COMM LAW

SLAPP

Strategic Lawsuits Against Public Participation, suppress journalists and civic activists by suing them into silence or inaction.

Can a question be a defamatory statement?

Yes, if it amounts to a statement of putative fact

What are the six things a plaintiff in a libel or slander lawsuit must prove

• 1. Defamation 

• 2. Identification

• 3. Publication

• 4. Fault 

• 5. Falsity 

• 6. Actual malice/harm

Categories of defamation per se:

• 1. Crime, accusing someone of being a criminal

• 2. Having a loathsome or contagious disease (particularly STDs)

  • One alone is not enough, gotta be both

• 3. Homosexuality/Transgender 

• 4. Incompetence in trade or profession

• 5. Female promiscuity (not male)

Is mislabeling someone’s race or nationality defamation?

No

Are jokes defamatory?

No, because a reasonable person would not take them as serious statements of fact

Defamation

Expression that damages a person’s standing in the community through words that attack a character's individual character or professional abilities 

What are the two types of defamation?

Libel: Written defamation

Slander: Spoken or gestured defamation

What is trade libel?

Trade libel (aka Product Disparagement) defames the quality or usefulness of a product rather than the company that produced it

How many federal/circuit courts are there in the United States?

13

Forum shopping

Strategic practice of choosing a court or jurisdiction with favorable laws to that case

Renting certiorari

Formal order from a higher court directing a lower court to send a case up for review

Denying certiorari

The term for when a higher court refuses to hear a case from a lower court

How do you cite court cases?

Litigant v. Litigant,

1.Reporter Volume
2.Court Reporter
3.First page of decision
4. (Year of decision )

Ex: NY Times v. Sullivan, 376 U.S. 264 (1964).

What is the typeface used for books and their authors?

Large and Small caps

Four privacy torts

• Public disclosure of private facts

• Intrusion upon seclusion 

• False light distortion

• Appropriation of likeness or image

What makes a case a criminal case?

If the government (DA) is prosecuting

What source can you not use supra for?

Court cases

Which tort is not a publicity tort?

Intrusion upon seclusion

The standard of proof in a criminal case is proof

beyond a reasonable doubt   

Which medium gets the highest level of First Amendment protection?

Supermarket tabloids

If at the conclusion of a civil trial there is a tie vote by the jury, who wins the case? 

The defendant

What are the five freedoms protected by the first amendment?

Freedom, press, assembly, religion, and petition

What type of speech is never protected by the First Amendment?

Fighting Words

Which part of the U.S. Constitution specifically mentions a right to privacy?      

None of it

Actual Damages

Court-awarded monetary compensation designed to make a plaintiff "whole" by covering proven, tangible losses resulting from a defendant’s wrongful conduct.

Special Damages

Specific, quantifiable financial losses resulting from a defendant's wrongful act or breach of contract.

Absolute privilege

Protects statements made in official proceedings 

Qualified/Conditional Privilege

Protects statements made in good faith on matters of shared interest, such as employment references or internal business communications

Which free speech philosopher says First Amendment protection should be given to any person who criticizes government officials?

Vincent Blasi

Actual Malice

Publishing a statement with knowledge of its falsity or reckless disregard for the truth

Marketplace of Ideas

First Amendment metaphor holding that truth emerges from the free competition of ideas, rather than censorship, allowing the best ideas to prevail

Central hudson four part test

Determines whether a government regulation of commercial speech is constitutional

Four parts of Central Hudson test

• 1. Is commercial speech eligible for first amendment protection?

• 2. Does the government regulation serve a substantial government interest?

• 3. Does the government regulation directly advance that government interest? 

• 4. Is the government regulation of commercial speech narrowly tailored to advance that government substantial interest? 

What is an advertisement, legally speaking?

An inducement to engage in a commercial transaction

Payola

Secret or undisclosed advertising in radio

Plugola

Secret or undisclosed advertising in broadcast television

Types of information that journalists can publish that may taint a jury

Confessions (may be false), Criminal Records (doesn’t matter), and Failing or refusing to take a lie detector test (flawed machine)

What trial establishes the precedent that criminal trials must be open to the public

Richmond Newspapers vs. Virginia

To avoid a tainted jury, the judge can do the following

• Grant a change of venue: Meaning if the news media in a particular area have posted info on criminal records, etc, the judge can move it somewhere else 

• Change of venire, pulling jury from another area and bringing them to the original location 

• Granting a continuous (delaying the trial), usually done to let media hype die down 

• Sequestration: Locking away the jury from the outside world 

• Voir dire: Eliminate biased jurors after questioning

What is the highest level of fault?

Actual malice

Invasions of privacy most often cause harm to:

Psyche

Privacy rights have been linked to which part of the U.S. Constitution?

4th amendment

What is a journalist’s best defense to a lawsuit for publishing private facts? 

Newsworthiness

What is the standard of proof in a libel case?

Clear and convincing

What is the standard of proof in criminal prosecution?                      

Beyond a reasonable doubt

Briefly explain the difference between compensatory and punitive damages

COMPENSATORY DAMAGES MAKE THE PLAINTIFF WHOLE WITH MONEY TO REPAIR WHATEVER IS HARMED OR REPLACE THE MONEY THAT IS LOST                                                                           

PUNITIVE DAMAGES ARE DESIGNED TO PUNISH THE DEFENDANT / WRONGDOER

What types of cases are NOT open trials?

Juvenile trial preceding, family court preceding, and grand jury preceding

Richmond Newspapers, Inc. v. Virginia (1980)

Supreme Court ruled that criminal trials must be open to the public, establishing a First Amendment right of access.

Challenge for cause

A request during jury selection (voir dire) to disqualify a potential juror by providing a specific, valid legal reason why they cannot be fair and impartial. Requires justification and judge approval (unlimited amount)

Peremptory challenge

A right in jury selection for attorneys to dismiss a limited number of potential jurors without stating a reason. You cannot use this challenge to get rid of someone based on any demographic (selected amount)

Batson challenge

An objection raised during jury selection, arguing that the opposing party is using peremptory strikes to exclude potential jurors solely on the basis of race, ethnicity, or gender (usually done after a trial)

Gag orders

A judge’s order that a case may not be discussed in public. Can be used against prosecutors, defenders, witnesses, and officers

Civil contempt

Used to coerce compliance and lasts until compliance, proof standard is clear and convincing, is purgeable if order is followed

Criminal contempt

Used to punish the offender and lasts on a fixed term, proof standard is beyond a reasonable doubt, is not purgeable

A "no bill"

Means a grand jury has decided there is insufficient evidence to charge a person with a crime, resulting in no formal indictment

What is a jurors right to nullify?

It means they can interpret what they think is right in terms of justice, in a way ignoring the law. Based on John Peter Zenger’s trial.

Res judicata

A broader procedural doctrine (civil/criminal) barring relitigation of claims already decided on the merits

Freedom of information act (FOIA)

Allows access to records held by the federal government 

(Does not apply to white house, congress, supreme court or any federal court)

Five exemptions to FOIA:

• Records that would impinge upon national security

• Confidential business information

• Personnel files 

• Medical and similar files 

• Ongoing law enforcement investigations

What case led to FOIA protections lasting beyond a person’s death?

Vince Foster case (National Archives and Records Administration v. Favish)

Branzburg v. Hayes precedent

A reporter cannot claim First Amendment protection in withholding confidentially received information from a grand jury

Subpoena:

A court order that requires a person to do something

Nike v. Kasky

Court said: Even though at no point did you tell your audience to buy Nike shoes, the entire reason you responded was because your sales and stock price went down (ONLY APPLICABLE IN CALIFORNIA)

Duces tecum

A court order requiring a person or entity to produce documents, electronically stored information, or tangible evidence for a trial

Ad testificandum

A court order requiring a person to appear at a specific time and place 

Search warrant

Judicial document authorizing law enforcement to search a specific location, cannot be fought

Quashing a subpoena

A formal legal request asking a court to invalidate, void, or modify a subpoena that is improper, unreasonable, or burdensome

Zurcher v. Stanford Daily (1978)

Ruled that law enforcement can use a search warrant to search newsrooms for evidence, even if journalists are not suspected of crimes

Privacy protection act

Prohibits government officials from searching for or seizing a journalist’s "work product" or "documentary materials" intended for public dissemination

Exemptions to Privacy Protection Act

• The material sought is related to national defense or is classified 

• Material sought is to prevent death or injury to a human being

• That there is probable cause that the person possessing the materials committed the crime

Documentary materials

Information or records that the journalist did not create (PPA would be lenient in allowing a search warrant for these)

Work-product materials:

• Stuff the journalist created (hard for a search warrant to get these)

  • Ex. transcripts, photos created by journalist

Chilling Effect

The inhibition or discouragement of legal rights by the threat of sanction, surveillance, or government overreach