Mass Media Law final exam study guide, summer 2024—Wilderman

The exam will consist of 40-50, true/false, multiple choice, fill-in-the-blank, or matching questions. Additionally, there will be two essay questions, which I would like to see answered in 1-3 short paragraphs. You will have a choice in selecting which essay questions to answer.

The textbook chapters covered heavily on the final exam will be: 13, 14, 15, and 16, along with the combined information from chapters 7, 8 & 10 in the PowerPoint and the PowerPoint titled “Internet Regulation Updated 2024.”

To best prepare for the exam, you should go over the quizzes from the chapters mentioned above and use our textbook and my PowerPoint presentations to study the following cases, issues, terms, and concepts:

Þ Understand the three ways we tend to think of privacy law (or invasion of privacy)

1. Privacy of autonomy – individuals are free to make their own choices and decisions

2. Privacy of space – A physical zone of privacy free from others’ intrusions

3. Privacy of information – There are some facts and data about oneself that others should not have access to

Þ Identify the four areas of privacy law—be able to tell them apart, or recognize them based on a given scenario

1. Appropriation of one’s name or likeness for trade purposes; taking a person’s name or likeness and using it for commercial gain without their permission is illegal.

2. Intrusion upon an individual’s solitude or seclusion: People have a “reasonable expectation of privacy” in their private lives.

3. Public disclosure of private facts: Some information about our lives is expected to remain private unless we disclose it.

4. Publishing material that puts an individual in a false light: A confusing area of the law, similar to libel, but doesn’t require as much burden of proof.

Þ What kind of private information, if published, meets the standard for invasion of privacy?

1. It would be highly offensive to a reasonable person

2. It is not a matter of legitimate public concern.

Þ Understand when content rises to a “legitimate public concern” in an invasion of privacy case

o The judges consider the social value of the material, the depth of the fact in regard to a person’s private life, and if the plaintiff has become a public figure (or limited public figure) in some way related to the material.

Þ What legal “catch 22” situation might journalists find themselves in after promising a source anonymity?

o If you promise a source anonymity, that is a work-of-mouth contract, if you break this contract the source can sue you in civil court for breach of contract OR if you are subpoenaed to testify before a grand jury a judge can order you to reveal your anonymous source and if you refuse you could be fined or sent to jail.

Þ What are shield laws, and how do they help journalists?

o Refers to state statutes that make communications between news reporters and informants confidential and privileged, freeing journalists of the obligation to testify about them in court. The goal is to let journalists gather news without being ordered to reveal sources and notes of conversations.

- How is “journalist” defined in court cases?

o A journalist defined in the Madden case in 1998 is one who engages in investigative reporting gathers news, and who intends at the beginning of the newsgathering process to make the news public.

Þ The current definition of legal obscenity and the main historical legal steps that led to this definition:

o The Comstock Act (1873)

§ Declared all obscene books, pamphlets, pictures and other materials were nonmalleable, no definition of obscenity was given. Comstock amended is still in law today.

o Regina v. Hicklin (1868)

§ Borrowed from the British, a work is obscene if it has a tendency to deprave and corrupt those minds who are open to such immoral influence, if it could influence a child then it is obscene for everyone abandoned in 1957

o The Ulysses Decision (1930s)

§ was when the states began to relax their interpretations of the Heckling rule due to the case of a mother who wrote a book about sex called Ulysses with the judge ruling that the book should be looked at in its entirety instead of its few brief passages, so the book was decided to be not obscene this ruling contributed to Roth and miller standards

o Roth v. United States (1957)

§ This test had three parts and replaced the Hicklin rule.

1. the dominant theme of the material taken as a whole must appeal to the prurient interest in sex

2. the court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters

3. before something can be found obscene it must be utterly without redeeming social value

o Miller v. California (1973)

§ first time since 1957 that the Supreme Court reached an agreement on obscenity which means if the following criteria can mean if something is obscene

1. an average person, applying contemporary local community standards, finds that the work taken as a whole appeals to a prurient interest in sex

2. the work depicts in a patently offensive way sexual conduct specifically defined by applicable state law

3. the work in question lacks serious literary, artistic, political or scientific value

Þ Understand why pornography is not the same as obscenity and understand the term “variable obscenity.”

o Porn is not obscene and is not a legal term as it is not considered patently offensive hard-core sexual conduct, porn is considered no obscene erotic material which is in the same grouping as explicit lyrics.

o Variable obscenity is materials not obscene for adults can be found obscene if children are allowed access to them.

Þ Understand how legally obscene content is different from indecent content and profane language as defined by the FCC

o their definitions are different as obscene content lacks any value whereas indecent content and profane language might just not be the most appropriate for kids but still has value and is not patently offensive

Þ The main functions of trademarks and the scenarios in which a person can lawfully use trademarked images that are not their own

o They can pay royalties or get a license to use said trademark, you can also use a mark more if it is diluted for example if the mark is blurred or if its power is weakened by other's use of it more frequently.

o Trademark images can be used lawfully in parodies, in criticism or commentary, and in all forms of news reporting and news commentary. You can write a story about a company or an opinion piece about a product and include their logo as a visual. You are not attempting to claim the logo as your own or confuse it with another product.

Þ Understand the “spectrum of distinctiveness” concerning trademarks

o Fanciful examples strongest, made of made up or coined words: Xerox, Lexus, Viagra

o Arbitrary examples second strongest, existing work is used as mark for a service unrelated to the common work: Apple, Camel, Pledge

o Suggestive examples third consumers must do a little bit of thinking to understand the full capabilities of a product: Chicken of the Sea, Coppertone

o Descriptive examples weakest mark describes features of the product without a consumer having to do any additional thinking: Holiday Inn, Clean Shower

o Generic Words – too broad to be trademarked like Texas Toast and Duck Tours.

Þ The four areas the courts use when deciding if fair use applies in copyright law

1. The purpose and character of the use

2. The nature of the copyrighted work

3. The amount and substantiality of the portion used in relation to the work as a whole

4. The effect of the use on the potential market for or value of the copyrighted work

Þ Understand what copyright means for the creator/author/copyright holder v. what it means for those who do not hold the copyright

o Copyright gives the author or owner of the work the right to:

1. Reproduce the work

2. Prepare and create derivative works

3. Publicly distribute the work

4. Publicly perform the work

5. Publicly display the work

6. Publicly perform a digital sound recording

o For those who do not hold the copyright

§ Those who distribute copyrighted material without permission, and not under fair use, can be sued for copyright infringement.

Þ Have a general understanding of what can and cannot be copyrighted

o Copyrighted

§ Literary works

§ Musical works

§ Dramatic works

§ Choreography

§ Pictorial, graphic, and sculpture work

§ Movies and other audiovisual works

§ Sound recordings

o Cannot be copyrighted

§ Titles or headlines

§ Slogans

§ Ideas

§ Facts

§ Utilitarian goods

§ Mathematical equations

Þ What are the three elements of the Central Hudson Test for regulating advertising?

o A substantial state interest—this usually deals with a state or government intending to protect people in some way, so for example banning advertising for alcohol near schools could be seen as protecting children from underage drinking

o Advancing that particular interest—there needs to be a specific goal related to the regulation, so in the previous example, the goal could be to promote the health and welfare of children

o A reasonable fit between the state’s interest and the particular regulation, meaning it should be narrowly tailored and not overreach to areas outside of the specific goal, so in this example, the regulation would likely need to set a realistic distance around schools for the ban, or it will not meet the conditions

Þ The four types of advertising regulation and how each type functions, along with the FTC’s definition of false or deception advertising

o Self-Regulation: Most areas of media self-regulate in different ways, including advertising. Self-regulation involves rules and ethical guidelines the industry imposes on itself.

o Lawsuits by Competitors and Consumers:

o Lawsuits by Competitors: While this may not seem to fit in the category of regulations, the industry learns what it can and cannot do based on the outcomes of lawsuits from both competitors and consumers. Following the adoption of the Lanham Act, advertisers cannot make false statements about their own products, nor (in a 1989 amendment to this act) their competitors’ products. Those who do, often find themselves in court. Advertisers can use comparative advertising, but those comparisons must be truthful and not misleading.

o Lawsuits by Consumers: Lawsuits from consumers against advertisers concerning false advertising are more difficult to prove but still happen. Under the Lanham Act, the consumer has to prove “economic or reputational injury” from the false advertising

o State and Local Laws: Since state law precedes federal law on the regulation of advertising, many state and local laws still exist and are used today. Some of these statutes are viewed as mini or “little FTC” regulations, in that they offer consumers remedies in false advertising cases—you can think of this as “consumer protection” from false or deceptive advertising claims. In certain situations where there isn’t a route for consumers to take under federal regulatory agencies for a remedy, state laws can provide another path

o Federal Regulations: Federal Trade Commission - Created by Congress in 1914 to “police unfair methods of business competition,” and its power was extended in 1938 to protect against unfair and deceptive acts in commerce, regardless of competition. Today, it’s the only federal agency with the jurisdiction to protect consumers and maintain competition in broad sectors of the economy

o Food & Drug Administration - The FDA’s mission: The Food and Drug Administration is responsible for protecting public health by ensuring the safety, efficacy, and security of human and veterinary drugs, biological products, and medical devices; and by ensuring the safety of our nation's food supply, cosmetics, and products that emit radiation.

Þ Understand the FTC’s 3-part definition of false or deceptive advertising

o There must be a representation, omission, or practice that is likely to mislead the consumer; the act or practice must be considered from the perspective of a consumer who is acting reasonably, and the representation, omission or practice must be material.

Þ There are actions the FTC can take when they discover false or deceptive advertising. You don’t have to remember them all but know the general definitions of these four: voluntary compliance, consent agreement, corrective advertising, and injunctions

o Voluntary Compliance – Agreeing to terminate a problematic ad campaign and not use it again.

o Consent Agreement – A written agreement between the FTC and the advertiser for the advertiser to refrain from using specific claims in future campaigns

§ Most commonly-used tactic.

o Corrective Advertising – The FTC forces the advertiser to inform the public of a past dishonest or misleading advertising campaign or claim

o Injunctions – FTC lawyers request an injunction – the immediate halting of the advertising in question – in federal court

Þ How and why First Amendment protection is different concerning these mediums: print, over-the-air radio & TV broadcasts, cable/satellite, and the Internet

o Print - has the most First Amendment protection due to when the First Amendment was created

o Radio & Broadcast - got more regulations because it was needed and the people said they needed it

o Cable & Satellite - federal courts were not sympathetic to the FCC wanting to control they couldn't control it because there was no constitutional authority to do so by 1983 the only rule was that cable must carry local TV stations for their subscribers

o Internet - has the most First Amendment rights on parr with print

Þ What is the FCC’s “safe harbor” time period, and what happens if broadcasters break those rules?

o The “safe-harbor time period” refers to the FCC rule that between 10 p.m. and 6 a.m. (times when young children are least likely to be consuming public TV or radio) indecent or profane language may be broadcasted. if they broadcast this type of material outside of the time period it can result in a fine and maybe future licensing issues.

Þ Elements that led to broadcasting being regulated by the government, consider:

o Spectrum scarcity

§ the notion, in the realm of the FCC's regulation of the over the air broadcasting, that there are a finite number of frequencies on which to broadcast and that in turn there are more people who want to broadcast than there are available frequencies

o World War I and World War II in relation to the radio technology

§ what came was portable wireless radio an they were easy to communicate with. but when the wars started the government needed any spare radios and needed airwaves specific for the army so that is where some regulation comes into play

o The Radio Act of 1927 and the idea of the medium being a “public interest”

§ the users of radio had increased and had many listeners and users which was leading to spectrum scarcity with these increasing numbers that is why broadcast people came to the conclusion that they needed federal regulation

Also, be aware of the main details and outcomes of these cases and acts:

· Children’s Online Privacy Protection Act (in advertising chapter)

o passed in 1998 which applies to web sites or online services directed towards children and that collect personal information from them, makes the site with kids under 13 notify parents for permission before collecting or using personal information from children, prohibits turning over any more information than is reasonably necessary to participate in activities on their websites

· The Federal Communication Act of 1934

o the far-reaching act that established the Federal Communications Commission (FCC) and the federal regulatory structure for U.S. broadcasting

· The Communications Decency Act (1996)

o law that restructured telecommunication regulations, made it a crime to transmit indecent material or allow it to be transmitted over public computer networks, was held to be unconstitutional in 1997 due to what could be considered indecent and patently offensive

· Wireless Ship Act of 1910

o required every large ocean vessel leaving America to have a wireless transmitter aboard and made it unlawful for any ship to refuse to acknowledge or relay a wireless message from another ship or offshore operator

· The Radio Act of 1927

o established the Federal Radio Commission soon to be the FCC, this was done because the broadcast industry realized they need regulation from the government; first comprehensive national broadcast law, which provided the basic framework for regulation

· The Communications Act of 1934

o the far-reaching act that established the Federal Communications Commission (FCC) and the federal regulatory structure for U.S. broadcasting

· COPA and CIPA (in chapter 13) and why they didn’t work

o Children Online Protection Act (COPA): statute prohibits commercial website from knowingly transmitting minors material that is harmful to minors. harmful materials is graphic lewd or sexual, after years of trying this act never took effect due to how broad it is and how narrowly tailored it is

o Children Internet’s Protection Act (CIPA): tried in 2001 to require public libraries to install anti porn filters on their computers so they can receive funding but the issue with the filters is that it would block innocent and educational material that some need access to like safe sex and std education, 203 this was struck down saying it violated the first amendments

Minimal information from the first half of the semester to revisit:

Þ Know the roles of the 1^st, 5^th and 14^th Amendments in free speech in the U.S.

o 1^st Amendment: the base amendment of free speech as it says congress will make no law respecting an establishment of religion or prohibit expressing the exercise of religion or making laws against freedom of speech , the press or the rights to peacefully assemble and to petition the government for grievances

o 5^th Amendment: this amendment talks about how no person shall be compelled in a criminal case to speak without due process of the law, saying not speaking is also part of freedom of speech, it helps keep the guarantee of the liberty to speak or write

o 14^th Amendment declares no state shall deprive any person of life liberty or property without due process of the law, saying no one can undermine your free speech rights or take them away unless criminally charged

Þ Identify the narrow categories of speech that are not protected by the First Amendment and an understanding of why they are not protected (The acronym FIDO will help you remember)

o FIDO- unprotected speech- fighting words/true threats, incitement of violence/crime, defamation, obscenity

Þ Understand the elements necessary for a plaintiff to prove libel, as well as the additional burdens if that plaintiff is a public official or public figure

o the elements necessary to prove libel are publication, identification, defamation, falsity, fault

o Publication- proved someone other than the publisher and the subject received the information

o Identification- successfully being able to identify the plaintiff

o Defamation- published statement must defame the plaintiff meaning to injure or cause emotional distress

o Falsity- the libel itself has to be proved false, this is not always done by private persons, but it is required by public persons, they must prove that the information is false

o Fault- the plaintiff must prove the defendant is at fault for libel, public persons have to prove this more often than private persons

About the essay questions:

There will be two short essay questions for you to answer on the final exam. Try to answer them in 5-8 sentences each. I am more impressed with an answer on the shorter side that shows clear understanding than a long answer that rambles around the point.

The first short essay question: You will answer a question taken from one of the three topics listed above—listed them again here just for clarity.

· Know the roles of the 1^st, 5^th and 14^th Amendments in free speech in the U.S.

· Identify the narrow categories of speech that are not protected by the First Amendment and an understanding of why they are not protected--the acronym FIDO will help you remember)

· Understand the elements necessary for a plaintiff to prove libel, as well as the additional burdens if that plaintiff is a public official or public figure

Study all three of these topics, as there will be questions about all three in the regular part of the exam, but focus in on one of them to provide a broader response to an essay question. Definitions are NOT enough. You should be able to define or describe the basic relevant terms in your own words. (I am not concerned about exact wording of definitions, but rather your understanding.) You need to go beyond definitions and mention at least one court case, law or act in your answer. It's fine to mention more, but at least one is required to earn maximum points. Since this is open-book, it’s easy to get the definitions right. You need to show me you understand on a deeper level.

The second short essay question will also have an element of choice. To prepare, consider something you have learned in the class that is relevant to your area of study in Gaylord, and why it is relevant/important. You can also mention problems with the situation if you think the situation needs more clarity, needs to change in some way, is too harsh, isn't harsh enough, etc. As with the first essay question, you will need to mention at least one court case, law or act in your response.