Nebraska Press Ass.

v.

Stewart (1976)

• Nebraska sued judge stewart for "gagging" media in the case of state v. Erwin Simants

• Established 3-prong test to determine when "gag" orders are appropriate.

Sheppard 

v.

Maxwell

• Heavy pre-trial publicity
• Sheppard accused of killing wife
• Found guilty at lower level courts
• Supreme court said trial was unfair
• Judge did not give fair trial

Chandler

v.

Florida

• Televising a trial does not in and itself cause prejudice in a trial

Richmond Newspaper

v.

Virginia

• Supreme Court ruled that trials are presumptively open to the press and public

Publicer Industries

v. 

Cohen

• Presumed to include civil as well as criminal trials when closing the court room

Glode Newspapers

v. 

Superior Court

• Not automatic closure of courtroom
• Cannot impose a mandatory closure in all cases
• Need to allow judges to properly balance on case-by-case balance

Press Enterprise 

v.

Riverside

• While trials were to be open; what about pre-trial hearings?
• Determined by: Has the hearing been historically open?
• Will public access to the hearing place a positive role?

Roth 

v. 

US

• Abandoned Hicklin Rule
• Banning material for all of society is to broad
• Evolution included: Mass. v. Memoirs

Stanley 

v.

Georgia

• Private possession allowed of child pornography

Osbourne

v.

Ohio

• May prohibit mere possession of child pornography
• Had to make it illegal so it would not be produced

Valentine

v.

Christiansen

• Handbills regarding submarine
• no protection for commercial speech
• Said his bills were not ok even though he put something about a law on them
• Didn't want there to be litter

Bigelow

v.

Virginia

• advertising for legal abortion
• Bigelow advertised for abortion clinic in NY 
• Legal in NY - said it wasn't illegal

Vir. Board of Pharm.

v.

Consumer Council

• against policy to advertise price for prescriptions
• ban on ads violated 1st amendment
• trying to protect people
• can't limit free speech

Linmark Associates

v.

Willingboro

• For sale signs in yard
• Sign placement was protected speech
• Not visually pleasing
• Time, place, manner restrictions

Central Hudson

v.

Public Service

• Utility companies advertising to use more electricity
• Ban infringed on businesses free speech rights
• Didn't want ads saying to use more when there was a shortage

University of NY State 

v.

TX?

• Wanted to have a candle party, but rule against solicitation in dorms
• Party in lounge

Fair Trial

• Speedy, fair, public trial
• Iowa- 90 days from charge
• Public = more chance it will be fair
• Defendant cannot waive public trial
• Can waive speedy or jury trial

Prejudicing the Public

• Confessions
• Lie detector tests
• Post criminal records
• Credibility of witnesses
• Defendant's character
• Inflame public against defendant
• Stories implying guilt
• *Not admissible in court
• *Can be talked about in news

Trial Court Remedies

1. Voir Dire
2. Change of Venue
3. Continuance
4. Admonition
5. Sequestration
6. Restrictive Orders
7. 
   

Voir Dire

• 12 Jurors - 2 alt. jurors
• 50 prospective jurors - narrow down
• Jurors should not be bias

Change of Venue

• Move trial away from bias to different location

Continuance

• Move the time of trial so that people forget and are not bias
• If things are not ready for case

Admonition

• Caution jury
• warn not to read news, watch news, go to crime scene, discuss case, etc.

Sequestration

• Keep jurors in a hotel
• No access to media

Restrictive Orders

• "Gag" Orders
• Gag jury is easier than gagging media

Reardon Report

• ABA Report - 1968
• Recommend judges use orders to control public statements of participants
• Recommend contempt against those who violate

Limit Media If...

• Intensive and pervasive publicity is certain
• No other alternative measure will work
• The restrictive order will actually work
• This is always a last resort

Plea Agreements

• Make offer
• See if they have evidence

The US Supreme Courts allows ____ courts to allow cameras during trials.

State

Iowa's Expanded Media Coverage Laws

• Jurors may not be shown
• Pool coverage must be used
• Parties may object to EMC of the case

Impartial Juror

• May have heard things about the case, but has an open mind about the defendants guilt or innocence 

Closed/Open Court Exceptions

• Some juvinielle proceedings are not
• Wrong Doing - open
• Family Life - open
• Child in Need of Assistance (Court takes custody) - not open
• Adult court waiver hearings (trying kids as adults) - not open
• Certain victims (sexual assault) - not open

Press Enterprise Test

• The people who want to close proceedings have to assert an interest (harm)
• Substantial probability that interest will be harmed
• No other alt.
• Closure has to be as narrow as possible
• Still have to record the results
• Undercover police officer example

If it is closed journalists should...

• Journalists have no greater right than the public
• Make a formal injection
• Ask for a delay
• Call the boss - get a lawyer
• Have to do it right away

Juvenille Murders

• Tried as adults
• Do not neccesarily have to close the court hearing
• Other remedies can be used

Obsenity 

• Obsenity is not considered speech
• So not protected by the 1st amendment

Differences between obscenity and indecency?

• Obsenity is much worse and is prohibited
• Indecency in permitted for some audiences in some circumstances
• Kids are protected from both
• 
  

Problems with defining obsenity

• Court says, "I can't define it or describe it, but I know it when I see it." 
• Not good enough - cannot run system that way
• Different parts of the country have different standards for things
• Some may see art; some may say it is repulsive

Comstack Act (1868)

Hicklin Rule (1868)

• British; obscene if tendency to deprave or corrupt those whose minds are open to such influence

Roth Memoirs Test

• Dominant theme of the material, as a whole, appeals to sex
• Material, patently offensive, regards sexual material
• Utterly w/o redeming social value

Miller (Current) Test

1996 Child Pornography Protection Act

• Companion to common decency act
• Illegal to put material on the internet; pictures, sketches, stories, people pretending to be under age
• Ruled to be overly broad and unconstitutional in 2002

Civil Nuisance Laws

• Community claims material in stores, theater, etc is a nuisance to the community

Film Censorship

• No 1st amendment protection for films until 1957
• Local licensing boards that would make sure they were suitable
• Rating System (self censorship)

Indecency

• Time, place, manner restrictions
• Content specific - protects minors
• Zoning ordinances: Cannot completely ban, but can make specific places for pornography to be sold

Iowa Obcenity Law

• "Prohibited sexual act"
• Forced conduct
• Beastiality with minor
• Fondling or touching pubes or gentiles of a minor or minor touching adult
• Masicistic- minor and adult- pain
• Nudity of minor for purpose of arousing sexual desire
• 
  

Software Filters

• Overly broad?
• Not allowing access to adults as well 

Commercial Speech Advertising

• Speech = writing or speaking
• Gradations of protection = Truthful or non-misleading advertisements about lawful products receives more protection than obscenity, but less than political speech
• No protection until the mid 70's

Central Hudson Test

Gov. can limit speech but only if these certain things are met.

1. Gov. may regulate false or misleading ads or ads for illegal products.
2. Gov. may regulate truthful advertising only if all three prongs of central hudson test are proven.

Tobacco Advertising

• Inconsistant -  Gov. says limit smoking yet funds the production of tobacco
• Warning on back
• FCC banned ads on tav in 71'
• Sports sponsored by tobacco companies
• Do educational programming in schools

Alcohol Advertising

• Limitations based on network standards
• Most say shouldn't run ads for hard alcohol
• Various times of the day
• Beer less restrictive

Television Network Standards

Lanham Act

• Allowed competitors to sue each other; ex: pepsi v. coke
• Made lawsuits between the customer and business possible
• Makes advertisers liable for someone that is damaged by their ad

Lanham Act Test

• Implicit or Explicit message conveyed
• False or misleading
• Likely to injure the plaintiff

Damages

• No way to right wrongs other than with money
• Actual damages you may have sustained
• Court costs
• Profits made by wrong doer - may be doubled or tripled
• Keeps people from doing wrong

State Regulation

• Federal Trade Commission 
• Broad powers to aid citizens

Can-Spam Act of 2003

• False/misleading messages; opt-out mechanism

FTC Test

• Representation or omission is likely to mislead consumer
• As considered by the consumers perspective
• Representation or omission was material or important

FTC Tools and Remedies

• Guides (policy statements)
• Voluntary compliance -  after FTC intervention
• FTC finds out about ads from consumers
• Consent agreement = for future ads; pull ads and don't run anymore like it
• Sign a consent agreement
• Litigated orders = Order by FTC then hearing before judge

Substantiation

• Prove it rule ( 20% whiter in a month - must prove)
• Makes ads prove more results
• Failure to do so means they can no longer run ads
• Corrective advertising =  make up ads to correct false statements

Injunctions

• Immediately prevent ads from being shown
• Trade regulation rules - not a suggestion

Publisher Liability

• Responsible
• Ex: Soldier of fortune magazine ran ads to hire a killer

Broadcasting 

• Any channel - radio or tv that is over the airwaves
• Encoders and Decoders =  two separate stations on the same channel
• Scarcity of the airwaves
• 
  

FCC

• Regulates who can go where - in order for everyone to use it their has to be rules
• Public interest, convenience and necessity (PICAN) determines who gets what
• Competition, diversity, localism
• Publics best interest
• Administrative agency
• Five member, including chair
• Balanced by party in office
• 7 bureaus (Mass Media-broadcasting, comm. carrier-telephone, cable services-broadcast on cable, consumer info, enforcement, international, wireless telecommunications

Radio Act of 1912

• Ship radios primarily -  morse code

Radio Act of 1927

• Radio Stations

Comm. Act of 1934

• Radio, television and telegraph

Deregulation

• Take away rules that regulate
• Fin-syn rules (no financial interest in shows)
• Ascerlainment (stations supposed to ask community about different issues and produce programs accordingly
• Limits on commercials per hour
• Fairness doctrine : stations have to broadcast news

Telecom Act of 1996

• Station ownership limits (based on percentage of audience, not mere number of stations)
• Licence period extended to eight years
• Relaxation of ownership rules on networks/cable systems

Licensing 

• Multiple ownership rules
• 45% of all households reached 
• Two stations in largest markets- one everywhere else
• 8 rule - 6 radio/2 tv - 7 radio/1 tv 
• Cross ownership rules (tv and paper) FCC banned

Renewed

• Every 8 years
• Serving PICAN standard
• No violations of rules

Broadcast Content Regulation

• Not permitted per statute
• Ok to regulate in protecting from obscene material
• Letter of inquiry- "raised eyebrow" if FCC hears about something bad going on

Sanctions

• Letter of reprimand/warning
• Cease and desist order
• Money fine (Forfeiture)
• Short term renewal of license- until they know if station is better
• Non-renewal or revocation of license 
• Better if you report yourself

Children's Programming

• Differences of program v. commercials
• Prior limits on commercials dropped in 1984
• Law reinstituted in 1991 (10.5 per hour/weekends and 12 per hour/weekdays)
• 1996 FCC regulated that there must be at least 3 hours a week targeted towards 16 and under
• Only 3 out of 168 hours

Today's regulations on indecency

• No indecency between 6 and 10
• Sexual/offensive/community standards

Violence

• V- Chips
• Rating Systems

Telecom Act of 1996

• V-chips in tvs
• May regulate things that shouldn't be
• Kids often know more about technology than parents

Candidate Access Rule

• Section 312
• Federal candidates and state candidates
• Cannot block from buying airtime
• License can be revoked for failure to allow this
• Not serving public interest by denying
• Only obligated to sell the time that they have
• Cannot charge more than lowest rate

Equal Time Rule

• Sec. 315
• If you allow one candidate to use facilities you must allow all candidates
• Includes; air time, price, studio time
• Station does not have to let other candidates know
• No censorship of material

What is a "Use"?

• IS: Ad with voice or image of candidate
• IS NOT: Ad w/o voice or image
• IS NOT: Ad by opponent
• IS: Talk shows- Can't show favoritism
• IS: Old tv shows and movies

Exceptions to Equal Time

• Legitimate news cast- morning shows
• News interview program- REGULARLY SCHEDULED
• Spot news coverage of events (conventions, debates, press conferences)
• News documentary appearance-not related to election

Personal Attacks/Responses

• If station airs a personal attack it has the duty to let other person know
• Also for political editorials