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77 Cards in this Set
- Front
- Back
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Direct Contempt |
-Act that violates the decorum of a court or shows disrespect for the legal process - Direct contempt involves an act that takes place inside a courtroom or the violation of a court order
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Indirect Contempt |
- Contempt by publication or by an act remote from the courtroom - This refers to an action by a judge to punish a person based upon what they wrote about the judge or justice system - No longer an issue due to Supreme Court decisions ruling that this practice violated the 1st Amendment
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Criminal Contempt |
- Punishment of a fine or jail time -These penalties are for the purposes of punishment and will be definite either in the amount of a fine or the length of a jail sentence - Right to jury trial in cases of “serious” criminal contempt (sentences of 6 months or more)
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Civil Contempt |
- Form of coercion (sit in jail until you comply with the judge’s order). - The purpose here is to coerce a source (many times a reporter) to provide information that have been ordered to provide
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Bridges v. California (1941) |
- Case involved two unrelated contempt citations - One involved Harry Bridges’s the head of a Longshoreman’s union. - Bridges sent a telegram to the Secretary of Labor threatening to call a massive west coast dock strike if a court order unfavorable to his union was enforced - Other involved the Los Angeles Times, which was cited for contempt after publishing several editorials critical of a judge - Both the Times and Bridges were cited for indirect contempt and the Supreme Court ruled that these contempt citations violated the 1st Amendment - Rule: Contempt citations for public statements are prohibited unless it can be shown that the publication creates a clear and present danger to the administration of justice
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Craig v. Haney (1947) |
- Paper criticized judge for his handling of a minor dispute and he issued a contempt citation - Supreme Court upheld the ruling from Bridges and went on to state further that contempt power should not be used to punish newspapers for what they print “unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice.” |
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Newsgatherer’s Privilege Generally |
- An exemption from a citizen’s normal duty to testify when ordered to do so in court or in another official information-gathering proceeding based on that person’s position as a reporter - By 2008 thirty-five states and Washington D.C. had shield laws |
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Pros and Cons of Reporter’s Privilege |
Pros: - Enhances the free flow of news because sources feel confident that they won’t be compromised - Doctors and lawyers can refuse to testify, why not reporters?
Cons: - Negatively impacts the justice system - Lack of ability to get evidence - Can be a detriment to law enforcement - If there is a privilege for reporters, then who qualifies as a reporter? |
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Branzburg v. Hayes (1972) |
- Denied the existence of a constitutional privilege for reporters by a vote of 5-4 - 4 justices objected to a Constitutional shield outright - 4 justices said their should be a qualified Constitutional shield - 1 justice suggested that the Constitution might protect journalists’ sources under other circumstances - Case involved three situations in which reporters had refused to answer grand jury subpoenas about possible criminal activity they had witnessed - Key here was that the reporters may have actually witnessed the criminal activity - Earl Caldwell: refused to testify before a federal grand jury about the Black Panthers - Paul Pappas: went to Black Panther headquarters and refused to testify - Paul Branzburg: photographed two men making hashish and refused to identify them - Supreme Court stated that reporters have to comply with subpoenas and that journalists have the same duty as ordinary citizens to testify
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Test Proposed by Branzburg Dissent |
- To justify requiring a journalist to reveal his source, the government should have to show: - That there is probable cause to believe that the journalist has clearly relevant information regarding a specific probable violation of law; - That information cannot be obtained in some way that doesn’t so heavily infringe on the First Amendment; - That there is a compelling and overriding interest in the information - Although these guidelines appeared in the dissent they have been used by many state and federal courts when deciding reporter’s privilege cases
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Federal Rulings after Branzburg |
- Many federal appeals courts recognized a qualified reporter’s privilege in certain circumstances. - 4th Circuit test - judges should determine whether privilege applies by asking: - Whether the information is relevant; - Whether the information can be obtained by alternate means; and - Whether the court has a compelling interest in the information - D.C. Circuit - civil litigant must show that: - The lawsuit is not frivolous; - The information is clearly crucial to the case - All alternative sources for the information have been exhausted - 7th Circuit has completely rejected reporter’s privilege
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Shoen v. Shoen (1993)(9th Circuit) |
- Author Ronald Watkins was doing research for a book about the battle between Leonard Shoen, the founder of U-Haul and his sons Mark and Edward - During the feud, Eva Berg Shoen, the wife of a third son, was murdered at the family’s vacation home - Before Watkins interviewed Leonard Shoen for his book, Leonard was quoted in the media as saying that Mark and Edward were responsible for Eva’s death - Mark and Edward sued Leonard for libel and subpoenaed Watkins, demanding the notes and tapes from his interviews of Leonard - Watkins appealed the Subpoena and the 9th Circuit ruled that an investigative book author such as Watkins could be protected by reporter’s privilege |
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Shoen v. Shoen (1993)(9th Circuit) |
Author Ronald Watkins was doing research for a book about the battle between Leonard Shoen, the founder of U-Haul and his sons Mark and EdwardDuring the feud, Eva Berg Shoen, the wife of a third son, was murdered at the family’s vacation homeBefore Watkins interviewed Leonard Shoen for his book, Leonard was quoted in the media as saying that Mark and Edward were responsible for Eva’s deathMark and Edward sued Leonard for libel and subpoenaed Watkins, demanding the notes and tapes from his interviews of Leonard
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Shoen v. Shoen (1995)(9th Cir.)(Shoen II) |
- Set forth three part test in situation such as the one in Shoen, stating that a journalist could only be forced to turn over their research materials as a last resort. - Must show that: - The information is unavailable despite exhaustion of all reasonable alternative sources - Is not cumulative - Is clearly relevant to an important issue in the case |
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California Shield Law |
- California has a very strong reporter’s shield law that it is incorporated into the state Constitution. - The law protects journalists in all but a few situations that have been created by court decisions |
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Exceptions to California Shield Law |
- Does not apply when a judge is trying to find out who violated a judicial “gag” order - Does not apply when the information may help exonerate someone charged with a crime - The defendant’s constitutional right to a fair trial is paramount to any reporter’s privilege - Judge can review this information in chambers before deciding if it is relevant and should be released - Prosecutors have no due process right to circumvent the shield law and force journalists to testify or provide evidence in their possession - Protects journalists only from contempt of court citations and not from other legal sanctions (such as the loss of otherwise valid defenses in libel cases) |
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Judith Miller and other Jailed Journalists |
- Judith Miller of the New York Times was jailed for 85 days for refusing to reveal her sources during a federal investigation of the leak of CIA Agent Valerie Plame - Miller was finally released when she agreed to testify - Blogger Joshua Wolf was jailed for 226 days for refusing to hand over his video that police believed may have shown violent acts during a San Francisco street demonstration - Was released after reaching deal that allowed authorities to see his video and answer two questions under oath |
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Bill Farr Case |
- Covering trial of Charles Manson and he published a story based upon information he received from attorneys in violation of the judge’s gag order - The judge demanded to know who had violated the court order and Farr refused to name his sources and was ultimately jailed after an appellate court ruled against him - Appellate Court eventually realized that Farr may spend the rest of his life in jail if he refused to name his sources and they created a procedure to allow the release of civil contempt prisoners whose violation of a court order was based on a clearly articulated moral principle |
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Farr Moral Principle Test |
- A hearing should be held to decide if -Farr was refusing to obey the court order because of a moral principle; and - Continued incarceration would not induce him to obey the court order - If Farr was refusing to obey the court order on a moral principle and was committed to stand firm and not disclose the information, then the trial court had to change the contempt citation from civil contempt to criminal contempt, with a maximum of five days in jail |
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Cohen v. Cowles Media Co. (1991) |
- Dan Cohen, a PR aide for the Republican candidate for governor in Minnesota, gave reporters documents that damaged a political opponent - Reporters promised not to identify Cohen, but the editors of the Minneapolis Star Tribune and the St. Paul Pioneer Press decided to use his name anyway - Cohen ended up getting fired and sued the newspapers for breach of contract - U.S. Supreme Court upheld a jury verdict for $700,000 in favor of Cohen and ruled that the First Amendment does not confer on the press a right to disregard promises - Dissent in Cohen was joined by four justices and argued that the story in question was so newsworthy that the use of Cohen’s name was justified |
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Zurcher v. Stanford Dailty (1978) |
- Stanford Daily covered a violent incident. - D.A. got a search warrant to search newsroom. - Supreme Court upheld the right of the D.A. to do the search stating that the 1st Amendment does not create a privilege that would protect the media from newsroom searches even if no journalist is suspected of a crime |
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Privacy Act of 1980 |
- Federal law that outlawed most newsroom searches. - Said that searches could take place only if one of four conditions were met: - Person holding the information is suspected of a crime - There is reason to believe materials must be seized immediately to prevent someone’s death or serious bodily injury - There is reason to believe giving notice and seeking a subpoena would result in the materials being destroyed, changed or hidden - The materials were not produced as a result of a court order that has been affirmed on appeal |
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Obscenity |
- Legally obscene materials are not protected by the First Amendment and may be suppressed by the government - All 50 states have laws to control obscenity |
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Hicklin Rule |
- The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall - This test allowed a work to be ruled obscene based on isolated passages taken out of context, and defined obscenity in terms of its effect on the most susceptible members of society - This rule developed from a British decision, but was followed in America as well |
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Halsey v. N.Y. Society for the Suppression of Vice |
- New York appellate case from 1920 - Court ruled in favor of a bookstore clerk who had been arrested for selling a copy of a novel called Mademoiselle de Maupin - The court ruled that a book must be judged as a whole, and that the opinions of qualified critics as to its merits are important in reaching a decision |
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U.S. v. One Book Called ‘Ulysses’ (1934) (2nd. Cir) |
- Court upheld a decision by Judge John Woolsey not to follow the Hicklin Rule and instead judge a work by its effect “on a person with average sex instincts” rather than its influence on the most corruptible members of society - Also said a work had to be judged as a whole, not by looking at isolated parts |
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Roth v. U.S. (1957) |
- Landmark Supreme Court decision on Obscenity - Samuel Roth was convicted under federal law for mailing various erotic materials and nude images that federal prosecutors alleged to be obscene - The Supreme Court upheld Roth’s conviction and specifically ruled that obscene materials are not protected by the First Amendment - Roth Test for Obscenity: - Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest |
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Jacobellis v. Ohio (1964) |
- Theatre owner was convicted of violating an Ohio law by showing an allegedly obscene French Film, Les Amants - Court overturned the conviction and ruled that the film was not obscene - Court said that the Constitution requires national standards on obscenity -The federal Constitution would not permit the concept of obscenity to have a varying meaning from county to county or town to town - This standard was ultimately overturned |
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Ginzburg v. U.S. (1966) |
- Court upheld a obscenity conviction against pornographer Ralph Ginzburg based on the way he marketed his works and not the works themselves - Court said their was abundant evidence of pandering, “the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.” |
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Redrup v. New York (1967) |
- Court listed three categories of marketing that might justify state prosecutions for obscenity without any finding that the works themselves are obscene - The sale of sexually titillating materials to juveniles - The distribution of such materials in a manner that is an assault on individual privacy because it is impossible for unwilling persons to avoid exposure to it, and - Sales made in a “pandering fashion.” |
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Stanley v. Georgia (1969) |
- Police searched Robert Stanley’s home looking for bookmaking materials, but they instead found pornographic films and arrested him for possessing obscene materials in violation of Georgia law - Court overturned the conviction and ruled that there is a constitutional right to possess and use even obscene materials in the privacy of one’s home |
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U.S. v. Reidel (1971) |
- Upheld constitutionality of federal obscenity law against mailing obscene materials, even to consenting adults. |
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U.S. v. Thirty-Seven Photographs (1971) |
- Customs officials could seize obscene materials from a returning traveler’s luggage, even if they were intended for private use. |
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U.S. v. Twelve 200-foot Reels of Super 8mm Film (1973) |
- A person has no right to bring allegedly obscene material back from abroad. |
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Miller v. California (1973) |
- This case sets forth the modern Constitutional test for Obscenity - Under Miller a work is obscene if: - An average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest - Local and not national standards are now applied - The work depicts or describes, in a patently offensive way, sexual conduct, and the applicable state law specifically defines what depictions or descriptions are prohibited; and - The work, taken as a whole, lacks serious literary, artistic, political or scientific value |
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Pinkus v. U.S. (1978) |
- Court ruled that children should not be a part of the “community” when jurors determine “community standards.” if the work was intended for adults. |
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Pope v. Illinois (1987) |
- Measurement from Miller of “serious… value” must be based on objective standards - Court stated, “The proper inquiry is not whether an ordinary member of any given community would find literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material taken as a whole -”Effectively applies the local community standards aspect of the Miller test only to the first prong of the test |
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New York v. Ferber (1982) |
- Court upheld a law that permitted criminal prosecutions for those who produce or sell material in which minors perform sex acts, without any proof of obscenity |
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Osborne v. Ohio (1990) |
- Court upheld a law that allowed prosecution of a person for private possession of sexually oriented materials in his home if the materials involved children |
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U.S. v. X-Citement Video (1996) |
- Court said that individuals can’t be prosecuted if they do not knowing that a person appearing in an adult video is under age |
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Child Pornography Protection Act of 1996 |
- Law banned not only the use of minors in sexually explicit roles, but also images that “appear to depict a minor engaged in sexually explicit conduct.” - This included a ban on even computer generated images that appear to depict a minor engaged in sexual activity |
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Ashcroft v. Free Speech Coalition (2002) |
- Court said that the part of the Child Pornography Prevention Act that banned computer-generated images that only “appear” to depict a minor engaged in a sex act is unconstitutional
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U.S. v. Williams (2008) |
- Court upheld a Federal ban on offering material purported to be child pornography - Justice Scalia - “Child pornography harms and debases the most defenseless of our citizens…We hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment.”
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Rowan v. Post Office (1971) |
- Postal patrons are allowed to demand their names be removed from objectionable mailing lists |
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General Media Communications v. Cohen (2nd Circuit, 1997) |
- Military is free to ban the sale or rental of sexually oriented videos and publications in their stores |
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Burstyn v. Wilson (1952) |
- Films are “a significant medium for the communication of ideas,” and afforded protection under the First Amendment. |
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Reno v. ACLU (1997) |
- Declared key provisions of the Communications Decency Act unconstitutional - Declared that the internet is entitled to the highest level of First Amendment Protection |
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2000 Children’s Internet Protection Act |
- Directed FCC to adopt new rules under which libraries and schools must install Internet filtering software to be eligible for federal aid for web access - Court upheld this law in U.S. v. American Library Association (2003) |
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National Endowment of the Arts v. Finley (1998) |
- Does not violate the First Amendment for those who award government grants for the arts to consider “general standards of decency and respect for the diverse beliefs and values of the American people.” |
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Alexander v. U.S. (1993) |
- Upheld the rights of agents to use RICO Act [Racketeer Influenced and Corrupt Organizations Act] to seize the assets of adult book and video stores once some of the materials are ruled legally obscene |
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Renton v. Playtime Theatres (1986) |
- A city may prohibit adult businesses within 1,000 feet of any park, school, church or private residence - Essentially, cities may place stringent time, place, and manner restrictions on adult businesses even when similar restrictions on other kinds of speech might be unconstitutional |
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Schad v. Mt. Ephraim (1981) |
- Cities may not use zoning to banish adult entertainment entirely without violating the First Amendment |
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Valentine v. Chrestensen (1942) |
- F.J. Chrestensen acquired a surplus U.S. Navy submarine and tried to dock it in the city owned wharf in New York City - City wouldn’t let him, so he had to arrange to dock it somewhere else - Started advertising guided tours of the submarine, but city officials wouldn’t let him distribute his handbills because of an anti-litter ordinance that barred all put political leaflets. - Chrestensen then added a note criticizing city officials for refusing to let him dock - Court said that the note on the back of the handbill was really a ruse to justify a purely commercial advertisement - Court ruled that when purely commercial advertising is involved, the First Amendment does not apply - This rule would ultimately be overturned |
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Bigelow v. Virginia (1975) |
- Jeffrey Bigelow published an ad in The Virginia Weekly for an abortion service in New York. - At the time abortion was illegal in Virginia, but legal in New York. - Bigelow was prosecuted for violating the Virginia law and he appealed - Court overturned his conviction and said that the readers of the ad had a First Amendment right to receive the information - Court emphasized that the service in question was not illegal where it was offered - The message did not lose the First Amendment protection it would otherwise enjoy merely because it appeared in the form of an advertisement. - There must be a compelling state interest to justify laws prohibiting any form of commercial speech that has a legitimate purpose |
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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Counsel (1976) |
- Virginia Law prohibited advertising the prices of drugs - Many states had these prohibitions - Court ruled that there is a First Amendment Right for consumers to receive information about the price of products. - Court struck down the Virginia Law |
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Linmark Associates v. Willingboro (1977) |
- Homeowners have a First Amendment right to place “for sale” signs in front of their homes |
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Carey v. Population Services International (1977) |
- Court struck down a number of New York laws that restricted advertising of contraceptive devises, even though the devices were legal in New York - Court said that there was no compelling state interest to justify the laws - This was standard required under Bigelow case |
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Central Hudson v. Public Service Commission of New York (1980) |
- New York Public Services Commission prohibited advertising by utilities that might encourage consumption of utility services rather than conservation - Court struck down the NYPSC’s rule and put forth a test for courts to use to determine if government restrictions on advertising are constitutional |
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Four Criteria from Central Hudson |
- Whether the expression is protected by the First Amendment (if the ad involves deception or other unlawful activities, it is not protected by the 1st Amendment and may be banned) - Whether the claimed governmental interest that justifies the restrictions is substantial - Whether the regulation directly advances the governmental interest in question; and - Whether the regulation is more broad then needed to fulfill the governmental interest |
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Bates v. Arizona State Bar (1977) |
- Arizona had ban on advertising by lawyers - Bar rules prohibited advertising by lawyers in virtually every state - A clinic run by two young lawyers advertised their prices for routine legal services and stated that their prices were far below the “going rate” charged by other lawyer - Court struck down the Arizona rule and said that advertising by lawyers could not be prohibited unless it was misleading or fraudulent - Ruling applies to all professionals and not just lawyers |
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Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986) |
- Puerto Rico law barred casinos from advertising locally, even though gambling is legal in Puerto Rico - The law also allowed for the casinos to advertise to tourists - Court upheld the law and said that advertising of anything “deemed harmful” enjoys less First Amendment protection than other advertising, even if the product is legal - Although this decision has not been overturned, the court would most likely strike down the law if the case were heard today |
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Rubin v. Coors Brewing Co. (1995) |
- First Amendment right to disclose the alcohol content of beer on the label - Previously Federal Law and ATF policies prohibited this |
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44 Liquormart v. Rhode Island (1996) |
- Struck down a Rhode Island law that banned the advertising of liquor prices |
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Lorillard Tobacco Co. v. Reilly (2001) |
- Court ruled that the regulation of cigarettes is a Federal matter under the Federal Cigarette Labeling and Advertising Act - Generally accepted that advertising of “harmful products” are protected by the First Amendment |
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First National Bank v. Bellotti (1978) |
- Court overturned a Massachusetts law that forbade corporate advertising for or against ballot measures except when such a measure might “materially affect” a company’s business |
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Consolidated Edison v. Public Service Commission of New York (1980) |
- Government restrictions of noncommercial corporate speech are justified only if one of these three conditions is met: - The restriction in question is a “precisely drawn means of serving a compelling state interest - The restriction is required to fulfill a “significant government interest” and merely regulates time, place and manner, leaving open “ample alternate channels for communication" - There is a narrowly drawn restriction on speech under a few special circumstances where disruption of government activities must be avoided, such as a military base |
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Citizens United v. FEC (2010) |
- Conservative non-profit created a film entitled Hillary: The Movie, which was a negative look at Hillary Clinton. - Film was put out at the same time that Clinton was seeking the Democratic nomination for President. - At the time Clinton was overwhelming favorite to win the nomination.The FEC sued claiming that the film amounted to “electioneering” because it could only be interpreted as an encouragement not to vote for her. - Corporately funded “electioneering communications” were prohibited under the McCain/Feingold Campaign Finance Law - Court struck down McCain/Feingold stating that corporations have a constitutional right under the First Amendment to engage in political speech - Landmark Decision and very controversial. |
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Miami v. Tornillo (1974) |
- Landmark decision on access to print media - Pat Tornillo, a Miami teacher’s union leader, ran for the state legislature and the Miami Herald twice attacked Tornillo in editorials - Florida had a right of reply law which required newspapers to publish replies when they editorially attacked candidates for office. - Tornillo demanded space for a reply and the Herald turned him down, at which point he sued - Court ruled that the First Amendment does not permit a government to tell a newspaper publisher what to print and what not to print |
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Lehman v. Shaker Heights (1974) |
- No First Amendment right to advertise on government run media unless the agency of government accepts some ads of a certain type and then arbitrarily rejects other similar ads |
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Federal Trade Commission (FTC) |
- Created by Federal Trade Commission Act of 1914 - Oversees business activities to protect against unfair business practices, including false advertising - Five members - Appointed by the President and confirmed by the Senate - Have the ability to adopt rules that have the force of law |
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FTC Enforcement Tools |
- Can publicize unlawful advertising - Cease and Desist orders - Consent Agreement - agreeing to discontinue the challenged activity without admitting wrongdoing (placed on public record) - Assurance of Voluntary Compliance - advertiser merely signs an affidavit (more informal then consent agreement) - Advisory Guides and Advisory Opinions - Advertising Substantiation - Requires certain industries to document all of the claims in their ads |
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Affirmative Disclosure |
- Reveal negative as well as the positive aspects of a product |
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Corrective Advertising |
- Advertising aimed at correcting past advertising that was false |
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Warner-Lambert Co. v. FTC (1977) |
- Listerine mouthwash - had claimed for years without evidence that Listerine was a cure for colds and sore throats |
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Magnuson-Moss Act |
- empowered FTC to act against fraudulent practices at the local level |
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FTC’s Definition of Unfair Advertising |
- An advertisement is unfair if it: - Causes or is likely cause of substantial consumer injury - Which is not reasonably avoidable by consumers themselves - Is not outweighed by countervailing benefits to consumers or competition |
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Cigarette Advertising |
- FTC banned the Joe Camel campaign in 1997 and asked for a corrective advertising campaign to combat under-age smoking - R.J. Reynolds ultimately agreed to drop the ad campaign permanently as part of the settlement of a lawsuit - Cigarette industry ultimately agreed to end billboard advertising, stop using cartoon characters, and refrain from targeting underage smoking - Cigarette Labeling and Advertising Act: Forbids broadcast advertising of cigarettes and requires health warning in ads and on cigarette packages |
