Media law final

1. Free Press vs. Fair Trial (Chapter 10)

➤ Why Trial Participants Worry About Prejudicial Publicity:

• News media coverage (especially emotional or graphic coverage) can bias the jury before they even hear the case.

• Jurors might form opinions based on media reports, not courtroom evidence.

• Fair trial rights (6th Amendment) can be threatened if jurors are exposed to too much information outside of court.

➤ How Judges Control Speech to Protect Trials:

• Gag Orders: Judges can order lawyers, witnesses, and police not to speak publicly about a case.

• Change of Venue: Move the trial to a less "tainted" area where people haven't heard as much about the case.

• Sequestering the Jury: Keep jurors isolated from the public and media during the trial.

• Instructions to Jurors: Judges can tell jurors to ignore media coverage and only focus on trial evidence.

➤ Cameras in the Courtroom: Pros and Cons

• Arguments For Cameras:

  • Transparency: The public sees justice happening.

  • Education: People learn how the legal system works.

  • Trust: Open proceedings can build trust in courts.

• Arguments Against Cameras:

  • Disruptiveness: Participants might act differently (performing for the camera).

  • Privacy: Sensitive cases could expose private information.

  • Influence: Witnesses or jurors could be intimidated.

➤ Why Reporters May Not Want to Testify:

• Protecting Sources: Journalists rely on confidential sources to get important information; if they reveal sources, sources may stop talking.

• Independence: Reporters don’t want to become part of the legal process — they want to stay independent observers.

➤ Shield Laws:

• State laws that protect journalists from having to testify about confidential sources.

• Not every state has them — and they vary in strength.

• No federal shield law, although reporters have some protections through court interpretations.

➤ The Press vs. Fair Trial Conflict:

• The First Amendment protects free press.

• The Sixth Amendment protects fair trials.

• Sometimes, protecting one threatens the other — courts must balance these rights.

➤ Important Free Press Cases:

• Nebraska Press Ass’n v. Stuart (1976):
  Gag orders on the media almost never constitutional unless clear, immediate, and serious harm is proven.

• Chandler v. Florida (1981):
  Cameras are OK in courtrooms if they don't violate the defendant’s right to a fair trial.

➤ Reporter's Privilege vs. Government’s Need:

• Government sometimes needs reporter testimony for criminal cases.

• Reporters argue they have a "privilege" to protect sources, but courts don’t always agree.

➤ Major Reporter Freedom Cases:

• Branzburg v. Hayes (1972):
  Reporters must testify before grand juries — no special First Amendment privilege.

• Zurcher v. Stanford Daily (1978):
  Police searched a newspaper for evidence — led to the Privacy Protection Act, which protects newsrooms from most searches.

➤ Justice Stewart’s Three-Part Branzburg Dissent Test (for qualified privilege):

To force a reporter to testify, the government must prove:

1. The information is highly relevant.

2. The information can't be obtained elsewhere.

3. There is a compelling government interest (like prosecuting a serious crime).

➤ Privacy Protection Act (1980):

• Protects journalists from unwarranted newsroom searches.

• Police usually must use a subpoena, not a search warrant.

2. Immoral Speech and Obscenity (Chapter 6)

➤ Kinds of Immoral Speech Contested Over Time:

• Blasphemy: Speech critical of religion.

• Darwinism: Teaching evolution (which challenged religious views).

• Immoral Ideas: Advocacy for things considered "wrong" (like communism, atheism).

• Obscenity: Sexually explicit material without social value.

➤ Court Rulings Expanding Speech Protection:

• Burstyn v. Wilson (1952):
  Movies critical of religion are protected speech.

• Kingsley v. Regents (1959):
  Government can't ban a movie simply because it advocates immoral ideas.

• Epperson v. Arkansas (1968):
  Teaching evolution cannot be banned in public schools.

➤ Obscenity — Why It's Not Protected:

• Obscene material is not considered valuable speech like political or artistic speech.

• Court says obscenity doesn't contribute to the marketplace of ideas.

➤ Major Obscenity Cases:

• Roth v. United States (1957):
  Obscenity is not protected by the First Amendment.

• Miller v. California (1973):
  Created the Miller Test to define obscenity.

➤ Differences Between Roth and Miller Tests:

• Roth: Focused mostly on whether the material appealed to sexual interest.

• Miller: More complicated — asks:

  1. Would the average person think the work appeals to prurient interest?

  2. Does it depict sexual conduct in an offensive way, defined by state law?

  3. Does it lack serious literary, artistic, political, or scientific value?

➤ Child Pornography:

• Always illegal, no First Amendment protection, even if it's not obscene under Miller.

➤ FCC Regulation:

• Obscenity: Never allowed.

• Indecency: Limited — allowed at night, but restricted during daytime when kids might be watching.

➤ Laws Ruled Unconstitutional:

• Communications Decency Act (1996):
  Tried to ban indecent speech online — struck down for being too broad.

• Child Protection Act: Parts limiting adult access to sexual material were ruled unconstitutional.

3. Commercial Speech (Chapter 8)

➤ What the FTC Does:

• Federal Trade Commission protects consumers from false or deceptive advertising.

➤ Deceptive Advertising:

• Definition: A material misrepresentation that misleads reasonable consumers.

• Three Elements:

  1. Misleading content.

  2. Influence on consumer decisions.

  3. Material importance to buying choice.

➤ False Advertising vs. Puffery:

• False Advertising: Actual lies (illegal).

• Puffery: Exaggerated claims ("Best pizza in the world!") — legal if obvious exaggeration.

➤ Key Commercial Speech Cases:

• Valentine v. Chrestensen (1942):
  Commercial speech not protected originally.

• Bigelow v. Virginia (1975):
  Advertising for lawful services (abortion clinic) is protected under First Amendment.

➤ Regulating Ads:

• Professional ads (lawyers, doctors) and "vice" products (alcohol, tobacco) face stricter regulation.

➤ Tests for Ad Regulation:

• Government must prove:

  1. There’s a substantial government interest.

  2. The regulation directly advances that interest.

  3. The regulation is not more extensive than necessary.

4. Prior Restraint (Chapter 9)

➤ What is Prior Restraint?

• Government stopping speech before it happens (censorship).

➤ Prior Restraint vs. Post Facto Punishment:

• Prior Restraint: Stopping speech beforehand (VERY suspicious in U.S. law).

• Post Facto: Punishing someone after they speak (usually more acceptable).

➤ History:

• Early American government censored books, plays, movies.

• Now, prior restraint is considered mostly unconstitutional.

➤ Key Prior Restraint Cases:

• Near v. Minnesota (1931):
  Prior restraints are presumed unconstitutional.

• NY Times v. U.S. (Pentagon Papers, 1971):
  Gov't couldn't stop newspapers from publishing classified info about Vietnam War.

• U.S. v. Progressive (1979):
  Tried to stop article about building an H-bomb — settlement avoided Supreme Court ruling.

➤ When Prior Restraints Are Allowed (Rarely):

• Only in cases of:

  • Serious national security threats.

  • Incitement to violence.

  • Obscenity.

5. Fighting Words (Chapter 7)

➤ What Are Fighting Words?

• "Words that wound" — direct personal insults that cause immediate violence.

➤ Why Not Protected:

• Fighting words don’t contribute to debate or ideas — they're aimed at starting fights.

➤ Major Cases:

• Chaplinsky v. New Hampshire (1942):
  Fighting words not protected.

• Terminello v. Chicago (1949):
  Some offensive speech is protected if it invites dispute but doesn’t incite violence.

• Cohen v. California (1971):
  "F*** the Draft" jacket protected — not directed at an individual.

• Gooding v. Wilson (1972):
  Words must cause imminent violence to be considered fighting words.

➤ Hate Speech Debate:

• U.S. law protects most hate speech unless it crosses into true threats or fighting words.

6. Copyright (Chapter 13)

➤ Why Copyright Exists:

• Protects original creative work so authors and artists are rewarded for their effort.

➤ What Copyright Covers:

• Books, music, movies, artwork, software, etc.

• Must be an original expression, not just ideas.

➤ Penalties:

• Civil lawsuits (money damages).

• Criminal charges for major violations.

➤ Fair Use:

• Allows limited use of copyrighted material without permission, depending on:

  1. Purpose (educational, parody, etc.).

  2. Nature of work.

  3. Amount used.

  4. Effect on market value.

➤ Important Cases:

• Harper & Row v. Nation (1985):
  No fair use for stealing unpublished work.

• Salinger v. Random House (1987):
  Protects unpublished letters.

• Campbell v. Acuff-Rose (1994):
  Parody can be fair use even if commercial.

7. Access to Media (Chapter 14)

➤ Gov't Restricting Access:

• Can limit journalist access to classified information, military bases, crime scenes, etc.

➤ FOIA and Sunshine Laws:

• Freedom of Information Act (FOIA):
  Gives the public access to government records.

• State Sunshine Laws:
  State versions of FOIA.

➤ FOIA Exceptions:

• National security

• Law enforcement investigations

• Personal privacy

➤ Access to Newspapers, Broadcasting, Cable:

• Newspapers = no required access for everyone.

• Broadcast TV/radio = heavily regulated (limited public airwaves).

• Cable = less regulated, more like newspapers.

➤ Broadcasting Rules:

• Marketplace of Ideas:
  Free exchange of ideas benefits democracy.

• Equal Opportunity Rule:
  Candidates for public office must get equal time on broadcast stations.