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| JUDICIAL REVIEW OVER BREADTH DOCTRINE |
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| FREEDOM OF INFORMATION ACT |
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| WASHINGTON STATE SHIELD LAW |
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Change of Veniremen
Courts also have the power to import a jury from a distant city, a change of veniremen, if they believe the local population cannot provide a panel of impartial jurors. Like a change of venue, this can be expensive, since the court must move the jurors to the city where the court is located, and house and feed them for the duration of the trial. |
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| If the defendant agrees, a judge has the power to move a criminal trial to another city in order to find a jury that has not been exposed to publicity about a case. For example, the trial of Scott Peterson was moved more than 50 miles from Modesto, California to Redwood City. A change of venue can be expensive, since the court personnel, witnesses, and lawyers must be moved to another city where they must be housed and fed. Often a change of venue is futile, since in many cases publicity simply follows the case to the new locale. |
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| continuance, delaying the trial with the hope that publicity about it will subside. In criminal trials, however, this can only be done with the agreement of the defendant because of the Sixth Amendment right "to a speedy and public trial." |
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| NEBRASKA PRESS ASSOC TESTQ |
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The Supreme Court has established a three-part test for judges to apply before they may issue a gag order against the press. Under the Nebraska Press Association test,5 a restrictive order aimed at the press will be constitutional only if
intense and pervasive publicity about the case is certain to occur;
no alternative means exist to mitigate the effects of pretrial publicity; and
the restrictive order will effectively prevent prejudicial material from reaching jurors. |
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| An attorney may also use one of a limited number of peremptory challenges to excuse a prospective juror for any reason; these are usually employed for jurors whom the judge refuses to excuse for cause. |
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| They then consider ordering participants in a case—lawyers, witnesses, jurors—not to talk to the media or, much less frequently, they instruct the media not to report about certain aspects of a case. These court orders are called restrictive orders or, more commonly, gag orders. |
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| In cases where a high level of news coverage would make it hard for jurors to avoid potentially prejudicial publicity, a judge may sequester a jury, that is, place the jurors into seclusion. He or she may order the jurors housed at a local hotel, where they may talk to each other but not to the media, and in some cases, not even to family and friends. This is costly to taxpayers and painfully inconvenient to jurors, so it is used sparingly. |
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| Voir dire is the process by which a panel of prospective jurors is screened to determine who among the group will actually serve on a jury. |
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The Hicklin rule was extremely broad and easily satisfied. First, the law allowed the courts to ban an entire work, even if the alleged depravity was contained in only a single sentence. Second, because almost any sexual material was found to have a "tendency" to "deprave and corrupt" children if it might accidentally fall into their hands, the definition basically limited all reading material to that fit for children.
BECAUSE IT WAS BROAD THE COURTS ABANDONED IT |
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Under the Miller test, material is deemed obscene if
an average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interests;
the work depicts in a patently offensive way sexual conduct as defined by applicable state law; and
the work in question lacks serious literary, artistic, political, or scientific value.
it applies local community standards, not the "national standard of decency" |
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| Obscenity is not protected by the First Amendment,IT APPLIES TO THE THE HICKLIN RULE |
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the material is patently offensive because it affronts contemporary community standards relating to sexual matters
This test, eventually called the Roth-Memoirs test4, considered material obscene only if
the dominant theme of the material, taken as a whole, appeals to the average person's prurient interest in sex;
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the material is utterly without redeeming social value. |
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| he promotes and markets the work in such a way as "to appeal to the erotic interests of customers" |
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e Roth-Memoirs test4, considered material obscene only if
the dominant theme of the material, taken as a whole, appeals to the average person's prurient interest in sex;
the material is patently offensive because it affronts contemporary community standards relating to sexual matters; and
the material is utterly without redeeming social value. |
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| but instead asked whether a work lacked "serious scientific, literary, artistic, or political value." This element—called the SLAP test by many—is much narrower than the Roth-Memoirs test, since it excludes entertainment values and often requires expert witnesses to convince a jury that a work has one or more of the listed values. The Court made clear, however, that unlike the first two prongs of the Miller test, a work's value need not be evaluated according to community standards, but only according to the standards of a reasonable person within the community. |
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| Under the federal Copyright Act, any work may be copyrighted if it is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The statute gives some examples—literary works, musical works, plays, dances, pictures and sculptures, movies and audiovisual works, and sound recordings. The statute also applies to computer software and material created in digital form. It specifically does not protect titles, slogans, ideas, mathematical principles, methods and systems, formulas and equations, and utilitarian goods such as lamps or toasters. Nor does it protect government documents and reports, including transcripts of government hearings. |
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| his means that the author must have created the work; it does not mean that the work must be good or creative. It just must be original. For example, you cannot obtain copyright to a transcript of another person's courtroom testimony. |
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| When the copyright expires, the work is said to enter the public domain, where it may be copied, published, and disseminated by any person for any reason without payment to the original creator. |
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| TANGIBLE MEDIUM OF EXPRESSION |
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| literary works, pictures, films, sound recordings, or any other "original works of authorship fixed in any tangible medium of expression |
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| These are written agreements between the advertiser and the FTC in which the advertiser promises to make changes in its ads in return for the FTC's promise not to take further enforcement action against it. Consent orders are legally binding; violations can result in substantial fines. |
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| Several federal agencies are responsible for regulating false deceptive advertising, including the Food and Drug Administration, but the primary federal agency responsible is the Federal Trade Commission (FTC) |
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| If the FTC believes an advertisement will cause harm or lead to violations of the law, it can go to court to seek a restraining order to stop the ads. This is a drastic remedy, and usually one taken only in the most egregious cases where the FTC believes immediate court enforcement is necessary to stop the misleading or dangerous claims. See the textbook's discussion about the recent FTC's actions against Kevin Trudeau and his infomercials. |
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| Clearly, the advertiser is responsible for claims made in its advertisements. If it makes a false claim, it can be liable for damages under the Lanham Act or for fines levied by the FTC. But what about advertising agencies hired by the advertisers to prepare ads, or the , Web sites, magazines and newspapers that carry the ads? |
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| If an advertiser refuses to sign a consent order the FTC can issue a litigated order, ordering the advertiser to stop making a particular claim. This order is binding, and its violation can result in fines of $10,000 a day while the violation continues. Few advertisers are willing to take a case to this point; most will agree to voluntary compliance or consent orders |
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| The FTC does not regulate puffery—subjective claims based on taste, feel, appearance, or smell—because the agency believes that the typical, reasonable consumer does not take such claims seriously. |
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| Substantiation is a process by which the advertiser must prove to the FTC's satisfaction that an advertising claim is true. Under FTC rules, the agency appoints panels of experts in a field to scrutinize advertising claims and target for documentation those claims that seem most suspect. It then asks the advertiser to prove that the claims are truthful. The burden of proof is on the advertiser; if the advertiser fails to prove the truth of the claim, it will usually agree to a consent order or be subject to a litigated order. If the advertiser challenges the matter in court, the burden of proof shifts back to the FTC to prove that the advertisement was false. |
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| The federal government, by way of the Cable Communications Policy Act of 1984 and FCC rules, applies uniform national standards and policies to cable systems, including franchising procedures, rate regulations, technical standards, equal employment opportunities, and certain programming rules. It also sets forth provisions governing the privacy of subscribers where a cable company might gather personal information about their viewing habits or other characteristics. |
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the laws that laid out the blueprint for broadcast regulation—had three basic objectives. First, they needed to solve the existing problem of frequency interference.
Second, because the radio spectrum was not broad enough to accommodate all who wished to use it, the government needed to establish a basis for selecting those who could and those who could not be broadcasters.
Third, the drafters believed that radio was a powerful medium, able to influence public opinion in ways other media could not. They therefore imposed, as a condition for obtaining a broadcast license, requirements to ensure that broadcasters do not use their frequencies unfairly. |
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| PUBLIC INTEREST STANDARDQ |
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| Second, because the radio spectrum was not broad enough to accommodate all who wished to use it, the government needed to establish a basis for selecting those who could and those who could not be broadcasters. It could have assigned frequencies on a first-come, first-serve basis, or sold them to the highest bidder. Instead, it chose to treat the radio spectrum as a valuable public resource, and temporarily assign frequencies to persons who agree to act as trustees of the resource on behalf of the public. It established a requirement that those granted licenses operate in the "public interest, convenience, and necessity." This public interest standard is the pillar of the Communications Act. |
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| PREDOCESSOR TO THE COMMUNICATIONS ACT OF 34 |
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