence (not as insurmountable as defamation because it’s easy to show embellishment, distortion or fictionalization)
7. Statement was shocking/outrageous

What must defendant prove in a false light suit?

1. Privilege (Taken from the public record)
2. Consent
3. Opinion/Fair comment & criticism
(Based on true facts)

Private Facts

Public disclosure of private & embarrassing true facts.

What must the plaintiff prove in a private facts suit?

1. Defendant made statement containing highly embarrassing facts
2. Published by defendant by 3rd party
3. Identification
4. Caused mental anguish
5. Money
6. Fault: negligence
7. Shocking/outrageous (this element has to be very strong and true)

What must the defendant prove in a private facts suit?

1. Privilege (Public record)
2. Consent
3. Opinion
4. Newsworthiness

What are the subcategories of Private Facts?

-Newsworthiness vs. extent of intimacy (Sidis v. F&R Publishing Group)
-Passage of time
---Has there been enough passage of time to rehabilitate the plaintiff?
---By focusing on what they’re doing now you’ll probably be ok, but if you focus on the past & arbitrarily bring up the present, that's when you get into trouble
-Consent exceeded
-Way info was obtained (Cox Broadcasting v. Cohn, Florida Star v. BJF)

Misappropriation

Intentional, illegal use of property or funds of another for one's own use or other unauthorized purpose.

What must a plaintiff prove in a misappropriation case?

1. Statement that appropriates name, likeness, persona must be made
2. Published by defendant for personal profit or gain to a 3rd party
3. Identification
4. Caused harm
-Mental anguish (for private)
-loss of money (for public)
5. Money
6. Fault standard – usually intentional
7. shocking/outrageous

2 types of plaintiff's in misappropriation case

-Private
-Public (violation of right to privacy)

What must the defendant prove in a misappropriation case?

1. Consent
2. Newsworthiness
3. Parody/satire
4. Transformative use
-Works of art

Intrusion

Act of entering, seizing, or taking possession of another's property. Focuses on the act; how you go about getting the info.

What are the subcategories of intrusion?

-Surreptitious surveillance (peeping, taping, tapping, bugging)
---Zone of privacy (where are they? Home has the highest degree of expectation to be free of intrusive acts. In public, the lowest degree. When you go out in public, you give up your degree of privacy)
---How disguised was the defendant? How revealed were the? How was the defendant disguised?
---Degree of surreptitiousness (hidden reporting device). The more disguised it is, the better for the plaintiff’s case.
-Trespass
Two kinds:
---To physically go some place (on someone’s land)
---To information
-Consent Exceeded
---Consent was there, but was used over & above reasonable consent (case of Galella v. Onassis)

What must a plaintiff prove in an intrusion case?

1. Intrusive act was made by defendant
2. Intruded into the solitude of another
3. Caused harm/mental anguish
4. Money
5. Fault: Negligence/intentional
6. Shocking/outrageous

What must the defendant prove in an intrusion case?

1. Consent
-Expressed
-Implied

Copyrights

Constitutionally protected (Art. I, Sec. 8) with the purpose of enhancing public interest, promoting public good & encouraging creativity.

Copyright Act of 1976 (this law is creator friendly)

What can be copyrighted?

Anything in creative expression that is tangibly fixed.

What rights do copyright owners have?

-Profit from their work for a limited time
-Reproduce, publicly perform, distribute, make sequels, etc.

How long do copyrights last?

-Single author: lifetime + 70 years
-Joint authors: lifetime of last living author + 70 years
-Corporation: 95 years from publication, 120 years from creation

Work for hire

Creating something w/n scope of your job & work for the company – the company then owns the rights to it.

Freelancers own their copyrights.

What can't be copyrighted?

-Ideas (expression of the idea is)
-Governmental documents & forms

Remedies for copyright infringement

-If not registered, you're limited to monetary damages
-If registered, you have:
---Statutory remedies
---Able to get prior restraint (get preliminary injunction)

Fair use

Copyrighted material can be used in some instances such as parody, commentary, newsworthiness & educational use (limited).

Trademarks

Symbol or sign used to i.d. products to consumers & to distinguish those products from other entities. Federal registration isn't required to est. a trademark but you apply through the U.S. Patent & Trademark Office

Not constitutionally protected.

What can be trademarked?

-Names
-Symbols
-Colors
-Sounds
-Phrases

How long do trademarks last?

10 years but can be renewed in perpetuity.

What is commercial speech?

Any speech in which the speaker has an economic interest. Does no more than propose a common transaction.

Valentine v. Chrestensen

Supreme Court concludes that commercial speech isn't protected AT ALL by the First Amendment.

NY Times v. Sullivan

Extends some FA protection to commercial speech by regulating the speech based on its content

Va. State Board of Pharmacy v. VCCC

“High water mark” for commercial speech

-Extended full FA protection to purely commercial speech on grounds that FA protects right to receive info
-Focused on audience’s need to get info rather than speaker’s need to speak
-Gov’t could only regulate false, illegal or deceptive speech