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57 Cards in this Set

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What landmark case established the guidelines for issuing gag orders on the media relating to trials?
Nebraska Press Association vs Stuart, 1976
What is the test for determining whether or not a judge can issue a gag order on the media?
A judge can only issue a gag order on the media if:

1. There is intense and persuasive publicity likely to affect the fairness of the trial, AND,
2. Other measures, like voir dire, continuance, change of venue, and sequestration are unlikely to be effective in mitigating pretrial publicity; AND
3. Issuing a gag order is likely to be effective in mitigating pretrial publicity
Two rules for violating gag orders, their names and application.
Dickenson rule: A journalist must obey all court orders.

Providence Journal Rule: A journalist may disobey a "patently invalid" gag order after making a good faith effort to have it overturned.
What is the landmark case with regard to gag orders issued at trial participants, and what does it state?
Gentile vs State Bar of Nevada.

Attorneys can be prohibited from making statements if there is a "substantial likelihood" that their statements will prejudice trial participants.
When can a publication or broadcast be cited for Contempt of Court?
Only if the publication presents a "clear and present" danger to the fair administration of justice.
Smith v Daily Mail, background, rule
Virginia law made it a crime to identify crime committed by a juvenile.

Supreme Court ruled statute was unconstitutional. A state cannot punish publication of true information that was lawfully obtained, unless it is necessary to "further a need of the highest order" [a compelling government interest].
Three conflicts between first amendment and sixth amendment
Pretrial publicity influncing jurors

During trial publcity influencing jurors

Distractions in the courtroom
Four judicial remedies to pretrial and during trial conflicts
Voir dire



Change of Venue
Richmond Newspaper v Virginia
4th trial

SCOTUS rules there is 1st amendment right to court access for press and public
Globe Newspaper v Superior Court
SCOTUS says court closures must be case-by-case

Invalidates law mandating court closures for certain types of testimony
Opened voir dire to public
opened preliminary hearing to public
Press Enterprise Test for Court Closures
1. Does this proceeding have a constitutional right of access?

Answer this question with both history and logic test.

If no, then no right of access exists

If yes, then we move on to the next part of the test:

The judge can only close if a closure is necessary to serve a higher value than openess, and that closure has to be as narrowly tailored as possible.

If that higher value is the defendant's sixth amendment rights, the judge has to outline that:

there is a substantial liklihood that an open proceeding would interfere with that right

and no other measures would resolve the problem

and that closure would resolve the issue.
Cameras in the Courtroom, landmark case
Chandler v Florida.

Cameras alone do not violate a defendant's sixth amendment rights
NC rules for cameras in the courtroom
Judge must grant permission.

Limits amount of equipment.

Prohibited in some proceedings, such as juvenilles

Can not videotape jurors and certain types of witnesses.

Can not videotape certain conferences, such as attorney-client/judge.
Pell v Procunier & Saxbe v WPost
Reporters have no more access than public
Houcins v KQED
No first amendment right to all sources of information within government control
Freedom of Information Act
Provides all persons access to all records of all federal agencies
Making a FOIA request
Make it to FOIA officer at agency. Expect 20 days.

Appeal to agency head.

2nd appeal to US District Court. Burden on agency to justify withholding
FOIA - "All federal agencies" - what does it cover, what doesn't it?
Grants access to:
Regulatory boards -FTC, FCC, etc
Govt-controlled corporations - postal services
All military
Cabinet Departments

Does not grant access to:
President or his advisers
FOIA - fees
Can charge nominal fees, but should be waived in certain cases in order to serve public interest.
FOIA - exemptions
1. National security.
2. Personnel rules.
3. Statute related exemptions.
4. Interoffice memorandum
5. Trade secrets
6. Some types of law enforcement records.
7. Geological records.
8. Bank records.
9. Personnel private records, medical, etc.
Electronic Freedom of Information Act (EFOIA), purpose, what it enforces.
Enacted to provide access to electronic records.

Requires agencies to make important records available online. Also requires agencies to prove records in requested format.
Federal Open meetings (sunshine) Act
Requires open meetings of about 50 or so executive branch agencies headed by 2 people or more.

10 exemptions and not very effective.
Federal Advisory Committee Act
Requires open meetings for citizen advisory boards. Not very effective
NC Open Meetings Law, justifications for closure
1. Confidential information.
2. Honors or awards.
3. Attorney-client
4. Industry/business expansion
5. Real estate or labor dispute
6. Personnel
7. Criminal investigations.
NC Open Meetings Law, minutes
Minutes must be kept.
NC Open Meetings Law, what constitutes a public meeting
Public notice required.

Radio and TV can broadcast.

Occurs whenever a majority of a body meets to transact business.

Covers electronic meetings.
NC Open Meetings Law, what constitutes a public body
1. Any group of 2 or more members.
2. Elected or appointed.
3. With policy making, judicial, legislative, administrative, advisory functions
NC Open Meetings Law, what to do about a violation
Go to court for an injunction. Court can void actions made at a closed meeting.
NC Public Records Law, what is not considered a public record
1. Writtend communication from attorney to public
2. State tax information
3. Trade Secrets
4. Criminal investigations and intelligence records.
NC Public Records Law, what are public records
Public records are those records in connection with the transaction of public business.
Childrens Privacy on the Net, what are the relevant laws?
Childrens Online Privacy Protection Act

Childrens Online Protection Act

Communications Decency Act

Childrens Internet Protection Act

Child Pornography Prevention Act
Communications Decency Act
Criminalized indecent transmission of content to minors.

Led to Reno v ACLU.

SCOTUS rules that internet gets the highest level of 1st amendment protection.

Also CDA was vague and overbroad.
Children's Online Protection Act
Websites need to ask for credit cards or other age-verification questions.
Children's Online Privacy Protection Act
Sites need privacy policies if seeking information from <13 years old, must have allow parental access and consent
Childrens Internet Protection Act
Filters at library. SCOTUS upholds.
Children Pornography Prevention Act
Banned virtual pornography of minors, pornography that appeared to include minors but actual did not.

SCOTUS invalidates. Impossible criteria to determine what appeared to be a minor was the main reason
Ashcroft vs ACLU 1
COPA was not unconstitutional because it used Miller Test for Obscenity.
Ashcroft vs ACLU 2
COPA may be unconstitutional because filters may be a less intrusive mean of obtaining the same goal
Miller Test
1. Reasonable person, applying contemporary community standards, prurient interest.
2. Sexual based.
3. No artistic, literary, potential, or scientific value
Rationales for regulations of airwaves
Public trustees
Scarcity of spectrum
Persuasiveness and unique power/captive audience/children
Red Lion v FCC
Upheld fairness doctrine.

But really upheld broadcast having a different standard than the print medium.
Origins of broadcast regulation
Radio act of 1912
Communications Act of 1927
Communications Act of 1934
General regulations on broadcast
Political rules

Bans on indecent programs

Children's programs
Regulations on broadcast, political rules
Equal opportunity for candidates for the same office. Same price, quality of time, access to resources.

Forced to sell time to federal candidates.

Exemptions: Incidental documentary appearances, regularly scheduled interviews, news, and debates
Regulations on broadcast, children
Children TV Act

Mandates 3 hours a week of programming.

Limits commercial time.

And limits commercial characters.
Cable regulations, case, and what rules apply
Landmark case is Turner v FCC

Content-neutral regulations applied to cable require intermediate scrutiny.

Content-based regulations applied to cable require strict scrutiny.

So, political and children's rules do not apply to cable.

But commercial speech and advertising rules do apply.
Central Hudson Test
1. Is the expression protected by the First Amendment? For speech to come within that provision it must concern lawful activity and not be misleading.
2. Is the asserted governmental interest substantial?
3. Does the regulation advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest?
Valentine v Christensen
SCOTUS rules that advertising receives no protection.
Virginia State Board of Pharmacy v Virginia Citizen's Council
SCOTUS rules that purely commercial speech receives protection but govt may regulate misleading false deceptive ads or ads about illegal products/services.
Deceptive Advertising , who regulates?
What is a deceptive ad
An ad is deceptive if it contains a representation or omission of information that is material and likely to mislead reasonable consumers.
What does the FTC look at when examining an advertisement?
The net impression.

Can be nonverbal or comparative. Can be implied. Can include omissions. Fine print may not cover advertiser.
Self regulation, three organizations
National Advertising Board

National Advertising Review Board

Childrens Advertising Review Board
FTC tools to combat deception
1. Advisory opinions.
2. Industry guides
3. Policy Statements
4. Regulation rules
5. Substantiation
FTC punishments for advertisers
1. Consent decrees.
2. Cease and desist orders, quasi-judicial proceeding, can be appealed.
3. Injunctions, must go to court for this.
4. Civil and criminal penalties.