Media Law and FOIA: A Comprehensive Study Guide (Lectures April - May 2026)

History and Scope of the Freedom of Information Act (FOIA)\n\n- Congress adopted the Freedom of Information Act (FOIA) in $1966$.\n- Agencies covered under the FOIA include federal departments, regulatory agencies, government corporations, or other establishments belonging to the executive branch.\n- The FOIA explicitly does not cover:\n - The President of the United States.\n - The President's Cabinet.\n - The United States Congress.\n - The Federal Courts.\n - Private corporations.\n- Any person my submit a formal request under the FOIA.\n- To be covered under FOIA, documents must function as records and be capable of being copied.\n\n# The Procedural Framework for FOIA Requests\n\n- Initial Step: It is recommended to place an informal call to the relevant FOIA officer.\n- Formal Filing: A requester must file a formal, written request for information.\n- Agency Response Time: The agency is legally mandated to respond to a request within $20$ working days.\n- Burden of Proof: The burden to turn over documents rests on the agency. If the agency refuses to release records, it must supply a specific reason for the denial.\n- Appeal Process for Denials:\n - If denied access, the requester has $90$ days to appeal to the agency head.\n - The agency head has $20$ working days to respond to the appeal.\n - The agency may receive an additional $10$ working days for its response.\n- Judicial Appeal: If access is denied a second time, the requester may appeal to the federal district court nearest to them for a ruling on the access.\n- Fees and Costs:\n - Fees can be charged for searches, though these may be waived if the request is deemed to be in the public interest.\n - If a requester loses a legal challenge, they could be held liable for court fees.\n\n# Specialized Legal Terms and Doctrines in FOIA\n\n- Glomar response: A response where an agency states it can’t confirm or deny the existence of the requested information.\n- Vaughn Index: A requirement where an agency, when denying information, must (1) identify each document hat was withheld and (2) say how release of information would harm the interest of the exemption.\n- Redact: To edit or block out specific information within a document.\n- Virtual representation: A legal doctrine where a non-party may be bound to the judgement in a previous case if certain factors are met.\n- Qui tam: Primarily involving government whistleblowers where a private person brings a case on the government’s behalf; the person bringing the case could recover some of the damages sought.\n\n# Detailed Breakdown of the Nine FOIA Exemptions\n\n1. National Security: Protections for information that could damage national defense or foreign policy.\n2. Agency Rules and Practices: Exempts documents related solely to internal personnel rules and practices.\n3. Statutory (Catch-all): Applies to documents that Congress has declared in other statutes to be confidential. This is a mandatory exemption, unlike the other eight.\n4. Confidential Business Information: Protects trade secrets and commercial or financial information submitted by businesses to government agencies.\n5. Agency Memoranda: Exempts working documents circulated internally within agencies.\n6. Personnel, Medical, and Similar Files: Exempts information that would constitute an invasion of an individual’s privacy.\n7. Law Enforcement Investigations: Prevents access to on-going investigations to protect the process.\n8. Banking Reports: Protects financial reports and audit information related to financial institutions.\n9. Information About Wells: Specifically protects geological and geophysical information.\n\n# Modern Legislative Updates and Open Data Initiatives\n\n- Electronic Freedom of Information Act Amendments of 1996 (E-FOIA):\n - Required agencies to make it significantly easier for the public to identify and access government records.\n - Facilitated the computerization of FOIA requests.\n - Reformed the timetable and procedures for agency responses.\n - Electronic Tracking: An electronic tracking system for requests was established in $2007$.\n- Data.gov ($2009$): Created to increase public access to high-value, machine-readable datasets generated by the Executive Branch of the federal government.\n- General Principle: The government carries the burden of proof after an initial FOIA request has been made.\n\n# Challenges and Limitations of FOIA and State-Level FOILS\n\n- High court costs associated with litigating to get information from the government.\n- Legally sanctioned removal of information through redacting.\n- Concerted efforts by certain agencies (such as the FBI and CIA) to weaken the FOIA.\n- The \"Glomarization\" of data.\n- Computerization of information has occasionally led to higher fees for access to data that was previously free.\n- State-Level Problems (FOILS):\n - State agencies are not required to create or acquire new records in response to a request.\n - Few states require agencies to maintain or produce a record index.\n - Some states restrict request access to state residents only.\n - While many states cover electronic records, some do not require these records to be user-friendly.\n - Absence of specified response time limits or penalties for agency violations in some states.\n\n# The Federal Sunshine Act and Reporter Remedies\n\n- Federal Sunshine Act ($1976$):\n - Calls for federal agencies to meet in public.\n - Pertains to the same agencies subject to FOIA.\n - Features $10$ exemptions allowing for \"closed sessions\"; exemptions $1$ through $9$ are similar to FOIA exemptions, while Exemption 10 applies to portions addressing agency litigation or arbitration.\n- Reporter's Options for Illegal Closed Meetings:\n - File suit in federal district court to prevent a closed meeting.\n - File suit to stop future closed meetings.\n - Sue for a copy of the transcript of the closed meeting (must be filed within $60$ days of the meeting).\n - Suit must be against the agency, not against the individuals involved in the illegal meeting.\n\n# Significant Privacy Legislation in the United States\n\n- 1974 Privacy Act: Establishes a code of information practices governing the collection, maintenance, use, and dissemination of information about individuals maintained in systems of records by federal agencies.\n- Campus Security and Campus Crime Statistics Act of $1990$ (The Clery Act): Requires the notification of students regarding crimes committed on campus.\n- Health Insurance Portability and Accountability Act (HIPAA): Prevents health professionals and institutions from revealing an individual's personal medical information.\n- Driver’s Privacy Protection Act of $1994$ (DPPA): Federal law prohibiting states from the \"knowing disclosure\" of information obtained from DMV records without permission, except in specific circumstances.\n\n# Judicial Review of Information Access: Key Case Law\n\n- Zemel v. Rusk ($1964$):\n - Facts: A reporter attempted to travel to Cuba in violation of a State Department ban.\n - Importance: The USSC ruled that the right to publish does not include an unrestrained right to gather information. There is no constitutional right of access; the First Amendment only protects the right to publish information the reporter obtains independently.\n- EPA v. Mink ($1973$):\n - Facts: Representative Patsy Mink requested classified documents concerning nuclear testing in Alaska.\n - Importance: The USSC rejected the request. This decision motivated Congress to amend FOIA to allow for \"in camera\" (private) court review of classified documents.\n- U.S. v. Nixon:\n - Facts: President Nixon attempted to prevent the release of White House tapes to a special prosecutor investigating Watergate.\n - Importance: The USSC ruled that executive privilege can only be asserted for military or diplomatic secrets.\n- Department of the Air Force v. Rose ($1976$):\n - Facts: A law review editor was denied access to Air Force Academy discipline council records under a privacy exemption.\n - Importance: The USSC declared the personal privacy exemption is not an absolute barrier against disclosure.\n- Chrysler Corp. v. Brown ($1979$):\n - Facts: An auto labor union requested Chrysler employee information from the DOD.\n - Importance: The USSC stated that the \"catch-all\" (statutory) exemption must be followed and signifies an absolute barrier.\n- Kissinger v. Reporters Committee for Freedom of the Press ($1980$):\n - Facts: Request for Henry Kissinger’s telephone transcripts while he was Secretary of State/National Security Adviser. The Library of Congress held the notes.\n - Importance: The Library of Congress is not defined as an \"agency\"; therefore, FOIA does not apply to it.\n- Forsham v. Harris ($1980$):\n - Facts: A committee wanted the FDA to request specific data from private consultants regarding diabetes treatments.\n - Importance: FOIA cannot compel a federal agency to obtain data from a private contractor if the agency does not already possess it.\n- CPSC v. GTE ($1980$):\n - Facts: GTE sought to block the release of information regarding exploding television sets.\n - Importance: The USSC upheld the \"catch-all\" statutory exemption.\n- FBI v. Abramson ($1982$):\n - Facts: Information gathered by the FBI on \"enemies\" of President Nixon was requested.\n - Importance: Law enforcement information does not lose protection when summarized or reproduced for another reason.\n\n# Media Access to Prisons and Investigative Records\n\n- Pell v. Procunier ($1974$):\n - Facts: California prohibited media interviews with specific inmates.\n - Importance: The USSC held that the media has no constitutional right of access to prisons or inmates beyond that of the general public.\n- Houchins v. KQED ($1978$):\n - Facts: A TV station was denied access to a jail site where a suicide occurred.\n - Importance: The USSC extended Pell, further limiting press access to jailhouses.\n\n# The Protection of Confidential Sources and Journalist Privilege\n\n- Protection of sources is derived from the First Amendment, State Shield Laws, and Common Law (state and federal).\n- Garland v. Torre ($1958$):\n - Facts: Judy Garland sued to find a source at CBS; reporter Marie Torre was jailed for contempt for refusing to name them.\n - Importance: Established the \"Three Part Test\"; journalists must reveal sources if:\n 1. The information goes to the \"Heart of the Matter.\"\n 2. Alternative sources have been exhausted.\n 3. There is probable cause to believe the journalist has relevant information.\n- Branzburg v. Hayes ($1972$):\n - Facts: Branzburg, Caldwell, and Pappas were called to testify before grand juries regarding drug use and the Black Panthers.\n - Importance: Journalists have no First Amendment right to refuse to testify before a grand jury. Justice Stewart’s dissent argued for the Three Part Test (Probable cause, no alternative means, compelling interest).\n- In re Farber ($1978$):\n - Facts: Myron Farber refused to produce notes on suspicious hospital deaths. He spent $40$ days in jail; NY Times was fined $286,000$.\n - Importance: The Sixth Amendment right of defendants to obtain evidence often outweighs the First Amendment interests of journalists.\n- Herbert v. Lando ($1979$): Journalists' \"State of Mind\" can be questioned in civil proceedings.\n- Baker v. F & F Investment ($1973$): The Second Circuit ruled a source (pseudonym \"Norris Vitcheck\") did not have to be revealed because the Three Part Test was not met.\n\n# Shield Laws, Search Warrants, and Newsroom Protections\n\n- State Shield Laws: Currently $32$ states (including MD, TN, NJ, NY, OH) have them.\n- Farr v. Superior Court of California ($1971$): California shield law was ignored after Farr published info on Manson family trials; he spent $46$ days in jail.\n- Brown v. Commonwealth ($1974$): Reaffirmed that the plaintiff must prove information goes to the \"heart of the matter.\"\n- Riley v. Chester ($1979$): Applied Rule 501 of Federal Rules of Evidence; privileges are governed by common law principles.\n- Zurcher v. Stanford Daily ($1978$):\n - Facts: Police obtained a search warrant for a student newsroom to find photos of a protest.\n - Importance: USSC held that law enforcement can use search warrants on newsrooms.\n - Press Privacy Protection Act of $1980$: Legislative response requiring law enforcement to use subpoenas first and meet a burden of proof before a search warrant is issued for media materials.\n- Minneapolis Star and Tribune v. US ($1989$): FBI required to pay damages for destroying a photojournalist's camera/film.\n- Cohen v. Cowles Media Co. ($1991$): USSC ruled that promissory estoppel (oral contracts) allows a source to sue a newspaper if their identity is revealed after a promise of confidentiality.\n\n# Conflict Between First and Sixth Amendments: Prejudicial Publicity\n\n- Basic Conflict: Conflict between the First Amendment (Free Press) and the Sixth Amendment (Fair, Impartial Jury).\n- ABA List of Potential Prejudicial Publicity:\n - Confessions and prior criminal records.\n - Investigatory test results (lie detector, blood, ballistics).\n - Speculation by officials and lifestyle flaws.\n - Potential witness testimony.\n- Remedies for Prejudicial Publicity:\n - Change of venue: Changing the trial location.\n - Change of venire: Changing the jury pool.\n - Continuance: Delaying the trial.\n - Severance: Separating trials for multiple defendants.\n - Voir dire: (\"To speak the truth\") Questioning potential jurors for bias.\n - Sequestration: Locking up the jury.\n - Judicial admonition: Instructing jury members not to talk about the case.\n - New trial: Appealing based on denial of Sixth Amendment rights.\n\n# Landmark Cases on Trial Publicity and Fair Trials\n\n- Voir Dire Challenges:\n - Challenge for Cause: Removing a juror for a specific legal reason (prejudice).\n - Peremptory Challenge: Removal without stating a reason; limits determined by state law.\n- Irvin v. Dowd ($1961$): Conviction overturned because publicity (calling defendant \"Mad Dog Irvin\") created too much prejudice in the jury.\n- Rideau v. Louisiana ($1963$): A televised confession seen by $100,000$ people rendered the actual trial pointless.\n- Sheppard v. Maxwell ($1966$): USSC stressed judges must control the courtroom and media behavior to ensure a dignified atmosphere.\n- Murphy v. Florida ($1975$): USSC ruled jurors do not need to be \"totally ignorant\" of facts, and a criminal record does not automatically equal predisposition.\n\n# Prior Restraints and Reporter Conduct\n\n- Nebraska Press Association v. Stuart ($1976$): Ruled that gag orders on media are prior restraints and only usable after alternative methods have been exhausted.\n- Gag Order Criteria: Courts must consider (1) quantity/content of coverage, (2) effectiveness of alternatives, and (3) likelihood the gag will help.\n- Federated Publications v. Swedburg ($1981$): Judge Swedburg's order to follow guidelines or be barred was not considered a prior restraint because no punishment was attached.\n- Landmark Communications, Inc. v. Virginia: Accurate reporting of public officials' conduct is protected by the First Amendment.\n- Smith v. Daily Mail Publishing Co. ($1979$): WVA statute ruled overbroad regarding juvenile names.\n- Post Publication Punishment: Generally prohibited unless the state provides a compelling interest or proves a serious threat to justice.\n\n# Cameras in the Courtroom and Access to Proceedings\n\n- ABA Canon 35: Original ban on cameras in trials.\n- ABA Rule 3 A (7): Later allowed cameras if they don't distract trial participants.\n- State Rules: $11$ states allow cameras with restrictions; $37$ and DC allow some access; $2$ states allow no access.\n- State of New Jersey v. Bruno Hauptmann ($1935$): Media chaos in the Lindbergh kidnapping trial motivated the creation of Canon 35.\n- Estes v. Texas ($1965$): USSC declared cameras in the courtroom adversely impact participants.\n- Chandler v. Florida ($1981$): Ruled that cameras do not automatically jeopardize a fair trial; the defendant must prove harm.\n- Gannett v. DePasquale ($1979$): USSC ruled the press/public have no constitutional right to attend pretrial hearings.\n- Richmond Newspapers, Inc. v. Virginia: Held that the public/media have a First Amendment right to attend trials.\n- Globe Newspaper v. Superior Court ($1982$): Closures for sexual offense cases involving minors must be narrowly tailored.\n- Press Enterprise I ($1984$): Right of access to transcripts of voir dire.\n- Press Enterprise II ($1986$): Defendants must show a \"substantial probability\" of harm to close a preliminary hearing.\n\n# Contempt of Court Definitions\n\n- Civil contempt: Used to compel someone to perform an action.\n- Criminal contempt: Punishes disrespect for the court.\n - Direct contempt: Disruptive behavior inside the courtroom (constitutional).\n - Indirect contempt: Behavior outside the courtroom, like criticism (unconstitutional per USSC).\n- Bridges v. California ($1941$): Punishment for criticism of pending cases only allowed if an extremely serious evil is imminent.\n- Pennekamp v. Florida ($1946$): Inaccurate editorials do not pose a clear and present danger to justice.\n- Craig v. Harney ($1947$): Contempt power restricted unless utterances are a serious and imminent threat.\n- Dickinson v. U.S. ($1973$): Collateral Bar Rule; an injunction must be obeyed even if it is eventually found to be invalid.\n\n# Advertising Law and Deceptive Practices\n\n- Deceptive Advertisement Definition: Likely to mislead; deceives a reasonable consumer; contains a material statement or omission.\n- Printers’ Ink Statutes: Found in $47$ states; false advertising is typically a misdemeanor.\n- Self-Regulation: National Advertising Division; National Advertising Review Board. (NAB Code was ruled in violation of Sherman Antitrust legislation).\n- Federal Agencies: FTC, FDA, FCC, FEC, SEC, Alcohol/Tobacco Tax Division of IRS.\n- Enforcement Measures:\n - Staff Opinion Letters / Advisory Opinions (Guidance).\n - Industry Guides / Trade Regulation Rules (Truthfulness mandates).\n - Consent Decrees: Binding settlements without admitting guilt.\n - Cease-and-Desist Orders: FTC directives to stop ads.\n - Injunctions: Court-ordered stops.\n - Corrective Advertising: Remedial ads to fix misconceptions.\n- Lotteries Requirement (Law): Must include a prize, an element of chance, and consideration.\n\n# Constitutional Evolution of Commercial Speech Cases\n\n- FTC v. Raladam: Led to the Wheeler-Lea Amendment ($1938$) allowing FTC to stop unfair/deceptive commerce practices.\n- Valentine v. Chrestensen ($1942$): USSC ruled commercial advertising had no First Amendment protection (Original Commercial Speech Doctrine).\n- FTC v. Colgate Palmolive ($1965$): Ruled fake mock-ups (shaving cream on Plexiglas) are illegal if they faked a claim (sandpaper).\n- Bigelow v. Virginia ($1975$): Ruled speech doesn't lose protection just because it is a commercial advertisement (abortion services).\n- Virginia State Board of Pharmacy v. Virginia Citizens’ Consumer Council ($1976$): USSC recognized constitutional protection for purely commercial speech for profit.\n- Bates v. State Bar of Arizona ($1977$): Attorneys have a right to advertise prices of routine services.\n- Zauderer v. Office of Disciplinary Counsel ($1985$): Extended protection to illustrations and pictures in attorney ads.\n- Central Hudson Gas & Electric Corp. v. Public Service Commission ($1980$): Established the Four-Part Test for commercial speech regulation:\n 1. Is the speech commercial/eligible for protection?\n 2. Is the government interest substantial?\n 3. Does the regulation directly advance that interest?\n 4. Is the regulation sufficiently narrow?\n- Posades de Puerto Rico Associates v. Tourism Co. ($1986$): Allowed the ban on gambling ads directed at non-tourists; extended Central Hudson to allow restriction of harmful products.\n- Sorrell v. IMS Health Inc. ($2011$): Struck down Vermont's ban on selling prescriber-identifiable (PI) data; data mining has First Amendment rights and must meet the strict scrutiny test.\n- State University of NY v. Fox ($1989$): Government doesn't have to use the \"least restrictive means\" for commercial speech.\n- Greater New Orleans Broadcasting Assoc. v. US ($1999$): Casino ads cannot be banned where gambling is legal.\n- First National Bank v. Bellotti ($1978$): Corporations have First Amendment rights to express themselves on public issues.\n- 44 Liquormart v. Rhode Island ($1994$): Struck down a ban on alcohol price advertising.\n\n# Social Media Influencer FTC Guidelines\n\n- The Don’ts:\n - Placement: Don’t place disclosures where easily overlooked.\n - Terms: Don’t use vague terms like \"sp,\" \"spon,\" or \"collab.\"\n - Language: Don’t disclose in a different language than the endorsement.\n - Tools: Don’t rely solely on platform disclosure tools.\n- The Do’s:\n - Simplicity: Provide simple explanations (e.g., \"Thanks (brand) for the product\").\n - Clarity: Use clear terms like \"advertised\" or \"sponsored.\"\n - Video: Use both audio and print disclosures.\n - Photos (Stories): Superimpose a disclosure over the image.