Media Law - Test 1

Front 1

1st Amendment Basics

Back 1

No law shall be created that abridges:

- religion

- peaceful assembly

- speech

- press

Front 2

What branch interprets the constitution?

Back 2

Judicial Branch

Front 3

1st Amendment Limitations (5)

Back 3

1. Obscenity

2. Some defamatory statements

3. "Fighting words"

4. Some types of knowing lies - perjury of fraud

5. True threats / incitement

Front 4

Speech v. Press

Back 4

supreme court use the two interchangeably, but it does depend on who you ask

Front 5

1st Amendment Protects:

Back 5

- Natural rights

- Individual self-fulfillment

- Permits democratic process

- Advancement of knowledge

- Helps est. community

Front 6

1st Amendment justifications focus on....

Back 6

Society + Individual citizens

Front 7

1st Amendment theories

Back 7

1. Marketplace of ideas

2. Self-governance

3. Safety value - "airing out"

4. Checking valve - "watch dog"

Front 8

4 Main Sources of Law

Back 8

1. Constitution

2. Statutes

3. Administrative regulation

4. Common law

Front 9

T or F: Law is hierarchical

Back 9

True

Front 10

What plays a key role in law?

Back 10

Federalism - federal > state

Front 11

2 Types of Cases

Back 11

1. Criminal - broke the law, Hein v. U.S.

2. Civil - person against entity, Hein v. Carmody

Front 12

How many justices have to grant "writ of certiorari" to hear a case?

Back 12

4 justices minimum

Front 13

Basics of Prior Restraints

Back 13

Simply: censorship

- Review speech or press prior to distribution, or determine what content is applicable to discuss

- stops dissemination of ideas BEFORE they reach the public

Front 14

Prior Restraints effect...

Back 14

Government entities

Front 15

4 Forms of Prior Restraint

Back 15

1. Government licensing of press

2. Temporary restraining orders (TRO)

3. Injunctions - gag orders

4. Statutory law

Front 16

Blackstone's View on Free Expression

Back 16

Subsequent punishment rather than prior restraint

- Supreme Court did not fully adopt Blackstone's view of prior restraints, there are some topics that government can prevent publication

Front 17

Ex. of Contemporary Prior Restraint

Back 17

Near v. Minnesota (1931) - first serious challenge of 1st Amendment

Front 18

Near v. Minnesota Facts

Back 18

- Jay Near + The Saturday Press

- Paper often contained offensive editorials, attacks on jews + mafia

- Near runs afoul of MN's public nuisance law

- Loses in state trial + supreme courts, appeals to U.S. supreme court

- Decision: 5-4, nuisance law is unconstitutional

Front 19

Why was MN Public Nuisance Law unconstitutional?

Back 19

- Court found the law a classic prior restraint, which the constitution forbids

Front 20

When is prior restraint constitutional?

Back 20

1. Obstruction of military recruitment

2. Publication of troop locations, numbers, movements in the time of war (national security)

3. Obscene publication

4. Incitement of violence

5. Forcible overthrow of government

6. "Fighting words" likely to promote imminent violence

Front 21

Key points of prior restraint (5):

Back 21

1. Prior restraint is rarely acceptable

2. Compelling publication of content is essentially the same as prohibiting publication

3. Violating the law alone does not justify prior restraint

4. It's dangerous to defy a prior restraint order

5. The law is distinct from ethics

Front 22

Elements of Plaintiff's Libel Claim

Back 22

1. Must be false statement of fact that is defamatory

2. "of and concerning" a specific person

3. There must be publication, ie. communication to a third party

4. Communicator has some degree of fault

5. Plaintiff must demonstrate that harm is actionable - libel per se or libel per quod

Front 23

"Community Standard"

Back 23

Does not have to be the public at large, can be social circles, but more than likely the local community

Front 24

T or F: Group libel is easy to prove

Back 24

False, difficult to prove because needs to be about specific people

Front 25

"Libel proof" plaintiff's

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- People with a bad reputation already, difficult to prove tarnish

Front 26

T or F: Graphics, pictures, or anything printed is libelous

Back 26

True

Front 27

Def. of Tort

Back 27

A wrongful act or an infringement of a right leading to civil legal liability

Front 28

Def. of Libel

Back 28

Written, printed or pictorial statement that damages a person by defaming their character or exposing them to public ridicule

Front 29

Def. of Defamatory

Back 29

Remarks, or writing that damages the good reputation of someone, slanderous or libelous

Front 30

Ways to avoid libel:

Back 30

1. Print the truth

2. Familiarize yourself with state laws

3. Consult colleagues or employer guides

4. Avoid obvious trouble

5. Handle complaints quickly and professionally

6. Publish retraction if you make a mistake

Front 31

Libel v. slander

Back 31

Libel - written

Slander - spoken

Front 32

Defamation: public v. private figures

Back 32

Private figures - negligence

Public figures - actual malice, or reckless disregard

Front 33

Defenses of defamation (6):

Back 33

1. Truth

2. Substantial truth

3. Statute of Limitation - 2 years from publication

4. Qualified Privilege - official report; professional reviews, workers comp. claim - employment

5. Retraction Statute

6. Opinion Defense

Front 34

Elements of Defamation

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1. The statement was communicated to someone other than the plaintiff

2. The statement was false

3. The statement must "tend to harm the plaintiff's reputation and to lower him in the estimation of the community."

Front 35

Basics of Privacy

Back 35

- Expanding press technology created privacy concern

- There is no explicit right to privacy in the U.S. Constitution

Front 36

4 Privacy Torts

Back 36

1. Intrusion

2. False light

3. Publication of private facts

4. Appropriation

Front 37

Intrusion

Back 37

- Intentionally intrude upon the solitude, or seclusion of another, or his private affairs + concerns

- Highly offensive to a reasonable person

- Location can be important - max. protection in home; little in public

- Physically trespass, or surreptitiously using tech.

Front 38

Ex. of Intrustion

Back 38

Bartnicki v. Hopper

Front 39

False Light

Back 39

- Giving publicity to a matter concerning another that places the person before the public in false light

- Defendant had knowledge of or acted in reckless disregard as to falsity

- Typically related to distortions of truth

Front 40

Appropriation

Back 40

The action of taking something for one's own use, typically without the owner's permission

Front 41

Publication of Private Facts

Back 41

- Giving publicity to a matter concerning private life of another

- Publication is highly offensive to a reasonable person

- Not of legitimate concern to the public

Front 42

Common law libel defenses

Back 42

1. Statute of limitations - 2 yrs. after publication to sue

2. Truth - best defense, plaintiff to prove falsity

3. Fair comment privilege - opinion, has to be a public issue

4. Fair report privilege - has to come from an official source

Front 43

Appropriation

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- The name of likeness of another

- Name / likeness is for defendant's own use or benefit (commercial $)

- Can be voice, image, or characteristic

Front 44

Appropriation tort has 2 distinctions:

Back 44

1. Commercialization

2. Right of publicity (intellectual property)

Front 45

4 Privacy Defenses

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1. Intrusion - Consent; plaintiff agreed, Implied consent; identified yourself

2. False light - truth; libel defenses

3. Publication of private facts - public concern, lawfully obtained, public record

4. Appropriation - public concern, consent, incidental use

Front 46

Intentional Infliction of Emotional Distress (IIED)

Back 46

- Defendant's intentional or reckless conduct

- That was extreme & outrageous +

- Caused plaintiff's severe emotional distress

- Outrageousness standard, evidence of what is emotional stress varies

Front 47

IIED Example

Back 47

Hustler v. Falwell

Front 48

Def. of incitement

Back 48

The action of provoking unlawful behavior or urging someone to behave unlawfully

Front 49

T or F: The 1st Amendment does not provide protection for incitement

Back 49

False, it provide significant protection. It's difficult to prove incitement via news.

Front 50

Incitement Test

Back 50

1. The advocacy is "directed to incing or producing imminent lawless action," +

2. The advocacy is also "likely to incite or produce such action"

Front 51

Obscenity

Back 51

- If something is not obscene it allots all the 1st Amendment protections

- Obscene content is not protected by the 1st Amendment

- Sexual depictions

Front 52

Indecency v. Obscenity

Back 52

Indecency receives 1st Amendment protections

Front 53

Hicklin Rule

Back 53

Anything that would corrupt children is deemed obscene - can be applied to passages within an entirety of a publication

Front 54

Roth v. U.S. (1957) + Obscenity Test

Back 54

- Obscenity is not protected, struck down Hicklin rule

- Seven more cases from 1957 - 1973

- "Community standards" are lost, prurient interest is heavily emphasized, and would insult the avg. person

Front 55

Miller Test (Obscenity)

Back 55

1. Avg. person applying "community standards" would find the whole appeals to prurient interest - arouses sexual lust

2. Depicts/describes clearly offensive sexual conduct defined in state law - clearly offensive, ie. hardcore pornography

3. Whether the work lacks serious literary, artistic, political or scientific value (S.L.A.P.S. Test) -

Front 56

"Community Standards"

Back 56

- Avg. person, not children, not everyone, but community at hand

- Not the greater U.S. population

Front 57

T or F: States decide what they consider to be obscene

Back 57

True

Front 58

4 Elements of Negligence

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1. Breach of duty of car - established duty owned by one person to another

2. Someone breached the duty

3. Breach causes direct injuries

4. Providing monetary loss

Front 59

Def. of actual malice

Back 59

Establish libel against public figure that proves knowledge that the information was false

Front 60

Ex. of obscenity/indecency cases

Back 60

FCC v. Pacifica Foundation

Miller v. CA

FCC v. Fox TV Stations

Front 61

Ex. Of incitement case

Back 61

Herceg v. Hustler

Front 62

Ex of cases about Privacy

Back 62

Bartnicki v. Vopper

FL Star v. BJF

Cohn v. Cox Broadcasting

Front 63

Ex. Of 1st Amendment case

Back 63

Miami v. Tornillo

Front 64

Cases that are ex. of Prior Restraint

Back 64

NYTimes v. Sullivan

CBS v. Davis

Front 65

Ex of defamatory cases

Back 65

Hustler v. Fawler

Masson v. New Yorker Mag

NYTimes v. Sullivan

Gertz v. Welch Inc.

Front 66

Ex. Of privacy case

Back 66

Zacchini v. Scripps-Howard Broadcasting

Milkovich v. Lorain Journal