Term
| 1. FCC v. Pacifica Foundation |
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Definition
George Carlin Seven Dirty Words monologue on afternoon radio
The regulation of broadcast indecency, however, is not justified on spectrum scarcity grounds. Instead the SC upheld the FCC’s power to punish a broadcaster for airing indecent content because broadcasting is intrusive and accessible to children. Reduced First Amendment protection is justified. |
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Definition
| Court said Indiana could constitutionally adopt a statute requiring nude dancers to wear pasties and G-strings. The First Amendment does not require a city to permit dancers to convey the erotic message. |
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Term
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Definition
| From 1990 to 2004, the FCC has fined owners of radio stations that carried The Howard Stern Show a total of $2.5 million for indecent programming. |
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Term
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Definition
The foundation case for discussing obscenity.
Miller conducted a mass-mailing campaign to advertise four books—Intercourse, Man-Woman, Sex Orgies Illustrated, An Illustrated History of Pornography—and a film entitled Marital Intercourse. The brochures, containing nudity/genitals, were considered obscene using the three-part test: average person, patently offensive, no contribution to society |
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Term
| Red Lion Broadcasting Co. v. FCC |
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Definition
| In 1969, the SC held that spectrum scarcity justified regulations designed to promote the presentation of a range of views |
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Term
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Definition
jury convicted Sheppard of murdering his wife in a highly sensationalized trial. Served 12 years in jail before the SC reversed the decision on grounds that he didn’t get a fair trial.
SC said he didn’t get a fair trial due to prejudicial publicity and carnival-like atmosphere. Court also stressed the media’s role in protecting public oversight of the judicial system.Judges must ensure defendants receive trials by impartial juries while restricting the press as little as possible. |
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Term
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Definition
C rejected a privilege under the First Amendment for three reporters who had refused to testify before three different grand juries.
Reporter 1: wouldn’t reveal names of sources making hashish (personally observed criminal acts)
Reporter 2: wouldn’t hand over interviews recorded of Black Panther parties
Reporter 3: reporter gained access inside Black Panther headquarters. would reveal what he saw outside, but not inside.
Contrasted the rights of the press vs. obligation of citizens to participate in investigations
The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. Since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court. |
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Term
| Cohen v. Cowles Media Co. |
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Definition
SC said journalists are not protected by the First Amendment when sued by victims of broken promises.
Cohen, a public relations employee, lost his job after his name was revealed after a broken promise of confidentiality. Rewarded damages- compensatory and punitive. The SC overruled the Minnesota court, saying the FA does not prohibit the use of promissory estoppels when journalists break promises to sources. Reporters should be held responsible for commitments they break- law applies to everyone. |
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Term
| Zurcher v. Stanford Daily |
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Definition
1978 SC opinion that permitted police to conduct unannounced searches of newsroom.
SC said the Constitution permits the police (with search warrants) to search without warning the homes and offices of people who are not criminal suspects. Student newspaper didn’t want office searched after student takeover of hospital administrative office. Paper’s photographers took pictures that would help police identify lawbreakers. Probable cause to find criminal evidence is sufficient. |
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Term
| Nebraska Press Association v. Stuart |
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Definition
The Court held that a Nebraska’s court’s restrictions on the reporting of a murder investigation and subsequent legal proceedings violated the FA.
Mass murder case in tiny town. County judge ordered press not to report any court proceedings details. Prior restraint “froze” free speech. |
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Term
| What is a patently offensive work? What makes a work patently offensive? What factors does a court look at to determine if a work is patently offensive or not? |
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Definition
| What makes a work patently offensive is the type of sexual activity, depth of detail used to portray sexual imagery, and the repetitive nature of the sexual activity being portrayed. |
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Term
| Can the FCC regulate indecency without violating the First Amendment? If so, what case establishes this rule? |
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Definition
| 1. Yes, the FCC can regulate indecency without violating the First Amendment. In FCC v Pacifica Foundation (George Carlin case) the USSC held that the intrusive nature of broadcasting and the fact that programming is so easily accessible by children are legitimate reasons for regulating indecency in the broadcast spectrum. |
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Term
| 3. What is the safe harbor doctrine and what does it establish? Who established this doctrine? |
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Definition
1. FCC: Safe harbor doctrine establishes that broadcasters can air indecency but only during times when children are not expected to be listening or watching.
2. 10 p.m.-6 a.m. |
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Term
| 4. What, under obscenity law, are prurient interests? |
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Definition
1. Material that appeals to “lascivious, shameful, or morbid” interests in sex.
2. Disgusting, filthy, revolting + encompass sexual appeal |
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Term
| 5. What test is established in Miller v. California? |
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Definition
| Test courts apply to determine if material falls under obscenity. Established in 1973, Chief Justice Warren Burger court set out the test.v |
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Term
| What are the elements of that test? |
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Definition
| A work is obscene if (1) the average person, applying contemporary community standards would find that work, taken as a whole, appeals to the prurient interest. (2) The material depicts or describes sexual conduct in a patently offensive way that is specifically defined by state law. (3) The work, taken as a whole, must lack serious literary, artistic, political, or scientific value. |
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Term
| How does a court determine whether each element is satisfied or not? |
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Definition
| All 3 parts must be met. Test is conjunctive. |
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Term
| 2. What is a community under this test? |
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Definition
1. Justices that decided case were advocates of State power, so they thought that the community interest should be specific to the state/county/state.
2. Effects: what offends one community may not offend another, thus a work may be deemed obscene in one community, but not so in another.
3. However, the most conservative communities standards dominate. |
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Term
| What is the purpose of the test? |
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Definition
| Determine whether material is protected under the First Amendment or not by determining if it is obscene. |
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Term
| 6. What did the USSC find in Barnes v. Glen Theatre? |
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Definition
Constitutional because the state’s interest in protecting public morality was unrelated to the suppression of free expression.
Court said Indiana could constitutionally adopt a statute requiring nude dancers to wear pasties and G-strings. The First Amendment does not require a city to permit dancers to convey the erotic message |
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Term
| Are state bans on totally nude dancing constitutional? |
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Definition
| Yes. Safeguarding and promoting public morality have nothing to do with the suppression of free expression. |
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Term
| What did the court say about this issue? And why? |
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Definition
| Indiana can constitutionally enforce a law that compels nude dancers to wear pasties and G-strings. For the sake of public morality and safety. |
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Term
| Are pornographic materials obscene? Can they be held to be obscene? How can pornographic material be considered obscene? What qualities or characteristics must it have in order to be considered obscene? |
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Definition
| If a court finds that the pornographic material satisfies the Miller test. 1) The work taken as a whole appeals to the prurient interests. 2) The work lacks literary, artistic, scientific or political value. 3) The work would be prohibited by contemporary community standards. 4) The work is patently offensive. |
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Term
| What did the Child Internet Protection Act intend to do? What was its primary purpose? |
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Definition
| Federal law that requires libraries and schools to install filters on their computers in order to retain federal funding. Install filters or lose funding. |
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Term
| Is it ever legal to possess child pornography? |
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Definition
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Term
| What is the legality of child pornography? |
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Definition
| Not legal. But if the images are computer generated, then allowed. Can’t use real children. YOU KNOW YOU HAVE PROBLEMS WHEN YOU LIKE TO WATCH COMPUTER-GENERATED CHILD PORNOGRAPHY. WEIRD. |
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Term
| Is there an amendment that provides protection against punishment for possession? |
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Definition
| None. First does not protect possession of child pornography even when possession is for the purpose of an investigative story on child pornography. |
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Term
1. What are the main remedies a court may invoke to reduce the impact of pretrial publicity on a jury’s capacity to be impartial?
1. What is meant by change of venue? |
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Definition
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Term
| What is meant by a change in venire? |
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Definition
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Term
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Definition
| Inquiring as to biases and prejudices jurors (questioning potential jurors) may have during jury selection |
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Term
| What is meant by sequestration? |
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Definition
| Locking the jury up and keeping them away from news sources, family, and/or friends. The jury will not be influenced by outside forces in evaluating the evidence presented at trial. |
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Term
| What is meant by new trial? |
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Definition
| Convictions are overturned. |
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Term
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Definition
| Postponing the trial until publicity dies down. |
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Term
| In regards to voir dire, what are challenges for cause and peremptory challenges? Distinguish them. |
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Definition
| Challenges for cause are unlimited, but you have to convince the judge that there is a justifiable reason for removing a potential juror. Peremptory challenges are limited, but require no justification. |
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Term
| Can peremptory challenges be used to remove jurors on the basis of their race? What has the USSC said about this? |
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Definition
| Race and gender can never be a basis for removing a juror.-violates Fourteenth Amendment’s equal protection clause. |
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Term
| How many of each is each side allowed? |
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Definition
| Peremptory challenges depend on the jurisdiction. Challenges for cause are unlimited. |
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Term
| When will a court overturn a conviction on grounds that prejudicial pretrial publicity? What must the court find before overturning a conviction? |
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Definition
| A conviction will be overturned because of prejudicial publicity only if the Court finds identifiable bias in individual jurors or such an extraordinary amount of prejudicial publicity in the media that the presumption of prejudice is raised. |
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Term
| What is a prejudice jury? |
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Definition
| When jurors cannot set aside any preconceived notions as to how a case should be disposed |
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Term
| How does a court determine if prejudice exists among the jurors? |
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Definition
A jury that has a
predisposition toward a specific conclusion in a trial. A court
determines if jurors carry prejudice by asking questions in the
voir dire process. |
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Term
| 4. Know Sheppard v. Maxwell |
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Definition
Details: Jury convicted Sheppard of murdering his wife in a highly sensationalized trial. Served 12 years in jail before the SC reversed the decision on grounds that he didn’t get a fair trial.
SC said he didn’t get a fair trial due to prejudicial publicity and carnival-like atmosphere. Court also stressed the media’s role in protecting public oversight of the judicial system.Judges must ensure defendants receive trials by impartial juries while restricting the press as little as possible. |
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Term
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Definition
| The media should not be punished for fair reporting. The onus should fall on judges to safeguard the trial process from prejudicial publicity. How? Control of courtroom atmosphere, control of information released to the press, and attempt to remedy effect of prejudicial publicity. |
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Term
| What, according to the USSC, should the trial judge have done? |
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Definition
1. Control the atmosphere of the courtroom by limiting reporter/camera access once he notice that their presence was becoming disruptive
2. Find a way to remedy the amount of publicity (change of venue, sequester the jurors)
3. Impose restrictive/gag orders on news sources |
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Term
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Definition
| Order not to speak or disclose information about a specific issue or case. |
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Term
| When are these orders more likely to violate a constitutional right? |
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Definition
| When they are imposed on the news media/reporters. Not so much when they are imposed on news sources. |
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Term
| On who are they least successfully enforced (gag orders)? |
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Definition
1. Think in differences between news sources and the news media!
2. News sources: people involved with the litigation, whether as a party to the litigation or as a court official.
3. News media: reporters |
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Term
| 6. What did the USSC hold in Nebraska Press Association v. Stuart? |
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Definition
Details:The Court held that a Nebraska’s court’s restrictions on the reporting of a murder investigation and subsequent legal proceedings violated the FA.
Mass murder case in tiny town. County judge ordered press not to report any court proceedings details. Prior restraint “froze” free speech.
Case on constitutionality on restrictions imposed on reporting after the information has been leaked. |
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Term
| What is the constitutionality of prior restraints on the media? |
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Definition
| Highly disfavored, but can be imposed if it can be shown that without the prior restraint, a defendant could not have a fair trial. Fair trial would not be possible without a prior restraint. not absolute |
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Term
| What must a court find before determining the constitutionality of a prior restraint on the media? |
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Definition
| Whether the “’gravity of the evil’ of pretrial publicity, ‘discounted by the improbability’ of its occurrence, merited a prior restraint.” |
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Term
| 1. Factors court would look at in answering this question constitutionality of a prior restraint on the media: |
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Definition
1. The nature and extent of pretrial news coverage
2. Whether other measures would likely mitigate the effects of unrestrained pretrial publicity
3. The effectiveness of a restrictive order in diminishing the effect of prejudicial publicity |
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Term
| What rights was the court balancing in this case? |
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Definition
| First Amendment Right v. Defendant’s right to a fair trial |
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Term
| What are the types of contempt of court a person can be held liable for? |
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Definition
| Civil and criminal contempt of court. |
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Term
| How are they different contempt of courts? |
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Definition
| One punishes disrespectful conduct in court (criminal), the other punishes failure to comply with a court order (civil). For both you can serve time and/or pay a fine. Civil fines accrue daily. Criminal fines are exact and don’t accrue over time (one time fee). |
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Term
| What is the rationale behind each? |
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Definition
For Criminal
Contempt, the purpose of the punishment is to vindicate the
dignity of the court while for Civil Contempt the object of the
punishment is compliance with the court order. |
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Term
| What is meant by when you are held in contempt of court? |
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Definition
| 1) Your conduct was unbecoming in a court setting, and even after warning you fail to remedy or change your conduct, so the judge finds you in criminal contempt of court. 2) Judge orders you to do something, like disclose sources, but you refuse to comply with the order. A civil contempt of court will be imposed until you chose to comply or until the order becomes moot. |
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