Media Law Final

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Obscenity

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a narrow class of material defined by the Supreme Court in the Miller test; material that is legally obscene is not protected by the First Amendment

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Indecent Material

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Sexually graphic; often referred to as adult or sexually explicit material that is protected under the First Amendment. Such material may be barred in works available to children and in over-the-air radio and television broadcasts

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Pornography

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This term has no legal significance but is often used by laypersons and politicians to describe anything from real obscenity to material that is simply offensive to a viewer

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The Hicklin Rule (pre-1957)

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A work is obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall (“most susceptible member of society”)
“Selected passages”

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Selected Passages

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Hicklin test (1868): the effect of isolated passages upon the most susceptible persons. (British common law, cited in Regina v. Hicklin, 1868. LR 3 QB 360 - overturned when Michigan tried to outlaw all printed matter that would 'corrupt the morals of youth' in Butler v. State of Michigan 352 U.S. 380 (1957))

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Roth-Memoirs Test (1957)

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The dominant theme of the material taken as a whole must appeal to the prurient interest in sex
The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters
The material is utterly without redeeming social value

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The Miller Test

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An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest
The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law
The work in question lacks serious literary, artistic, political or scientific value

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Community Standard (Miller Test)

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In most jurisdictions, “community standards” are “state standards”

Community standards are becoming more difficult to identify in the era of the Internet, where material can be distributed to and viewed in many communities

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An Average Person (Miller Test)

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The material is to be “judged neither on the basis of each juror’s personal opinion nor by its effect on a particular sensitive or insensitive person or group.”

“Reasonable person” standard”

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Patent Offensiveness (Miller Test)

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Only hard core sexual materials meet this requirement

“Representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals”

Established by applicable state laws

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Serious Value (SLAPS)

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Serious Value

Could someone, not does someone find literary, artistic, political or scientific value in the work?


A slight step up from Roth-Memoirs

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Child Pornography

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The production, distribution and possession of child pornography is not protected by the First Amendment

Images of minors engaged in sexually explicit conduct do not need to rise to the level of obscenity under Miller

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Scienter

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guilty knowledge; whether the defendant was knowledgeable about the contents before it was sold, published, or distributed

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Women & Pornography

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Feminist scholars assert that sexually explicit content subordinates women to men

Several communities have attempted to adopt laws regulating indecent materials based on this argument

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Variable Obscenity Standard

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Banning sale of material to juveniles that would be acceptable for adults

Such laws online have been problems because of limiting minors but not adults

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Postal Censorship

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1873 Comstock Act provides the basic authority for the U.S. Postal Service to regulate the flow of erotic material in the mail


Today, postal patrons may request to block the delivery of solicitations for adult material or other obscene publications sent through the mail

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Film Censorship

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Motion pictures were not granted First Amendment protection until 1957 (film as business)

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Zoning Laws

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A community cannot, under the guise of zoning, completely bar or even significantly reduce the number of adult bookstores, movie theaters or newsstands

The ordinance must be justified by showing that it furthers a substantial state interest

The ordinance must be narrowly drawn so as not to restrict more speech than is necessary

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Internet Issue CDA

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Communication Decency Act (1996) Made it a crime to transmit indecent material or allow indecent material to be transmitted over public computer networks
U.S. Supreme Court ruled this act unconstitutional in 1997

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Internet Issues COPA

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Child Online Protection Act (1998)
Prohibits commercial Web sites from knowingly transmitting to minors material that is harmful to them


In 2007, a federal district court issued a permanent injunction against the enforcement of COPA

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Internet Issues CIPA

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Children’s Internet Protection Act (2001)

Requires public libraries to install anti-pornography filters on all computers with Internet access in order to receive federal funding

In 2003, the U.S. Supreme Court overturned this decision ruling that libraries could constitutionally restrict children’s access to pornography

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Current issue online
The Dot XXX domain

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In March 2007, ICANN rejected a proposal that would have shielded minors from sexual conduct online by creating a sexually explicit Internet domain

The adult industry did not support the proposal in part because it would have created a virtual ghetto of nonobscene, First Amendment-protected speech

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Prejudicial Reporting

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The act of reporting a story before it has gone through the courts causing an image or perspective to be altered before proceedings.

Such as stories on: Confessions, Defendants performance on a polygraph test, past criminal record, that are published or broadcasted before trial that imply the defendant is guilty.

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Impact on jurors

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-Publicity may impact the juries bias ways.
-Jurors influence by T.V Shows (C.S.I)

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Judicial Compensation/Remedies

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1.Continuance
Postpone trial until media frenzy blows over

2. Change of venue; change of veniremen
Move trial to a place where the crime is not so notorious

3. Intensive voir dire
Question prospective jurors as to whether they can remain fair and impartial

4. Jury admonitions
Remind jurors not to follow coverage in the media or to discuss the case

5. Sequestration
Most extreme, generally (and rarely) Isolating jurors outside of court.

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6th Amendment first 5 points

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-right to a speedy trial
-public trial
-impartial jury (people with no prior knowledge)
-Notice of accusation
-Confrontation

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Gag-Orders

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Pre-trial publicity would be extensive and pervasive
No alternative measures would offset the effects of the publicity
A gag order would succeed in protecting the right to a fair trial

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Closed Proceedings

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he term "closed court" is used to refer to a court proceeding where members of the public are restricted from access to the court room proceedings due to the nature and sensitivity of the case.In criminal matters, usually juvenile cases are held in closed court unless the minor is charged with specific violent crimes or asks the court to open the proceedings.In civil matters,most family law proceedings and mental competency hearings are delt with in closed court.

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Closed Trials

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Trials may be closed at the behest of the government only if it can show "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."The accused may also request a closure of the trial; in such a case, it must be demonstrated that "first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights."

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Essential tensions between free press & fair trial

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The Tension is essential in free press and fair trial because in a sense it balances each other out. Without free press the public would not know what is going on serious cases. Without Fair trial people who are innocent may not be given the right to state their case.The tension is necessary to show both sides.

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Cameras in the Courtroom

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Cameras and recording devices are not permitted in trial and appelate courts in all but two states and D.C
Supreme Court- ruled that cameras are no problem
-Federal Court: have refused to permit cameras
Cameras are bared from executions
Filming of jury: generally prohibited

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First Amendment protections

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Freedom of:
-Religion
-Speech
-Press
-Petition

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Bench Bar Press Guidelines

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Suggest to law enforcement officials that certain kinds of info about a suspect and crime can be released and published with no harm.

When guidelines work there is more cooperative on both the media and the courts and restrictive orders are usually eliminated.

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Direct Contempt

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involves an act which violates the decorum of the court -- usually for a reporter’s misconduct

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Indirect Contempt

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involves a disrespect that is remote from the courtroom -- journalists could be cited for writing unfavorably about a judge or violating gag order

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Civil Contempt

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is a form of coercion: a person who disobeys a court order can be fined or locked up until the person decides to cooperate with the judge

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Criminal Contempt

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is a punishment for an act of disrespect for the court such as a photographer taking an unauthorized picture in the courtroom

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Contempt of Court

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Supreme court prohibited contempt citations for public statements about pending cases unless it could be shown that the comments created a clear and present danger to the administration of justice.

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On Record

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anything in a communication may be publicly disclosed

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On Background

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The thrust of the briefing may be reported (and the source characterized in general terms as above) but direct quotes may not be used.

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Deep Background

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he information may not be included in the article but is used by the journalist to enhance his or her view of the subject matter, or to act as a guide to other leads or sources. Most deep background information is confirmed elsewhere before being reported.

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When Confidentiality May Be Breached

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-There is a probable cause to believe that the reporter has info that is relevant to a specific violation of law
-The info sought cannot be obtained in alternated mens less destructive of First Amendment rights
-The state has a compelling and overriding interest in the info

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Subpoena Process

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Subpoena:
1. They request your presence in court to hand over information.

2. If you refuse to give them the information they need then you might be held in contempt, ordered to go to jail and forced to pay a fine.

3. If you preach a promise of confidentiality given to a source you can be sued by that source in a civil law proceeding.

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Shield Laws

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Laws offer reporters some protection against being forced to reveal the identity of confidential sources.

Congress has never passed a federal shield law.

To date, 37 states have enacted Shield Laws.

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Three groups of Shield Laws

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1. Absolute privilege laws
2. Laws that only the privilege if the information is published or broadcast
3. Qualified for limited privilege that may have one or more exceptions allowing the courts to disregard them

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Newsroom searches

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Law bans most newsroom searches by federal, state and local enforcement officials
Law allows searches
Person holding info is suspected of a crime
If a person’s life is in jeopardy
If serving a subpoena might cause the recordbacs to be destroyed

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Warrants & Newsroom searches

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Warrant:Government permission to search a newsroom or a reporters home to find the information they want.

Search must meet the normal requirements of specificity and reasonableness as detailed in the search warrant