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| a civil tort pertaining to damage to reputation; it harms a person's reputation or profession/business/calling; it consists of libel and slander |
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| defamation by written or printed words or some other format; it harms reputations of individuals b/c it involves untrue statements about them made by others. |
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| defamation by spoken words, gestures and other transitory ways |
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| A plaintiff proving libel must prove six basic elements: |
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| a defamatory statement (libel per se/per quod); proof of falsity; identification; publication/broadcast; fault; injury or damage |
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| libel per se --defamatory on its face, red flag words; libel per quod--defamatory when extrinsic facts are known |
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| the defamatory statement is not true |
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| the statement must be about the plaintiff/must be identified w/ the untrue statement |
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| statement must be published (internet, paper, tv, radio,etc) |
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| it must also be shown that the publisher or author did not act appropriately |
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| compensatory/general damages (for harm to reputation, humiliation); special damages (monetary loss): punitive damages (imposed as a punishment; actual malice required) |
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| must prove negligence/carelessness |
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| elected officials, gov't employees with real or apparent substantail responsiblity. |
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| all purpose public figure |
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| pervasive fame, influence, notoriety in the community; actions followed w/ great interest; has to ALWAYS prove actual malice |
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| someone who 1)voluntary injects himself into a public controversy in order to influence its outcome OR 2) is involuntarily thrust into a public controversy; (must prove actual malice) |
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| case that decided that if person defamed is a public official or figure, they must prove actual malice--required by the first amendment. |
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| does not mean ill-will or intent to harm; it is publishing with knowledge of falsity, reckless disregard of the truth or falsity, or forging ahead in the face of danger; (hate/ill will are not determinative of actual malice). |
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| plaintiff is barred by this--must bring case within one year of publication |
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| it is a common defense in a libel case and if it can be proved, there can be no liability.; this defense is not easy to prove; |
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| a motion to dismiss the case before the trial starts; |
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| anything stated underoath, or as part of a legislative, judicial, or executive proceeding--in the context of carrying out gov't business (but lost if not substantially accurate) |
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| Fair comment and criticism |
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| clearly opinion, supported by facts, about a public person's work, performance or conduct; OPINION/Ollman's Test |
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| something that can't be proved or disproved; **is the statement verifiable--capable of proof or disproof; mixture of fact and opinion; |
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| any expressed or implied statements of fact in an opinion must be accurate; language that is not capable of being proved true or false is protected by the 1st amend and the opinion privilege; straight opinion or defamatory |
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| neutral reportage and innocent construction rule |
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| prominent person remarks about another prominent person (public figure) and reporter accurately reports it; this is not accepted that often and not in PA |
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| advertisements in every mass media promoting products and services |
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| VA state board of pharmacy case |
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| SC recognized for 1st time that the 1st amend protects purely commercial advertising |
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| Central Hudson 4-part test |
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| (1) the ad must be accurate and legal (2) must advance substantial govmental interest...is it ideal? (3) does it directly advance gov'tal interest? is it working? (4) is regulation overbroad or too extensive? (is it working too much?) |
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| Regulation of Deceptive Advertising by the Federal Trade Commission |
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| investigates complaints; enforces trade regulation laws; educates the public |
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| -likely to mislead; will influence the average consumer; likely to mislead a reasonable consumer; likely to cause harm |
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| The FTC requires advertisers to... |
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| have evidence to suppor the factual or objective claims made in their ads |
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| FTC polices the internet/congress |
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| implements Children's Online Privacy Protection act; surfs the web for deceptive ads or claims relating to business opportunities/health-related claims; requests legislation of Congress or appears in support of state legislation |
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| copyright (protects original works of authorship), patent(protects inventions), trademarks(names, slogans, colors,etc) |
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| COPYRIGHT: Congress shall have the power to... |
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| promote(encourage/stimulate) the progress of science and the useful arts, by securing for limited times, to authors and inventors the exclusive right to their respective writings and discoveries |
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| life of the author plus 70 years (if created before 1978...if after 1978: life of author plus 70 yrs or 95 years from publication, whichever is shorter; if term has expired, it is in the public domain and free for use |
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| what rights does copyright protection give the author? |
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Definition
| reproduction, preparation of derivative works, distribution, peformance, and display |
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| original works of authorship, as soon as they are in a FIXED tangible medium |
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| ideas, facts, works not fixed in a tangible medium, names/short phrases/slogans, lists of ingredients, works produced by the US govt, or works in the pubic domain |
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| literary works, dramatic works, pantomime and choreographic works, pictorial/graphic/sculptural works, motion pictures and other audiovisual works, sounds recordings, architectural works. |
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| allows the reasonable use of a copyrighted work without the permission of the copyright owner; it means NOT being liable by copyright infringement; works on a case by case basis |
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| (1) purpose and character of the use (2) the nature of the copyrighted work (3) quantity and quality of portion used (4) effect on the potential market or value of the work(single most important factor) |
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| registration of the work in the copyright office is generally required before a suit may be brought |
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| In an infringement suit, burden of proof is on the copyright owner to show: |
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| (1) access to the copyrighted work (2) substantial similarity of the two works |
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| first is not protected by 1st amendment if legally considered obscene; second is more discussed in terms of broadcast (NEITHER OF THESE COVER VIOLENCE) |
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| obscenity (not protected by 1st amend); pornography (protected if not obscene); variable obscenity (material may not be obscene but dissemination can still be regulated to protect children); indecency (protected by first amendment for adults..a question of taste and ethics as much as legality). |
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| Progression of Obscenity analysis by US Supreme Court |
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| Roth v. US (material is without redeeming social importance); Memoirs v. Mass (patently offensive according to national standards--utterly w/out any redeeming social value) Miller v. California (test applied by the courts today) |
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1) does avg person find that the work appeals to prurient interest? 2)does the work describe sexual conduct in a patently offensive way?
3) does the work lack serious literary, artistic, political or scientific value? |
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| Protecting Children and Juveniles |
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Definition
| -outlawing child porn; -restricting sale/distribution of sexually explicit materials to minors; -FCC bans use of indecent language on the radio(safe harbor); -Congress has made attempts to police the internet/tries to regulate content |
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| due to Pacifica case (7 filthy words), no indecent/obscene material can only be broadcast b/w the hours of 10pm and 6am |
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| obscenity varies depending on the context; a lesser standard is implied when children are involved (whether they are part of the material or exposed to it) |
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| History of broadcast regulation |
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Definition
| wireless ship act (required ships to have radio equip on board; radio act 1912; radio act 1927 (govt getting more involved); comm. act (FCC created); telecommunications act of 1996. *there is no authority to regulate cable content* |
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| Rationale for different 1st amend. treatment for broadcast media: |
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Definition
| there is no regulation in 1st amend for entertainment; spectrum scarcity; public trusteeship; pervasiveness--radio is intrusive, more difficult to avoid; special impact--social impact; highly effective medium |
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| Federal Communcations Commission |
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Definition
| regulates interstate and internation communcations by radio, satellite, tv, cable and wire; their jurisdiction covers the 50 states and DC |
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| Broadcast regulation legislation |
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| 2004 broad. decency enforcement act stalled; 2005 version passed in house, now in senate(it would increase violation fines) |
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| first amend freedom of press VS 6th amend right of a criminal defendant to a fair trial by an impartial jury |
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| It is difficult to find an unbias jury because of... |
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Definition
| (1) pretrial publicity (2) publicity during trial (3) disruptions during trial caused by journalists in the courtroom |
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| Kinds of publicity that can cause prejudice (and are thus not allowed publicity) |
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Definition
| prior criminal records; confessions by defendant; results of investigative tests; opinions regarding character, personality guilt, or innocence; speculation about the evidence or what witnesses say under oath; sensational/inflammatory pretrial coverage |
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| Traditional measures to compensate for pretrial prejudicial publicity or to prevent or diminish it |
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| (1) change of venue (2) change of venire--new jury pool (3) continuance--take a break (4) voir dire (jury selection)--lawyers can strike jurors (5)admonitions to jury (6) sequestering the jury (so they are removed from everyone |
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| Remedies to eliminate or reduce prejudicial publicity and media interference |
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Definition
| gag orders on media; restrictions in trial participant; post-publication sanctions; court closures; denials of access to court records; bans or limits on cameras in the courtroom |
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| the dickinson rule is applied--says that gag orders NEED to be obeyed, even if they are later found unconstitutional (us v. noriega). |
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| they can be fined for pursuing interviews w/ jurors |
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| civil and criminal contempt |
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| civil is forcing u to do something; criminal is punishment for not doing it |
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| criminal, not civil, since its punishment |
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| Post Publication Sanctions |
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| SC says the power to gag the media is limited and the power to punish the media for reporting about and commenting on the judicial system is also limited. |
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| 1) laws prohibiting release of info to unauthorized people 2) laws punishing media for publishing certain info about the court |
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| Publication of Truthful info. lawfully obtained in court cannot be punished unless there is a compelling state interest |
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| criminal courts are open; at a preliminary hearing, there is a presumption of openness; trials will be open; everything else is decided on a case by case basis; |
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| SC says that states may permit cameras in the courtroom but are NOT required too (it is different for each state; some are limited; some just say no, etc) |
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| Nebraska Press 3 part test and Gag Orders |
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Definition
| (1) has there been intense and pervasive publicity such that it's likely to affect the fairness of the trial? (2) are there any alternatives that would protect fairness? (3) will the gag order actually be an effective mechanism to protect fairness? |
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