Term
| When did SCOTUS first rule on obscenity and how? |
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Definition
| 1957, punishing obscenity does not violate the 1st amendment/utterly without redeeming social importance |
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Term
| How did the Burger and Warren courts differ in their approach to obscenity cases? |
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Definition
a. Warren- 3 part test; whole country is treated the same
b. Burger- broadened to make obscenity prosecutions easier; some countries have different standards for obscenity |
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Term
| Theory of variable obscenity (children v. adults) |
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Definition
| Shifting standards depending on the audience. What separates minors from adults |
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Term
| Development of child pornography laws |
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Definition
a. Began by being judged on the same basis as adult porn
b. Laws outlawed production, purchase or distribution of kiddy porn to address exploitation of children
c. Now possession of child porn is illegal
d. Reporter was convicted for sending and receiving kid porn as part of a “news investigation”
e. Even films with clothed children can be obscene if emphasis is placed on their genitals
f. Laws banning virtual child porn are unconstitutional
g. Sexting is illegal under many child porn laws but states are trying to distinguish it. |
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Term
| 5. Jacobson v. United States – what happened and why. |
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Definition
| a. Scotus overturned conviction of 64 year old Nebraska farmer who ordered a gay magazine. Gov’t spent more than 2 years enticing Jacobson with promo materials. When he finally ordered he was arrested. Court said that gov’t implanted the disposition in the mind of an innocent person and that went too far. Entrapment does not work as a defense if defendant was predisposed to commit illegal act. |
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Term
| 6. How does indecency differ from obscenity? |
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Definition
a. Indecent material is sexually oriented but not obscene. Does not arouse a unwholesome interest in sex
b. Indecent can have serious value but still violate law (unlike obscenity)
c. TV can not transmit obscenity but may transmit indecency. |
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Term
| 7. What did the FCC do as a result of the Janet Jackson Super Bowl debacle? |
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Definition
a. Cracked down on use of vulgar words and images
b. Levies large fines
c. Single utterances can be patently offensive and result in fines |
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Term
| 8. Cable TV time-shifting to avoid exposing children to indecency |
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Definition
| a. Indecent material is played after 10pm to protect children |
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Term
| 9. Communications Decency Act of 1996 |
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Definition
a. Designed to prevent exposure to internet porn by children
b. Overbroad and unconstitutional
c. SCOTUS said CDA would prohibit constitutionally protected content as well as obscenity. |
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Term
| 10. Child Online Protection Act (COPA) |
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Definition
| a. Unconstitutional because less restrictive means could be used like blocking sites or filtering technology |
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Term
| Violent and/or sexually explicit video games (decency) |
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Definition
a. SCOTUS invalidated VA law that banned selling or renting violent video games to minors because games have “communicative content”
b. Video game has adopted voluntary labeling system |
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Term
| 1. How did mass production of goods lead to development of commercial speech law? |
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Definition
a. It brought on more sophisticated advertising
b. Truth in advertising became more important because goods were shipped and customers had to trust in them
c. Regulatory orgs were formed to police businesses |
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Term
| 2. Why does SCOTUS concern itself with advertising that is “purely commercial”? |
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Definition
| Regulations on political speech require a compelling interest, while those on commercial speech require only a substantial interest. |
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Term
| 4. Why is constitutional protection for commercial speech weaker than that for political speech? |
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Definition
a. Commercial speech is hardier because of needs for businesses to advertise
b. Commercial speech is more easily advertised. |
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Term
| 5. How are a lawyer’s ads either protected, or not protected by being misleading and deceptive? |
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Definition
a. Prfotected-lawyers price adverts for simple will or divorce
b. NOT protected- Price adverts for complex legal services like estate settlements or complicated divorces because accurate price cannot be fixed in advance. |
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Term
| 6. On-site solicitation by lawyers (commercial speech) |
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Definition
| a. Can be prohibited because it can be coercive, misleading and intimidating |
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Term
| 7. FTC/Orkin Exterminating Company case – unfairness |
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Definition
| a. Orkin acted unfairly when it raised the yearly fee for homeowners who had signed contract to pay a certain yearly fee for a termite free house- unfair breach of contract |
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Term
| 8. Deception is of greater concern to the FTC than unfairness (commercial speech) |
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Definition
| a. Deceptive sad is one that is likely to mislead a reasonable consumer with a material statement or omission. |
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Term
| 9. CAN-SPAM Act and how Virginia has fought spam (Jaynes case) (commercial speech) |
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Definition
a. Allows an internet service provider to pursue spammers in fed court with criminal and civil penalties.
b. Prohibits false header info in commercial email and requires unsolicited messages to include optout instructions. Also protected spam containing unmarked porn material.
c. VA targeted unsolicited commercial bulk emails
d. Jeremy Jaynes charged under VA’s statute after sending more than 55K unsolicited emails to AOL subscribers
i. Jaynes said VA law was overbroad and VA Supreme Court agreed saying that right to engage in anonymous speech is protected by 1st amendment and VA law infringed on this.
ii. Court said by prohibiting false email routing info, law infringed on right to anonymous speech by prohibiting ALL anonymous unsolicited bulk emails
iii. SCOTUS denied appeal and allowed VA supreme court ruling to stand. |
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Term
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Definition
| a. If they are so affected by prejudicial publicity that they cannot set aside preconceived ideas and decide a case solely evidence presented during a trial. |
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Term
| 2. “Mere familiarity” v. “predisposition against” criminal defendant (jury bias) |
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Definition
| a. mere familiarity- with a defendant is not the same as a predisposition against him |
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Term
| 3. What kinds of pretrial publicity may be prejudicial? |
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Definition
| 1. Confessions; 2. Prior Criminal Records; 3. Lie Detector Tests; 4. Chracter Flaws or Lifestyle; 5. Potential witnesses, testimony or evidence; 6. Speculation by officials; 7. Other sensational otr inflammatory statements |
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Term
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Definition
| jurors have hard time ignoring media reports that defendant confessed |
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Term
| Prior Criminal Records (prejudice) |
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Definition
| conviction in past doesn’t mean you are guilty of current charge but jurors may have difficult time believing defendant is innocent if he/she has been convicted of similar charge in the past. |
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Term
| Lie Detector Tests, Blood Tests, etc. (prejudice) |
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Definition
| Often unreliable and inadmissible but jurors may believe defendant is hiding something |
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Term
| d. Character flaws or lifestyle (prejudice) |
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Definition
| often heresay and not admissible |
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Term
| e. Potential witnesses, testimony or evidence (prejudice) |
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Definition
| may not be accurate and may mislead potential jurors. |
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Term
| f. Speculation by officials (prejudice) |
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Definition
| statements from police and judges may carry unjustifiable weight |
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Term
| g. Other sensational or inflammatory statements (prejudice) |
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Definition
| use of nicknames like mad dog Irvin can pressure jurors into convicted defendant. |
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Term
| 5. Careful questioning of the jury pool |
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Definition
| a. Voir dire- can help weed out biased jurors |
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Term
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Definition
a. –move the trial to a neutral location
i. Oklahoma city bombing |
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Term
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Definition
a. Changes jury pool rather than location
i. John wayne gacy |
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Term
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Definition
a. –peremptory challenges- lawyers may strike limited number of potential jurors without giving a reason- used when gut instinct tells you this will not be a good juror
b. Challenges for cause- unlimited number available but court must agree they are unfit to serve
i. Relative of the crime victim, or someone in a capital case who says he/she could never vote to execute no matter how heinous the crime. |
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Term
| 9. Sequestration (juries) |
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Definition
| a. Jury locked up during trial; stays in hotel; limited contact with family; not allowed to watch news reports of trial. |
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Term
| 10. Virginia law on cameras in the courtroom |
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Definition
| a. Judges may bar cameras at their discretion |
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Term
| 11. Piper Roundtree case and cameras |
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Definition
| a. Judge told local media and court tv they could only videotape if they agreed to delay showing until after trial concluded. |
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Term
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Definition
| a. Judge may restrict trial participants, lawyers and court personnel from releasing info to the media during a trial; SCOTUS has refused several opportunities to declare this unconstitutional |
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Term
| 13. Richmond Newspapers v. Virginia |
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Definition
a. Landmark case where scotus first said public has a limited 1st amendment right to attend criminal trials
b. Juvenile cases are closed to the public
c. Trial where a juvenile witness may be called to testify- SCOTUS said they should only be closed if the need is compelling and only as long as necessary. |
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Term
| 14. Civil v. criminal contempt |
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Definition
a. Civil- judge orders person locked up until he or she agrees to obey the court (used against journalists to reveal sources)
b. Criminal- punishes disrespect for the court with fine, jail sentence or both (may also be used against journalists). |
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Term
| 1. Journalists who harass (privacy) |
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Definition
a. May be liable even in public places
b. Galella v. Onassis (1973)- federal district court punished photographer Ron Galella for pursuing Jackie Onassis and children. |
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Term
| 2. Third-party monitoring (privacy) |
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Definition
a. Only police operating under a valid search warrant may legally bug a room, monitor telephone convos or tap in computer communications
i. Otherwise, third party monitoring is illegal, as is intercepting over microwave or cellular phones, email and satellite transmissions of video teleconferences and data. |
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Term
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Definition
a. Physical entry onto private property
b. Closely related to intrusion
c. Generally accepted that journalists may accompany authorities onto private property at a disaster scene, but some say not if the owner is present to object. |
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Term
| 4. False light involving distortion (privacy) |
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Definition
| a. Involves distortion when broadcaster or publisher omits info or uses it out of context. |
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Term
| 5. False light plaintiffs with public v. private issues (privacy) |
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Definition
a. SCOTUS said in Time, Inc v. Hill that false-light plaintiffs involved in issues of public interest must prove actual malice.
b. Private plaintiffs should have a lesser burden of proof than actual malice, but others say all should have to prove actual malice |
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Term
| 6. Appropriation (privacy) |
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Definition
| a. Usually the unauthorized commercial use of another’s name or picture in an advert, poster, PR promotion, or other commercial context. |
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Term
| 7. Celebrities and public figures – appropriation (privacy) |
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Definition
a. Can sue when their names, pictures, acts and talents are commercially appropriated without permission
i. Can sue for look-alike |
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Term
| 8. Defenses (3) (privacy) |
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Definition
| Newsworthiness; Consent; The 1st Amendment |
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Term
| Defense: Newsworthiness (privacy) |
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Definition
i. Publication or broadcast in news reports of political, social and entertainment events are not commercial appropriations.
ii. Media can use ads containing previously published or broadcast news and photos in advertising itself. In this case, the use of the person is only incidental to the ad. |
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Term
| Defense: Consent (privacy) |
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Definition
i. Advertisers and PR promoters should get written consent before using people in ads or publications
ii. A name or picture should not be used commercially after consent has expired |
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Term
| Defense: The First Amendment (privacy) |
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Definition
i. People who pose with or inadvertently appear with public officials or candidates in a public or semi-public place cannot claim appropriation if their picture is used in campaign literature.
ii. SCOTUS says the media is not protected if the media appropriates an entertainers whole act. |
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Term
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Definition
| a. When story or program appears to cause physical harm, some courts say media is not responsible unless it incited the harmful action |
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Term
| 10. Autoerotic asphyxiation case |
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Definition
| a. Herceg v. Hustler (1987) – Hustler magazine printed article about autoerotic asphyxia, leading to death by hanging of 14 year old boy who died trying it. Federal court said the article did not incite the act; in fact, did not even advocate it. |
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Term
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Definition
| a. Federal court said publisher could be liable for disseminating a book that, in effect, incites crime by aiding and abetting murder. Fourth circuit said Hit Man: A Technical Manual For Independent Contractors gave intentional, detailed directions for murder. |
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Term
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Definition
a. False light plaintiffs involved in issues of public interest must prove actual malice.
i. Family held hostage but treated well by criminals.
ii. Play based on their case was produced saying that the criminals mistreated the family.
iii. The family sued the writers of the play for false light. |
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Term
| Traditional Common Law View of the Protection of News Sources |
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Definition
| a. Before the 70s, courts usually held that journalists deserved no special protection when ordered to reveal the names of confidential sources. |
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Term
| Protection of News Sources: Journalists vs. Lawyers, Doctors Priests |
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Definition
| a. News sources do not depend on journalists for their personal welfare in the way that patients depend on doctors or clients depend on lawyers |
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Term
| 3. Branzburg v. Hayes – Powell dissent |
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Definition
a. Ruled against the reporters emphasized the limited nature of the ruling and suggested suggested that reporters have more 1st amendment protection than Justice Byron White indicated in his majority opinion.
b. Needs of law enforcement and of journalists should be balanced on a case-by-case basis and suggested that in some cases, he might be willing to vote with the four-justice minority to protect journalists who did not want to reveal confidential sources. |
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Term
| 5. When do lower courts follow the majority opinion in Branzburg v. Hayes? |
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Definition
| a. Most appellate courts use a limited 1st amendment privilege when determining whether a reporter must testify. |
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Term
| 7. Three-part test from Potter Stewart for seeking confidential information from a reporter |
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Definition
a. Persons who seek confidential info from a reporter must:
i. Demonstrate that the info is relevant to their case
ii. Show that they cannot obtain the info through alternative sources
iii. Show their need for the info is compelling and should override the 1st amendment interest in protecting new sources |
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Term
| 8. How many states provide protection for journalists by law? |
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Definition
| a. 38 and Washington, D.C. |
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Term
| 9. Are bloggers protected as journalists? |
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Definition
| a. It is not clear. NJ appeals court said blogger was not a professional journalist. Also left open possibility that some bloggers might be considered journalists and perhaps be covered under state shield law. |
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Term
| 1. Corporate and union contributions to candidates |
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Definition
a. Used to be prohibited
b. Gifts of anything of value were prohibited including free ads, air time, and tapes |
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Term
| 2. PACs and how they can contribute to candidates vs. issues |
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Definition
a. The amount they may contribute is limited by election law
b. May spend unlimited amounts independent of a candidate. |
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Term
| 3. Communications Act of 1934 – equal opportunities |
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Definition
a. Channels must provide equal opportunities to legally qualified candidates
i. does not apply to spokespersons for political candidates.
ii. Does not apply to newscasts, news interview programs, docs or live coverage of news events, including political debates |
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Term
| 4. Does equal opportunity apply to spokespersons as well as candidates? |
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Definition
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Term
| 5. Broadcasters’ liability for remarks during political broadcasts (debates) |
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Definition
| a. Cannot censor the remarks during political broadcasts and are not liable for defamatory candidate comments. |
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Term
| 6. Reasonable access rule |
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Definition
| a. Broadcast licensees must provide reasonable access or permit the purchase of reasonable amounts of time by legally qualified candidates for federal office. |
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Term
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Definition
| a. Before 1987, required that broadcasters provide airtime for the discussion of important and controversial public issues and in doing so that they offer a reasonable opportunity for the presentation of contrasting viewpoints. |
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Term
| 8. Public broadcasters and political candidates vs. issues |
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Definition
| a. Cannot support or oppose political candidates, but they can editorialize on public issues |
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Term
| 9. Effect of Citizens United v. FEC on election law |
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Definition
| a. Held that restrictions on election spending by corps and unions is unconstitutional. |
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Term
| 1. Grounds to justify moral limits on obscenity |
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Definition
| 1. Harm Principle; Paternalism Principle; Moralism Principle; Offense Principle |
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Term
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Definition
i. Indiv liberty may be reasonably restricted to prevent harm to others.
ii. Does exposure to pornography lead to rape?
iii. May be supported by conservs or liberals.
iv. Con: No evidence of harm to others and societal harm purely speculative. |
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Term
| The Paternalism Principle |
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Definition
i. Morally offensive content should be controlled to prevent harm to self
ii. Reflected in SCOTUS view that free will must sometimes yield to state’s interest in protecting people from their own worst instincts.
iii. Con: No evidence of harm to self and unacceptable limit on liberty |
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Term
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Definition
i. Society should control morally offensive content to prevent immoral behavior or the violation of societal norms.
ii. But if no demonstrable harm, are controls acceptable merely because porno offends community standards?
iii. CON: No consensus on community standards and standards differ from place to place. |
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Term
|
Definition
i. Society is justified in restricting individual liberty to prevent offense to others
ii. Usually employed to justify the protection of nonconsenting adults from public displays of offensive material
iii. Ex. Newspapers refusal to run promos for porno films, bookstores concealing adult mags behind the counter.
iv. CON: Ambiguous standard and offensive content can be invigorating influence in diverse marketplace. |
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Term
| Why is privacy important to us? (1st answer) |
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Definition
a. Confidentiality of personal info is hallmark of an autonomous individual.
i. Undermined by media interference in times of tragedy – TWA Flight 800
ii. False and deceptive ads |
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Term
| Why is privacy important to us? (2nd answer) |
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Definition
b. Privacy can protect us from scorn and ridicule by others.
i. No one wants to be shamed.
ii. Risk of exposure: alcoholics, homosexuals, AIDS patients |
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Term
| Why is privacy important to us? (3rd answer) |
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Definition
c. Privacy produces a mechanism by which we can control our reputations
i. We care what others think
ii. The more others know about us, the less powerful we become in controlling our destiny
iii. Congressman Gary Condit- Chandra Levy case. |
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Term
| Why is privacy important to us? (4th Answer) |
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Definition
d. Privacy is valuable in keeping others at a distance and regulating our degree of social interaction.
i. Example: laws against trespassing and intrusion
ii. Electronic eavesdropping and telephoto lenses make personal solitude more difficult |
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Term
| Why is privacy important to us? (5th answer) |
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Definition
e. Privacy serves as a shield against the power of gov’t
i. As individuals relinquish their privacy interests to the gov’t, the dangers of manipulation and subservience to the state increase.
ii. Privacy is at the heart of a liberal democracy. |
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Term
| 3 circumstances in which confedential relationships arise |
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Definition
a. Express promises
i. Ex. Reporter promises anonymity to news source
ii. Often oral but can be written
b. Formulated out of sense of loyalty
i. May not express promise of secrecy, but sense of loyalty to individual or company propels moral agent in that direction
ii. Not always based on genuine affection but usally reflects feeling of obligation.
c. Recognized by law
i. Some relationships are so important that they deserve legal protection.
1. Ex. Doctor/patient, lawyer/client, priest/penalty. |
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Term
| Special concerns of confidentiality in journalism |
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Definition
a. Deprives audience of opportunity to decide how much faith to put in info
b. Sources may use cloak of confidentiality to attack third parties who cannot defend themselves against unidentified opponent
c. Could serve as license for irresponsible behavior by media
d. Journalists should not be exempt from moral and legal duties imposed on citizenry at large. |
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