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123 Cards in this Set

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How did Justice Louis Brandeis once characterize privacy?
"to be let alone"
The value of privacy must be balanced against what?
Rights of individuals to privacy against government needs and desires for info
To resolve privacy claims, courts must consider what?
The customs and conventions of the community; what is proper becomes a matter of community mores
Although privacy as a legal doctrine evolved slowly Western culture, how ere its underlying values expressed in colonial customs and in the courts?
courts enforced laws against trespass, limiting govt searches and seizures, defamation, recognizing privilaged communications between husband and wife, didn't open letters, John Stuart Mill's views on liberty
How and why did industrialization, increasing population in the US, and advancing print technology affect privacy law?
The barriers of time and space common to rural settings no longer insulated individuals from unwanted contact. Technology altered the balance between personal expression and third party surveillance
What is the relationship between the duties that members of society owe toward one another and to tort law?
When a member of society violates a duty toward another person that results in an identifiable harm, the injured person may recover damages
Does privacy law apply to businesses and corporations?
No, only individuals
What is the definition of the embarrassing private facts tort?
The publication of private info that would be highly offensive to a reasonable person and is not a matter of legitimate public concern
What does "publication" mean under this tort?
Widespread communication
What are the considerations in deciding if the information published was truly private?
If the info is in fact private, consent (appears in public record, happened in public = not)
What are the considerations in deciding if the information published would be highly offensive to a reasonable person?
-disclosure must outrage the community's notions of decency
-disclosure becomes a morbid and sensational prying into private lives for its own sake
-no invasive stories/pictures that deal wiht physical/mental illnes or reveal intimate parts of the body
-sexual relations
-humiliating illnesses
-intimate personal letters
-family disputes
-details of home life
-stolen photos
-photos in private places
-info from individuals tax returns
What constitutes a matter of public concern and newsworthiness?
politics, law enforcement, crime, domestic violence, suicide, medical advances, social trends, anything out of the ordinary once facts are in the public domain they stay that way, news about public figures/officials
Do the news media have some protection under the First Amendment when they publish truthful, lawfully obtained information about matters of public concern? What do we learn about this from the Cox and Florida Star cases?
Yes. INfo put in public domain by govt first, legally obtained
Normally, can individuals disclose personal information to the media and then claim invasion of privacy if it is published?
No
What rule of thumb does the text suggest for journalists in this matter?
The more intimate the info the more important to be sure consent was clearly given, either explicity or implicity
When is it problematic to rely on implied consent as a defense?
If private info is obtained from someone who doesn't understand the info is likely to be published
What is the definition of intrusion?
The highly offensive invasion of another person's solitude, either physically or by use of technological devices--process of gathering, not the info gathered
What is the fundamental purpose of this tort?
To protect a person's solitude
Do people in public places have a legitimate expectation of privacy?
Not really
Is it okay to photograph and report on things that occur in places that could reasonably be considered public?
Yes
When does journalistic persistence become legally problematic?
When it's menacing or harassing
What is trespass?
Anyone entering private property without the consent of the owner or possessor commits a trespass
Can journalists trespass? Are their rights normally different from those of other citizens?
Yes. No.
If journalists want to enter a property, they must get permission from whom?
The possessor of the property
If journalists lie about their intent when entering property, could it present a legal problem?
Yes
What rule does the text articulate about the use of technology? (p. 312) Is the zone of privacy in homes or other strictly private places greater than in public places?
If a device simply allows a journalist to see or hear what might be witnessed in public. Yes.
What do we learn from the Dietmann, McCall and Inside Edition cases?
Can't invade home privacy
Do law enforcement officials have authority to allow journalists into private residences without owners' permission?
No.
What did Chief Justice William Rehnquist write in Wilson v. Layne (1999)?
While common and no real law against it, reporter ride-alongs had no legit law enforcement role and it doesn't matter if it helped publicize police work and offered no protection to suspect or police
What is the best defense for journalists wanting to enter private property?
Consent from the owner
According to the Supreme Court, can news media be held liable for publishing or broadcasting illegal recordings made independently by third parties and subsequently given to journalists? Under what conditions?
Yes, if they have a role in the illegal recording, obtain it illegally, and the content doesn't involve a matter of public concern
What is the definition of false light?
the publication of highly offensive info about an individual with actual malice, knowing the info is false or with reckless disregard for wheter it is true or false
In what ways is false light like libel? In what ways is it different?
Like--prove communication identifies them, is false, news medium is at fault
Different--being cast in highly offensive false light causes some kind of harm not reputational. also must prove widespread publication
In most jurisdictions, must all false light plaintiffs (whether public or private) prove actual malice?
if involved in matters of public concern
In what two ways are courts most likely to find false light disclosures highly offensive?
1)FICTIONALIZATION is the embellishment or addition of info to an otherwise factual representation, a device more common to tv or stage dramatization than news coverage
2)DISTORTION occurs when elements of a story are deceptively juxtaposed, or when info is omitted, presented in an improper context
Under what circumstances can fictionalization be a problem?
Both nameand facts
Are disclaimers a fail-safe defense in false light claims?
No
Do minor falsifications sustain a false light privacy claim? What must be proven for the case to succeed?
Yes, that the misrepresentations were significant
What is the definition of the appropriation tort?
The use of another person'sname, likeness or image without permission, for commercial gain
Most commercial appropriation cases involve what?
advertising or related enterprises
Can the use of celebrity look-alikes and sound-alikes in advertising result in appropriation lawsuits?
Yes
Is it a violation of publicity for a news publication to use an individual's name or likeness to promote the news content of the publication?
No
But what if the advertising suggests that the celebrity endorses the publication?
Yes
Why is it important to obtain consent or permission to use names and likenesses?
It's an important defense
Why don't people just sue for libel or false light instead of intentional infliction of emotional distress?
They don't have to prove false or fault and have more a chance of receiving damages
The emotional distress tort allows recovery of damages for what?
Severe emotionalharmvs deliberate or reckless conduct that is deemed outrageous and extreme
What was the judicial history of the Hustler case, and what was the Supreme Court's final decision in this case? Must public persons prove false light in emotional distress cases?
Yes
Do private individuals fare better in emotional distress cases?
Yes
What was the purpose of the Privacy Act?
To create a "code of fair information practices" to regulate government agencies
Does the Privacy Act impose penalties on custodians of records who release protected information?
Yes
When was this law passed, and what was its intent? What does it do? What has the Supreme Court said about it?
To inhibit stalkers, and anyone who might harm and individual afer linking aname with an address. Limits access to records. Supreme court said that the release or sale of drivers' license info constituted interstate commerce
Note that this act is sometimes called "FERPA," an acronym for Family Educational Rights and Privacy Act. What does this act require? What kinds of information can and cannot be released?
Requires educational institutions receiving federal funds to keep certain student records private.
Are crime reports considered educational records?
No
What is HIPPA, and what information does it protect?
Health insurance portability and accountability act. Governs when a group health plan may impose reexisting conditions in health insurance coverage. Limits the use and disclosure of individuals' health info by doctors, healthecare hearing houses, insurance plans, business associates and even employers
Note the last paragraph of this section in which it is stated that "during the coming years, the pressure to vest government with new powers and to use computer technology and the Internet to track and prevent terrorism will continue to be strong." What contractions are expected due to this pressure?
Privacy rights, sources of info available to journalists both thorugh internet and through legislation such as the freedom of information act
Why did Vanessa Leggett spend 168 days in jail?
She refused to turn over her tapes and transcripts of her interviews with 34 people
Do the media feel that subpoenas are a burden on their resources?
Yes
The "bundle of privileges" included in a reporter's testimonial privilege consists of what?
Privilages to:
-protection from newsroom searches by law enforcement agencies
-not to reveal the id of a confidential source
-to be free from turning over published info/ unpublishsed work material
-to be free from testifying at judicial proceedings
The reporter's privilege is related to what?
common law doctor-patient, lawyer-client,priest-penitent testimonial privilages
Has the Supreme Court said that the reporter's privilege exists as a constitutional right?
No, quite the contrary
Why does a reporter's privilege vary dramatically from state to state and among federal jurisdictions?
The privilege is based on a patchwork of federal and state constitutional law. Federal and state statutes, state common law, judicial rules and attorney general guidelines
In what circumstances is a reporter more likely to be compelled to testify?
A criminal case where a defendant has a strong sixth amendment right to a fair trial
What was the Supreme Court's ruling in Branzburg v. Hayes?
5-4 vote that the consitutional doens't provide journalists with the right to be free from having to appear and testify before grand juries or at criminal trials
How have the lower courts interpreted Branzburg?
as providing journalists wiht a qualified or conditional first amendment based testimonial privilege
What cases were combined in the Branzburg case when it went to the U.S. Supreme Court?
Paul Poppas and Earl Caldwell--dealings with the Black Panthers
According to Justice Byron White, writing for the majority of the Court, journalists' First Amendment interests were outweighed in the case by what?
the general obligation of each citizen to appear before a grand jury or at a trial and testify
According to White, why would the ruling have no effect on what journalists can publish and not affect sources?
Claim "to a great extent speculative" and history suggests the press can operate effectively without a testimonial privilege
Did the Court create a testimonial privilege for journalists that other citizens do not also enjoy?
No
What has consistently been the view of the Court relative to the First Amendment, journalists, and other citizens?
the first amendment applies equally to all citizens
Did the ruling in Branzburg allow states to create testimonial privileges for reporters?
No
What legal principle does this illustrate?
The first amendment applies equally to all citizens
In a concurring opinion, what did Justice Lewis Powell advocate balancing?
yes
What did Justice Lewis Powell appear to support?
while the government can't take from citizens the rights protected by the first amendment, the government can create rights beyond those protected by the first amendment
What is a qualified journalistic privilege?
Privilege awared to journalists if their info was only remotely related to a grand jury investigation or there was no legit law enforcement need for the info
As a result of all of the opinions, have the lower courts interpreted Branzburg to mean that a majority of the Court was in favor of at least a qualified privilege for reporters?
yes
Why has Justice Potter Stewart's dissenting opinion in Branzburg become enormously important?
supported the protection of journalistic privilege
What is the three-part test proposed by Justice Stewart to determine when a journalist must testify before a grand jury or in criminal cases?
1)probable cause to belieive reporter has info clearly relevant to the crime
2)Info cannot be obtained by alternative means less destructive of first amendment rights
3)There's a compelling and overriding interest int he info
How have most appellate courts interpreted Branzburg? Have they adopted Stewart's three-part test (or some variation thereof)?
Precedent for a qualified first amendment-based privilege. Yes
If the government is able to prove the three parts, must a reporter testify?
Yes.
Have most circuits interpreted Branzburg to mean that there is a qualified First Amendment reporter privilege?
Yes
What is the three-part test usually used by the courts to determine if a journalist must testify?
Stuart's
Even when a court recognizes a First Amendment-based reporter testimonial privilege, the protection is based on what three factors?
-the types of proceeding in which the journalist is supposed to testify
-the type of info or material the journalist is being asked to divulge, incl whether the journalist promised confidentiality to a source
-whether the info had been published
Journalists have the least protection when called to testify where?
before a grand jury
Some courts use Branzburg for denying the reporter's privilege in what other types of proceedings?
in other types of criminal proceedings
In criminal proceedings where the reporter's privilege is not recognized, what outweighs First Amendment considerations?
sixth amendment right to "every man's evidence'
The press receives the largest number of subpoenas in connection with what? The second largest?
Criminal cases, in connection with civil cases
Why do reporters have greater success quashing subpoenas in civil cases than in criminal cases?
There aren't sixth amendment privileges
If a reporter is party to the civil litigation, will he or she be more likely to be ordered to testify? Why is this so in a libel case?
Yes. Although the court recognizes a qualified privilege, the argument is in favor of compelling disclosure because info takes things straight to the heart of the matter
What two important considerations does the text mention as to whether a reporter will be ordered to disclose information?
-whether the info is confidential
-whether it has been published
Are confidential sources and information more or less protected than non-confidential sources and information?
more
Are published work products more or less protected than non-published work products?
Less
Reporters must almost always testify if they are eyewitnesses to what?
crimes
If journalists are accused of a crime, must they testify?
yes, unless they cite fifth amendment
Must a person claiming reporter's privilege work for a mainstream news organization?
No
What is the general rule about a witness claiming the privilege?
The witness claiming the privilege must demonstrate that they sought, gathered or received the info in dispute to distribute it to the public--from the very start of the newsgathering process
What other laws protect reporters from revealing sources and information?
A body of state and federal law
Do all states have shield laws?
No
Are state shield laws identical to one another?
No, they vary signifiantly from state to state
In what ways do state shield laws vary?
whom they protect
Is there a federal shield law (a statutory reporter's privilege)?
No
What is the rationale for the U.S. Department of Justice's policy limiting the authority of federal law enforcement officials to subpoena reporters or their telephone records in criminal or civil cases?
because the freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutional power of the govt should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues
What should you do and not do if you are served a subpoena?
-Never ignore it
-never destroy the materials supoenaed
-never comply w/o consulting your supervisor who'll in turn consult news agency's legal counsel
-Don't talk to the attorney behind the supoena
What will your options be if you are served a subpoena?
-move to quash
-appear and assent to answer on a question-to-question basis
-appear and testify fully
What advice does the text give about being familiar with your news organization's policy regarding the retention of notes, tapes, and other work materials? About your organization's policy on the use of confidential sources?
each has different lengths of keeping. unflattering stories they may keep things through statute of limitations
What advice is offered by the SPJ code of ethics?
-id sources whenever possible
-always question the source's motives before promising anonymity.
-clarify conditions
-Keep your promises
If you fail to have a subpoena quashed, what dilemma might you be caught in?
Between ethical mandate to keep your promise to a confidential source and a judge's determination to put you in jail if you do
In that case, what might you ask of your source?
release you from your promise of confidentiality
Why are search warrants especially troublesome for newsrooms?
They can't be challenged in court before they're executed
Did the Supreme Court decide in Zurcher that the First Amendment protects reporters from newsroom searches?
No
What did Justice White suggest in the Court's opinion about state legislatures?
Could create protection for the media where none exists under the first amendment
Does the First Amendment provide special protection for the media?
No
What was the Supreme Court's rationale for its decision in this case?
-No 4th amendment protecion--makes no dif whether the person is connected to a crime
-no legal barrier against newsroom search--same as citizens is enough for press
How did Congress respond to the Supreme Court's decision in Zurcher?
The Privacy Protection Act
What does this act limit?
govt's power to obtain search warrents for newsrooms
This statute applies to law enforcement agencies at what levels of government?
all
What are work materials? Documentary materials?
work: created on anticipaption of communicating to public and include impressions, conclusions opinions and theories of the journalist
Documentary: contains in course of investigating story but don't contain a reporter's ideans
What are the four exceptions to the prohibition against searches of newsrooms or other places in which materials meant for public communication are held?
-suspected of a crem related to the materials--if in receipt, communicating, or withholding but only if related to National defense, classified info, or restricted data
-reason to believe that the material may prevent death or serious injury
-all apellate attempts on supoenaing failed and delay would threaten the interests of justice
Generally, the extent to which a reporter can successfully claim a testimonial privilege hinges on what?
whether the reporter is being asked to testify is being tried in federal or state court
In federal court, reporters rely first on what?
first amendment-based policy
In state court, reporters rely first on what (followed by what?)
state shield laws, then state constitution, then the first amendment
What did the U.S. Supreme Court rule in this case, and what was their rationale?
Generally applicable laws don't offend against the fifrst amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news
What is promissory estoppel?
Promise to confidentiality, legally binding
What is the principle established in this case (Cohen v. Cowles Media Co.)?
That a journalist who breaks a promise to keep the identity of a source confidential is liable for damages that result from breaking the promise