Comm Law Exam 2

In general, the right of journalists to gather news and enter places otherwise closed to the public is

Not protected by the First Amendment

Journalists who accompany authorities when they search residences or serve arrest warrants may be sued for violating the Fourth Amendment if they work too closely with officials under a legal principle known as the 

State actor doctrine

In the Food Lion case, ABC only had to pay $2 in damages in a lawsuit over its methods for reporting a story about questionable meat department practices at supermarkets, but the judgment

Discouraged undercover reporting practices

In 38 states, if you want to record a face-to-face conversation secretly

That is legal

Federal courts in recent years have consistently stated that people who witness police officers in action

Have a right to photograph or record them

In 1966, Congress passed a law requiring government agencies to provide records upon request unless certain exemptions apply. The law is known as the

Freedom of Information Act

The Freedom of Information Act applies to

Executive branch and military agencies

Exemption 1 of FOIA allows agencies to withhold documents from requesters for national security reasons. For particularly sensitive documents, agencies sometimes provide a "Glomar" response, in which they say

They can neither confirm nor deny the record exists

FOIA's Exemption 7 (law enforcement) has six subparts describing records that can be withheld. The most often used subpart, 7C, allows agencies to withhold records that would

Invade personal privacy

The Reporters Committee for Freedom of the Press (RCFP) sued the Department of Justice in the 1980s after the FBI refused to release a "rap sheet" about a suspected mobster even though the individual arrest and conviction records of that person would be public records. The Supreme Court ruled that

Releasing the rap sheet would be an unwarranted invasion of privacy

If you request a record from a federal agency, that agency must respond to you in

20 working days

The Sunshine Act, passed by Congress in 1976, requires

Certain federal agency boards to meet in public

After a group of Indiana newspapers found that many counties were not obeying the state public records law, the governor created an office to educate public officials about the law and hear complaints from citizens. The official in charge of the office is called the 

Public Access Counselor

Unless there is an emergency, a public body in Indiana has to give notice of an upcoming meeting

At least 48 hours in advance

If a public body violates the Indiana Open Door Law, a possible penalty is

Everything that the body voted on becomes void

The Family Educational Rights and Privacy Act (FERPA) requires that schools protect the education records of students from disclosure. If a school violates the law, the act states that

The Department of Education can withhold federal funds from the school

The United States was one of the first countries in the world to have an access-to-information law, but now most countries have them, and the U.S. law is considered antiquated. One problem associated with the U.S. law is that it relies on passive transparency, which means

Records are not released until someone asks for them

One example of a prejudicial statement about a criminal suspect that could make it harder to seat an unbiased jury if published is

That the defendant confessed to the crime

Research into the effect of pretrial publicity on jurors has found that

It is not clear there is any effect

Attorneys during voir dire can challenge the seating of some jurors for cause or, in a limited number of instances, for no stated reason. The latter challenge is known as 

A peremptory challenge

A judge concerned about pretrial publicity can order a trial moved to another location. This is known as a

Change of venue

A judge may order a trial delayed, if the defense agrees, in order to let the effects of pretrial publicity die down. This is known as a 

Continuance

Sheppard v. Maxwell was important because it established that 

Extensive publicity before a trial should be presumed to cause bias among jurors

In Nebraska Press Association v. Stuart and subsequent cases, the Supreme Court made it difficult for courts to

Enforce gag orders against the media

A court can issue a gag order to witnesses, parties, attorneys, and others involved in a case to prevent them from talking to the press as long as

The order is narrow and there is no alternative to ensure a fair trial

Grand juries meet in secret. Once a grand jury term ends, a grand juror

May usually talk to the press about a case

The first recorded case of a journalist being jailed for refusing to reveal a source in the United States involved New York Herald correspondent John Nugent, who was detained over a story about

A Senate treaty discussion in 1848

New York newspaper columnist Marie Torre made history in 1958 when she because the first journalist to

Argue she had a First Amendment right to refuse to reveal sources

In Cohen v. Cowles Media Co., the Supreme Court said a news organization could be sued for promissory estoppel (breaking a promise) if the organization

Revealed the identity of a source who was promised anonymity

One of the reasons that the Supreme Court majority gave for ruling as it did in Branzburg v. Hayes was

It was difficult, and legally questionable, to define who is a "journalist."

Justice Powell's concurrence in Branzburg v. Hayes was important because

He said the decision was narrow and reporters did have some protections for sources

Justice Stewart's dissenting opinion in Branzburg v. Hayes argued that journalists should be able to conceal their confidential sources unless the government could prove it had a compelling need for the information; the information was relevant to a criminal investigation; and the information

Was subpoenaed in a libel case

In general, a reporter fighting a subpoena is

More likely to win in a civil, non-libel case

One problem for journalists these days is that their sources can be discovered without their knowledge through FBI administrative subpoenas issued to phone and e-mail service providers. The subpoenas are known as

National Security Letters

There are now shield laws in the District of Columbia and

41 states

Indiana's shield law protects reporters from being forced to reveal confidential sources and defines a covered person as one working for a newspaper, other periodical, news service, or TV or radio station

For some part of their income

After the Supreme Court's decision in Zurcher v. Stanford Daily, regarding search warrants served on media companies, Congress passed a law to

Block law enforcement from serving most search warrants on media companies

There are two types of contempt of court, criminal and civil. Journalists who conceal sources are more likely to be found in civil contempt, which is designed to

Force someone to obey a court order to appear or produce evidence

Five Seattle media companies battling a subpoena for unpublished protest images in 2020 made the unusual argument that complying with the subpoena would

Put journalists' lives in danger at future protests

Journalists around the world are among groups concerned about Pegasus, a spyware program created by an Israeli company that

Makes it easy to break into phones

In the Richmond Newspapers case, the Supreme Court stated that the press and public have

A First Amendment right to attend criminal trials

The Supreme Court developed a two-part test to help courts determine whether judicial proceedings should be presumed to be open to the press and public. The test looks at past practices and the pros and cons of openness and is called the 

Experience and logic test.

Although civil trials do not raise the same constitutional issues as criminal trials, traditionally

They have been open to the press and public

Judicial proceedings that are generally, or at least often, closed to the press and public include all of the following except

Pretrial hearing

One type of judicial record that is often not available to the press or public is 

Settlements in civil suits

Cameras are allowed in some courtrooms in how many states?

50

Reporters sometimes ask to use laptops or other devices to do live updates from inside a courtroom. The consensus on whether that is allowed is

There is no consensus

In general, the execution of a prisoner is 

Not open to the public and press

Judges, lawyers, and journalists get together in some states occasionally to agree to guidelines for access to court proceedings and fair and unsensational news coverage. The guidelines are known as

Bench-bar-press guidelines

U.S. regulation of obscenity began in earnest when Congress passed a law banning the mailing of obscene material at the urging of an anti-pornography crusader. The law was named after him and was called the

Comstock Act

In speaking about sexual expression and the law, the word “pornography”

Has no legal meaning.

The Hicklin Rule, from a British case about indecent material, stated that sexual expression was obscene if

It would be unsuitable for children

In Miller v. California in 1973, the Supreme Court adopted a test that it still used today to determine whether a work was obscene. The test requires a showing that a work appeals to the prurient interest of an average person applying contemporary community values; is patently offensive; and

Lacks serious social, literary, artistic, or political value, when taken as a whole

In the Miller test for obscenity, a "community" in the physical world is a geographic area such as a town or a state. On the internet, a community is

Not clearly defined yet

"Variable obscenity" refers to the idea that

Something that is legal for adults may be obscene for children

State laws vary, but generally the states do not charge minors with violating child pornography laws when one minor sends nude or highly suggestive photos to another minor in an act, usually done on mobile phones, known as

Sexting

Zoning laws that limit the hours of operation of adult businesses, their location, their ability to serve alcohol or other business practices are generally considered legal as long as

They don't ban adult businesses entirely

Congress has passed several laws attempting to regulate minors' exposure to sexual content on the internet, but most of the laws get struck down in court for being too vague or broad, or both. However, the Supreme Court did uphold the Children's Internet Protection Act, which

Required filtering software on public library computers

Congress passed a bill known as FOSTA in 2018 that removed Section 230 immunity from websites that knew or should have known that their users were

Engaged in sex trafficking

Forty-eight states and the District of Columbia have passed laws to combat nonconsensual pornography, which is also known as

Revenge porn

Congress is authorized to create copyright legislation by 

Article 1, Section 8, Paragraph 8 of the Constitution

Copyright law generally protects original works fixed in a tangible medium, but you cannot copyright

Facts or ideas

Under the first-sale doctrine, once you buy a copy of a copyrighted work

 You can re-create it under your name and register your own copyright for it

The so-called "hot news doctrine" protects

The effort required to produce news

When the creator of a work holds the copyright, it lasts for

The life of the creator plus 70 years

After Congress increased the length of time a person could hold a copyright in 1998, a lawsuit challenged the extension because the plaintiff alleged it violated the "limited time" provision in the Constitution. The Supreme Court said

It would not second-guess Congress on what "limited time" meant

Of the four elements of fair use, the one that is often the most important in court is

Effect on the market for the original

You do not have to register a copyright or post a notice on your work to be protected under copyright law, but registration and notice are still recommended because

You can't win statutory damages unless you register

In a copyright infringement case, courts look at whether there was a substantial similarity between the copyrighted work and the allegedly illegal copy and 

Did the accused infringer have access to the original?

The Digital Millennium Copyright Act of 1998 was an attempt to crack down on threats posed to copyright holders by new technology, but it also allowed website owners to escape liability if a user illegally uploaded copyrighted material and the site responded promptly to a notice from the copyright holder called a 

Takedown notice

If a person produces work as part of their employment, that is called a work for hire and the copyright belongs to

The employer

A trademark is usually a symbol or slogan associated with a product that distinguishes it from other similar products. A service mark

Serves the same function as a trademark, but for services such as insurance instead of a consumer product

The strongest type of trademark is a made-up, unique word or phrase and is called

A fanciful mark

A company can lose the right to use a trademark if it abandons the mark for a length of time or if it

Allows the mark to become the generic term for a product (like aspirin)

Trademarks can be diluted by competitors in a couple of different ways. One of those ways is associating an identical or similar mark with an inferior product. This is called

Tarnishment

In two cases in recent years in which the Supreme Court has looked at whether the federal Patent and Trademark Office could reject trademarks it found disparaging or scandalous, the Supreme Court has ruled that

 

The rejections violated the First Amendment.

In a 1976 case involving the advertising of prescription drug prices in Virginia, the Supreme Court for the first time directly said that

Commercial speech is protected by the First Amendment

The general definition of commercial speech leaves open some doubt about what qualifies as protected commercial speech. In Nike v. Kasky, the Supreme Court

Declined to answer the question

The Central Hudson test for determining whether a regulation on commercial speech is constitutional examines whether the regulation directly and narrowly advances a substantial government interest, but before a court examines those questions, it must first determine whether

The speech in question is about a legal product and is truthful

Under the Central Hudson test, the government is generally found to have a substantial interest, but it loses some cases, like two involving alcohol marketing in the mid-1990s, because

The regulations do not directly advance the interest

Generally, governmental bodies can place limits on tobacco advertising to keep it away from children

But cannot ban all tobacco ads

The advertising industry has two self-regulating agencies, the NAD and the CARU, and appeals from those boards go to 

The National Advertising Review Board

The Federal Trade Commission maintains a Do Not Call list and the government bans robocalls, but both sets of prohibitions make exceptions for organizations engaged in

Politics and charity

The Federal Trade Commission defines a misleading ad as one that has a material representation or omission that is likely to mislead

 A reasonable consumer

Exaggerated claims in ads that are not material statements but focus on product image are not banned by the FTC and are known as

Puffery

The FTC has several remedies for dealing with false or misleading advertising, including staff letters of advise that are not legally binding and are known as 

Opinion letters

In some cases, the FTC will order companies to publicly admit that they lied to consumers in previous advertising. These messages are known as

Corrective advertising

Some people on social media are known as influencers, in that they try to influence people to buy certain products. When influencers are paid to promote products, the FTC

Requires them to disclose they are being paid

Congress passed the Childrens Online Privacy Protection Act (COPPA) to require web sites designed to attract children to 

Refrain from soliciting personal information about children without parental permission

Among other things, the Communications Act of 1934 

Created the Federal Communications Commission.

The government justifies regulating broadcast media in part by noting that there is not enough room in the atmosphere to handle signals from everyone who might want to broadcast. This concept is known as 

Spectrum scarcity

When it seeks to adopt a new regulation, the FCC often starts with a Notice of Inquiry seeking comments about the idea. Next, it publishes an announcement that it plans to create a regulation and seeks comments. The announcement is called 

A Notice of Proposed Rulemaking

Under FCC ownership regulations, one company may, in a market, own how many radio stations?

Five to eight, depending upon the size of the market.

The Equal Opportunities Rule requires that competing candidates for federal office have equivalent opportunities to make use of airtime to promote their campaigns, but the rule exempts

Bone fide news and news interview shows

Section 312(a)(7) of the Communications Act requires broadcast stations to provide political candidates with 

Reasonable access to the airwaves

A broadcast station that sells political advertising to candidates must charge them

Their lowest unit rate per ad

The Children's Television Act limits advertising on children's programming to 12 minutes per hour during the week and

10\.5 minutes per hour on weekend

In the 1978 Pacifica Foundation case, the Supreme Court

Upheld the FCC's right to punish indecency on the air

After Janet Jackson's breast was exposed on TV during the 2004 Super Bowl halftime show, Congress passed a law to

Raise the maximum fine for indecency to $325,000 per incident

After the 2004 Super Bowl incident, the FCC changed its policy on so-called "fleeting expletives" on live shows and issued fines for blurted-out curse words on several awards shows. The fines were challenged, and the Supreme Court ruled that

The FCC's rule change violated the First Amendment