Law of Mass Comm Midterm

Ch. 1, 2, 5, 6

law in the US comes from 6 sources

constitutions, statutes, administrative rules & regulations, executive actions, common law, and law of equity

___________ outline structure of government and define government authority and responsibilities

constitutions

the ____ amendment protects the right to free speech & a free press

1st

statutes

enforceable rules written by legislative bodies to govern social behavior

administrative agencies make

law as they adopt rules & adjudicate (aka make a decision about) disputes, as authorized by statute

executive orders are issued by

the top officer in executive branch of government

common law

a collection of judicial decisions based on custom & tradition

equity provides alternatives to legal remedies available through

common law

52 court systems

one for the federal government, one for the district of columbia, & one for each state

most court cases originate in _______ courts, where law is applied to facts of each case

trial

_________ courts ensure that the trail courts use the proper procedures & apply law correctly

appeals

federal court system consists of

federal district courts, 13 circuits of court of appeals, & US supreme court

appellate court judge decide cases on basis of lower court records & lawyers written arguments are called

briefs

supreme court’s decisions ONLY apply to case being decided, their opinions ____ _____ establish statute like law

do not

_________ law prohibits antisocial behavior as defined by statute

criminal

violations of criminal law are punishable by

jail sentences & fines

criminal law is enforced by

the government

a criminal action begins with

investigation & arrest

a ___________ hearing is held to determine if there is sufficient evidence to justify a trial, then either a PROSECUTOR or a GRAND JURY accuses a person of a crime

preliminary

after accused responds to a charge during an arraignment, prosecution & defense engages in pretrial fact-finding, known as

discovery

arraignment

a court hearing where a person formally accused of a crime is informed of the charges against them

civil law ordinarily involves disputes between

2 private parties

if a PLAINTIFF sues a DEFENDANT for damages, after PLAINTIFF files a _____ ____________ & DEFENDANT responds, 2 parties engage in discovery

civil complaint

principle of using equity

it comes from the idea that any problem can be solved by financial settling. not very traditional but used to prevent harm through equitable orders/remedies

types of civil offenses in media law

liable, invasion of privacy, and copyright infringement

true or false: some offenses that create civil liability, can create criminal liability

true

lawyers should be called when a communicator must respond to

an official document or someone else’s attorney

state action doctrine says that you

can only take legal action against the government for constitutional violations, not private corporations

courts apply strict scrutiny when

restrictive rules are too broad (overbreadth & vague)

when courts are considering banning or limiting expression, they put burden of 1st amendment due process on the

government to decide, and courts provide adversary hearings for media companies to challenge restrictions

the bad tendency test was discredited because it

allowed the government to punish speech if it had a general "tendency" to incite illegal acts or subvert the government, even without a clear and present danger or specific intent

a clear-and-present danger test, if applied literally, provides

more protection for freedom of expression by prohibiting speech only when there is clear evidence of incitement to lawless action

balancing test is employed by courts through

ad hoc (necessary) balancing which gives judges great flexibility but makes 1st amendment protections unpredictable

definitional balancing brings more uniform standards to

1st amendment adjudication (decision-making)

the hierarchy of protected expression means that

some speech is more protected than others and this can be at a strict or intermediate level (scrutiny)

what type of speech sits at the top (out of 3) of the protection hierarchy via the 1st amendment?

political and social commentary

what type of speech sits in the middle (out of 3) of the protection hierarchy via the 1st amendment?

commercial speech & non-obscene sexual expression

what type of speech sits at the bottom (out of 3) of the protection hierarchy via the 1st amendment? (excluded or has NO protection)

obscenity, false advertising, fighting words, & true threats

the rapid spread of false & fake speech (mushrooming) is generally protected by the 1st amendment but

american social media companies are pressured by foreign governments to remove false, fake, & hateful speech

_____ & ________ cases can be dismissed or otherwise resolved before trial

civil, criminal

lawyers can explain risks of publishing a story but they should NOT be allowed to

act as editors

who are the parties in a civil case?

plaintiff who files lawsuit against a defendant

who are the parties in a criminal case?

the case is brought by gov’t (prosecutor) against defendant

what is sought in a civil case?

typically money

what is sought in a criminal case?

typically jail/prison time

what is the burden of proof in a civil case?

preponderance of the evidence

what is the burden of proof in a criminal case?

beyond a reasonable doubt

what kinds of media law issues are included in a civil case?

libel (written form of defamation), invasion of privacy, copyright infringement (federal law), etc.

what kinds of media law issues are included in criminal cases?

some things that create civil liability also can create criminal liability

are libel offenses held under state or federal law?

state law

who is the only person in the criminal justice system that can make a charge?

the prosecutor (NOT the judge, lawyer, police, etc.)

trial court

make decisions by a jury & render a verdict

what is a bench trial?

where a defendant opts out of a jury & the judge acts as a jury/judge

where does the law come from?

people (who can propose or make a law) & types (what are different types of law)

binding referendum

A direct vote by the people that, by law, must be enacted into policy. The results are mandatory and carry the force of law, requiring the government to implement the voters' decision

non-binding referendum

Also called an advisory question, this is a direct vote by the people that provides guidance but does not have to be followed by the government (more like a suggestion)

there are archaeological artifacts on a plot of land that commercial developers want to use. archaeologists make claim in “______” to prevent developers from developing on that plot of land. if the judge issues that order, that’s an _________ enforcement of law.

equity, equitable

Richard Nixon

lost case against Elsberg & reporters through Supreme Court decision that newspapers have right to publish papers unless prior restraint is enacted

Paul Branzburg

reporter for louisville teens conducting drug trade, lost case in 5-4 Supreme Court decision that reporters do NOT have the right to refuse to testify

Frank Collin

american nazi who won case in US Supreme Court that hate speech is protected under the 1st amendment

George Carlin

comedian that said “7 words you’re not allowed to say on TV” on TV, then lost case in Supreme Court decision that said broadcasters have fewer 1st amendment rights then most people & FCC has authority over what is okay

cable operators enjoy less freedom than __________ but more freedom than broadcasters

publishers

Larry Flynt

founder of Hustler Mag who had parody ad of Jerry Faldwell, won case in Supreme Court decision saying for a defamation claim to be viable, it has to be stating actual facts about a person

1st amendment freedoms of adults & ideological associations include

freedom to speak, publish, join with others, receive info, solicit funds, & refuse to speak

high school students may distribute _________ __________ ___________ on campus, but high school administrators may impose “reasonable” highly-restrictive regulations on “school-sponsored-expression” to advance school’s educational mission.

non-disruptive personal communication

schools may punish __________ _____ speech only in narrow circumstances

off-campus student

gov’t employees may ______ & ______ as private citizens, but high-level employees are BARRED from participating in political campaigns

speak, vote

profit-making non-media corporations enjoy 1st amendment freedoms to

buy commercials & issue advertising, including advertising supporting election of political candidates

among the media, which sector enjoys the most 1st amendment protection?

print (also the internet)

which sector of the media is subject to more control because of the limited public spectrum on which they operate?

broadcasting

Fred Phelps

Westborough Baptist Church leader who protested outside of marine funeral and won case in Supreme Court decision that they were protected by 1st amendment because it was hate speech, not a true threat, not trespassing (since they were in a public area of the park), no incitement, etc.

what is one of the main theories of how the 1st amendment should be applied?

attainment of truth (marketplace theory): ideas should compete in an open marketplace of acceptance without gov’t involvement, & through open discussion, general body of people can crystallize good ideas through the bad ideas (argument against is that this doesn’t take into consideration the consequences of the bad ideas)

what is codification?

legislatures incorporate portions of common law into a statute

privacy law allows people to 

limit dissemination of private info about themselves

copyright allows authors to

control how their creative expression is copied, distributed, & performed

copyright protects

books, musical compositions, videos, newspaper articles, recordings, software, TV programs, ads, podcasts, emails & other original expression from unauthorized copying & performance

a compilation is a work formed

by collecting & assembling preexisting materials or data that are “selected, coordinated, or arranged in such a way” as to create a new original work

a collective work is

a gathering of preexisting works that may already be copyrighted

collective works include

magazines, anthologies, corporate reports, each of which may contain several copyrighted works

a derivative work (this is also copyrightable) is

a transformation or adaptation of an existing work

Notice, Registration, & Deposit is a term of copyright protection that continually lengthens, extending

the time at which copyrighted works cannot be used by other creative authors w/o permission or royalty payments

Notice

although authors are not required to protect copyright, they should place copyright notices on their works & register them

Notice has 3 elements

1. the letter “c” in a circle, word “copyright”, or the abbreviation “copr.”

2. the year of first publication

3. the name of the copyright owner

Registration & Deposit

the person who first registers a work has a strong legal evidence of copyright ownership

an author must “deposit” two

physical copies of a published work & may deposit one copy of an unpublished work

copyright encourages creativity by

granting authors exclusive rights in original works of authorship for a limited period

copyrightable works include:

literary, pictorial and graphic creations, and compilations+ derivative works

copyright does not depend on notice or registration;

although both are recommended for protection from claims of “innocent” infringement, for eligibility to file a suit, and receive statutory damages for infringement cases

works created by employees are

works made for hire and the employer is deemed the author & copyright owner

freelance writers, photographers & video operators create a

work for hire and do not own the copyright; ONLY if a contract specifies that the work is a work for hire

neither the federal government nor its employees may own

copyright in works created by federal employees on the job

some states claim copyright in works

created under government contract

copyright owners are granted a bundle of rights; those include:

1. rights to reproduce & distribute their works (by sale, transfer, & rental)

2. create derivative works

3. publicly perform & display their works

4. right to copy or perform

5. power to DENY copying, creation of a derivative work, or a performance

copyright law recognizes separate copyrights in

musical compositions & sound recordings resulting in a complicated mix of requirements for broadcasters, digital web-casters, and producers of audiovisual works

the federal government and a few states have enacted “moral rights legislation” granting

certain artist protection for integrity of their works of the art after the works are sold and granting the right for artists to be accurately identified w/ their work

authors who think their copyrights have been infringed must

1. prove that they their works are original

2. that they own valid copyrights

3. that the alleged infringer had access to the copyrighted work

4. that the alleged copy is substantially similiar to the original

in determining substantial similarity…

courts examine whether works have the same idea and manner of expression

infringers of copyright may violate the law by

1. direct copying

2. knowingly contributing to infringement by others

3. vicariously profiting from unlawful copying in circumstances that they supervise

“(DMCA) Digital Millennium Copyright Act” protects online service providers from

monetary liability if they merely carry & temporarily store infringing material of cyberspace uses, and if they take down copyrighted materials when notified that they posted materials that violate copyright

the “fair use doctrine” attempts to balance

the competing social interests of encouraging creativity by granting authors exclusive rights in copyright while allowing limited copying for comment & criticism