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82 Cards in this Set
- Front
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St Amant v Thomas |
proving actual malice by est knowing falsehood isless common because it requires proving they knew before hand |
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Burnett v National Enquirer 1983 |
entertainer carol burnett Story stating she was drunk in DC restaurant knowing it was false Proving actual malice by est reckless is regard is most common |
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Harte-Hanks v Connaughton 1989 |
· relationship between ethical media practices and legal standards - media professionals who check info are less likely to lose libel suit - Involved candidate forcity judge who suednewspaper for libel over articles alleging corruption · In making ruling they made a checklist to estactual malice |
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Actual Malice |
1. relying on questionable source 2. failting to interview relevant sources 3. ignoring contradictory evidence 4. accepting improbably notions 5. showing obvious prejudice |
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Due Diligence |
media professionals who maintain sound practicesof checking information as well as possible before dissemintating it publiclywill be less likely to lose a libel suit Prepublication due diligence under Sullivan: Absense of Malice |
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Who is a public official |
· relevant court decisions have defined publicofficials to include anyone elcted to public office |
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Public figures |
· The courts have defined it as either a person ofwidespread fame or one who injected himself into debate about public issues forhe purpose of affective the outcome (limited purpose) · Limited public figures must prove actual maliceonly for defamation related to those issues |
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Private libelplaintiffs |
· Are neither public officials nor public figures |
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Libel |
defamation that is printed, broadcast, posted |
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Plaintiff's burden of Proof |
Defamation Identification Publication Fault Falsity Personal Harm |
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Defamation |
must establish it occurred (publication exposed plaintiff to hatred or ridicule) - most often involves assertions of criminality, incompetence - falsely stating directly that someone did something of bad nature (crime, lacks ability, is corrupt) |
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Identification |
must establish the defamation refers to the plaintiff - usually must be identified individually - choice of language can be crucial a few of vs "most of" I.D. is possible ben in works of fiction |
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Fawcett Publications v Morris 1962 |
OU full back libeled as member of team most famous |
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Publication |
mut establish the defamation was communicated to a third party 1. defamer 2. defamed 3. any third party - may apply to original publishing or republishing |
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Fault |
- establish a degree of blame or responsibility - often central issue in libel suits - public officials and figures must prove knowing falsity or reckless disregard - private persons must prove negligence |
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Fault background |
state common law in US developed out of English tradition of seditious libel - harshly punishing criticism of government - strict liability - libel could be punished regardless of degree of fault |
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Fault - NY Times v Sullivan |
plaintiff sullivan won $500,000 - SCOTUS established libel as a matter of constitutional law - est. actual malice as level offault public officials must prove in libel suits plaintiff must est defendant made statementeither knowing it was false or exercising reckless disregard for the truth |
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Garrison v Louisiana 1964 |
proving actual malice by establishing reckless disregard is most common - plaintiffs must prove that defamatory statements were made with a high degree of awareness of their probably falsity" DA James Garrison in move JFK 1991 |
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Herbert v Lando 1979 |
Inquiring into state of mind of libel defendants |
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Falsity |
Public officials, public figures and private persons involved in matters of public concernall must prove that defamation is false - est standards mean that the burden is on the plaintiff not defendant |
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Harm (damages) |
libel plaintiffs must prove they have been harmed · Presumed damaged - loss of reputationcaused by defamation · Actual damages- proven humiliation · Special damage – proven lost revenues · Punitive damages – not for compensation butpunishment |
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Defenses for libel |
truth motions for summary judgment statutes of limitation opinion privilege |
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Truth |
· usually offers a complete defense against libelsuits but knowing something is true is not always enough to prove it in court · Truth may well be unknown or unprovable sources may not testify, jury may not be convinced |
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Summary judgment |
This commonly used defense offers a means to end a trial before it ever begins - saves expenses, stress - media more likely to lose before juries when defendants file for summary judgment, the judge may dismiss the case because it lacks sufficient evidence |
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Statutes of limitation |
Another means to defeat a libel suit early in the legal process - Almost all criminal and civil actions require the law suit must be filed before a specified period of time has passed - in OK a libel suit must be filed in ONE YEAR |
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Opinion |
Opinion that cannot be proven false is a form of constitutionally protected expression - however, provably false statements are not protected simply by labeling them as opinion - standard for whether a statement called ‘opinion’ is protected from libel suits if it is fact capable of being proven false, it is not protected |
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Milkovich v. Lorain Journal (1990) |
U.S. Supreme Court’s most important recent ruling on opinion. Declared that a factual statement capable of being proven false has no First Amendment defense against libel suits - even if presented as ‘opinion’ (as in this case) |
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Yeagle v. Collegiate Times (1998) |
Va. Tech VP sued after student paper referred to her as ‘Director of Butt Licking.’ Drawing on Milkovich precedent, state Supreme Court ruled in favor of paper, concluding the statement could not reasonably be interpreted as stating actual facts |
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Privilege |
May offer a ‘privilege’ of protection from some libel suits - extends immunity for defamatory statements made in certain contexts
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Privilege Immunity |
Public officials - protected when making defamatory statements in official capacity Broadcasters- providing time to political candidates reporters - protected when they communicate proceedings and recordings accurately and attribute does not extend to informal comments, before police have charged someone OKLAHOMA STATUTES TITLE 12, SECTION 2506 |
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Preventing libel suits |
Libel plaintiffs most often sue only after rude treatment by news media in response to inquiry or complaint about a story - Prompt and courteous response to such complaints can prevent many libel suits Retractions also prevent suits - check sources thoroughly - make sure opinion does not characterize the message |
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sexually oriented messages |
U.S. courts give government tremendous power to regulate and punish media products defined as obscene - Americans continue to purchase such products- often by traveling to states in which obscenity law is more permissive than in others |
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Obscenity |
Generally - the most graphic form of pornography - Material defined as obscene can be banned in all U.S. media |
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Jacobellis v Ohi 1964 |
Justice Stewart "I know it when I see it" |
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Roth v United States |
Punishing obscenity does not violate First Amendment - SCOTUS found obscene expression has no constitutional protection because it is ‘utterly without redeeming social importance’ and contributes nothing to the search for truth - began formally defining obscenity |
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Miller v California 1973 |
foundation case for obscenity law today established for expression to be declared obscene (1) must find the work appeals to the prurient interest. (2) must depict or describe sexual conduct in a ‘patently offensive’ way (3) The work must lack serious literary, artistic, political, or scientific value |
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1. Appealing to prurient interest |
Appealing to a lascivious, shameful, or morbid interest in sex - material both disgusting and sexually appealing in view of average person - based on community standards as determined by jurors, city, county or state |
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2. Patently offensive |
the most distinguishing feature of obscenity - Must be more than merely sexually stimulating; must focus on graphic, lewd displays of genitals or sex acts |
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3. Lacking social value |
Viewed as a whole, the material lacks serious literary, artistic, political or scientific value - LAPS test |
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Indeceny |
Offensive, sexually oriented expression that does not meet the Miller definition of obscenity - nonobscene sexual expression - material must be offensive to community standards - full protected in print media obscenity can never be broadcast but indecent is prohibiting only when children are in audience |
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FCC v Pacifica Foundation 1978 |
when a child inadvertently was exposed to indecent language when his father turned on the car radio. Radio is omnipresent, making it unique to mass media |
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Child pornogrpahy |
Stricter standards of punishing pornography can be constitutional when protecting minors and children |
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Ginsberg v NY |
found first amendment did not protect seller of "girlie" magazines to a minor |
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NY v Ferber |
found a compelling state interest in protecting children from sexual exploitation |
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Sexual messages online |
Efforts to protect children from inappropriate sexual messages online have produced major court cases - Courts have sought to reconcile that interest with the free-speech interests of adult users of Internet |
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Reno V ACLU |
1996 Communications Decency Act (CDA) made use of Internet to send pornographic material to minors illegal SCOTUS ruled CDA too broad and vague concerning indecent but not obscene messages Court found Internet was not as pervasive and accessible to children as broadcast Determined Internet more like print media in which adults have right to read, view indecent material |
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Ashcroft v ACLU |
COPA replaced CDA and made it illegal to send Internet messages ‘harmful to minors’ for commercial purpose & without screening minors -SCOTUS ultimately concluded age verification was not shown to be more effective than parent using Internet filters to protect children - ower court found the law overly broad – restricting material that adults had right to view, SCOTUS let that ruling stand. |
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US v American Library Association 2003 |
CIPA required libraries to use Internet filters to screen for pornography - SCOTUS upheld CIPA, reasoning Congress can set such funding requirements and libraries can turn off filters for adults - filters was similar to having an adult-only book section in a library, or placing books for adults on top shelves |
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Possession of obscenity |
SCOTUS: unconstitutional to punish adults for possession of obscene materialsin privacy of their homes [Stanley v. Georgia (1969) - right is limited: SCOTUS has found there is no constitutional right to even possess child pornography - laws criminalizing mailing of obscene materials - adults do not have constitutionalright to attend or show obscene movies in theater |
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should violence be obscene? |
U.S. courts have never held violence can be found legally obscene or can lose First Amendment protection despite concerns of citizens and government of effects Efforts to ban violent pornography have failed in U.S. |
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American Booksellers v Hudnet 1986 |
Indianapolis ordinance was declared unconstitutional - SCOTUS ruled it established ‘an approved view of women’ that punished other views |
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Nonobsene sexual expression |
may be regulated - adult theaters and bookstores, nudity communities may address through ordinances, etc |
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Voluntary regulation |
Often develops in response to pressure from citizens’ groups - May result in voluntary ratings, labeling (movies, music, TV, etc.) - may backfire - NYPD Blue became long-running hit after campaign urging boycott because of its language, partial nudity |
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Broadcast Law |
Special characteristics of some media justify controls radio first toy, then emergency communication broadcast deemed pervasive, public and greater danger to children 1912, Titanic sinking |
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1934 Communications act |
established the FCC |
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NBC v US |
SCOTUS held free speech does not include right to broadcast without license |
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Red Lion Broadcasting v FCC 1969 |
SCOTUS said broadcasters can be required to benefit public - requiring broadcasters to provide opportunity to answer personal attack held to enhance rather than abridgefreedom of speech |
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CBS v DNC 1973 |
SCOTUS found no First Amendment right to buy air time No one person/group may demand access to broadcast their views |
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Federal Communications Commission (FCC) |
Regulatory power comes from 1934 Communications Act, mainly by telecommunications act of 1996 -Controls television, cable television, direct satellite broadcasting, video microwave/telephone distribution, etc. - Enforces existing regulations, develops new ones |
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Licensing |
r equired to operate radio or television station legally - US citizenship or 25% US ownership - does not belong to owner, but renewal is almost automatic Only allowed to own 2 tv stations, 6 radio station |
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political candidates must be allowed to buy air time if |
- time has been provided to an opponent - AndIF the candidate is legally qualified - Candidates must meet requirements for office they seek, publicly announce candidacy, and qualify for ballot or publicly seek write-in |
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Equal opportunities/equal time |
Opportunity to buy air time in similar quantities, and at time of day to reach similar audience of opponent - Stations cannot censor content of political adsBut, cannot be held responsible for libelous remarks - Stations must charge candidates lowest rates |
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Exempt from equal opportunities |
newcasts, news interviews, documentaries, on the spot coverage |
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CBS v FCC |
SCOTUS held special exception for federal candidates does not violate constitution (broadcasters are not required to sell any air time to state or local candidates) |
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Fairness doctrine |
1947-1987 regulation of public issues programming- broadcasters were required to provide airtime for contrasting viewpoints 1987 - FCC stopped enforcing most provisions, led to explosion of talk radio |
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Childrens TV |
commercials are potentially predatory if children can't tell the difference |
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Fraud and payola |
Obtaining money through false pretenses oraccepting secret payments to play songs or to promote products (plugola) |
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War of the worlds radio show |
· October 30, 1938 · Novel by HG Wells, |
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US v Playboy |
SCOTUS found same regulation cannot be imposedon cable TV regulation of indecent and sexual words and images |
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FCC v Fox |
· SCOTUS struck down FCC indecency fines againstFCC had failed to give fair notice on new policy |
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Cable comm policy act of 1984 |
· Main source of current regulations of cable · Allows communities regulatory power · Amended by 1992 cabe act to open franchise areasto competition; allow regulation of suscribers |
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Capital citiescable v crisp |
· Oklahoma ban of wine ads on calbe ruledunconstitutional because contradicted with FCC must carry and other rules |
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Los Angeles v Preferred Comm 1986 |
· First time cable operators ruled to have firstamendment rights, must justify regulation |
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Turner broadcasting system v FCC 1994, 1997 |
find this*** |
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federal calbe regulation |
· FCC and congress require cable operators to· Not duplicate local stations programs · Sell programming · Offer public services · Protect privacy of subscribers |
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Reno v American civil liberties union |
· scotus held Internetshould receive “the highest protection from governmental intrusion” - internet use today is considered to haveessentially the sames protection as the press, |
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What makes internetdifferent from broadcast? |
· Must subscribe/pay for internet · Filters in place for indecent content forinternet · Internet and phone service requires positiveaction to access Broadcast is ubiquitous |
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· Recording industry Assn of America v Napster(1999); Metallica v Napster |
o Allegednapster was facilitating large scale music piracy beyond fair use. 9thcircuit agreedo Napsterultimately blocked access to more than 300,000 user, settled and filed forbankruptcy |
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Digital Millenium Copyright Act |
· Makes it criminal offense to circumventtechnological locking devices |
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Griswold v Conneticut |
· Planned parenthood was dissmeniating info aboutcontraceptives to married couples· SCOTUS said that many constitutional rights aregranted for rights of privacy |
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Neff v Time |
· Photos of drunken fan got published and he sued |
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Sipple v Chronicle publishing |
o –publishing sexual orientation of hero ruled to be newsworthy |
