Media Law Outline

8/11/2019 Media Law Outline

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a) *as the prepublication review a sham) (Harte Hanks)b) *ere the defendant's communication with counsel conducted with the e;press

purpose of promoting or continuing criminal or fraudulent activity)

I. Defamation


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0ederal est $4th Cir%: a% language used> b% conte;t $tenor of statement%> c%susceptibility of being proven true or false

California otality of Circumstances est: California courts had employed atotality of the circumstances test to differentiate between fact and opinion:0irst, the language of the statement is e;amined. 0or words to be defamatory,

they must be understood in a defamatory sense .... e;t, the conte;t in which thestatement was made must be considered. ... his conte;tual analysis demands thatthe courts loo/ at the nature and full content of the communication and to the/nowledge and understanding of the audience to whom the publication wasdirected.Goyer v. Amador Halley I. Bnion Jigh 2ch. ist., 667 Cal. App. 3d #6",#65, 6#7 Cal. 8ptr. 545 $Cal. Ct. App. !44"%

a% &pinion is not a statement of fact unlessKven if the spea/er statesthe facts upon which he bases his opinion, if those facts are eitherincorrect or incomplete, or if his assessment of them is erroneous, thestatement may still imply a false assertion of fact. 2imply couching suchstatements in terms of opinion does not dispel these implications> and the

statement $#ilkovich v$ %orain &ournal 'o$%b% upportable nterpretation Test: his supportable interpretationstandard provides that a critic1s interpretation must be rationall*supportableby reference to the actual te;t he or she is evaluating, and thuswould not immunize situations analogous to that presented in#ilkovich,in which a writer launches a personal attac/, rather than interpreting aboo/. his standard also establishes boundaries even for te;tualinterpretation. A critic1s statement must be a rational assessment or accountof something the reviewer can point to in the te+t,or omitted from the te+t,being criti+ued. Goldea v. ew Lor/ imes Co., 66 0.3d 3!", 3!7 $.C.Cir. !445%c% 8hetorical hyperbole=yes of a reasonable persond% ?arody and 2atire=taste is not to be considered, *ould a reasonableperson believe that this is a statement of fact)e% ?resentation of alternative eventsf% @ueries= titles can be defamatory

2. That is u!lished

a% Jas the speech been communicated to a third person)b% 2ingle publication rule= reissues of the same publication doesn't

lead to same publication> but new editions can $unclear e;actlywhy%

c% 8epublication= very publisher in a chain can be held liable, if amedia source states something li/e A imes says M they canstill be held liable, not a defense to say < just heard it fromsomeone reputable

d% 8espondeat superior= employer can be held liable for employee$A8 v. 8olling 2tone= magazine can't be held liable forindependent author%

e% ?ublishers vs. distributors and vendors=a distributor can be liableif they /now or should /now its defamatory

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f% Compulsory self=defamation=comes up typically in theemployment conte;t, $e;ample: you have to repeat a defamatorystatement let's say if you are accused of stealing and didn't andthen you are applying for a new job%

as it posted b* an - (internet service provider).Also websites


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Test: oes the false statement of fact injure or tend to injure- theplaintiff's reputation in a substantial and respectable segment of

the community-)

Defamation /* mplication: Test1

!.


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3ew 4ork Times 'o$ v$ ullivan,3#9 B.2., at 6#4=6P", P5 2.Ct., at#67=#69 and 0ert5 v$ 6obert elch, nc$, supra,5!P B.2., at 356,45 2.Ct., at 3""P, unless the alteration results in a material changein the meaning conveyed by the statement. he use of +uotationsto attribute words not in fact spo/en bears in a most important

way on that in+uiry, but it is not dispositive in every case. Gassonv. ew Lor/er Gagazine,


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=o liability without fault Q i.e., no strict liability fordefamation

= ypically, negligence by a preponderance of evidence=Can recover punitive and presumed damages without

showing actual malice

d%Do private figures ever need to prove actual malice)=Gatters of public concern=?unitive or presumed damages $re statements that are

matter of public concern%?olicy: he first remedy of any defamation victim is self=help Q using availableopportunities to contradict the lie or correct the error and thereby to minimize its adverseimpact on reputation. ?ublic officials and public officials usually enjoy significantlygreater access to the channels of effective communication and hence have a more realisticopportunity to counteract false statements than private individuals K ?rivate individualsare therefore more vulnerable to injury, and the state interest in protecting them iscorrespondingly greater. (ertz v. 8obert *elch,


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but oneside of the story 8eaders igest


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;tends to high=level officials and lower=level officials acting in scope of

duties $Copp v. ?a;ton%

Absolute privilege

Civil Code F5# b= tatements in legislative proceedings

Absolutely privileged if there is logical connection between

statement and proceedingCivil Code F5#$b%6=tatements in judicial proceedings (aka ;litigationprivilege)

Absolutely privileged if there is some connection to

e;isting proceedings or oncecontemplatedOthreatened in good faith> Applies to anyclaim arising from publication, e;cept maliciousprosecution 2plit: e;tent of application for out=of=courtstatements to media

Civil Code F5#$b%$3%=tatements in other official proceedings authori5ed b*law

Absolutely privileged &ther e;emptions

Civil Code F 5#$c%= rarel* invoked ;'ommon interest privilege$6% show that the information cannot be sought by alternative means less destructive of0irst Amendment rights> and$3% demonstrate a compelling and overriding interest in the information

California 8eporter's 2hield aw= Codified: Cal. Const. art.


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=

a. *hether the unpublished information is confidential or sensitiveb. he interests sought to be protected by the shield law

c. he importance of the information to the criminal defendant $reasonable probabilitythe information will materially assist defense%

d. *hether there is an alternative source for the unpublished information?rocedural aspects

=8eporter must get 7 days notice=Court must issue written contempt order

3on=statutor* doctrine to protect confidential sources and unpublished information

=Although Cal. 2up. Ct. recognized +ualified privilege under the 0irst Amendment.$Gitchell%

ypically invo/ed where the shield law would not apply, e.g.:

0ederal law or law of state without a shield law hreatened sanction is something other than contempt

he one see/ing protection is not one to whom shield law applies

8ederal 'ommon %aw:Derilli: Iournalists win in civil cases

Ey !4P!, the court more fully developed the justification underlying the reporter1sprivilege and set forth a standard for its application.


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Act case, the court recognized that newsgathering re+uires the protections afforded by theprivilege and that/ran5burge;plicitly ac/nowledged the e;istence of 0irst Amendmentprotection for news gathering.!7he court, however, distinguished the criminal conte;tof/ran5burgfrom the civil conte;t ofFerilliand the earlier case, 'are*,holding that/ran5burgis not controlling in civil cases.!9


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0ewsroom Searches

Durcher v. 2tanford aily

*arrant to search newspaper offices for evidence of identity of protestors

who beat police officers> paper had policy of destroying photos that could

aid in prosecution of protestorsJoldings

0irst Amendment did not re+uire use of less intrusive subpoena

0ourth Amendment's reasonableness, specificity and probable cause

re+uirements of the warrant procedure provide enough protection K

Although where the materials sought to be seized may be protected by

the 0irst Amendment, the re+uirements of the 0ourth Amendmentmust be applied with scrupulous e;actitude

-rivac* -rotection Actpassed in response, but has e;ception wherethere is reasonable cause to believe that notice would result indestruction

(overnment 8etaliationEaltimore 2un v. hrlich

8eporters, but not the newspaper, banished for their

reporting

8eporters just didn't have access to discretionary information and there was no

punishment so o/oes this give rise to an actionable claim) oJow was 8ossignol v. Hoorhaar different) 2heriff bought or too/ all newspapers criticalof him*hat about this +uote: *here the sole intention of a public official is to suppressspeech critical of his conduct of official duties or fitness for public office, his actions aremore fairly attributable to the state)

0reedom of


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=Agencies may charge for retrieval time and copying=Easis for any withholding must be cited=?arty not getting information may sue=


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=Agency must justify any withholding of records0ile suit $petition for writ of mandate% as/ing court to order disclosure N if re+uesting party wins it recovers fees=Agency must identify an e;emption or show that the public interest in confidentialityoutweighs the presumptive interest in disclosure

=;emptions may be applied permissively=;amples of e;emptions:=Attorney)client discussionsU 8ecords concerning ongoing agency litigationU 8ecords of investigations K even after an investigation is overU 8ecords that show decision)ma/ers deliberative process, but only if the publicinterest served by not ma/ing the records public clearly outweighs the publicinterest in disclosureU?ersonnel, medical and similar files only if it would reveal intimate, private details

U ?olice personnel files have special protections $see, e.g., vid. C. !"53%U ?olice incident reports, rap sheets and arrest recordsU Eut police blotters $time and circumstances of calls to police, names and detailsof arrests, warrants, charges, hearing dates% must be disclosed unless disclosurewould endanger investigations or livesU Jome addresses in certain types of files

U Added to California Const. in 6""5 $art.


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=ocal agencies=2tate governmental agencies are covered by the Eagley)Reene &pen Geeting Act=Also note that many counties and localities have their own 2unshine rules thatpermit even more access=egislative bodies of local agencies $including covered boards%

=2tanding committees of covered boards=(overning bodies of non)profit corporations formed by a public agency or whichincludes a member of a covered board and received money from that board=*ho's not covered)=Ad hoc advisory committees=Gost other non)profit corporations=&ther governmental agencies

*hat's covered)=A meeting is any gathering of a majority of the members of a covered board to hear,

discuss, or deliberate on matters with the agency's or board's jurisdiction even ifthere is no vote or action ta/en=aisy chains are meetings

?rocedures=2pecial notice=ypical is three days' posting=mergency is one hour to those who re+uest it $e.g., media%=Gedia can stay even if meeting is cleared for disturbance=Geetings must be held in jurisdiction of agency, in a place accessible to all and befree

=o sign)in re+uired=Allow non)disruptive recordings and public addresses=Hotes must be public=;emptions

Access to Court )roceedings and ,ecords:

Access to Criminal ?roceedings

Jistorical basis dates to ngland

*hat are the rationales that support public proceedings)

=interest in public oversight of what our government is doing especially in

issues li/e if people are going to jail=public education and confidence in the judiciary=Appearance of fairness

*e hold that the right to attend criminal trials is implicit in the guarantees of the

0irst Amendment> without the freedom to attend such trials, which people havee;ercised for centuries, important aspects of freedom of speech and of the presscould be eviscerated.8ichmond ewspapers,


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(rounded in two rights:!% @ualified 0irst Amendment right for press and public to attend judicial

proceedings6% Criminal defendants have an e;press 2i;th Amendment right to a public trial

-resumptivel* 7pen:Criminal proceedings are presumptively open unless a showing can be made that closureis needed to protect an overriding interest

*here, as in the present case, the 2tate attempts to deny the right of access in

order to inhibit the disclosure of sensitive information, it must be shown that thedenial is necessitated b* a compelling governmental interest, and is narrowl*

tailored to serve that interest. (lobe ewspaper Co. v. 2uperior Court fororfol/ County, 57# B.2. 749, 9"9="#, !"6 2. Ct. 69!3, 696", #3 . d. 6d 65P$!4P6%

?rotecting minors not narrowly tailored> too speculative that minors would be

encouraged to report crimes and provide accurate testimony> might be other ways ?ress nterprise Co.v. 2uperior Court: ?ress can attend voir dire

"+ceptions: he jury selection process may, in some circumstances, give rise to a

compelling interest of a prospective juror when interrogation touches on deeplypersonal matters that person has legitimate reasons for /eeping out of the publicdomain. he trial involved testimony concerning an alleged rape of a teenagegirl. 2ome +uestions may have been appropriate to prospective jurors that wouldgive rise to legitimate privacy interests of those persons. 0or e;ample aprospective juror might privately inform the judge that she, or a member of herfamily, had been raped but had declined to see/ prosecution because of theembarassment and emotional trauma from the very disclosure of the episode. he

privacy interests of such a prospective juror must be balanced against the historicvalues we have discussed and the need for openness of the process. ?ress=nter.Co. v. 2uperior Court of California, 8iverside County, 595 B.2. 7"!, 7!!=!6, !"52. Ct. P!4, P67, #P . d. 6d 964 $!4P5%

?ress nterprise Co. v. 2uperior Court: applies to transcripts of preliminary

hearings

?rocedure for closure of criminaljudicial proceedings:$!% otice to the public

?ublic must be given an opportunity to challenge closure

ual)doc/eting of public and non)public is not permitted

$6% Eurden is on party $or court% see/ing closure to show substantial probability that:a. &verriding interest will be prejudiced in a specific and compelling way>


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2idebars and in chambers proceedings: permitted in limitedmeasure, but not for proceedings ordinarily open

Access to 8ecords in Criminal Cases:8irst Amendment right of access> twopart test

$!% o the records pertain to proceedings that historically have been open to the public)$6% Analysis of the functional benefits derived from public access, including:

?ublic oversight of the judicial system

ducation of the public

Assurance of the appearance of fairness

est has been applied to open transcripts of:Hoir dire proceedings $?ress nterprise


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civil proceedings and records $2an Iose Gercury ews v. B.2. ist. Ct.%i;on v. *arner Communications

?ress sought to copy *atergate tapes used at trial

?ress has no right of access superior to the public

Bni+ue situation: ?residential 8ecordings Act

Already widely reported on transcripts Nixonv$ WarnerCommunications, Inc$is the only case in which the 2upreme

Court of the Bnited 2tates directly addressed the media1s right to copy evidentiaryrecordings under the right of access.7"


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omestic family proceedings and records

=?resumptively open=Certain statutes, however, still demand closure

Gental health hearings

=?resumptively closed unless party re+uests openness

rade 2ecrets=Courts have authority to issue protective orders and close proceedings to

protect trade secrets

?rivacy interests

=


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Ta+es:

0rosjean v$ American -ress 'o.

(overnment may levy ta;es of general applicability

Eut may not levy a ta; that is designated to limit the circulation of newspapers 8evolved around legislatures having bad motives

#inneapolis tar

2pecial ta; on in/ over S!"",""" per year

iscriminated against large news paper

(eneral ta;es are o/, but special ta;es are not

?ublications don't have to show bad legislative motives

Arkansas riters -roject:

a; on general interest magazines

;emption for newspapers and religious, profession, trade and sport magazines

his was a content=based distinction, and it could not pass constitutional muster%eathers v$ #edlocka; covered all tangible property and many services, e;empting newspapers andmagazines

Cable providers challenged the ta;

Bpheld the law as constitutional

id not single out the press

o bad intent

ot content=based

Distri!ution Issues:'it* of %akewood v$ -lain Dealer

ven in content=neutral conte;ts, the government may not condition speech on

getting a license that is in the unbridled discretion of a government official'it* of 'incinnati v$ Discover* 3etwork

Ean on news rac/s with the e;ception of newspapers

istinction between handbills and newspapers did further government interests in

safety and aesthetics, but not content=neutral or narrowly tailored

ot only does Cincinnati1s categorical ban on commercial newsrac/s place too

much importance on the distinction between commercial and noncommercialspeech, but in this case, the distinction bears no relationship whatsoeverto the

particular interests that the city has asserted.


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Insurance:Eroad Coverage

?ublication and newsgathering torts

hird party subpoenas for source identities

All media=including internet

Coverage for defense costs as well as damages or settlement;clusions:?unitive amages

=can be covered through definition of damages andOor if company aggress=who is insured)=2hould include freelancers

efense and 2ettlement

Choice of counsel


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or 2o incites students as to creat

e a clear and present danger of the commission of unlawful acts on school premises or in violation of the orderly operation of the school> and

$for publications% oes not maintain professional standards of nglish and journalismBsed to prevent profanity in video made by high school students $opez%

his is the only mechanism allowing prior restraints in public schools and it applies onlyto official publications $opez%2chools do not have the authority to prohibit the distribution of unofficial materials on campus$Eright%UCommunity college analog, d. C. sec. #9!6", not as e;pansive> contains an e;ception for violation of lawful community college regulationsCensorship at colleges and universities: d. C. sec. 993"!$e%, censorship prohibited unless it constitutes hate violence as defined by Cal. aw

ducation Code sec. 5P47"U 2chool districts may not ma/e or enforce any rule subjectingany high school pupil to disciplinary sanctions solely on thebasis of conduct that is speech or other communication that,if engaged in off campus, is protected by the 0irstAmendment or Cal. ConstitutionU Analog for university level X d. C. 993"!U 2ection 5P47" applies to private schools e;cept thosecontrolled by a religious organization to the e;tentpublication would interfere with religious tenetsU Analog for university level X d. C. 4539#

U Iournalism eacher ?rotection Act $6""4%U ?rotects journalism advisors from retaliation for trying toprotect student press freedoms

lectronic Media

Secial ,ules re !roadcasters

8ed ion v. 0CC

*hat is the fairness doctrine)

8e+uired broadcasters to allow reply time to the public in cases involvingpersonal attac/s or political editorials

Eroadcaster challenged constitutionality of rule

Court held: 0airness doctrine is constitutional, rejected argument that broadcasters

free speech rights are the same as published or spo/en word $Cf. ornillo%

0CC license holders have duty to public

Jolding: 0re+uencies are scarce so the government is justified in creating rule and

as Iustice *hite said it creates more speech

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ornillo

Court declared unconstitutional right to reply law as applied to newspapers

he Court stressed that forcing newspapers to publish a reply intrudes on editorial

discretion that is protected by the 0irst Amendment

*hat about concerns of consolidation of news industry)

Gaybe this ma/es more sense fairness doctrine

CE2 v. C


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Communications ecency Act of !449 criminalized sending obscene and indecent

material on the


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Jow can these be reconciled) $Chem can't%

CableB2 v. ?layboy ntertainment (roup $!56P%: 0uzzy channels. Iust saying we want toprotect people from unwanted e;posures and we want to protect children.

Court uses strict scrutiny: ma/es content based restriction because it is se;ualspeech

?roblem: 2hould we still ma/e medium $telephone, cable, internet% distinctions or arethese completely blurred)

Gaybe we should just use strict scrutiny as a base line

*hat if its just se;ual commercial speech)

et's parents put filters on

Criminal Lia!ility

(arrison v. ouisiana

ouisiana law criminalized true statements about public officials made with ill will or not made in the reasonable belief of its truth

A charged with criminal libel for criticizing judges

2tatute unconstitutional and either restricts

speech that isa. i/ely to cause a breach of the peace> orb.


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U relating to the national defenseU which information the possessor has reason to believeU could be used to the injury of the Bnited 2tates or to the advantage of any foreign nationU to- willfully communicate itU o any person not entitled to receive it

U o limitation . . . as to either the transmitter or transmittee of informationunder the spionage Act, noting further that 2ection #43$e% covers Tanyone.'$Gorison Q 5th Circuit%U *il/inson concurring: press organizations . . . are not being, and probably could not be,prosecuted under the espionage statute.U ational defense includes all matters that directly or may reasonably beconnected with the defense of the Bnited 2tates against any of its enemies,and refers to military and naval establishments and the related activities ofnational preparedness $Gorison% and in (orin v. B2: a generic concept ofbroad connotations, referring to the military and naval establishments andthe related activities of national preparedness.

U 8eceipt of thing of value $!P B2C 95!%U

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Media Law Outline