Solution Manual For Trager's The Law of Journalism and Mass Communication 8th Edition Victoria Smith

Solution Manual For

Trager's The Law of Journalism and Mass Communication Eighth Edition Victoria Smith Ekstrand, Caitlin Ring Carlson, Erin Coyle, Susan Dente Ross, Amy Reynolds Chapter 1-12

Lecture Notes Chapter 1: The Rule of Law: Law in a Changing Communication and Political Environment Learning Objectives 1-1 Define rule of law and explain the role of law in society.

1-2 Describe the six original sources that create laws of journalism and mass communication.

1-3 Describe the structure of the U.S. judicial system and how cases move through the appeals process.

1-4 Find and feel comfortable using legal research resources.

1-5 Understand how to read and brief a case.

Annotated Chapter Outline I.

Rule of Law A. Attorney General Bill Barr’s discussion of the rule of law.

B. Katie Wright’s questioning of the rule of law.

C. Disconnect between the rule of law and rule by law.

D. Rule of law: the contract established by laws that governs interactions among residents and between the people and their government to enhance liberty, freedom, and justice for all.

E. Trust in government institutions (incl. the legal system) has been declining in the United States since the 1960s.

F. Erosion of democratic norms and unwritten rules.

G. Lon Fuller’s view on the rule of law. i. A set of standards that established norms and procedures to encourage consistent, neutral decision making equally for all.

ii. Desiderata (desired outcomes) for laws: a. General and not discriminatory. b. Widely known and disseminated. c. Forward-looking in their application rather that retroactive. d. Clear and specific. e. Self-consistent and complementary of each other. f.

Capable of being obeyed.

g. Relatively stable over time. h. Applied and enforced in ways that reflect their underlying intent. iii. Critiques: a. Does not provide guidance for drafting, interpreting, or applying the law (application). b. Problematic idea of neutral principles.

H. Vague laws: laws that fail to define their terms or are unclear and that are unacceptable because people may avoid participating in legal activities out of uncertainty over whether their actions are illegal (e.g., Supreme Court struck down a provision of the Immigration and Nationality Act in 2018).

I.

Discretion: the ability to of officials to apply legal rules differently to different groups of people.

J.

Overbroad: a type of law that is poorly tailored and punishes activities that pose no risk to society.

K. Precedents (stare decisis): the legal principle that tells courts to stand by what courts have decided previously and is the heart of common law. i. Issue of unclear or conflicting precedent.

L. Often a question of which precedents to apply (e.g., Citizens United v. Federal Election Commission).

II. Body of the Law

A. The laws of journalism and mass communication generally originate from six sources: constitutions, statutes, common law, equity law, administrative law, and executive orders.

B. Constitutions i. Constitutional law: establishes the nature, functions, and limits of government (U.S. Constitutions and individual state constitutions). ii. U.S. Constitution protects individual liberties sometimes at the expense of much larger groups (e.g., First Amendment). iii. Separation of government into branches provides checks and balances to support the rule of law. iv. Political questions: the issues that revolve around policy choices and value determinations that are outside the purview of the judicial branch. v. Supremacy Clause: a clause that establishes the Constitution as the supreme law of the land and resolves conflicts among laws by establishing that all state laws must give way to federal law, and state or federal laws that conflict with the Constitution are invalid. vi. Constitution is difficult to change; can only do so through a two-thirds vote in both chambers of Congress or two-thirds state legislatures vote for a Constitutional Convention. vii.Federalism: the principle under which states are related to, yet independent of, the federal government and each other and which encourages experimentation and variety in government. viii.

Only 33 amendments approved by Congress (e.g., Bill of Rights).

C. Statutes i. Statutory law: clear, stable, and specific definitions of the legal limit of particular activities. a. Establish the rules of copyright, broadcasting, advertising and access to government meetings and information. b. Formally adopted through a public process. ii. Black-letter law: the category encompassing statutes and constitutions, meaning formally enacted, written law that is available in legal reports or other documents.

iii. Laws can be amended or repealed. iv. Marbury v. Madison (1803)—the Supreme Court established the courts’ power to interpret laws. v. (Statutory) construction: the process whereby courts determine an unclear, imprecise, or ambiguous law’s meaning and application. vi. Strict construction: a court’s determination that narrowly defines laws according to their literal meaning and clearly stated intent. vii.Facial meaning: the “plain meaning” of a law’s wording. viii.

The deference to legislative intent reflects courts’ recognition that the power to write laws lies with the legislature. ix. Courts try to interpret the plain meaning of a statute to avoid conflicts with other laws, including the Constitution. x. Review of constitutionality is a last resort, and courts generally preserve portions of a law that can be upheld without violating the general intent of the statute. xi. Judicial review: as established in Marbury v. Madison, the Supreme Court’s power to strike down laws it finds to be in conflict with the Constitution. a. Court gave itself the authority to limit Congress’s power to enact laws. b. Courts other than the U.S. Supreme Court rarely use this power. c. Supreme Court has used this power sparingly.

D. Common Law i. Common law: judge-made law, mainly at the state level, that constitutes a vast body of legal principles created from hundreds of years of dispute resolution that reaches back to England. a. Arises when judges base their ruling on precedent and legal doctrines established in similar cases. b. Common law principles are sometimes adopted into statute by legislators (e.g., “fair use” in copyright law). ii. Presumes that precedent should guide future courts. a. Stare decisis—courts should follow each other’s guidance. b. Establishes consistency and stability.

c. Higher court decisions establish a precedent that binds lower court rulings. a. U.S. Supreme Court constrains all lower federal courts. b. Each circuit court of appeals binds the district courts in that circuit. c. State appellate and supreme courts contain lower state courts. d. Different and coequal jurisdictions do not establish binding precedent upon peers. iii. Applying precedent is not clear cut. a. Modify precedent: to alter the precedent to respond to changed realities. b. Distinguish from precedent: to assert that factual differences between the current case and the precedent case outweigh similarities. c. Overturn precedent: a radical step to reject the fundamental premise of an earlier decision.

E. Equity Law i. Equity law: a second form of law made by judges when they apply general principles of ethics and fairness to determine the proper remedy for a legal harm. ii. Intended to provide fair remedies when: a. Various harms are not addressed in other forms of law. b. Fairness will not be achieved fully/at all through the rigid application of strict rules. iii. Under judges’ discretion. iv. Example: restraining orders requiring paparazzi to stay a certain distance away from celebrities.

F. Administrative Law i. Administrative law: the rules created by executives and specialized branch agencies, such as the Federal Election Commission. ii. Agencies adopt orders, rules, and regulations to implement laws.

iii. The authority/existence of agencies can change based on legislative decisions. iv. Agencies conduct hearings to enforce their rules; courts hear appeals and engage in regulatory construction and judicial review. v. King v. Burwell (2015)—the U.S. Supreme Court refused to defer to administrative interpretations of the Affordable Care Act’s precise terms.

G. Executive Orders i. Executive orders: a source of law issued by government executives, such as the president. ii. The Supreme Court has held that executive orders must fall within the inherent powers of the executive to have the force of law. iii. Limits to the power to issue executive orders are largely informal (self-restraint and tradition). a. The American Civil Liberties Union and 16 states challenged President Trump’s executive order to build a wall along the southern border. b. President Trump’s 2017 executive order banning Muslims was initially blocked by courts.

III. Structure of the Judicial System A. Court Jurisdiction i. Jurisdiction: a court’s authority to hear a case; also refers to a court’s geographic or topical area of responsibility and authority. ii. 2017: the U.S. Supreme Court reiterated its recognition of two types of court jurisdiction: a. General: typically an individual’s home or a corporation’s headquarters. b. Specific: a suit must relate to the defendant’s contacts with that forum (e.g., in libel, any court in any locale where the alleged libel could be seen/heard has jurisdiction). iii. Forum shopping: the practice of seeking the most favorable court to hear one’s case. a. In general, the Court has held that a company may only be sued “at home.”

b. The Court held that a national newspaper’s “home” is either where the company is incorporated or is the main location of its business. iv. The Court’s test to establish specific jurisdiction often applies to online disputes and requires courts to find that: a. The defendant intentionally acted inside the jurisdiction of the court. b. The plaintiff’s claim arose from that activity. c. It is reasonable for the court to exercise jurisdiction. v. Federal courts hear cases that: a. Relate to interstate or international controversies (e.g., cases where the federal government is a party). b. Interpret and apply federal laws, treaties, or the U.S. Constitution (e.g., copyright laws). c. Involve controversies between states/citizens of different states/a state and a citizen of another state (e.g., a libel suit brought by a resident of Pennsylvania against a California newspaper).

B. Trial Courts i. Where nearly all cases begin. ii. Each state contains at least one trial-level federal court (district court). iii. Reach decisions by finding facts and applying existing law to them. iv. Only courts to use juries; do not establish precedents. v. Some judges critique media coverage of trial courts because it can: a. Be a threat to fairness. b. Cast their court in disrepute and reduce public trust.

C. Courts of Appeal i. De novo: a phrase meaning “new” or “over again” that characterizes the rare appeal of case facts. ii. Due process: the application of the proper law and the fair and appropriate judicial process.

iii. Amicus curiae (“friends of the court”): individuals and organizations not party to a case that may receive court permission to submit an amicus brief. iv. Judges of the circuit court rarely sit en banc (“on the bench,” “in full court”) to hear an appeal. v. Affirm: the court of appeal’s ratification or upholding of a lower court’s prior ruling, leaving it intact. vi. Overrule: the court of appeal’s reversing of a lower court’s prior ruling. vii.Concurring opinion: an opinion that can be written by any judge or minority of the court that agrees with the result reached by the court opinion but presents different reasoning, legal principles, or issues. viii.

Dissenting opinion: an opinion that can be written by any judge or minority of the court that critiques the majority’s reasoning or judgment and provides the basis for the divergent conclusion. ix. Remand: the court of appeal’s sending back of decisions to the lower court to establish a more detailed record of facts or to reconsider the case. x. A circuit court of appeals decision must be signed by at least two sitting judges and is final. xi. Although rare, losing parties may: a. Ask the court to reconsider. b. Request a rehearing en banc. c. Appeal the verdict to the highest state court/the Supreme Court.

D. The U.S. Supreme Court i. Functions primarily as an appellate court, although the Constitution establishes original jurisdiction in a few specific areas. ii. Hears cases on appeal from all other federal courts, federal regulatory agencies, and state supreme courts. iii. Writ of certiorari: granted for compelling reasons, such as when a case poses a novel or pressing legal question or when a case in which different U.S. circuit courts of appeal have issued conflicting opinions.

iv. Moot: a rejection of petitions because the controversy is no longer “live” (e.g., when a student who challenged school policy graduates before the case is resolved). v. The Court’s Makeup a. Chief justice (currently Chief Justice Roberts). b. Eight associate justices. c. All are nominated by the president and confirmed by the senate for life. d. Conservative bloc: Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett. e. The Court is more diverse than it has been previously but does not reflect the diversity of the U.S. population. vi. Granting Review a. Petitioners may ask the Court for certiorari if the court of appeals/the highest state court denies them a hearing/issues a verdict against them. b. Rule of four—a writ is granted if 4+ justices vote to hear the case. c. Denial of certiorari generally means the justices do not think the issue is sufficiently important or timely to decide. vii.Reaching Decisions a. Once the Court agrees to hear a case, parties file written briefs outlining facts and legal issues summarizing their legal arguments. b. Justices review briefs prior to oral argument, which generally lasts 1 hour, and have the option to ask attorneys questions. c. Per curiam opinion: an unsigned opinion by the Court as a whole that often does not include the same thorough discussion of the issues found in signed opinions. d. Memorandum order: the announcement of the vote of the Court without providing an opinion. e. Shadow docket: a nickname for actions by the Court that do not go through the full opinion process, which has garnered recent criticism. viii.

Originalists and textualists: those who seek meaning of the Constitution primarily in its explicit text, the historical context in which the

document developed and the recorded history of its deliberation and original meaning. ix. Some justices’ interpretation relies more on deep-seated personal and societal values, ethical and legal concepts, and the evolving interests of a shifting society. x. Justices may refer to legal scholars (e.g., when the Court discovered a right to privacy in the First Amendment).

IV. Processes of the Law A. Probable cause: the standard of evidence needed for an arrest or to issue a search warrant, which is more than mere suspicion.

B. Grand jury: a jury which hears the state’s evidence and determines whether that evidence establishes probable cause to believe that a crime has been committed.

C. Court arraignment—the defendant is formally charged and pleads (not) guilty. i. Plea bargain—potential arrangement in which the defendant pleads guilty to reduced charges/an agreed-upon sentence (~95% of all felony convictions). ii. Judge may set bail.

D. Guilt requires proof beyond a reasonable doubt.

E. Guilty verdict prompts a sentencing hearing.

F. Criminal sentence may include jail/prison time and fines.

G. Civil suits i. Plaintiff: the person who files a civil complaint or sues. ii. Defendant: the person responding to a civil suit. iii. Tort: the civil injury one person or organization inflicts on another. iv. Most communication and media lawsuits are civil suits; the plaintiff must prove their case by the preponderance of evidence. v. Strict liability: a standard under which the plaintiff does not need to demonstrate fault on the part of the defendant to win the suit. vi. Motion to dismiss (demurrer): a motion the defendant can use to answer an initial suit which asks a court to reject a complaint because it is legally insufficient.

vii.Before a case goes to trial, disputing parties may agree to an out-of-court settlement. a. No public record of the outcome. b. Resolutions often prohibit the parties from discussing the terms. viii.

A judge may settle a civil case through a court conference.

ix. Discovery: the process in which both sides of a suit gather evidence. x. Subpoena: a legal command for someone, sometimes a media professional, to appear and testify in court or turn over evidence, such as outtakes or notes. xi. Venire: a local pool of potential jury members usually based on voters’ rolls. xii.Venue: the locality where the court hears the suit. xiii.

Voir dire (“to speak the truth”): a process of questioning done by lawyers done to select jurors. xiv.

Peremptory challenges: a method of jury elimination in which attorneys do not need to show a reason for the rejection. xv. Judge instructs the jury on how to apply the law. xvi.

Jury deliberates. a. Cannot reach a verdict—judge may order a new trial with a new jury. b. Reaches a verdict—judge enters it as the judgment of the court but may overturn it if it is contrary to the law.

xvii.

Successful plaintiff usually will be awarded damages.

xviii. court.

Appellant (petitioner): the person who challenges the decision of the

xix.

Appellee (respondent): the respondent to the appeal, who wants the verdict to be affirmed.

H. Summary Judgment i. Summary judgement: a motion filed when parties ask a court to dismiss a case, which asks the judge to decide the case on the basis of pretrial submissions when neither party disputes the underlying facts. ii. Results in a legal determination by a court without a full trial.

iii. Avoids the cost of trial and risk of loss to the moving party. iv. May be issued on the: a. Merits of the case as a whole. b. Specific issues critical to the case. v. In a libel case, may occur when a plaintiff is clearly unable to meet 1+ elements of the burden of proof (e.g., falsity of the published material). vi. May be granted at several points in litigation, but usually prior to trial. vii.In libel cases, courts must take into account the burden the plaintiff is required to meet at trial because the nonmoving party loses the opportunity to present their case when a judge grants summary judgment to the opposing side. viii.

Sought by media defendants to protect themselves from high costs of frivolous lawsuits. ix. Twombly/Iqbal test—a test utilizing rulings from Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) that states a court will dismiss a case if the plaintiff cannot state a plausible claim.

V. Finding and Reading Case Law A. Legal research often begins in secondary sources that analyze, interpret, and discuss primary documents (e.g., American Jurisprudence, 2nd edn,” Corpus Juris Secundum, Media Law Reporter).

B. Primary source research in administrative, legislative, and court documents is necessary to thoroughly research a legal topic.

C. The legal citations in the textbook provide the: i. Names of the parties. ii. Number of the volume. iii. Abbreviated name of the official legal reporter/book. iv. Starting page. v. Year. vi. Example: FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 534 (2007) (Souter, J., dissenting).

D. Steps to understand the law better and more easily: i. Preread the case and quickly skim: a. Topic sentences. b. First few opinion paragraphs. c. Last few opinion paragraphs. d. Holding: the legal principle taken from the decision of the court. ii. Skim the entire case. iii. Read carefully sections you have identified as important. Note the: a. Issue—helps identify which elements of the history and facts are significant. b. Facts—identify whether the dispute is a question of fact or law. c. Case history—circumstances surrounding a decision. d. Common law rule—the heart of the decision. e. Analysis—applying rule to the facts.

E. Briefing Cases i. Five components of a brief case (FIRAC): a. Facts—all the information needed to understand the issue and decision. b. Issue—one sentence summarizing the specific question decided in the case. c. Rule of law—one sentence summarizing the precedent established by the decision. d. Analysis (rationale)—how and why the court reached its decision. e. Conclusion—simple declarative statement of the holding reached.

F. Analyzing Marbury v. Madison i. Use of FIRAC.

Lecture Notes Chapter 2: The First Amendment: Speech and Press Freedoms in Theory and Reality Learning Objectives 2-1 Define and explain the major theories of the First Amendment and the impact of U.S. history on the First Amendment.

2-2 Describe the impact of technology on the First Amendment and legal doctrine.

2-3 Explain how courts evaluate and interpret First Amendment claim.

2-4 Identify and explain how courts evaluate First Amendment claims regarding government restrictions of the press.

2-5 Explain how the courts evaluate the wording of statutes regulating speech.

2-6 Describe and define the boundaries of political speech, government speech, compelled speech, election speech, and anonymous speech.

2-7 Explain and apply public forum doctrine and the growing interest in associational rights.

Annotated Chapter Outline I.

Theoretical Foundations and History of the First Amendment A. State action: government intervention (e.g., the government attempting to censor speech).

B. First Amendment protects against government attempts to censor speech.

C. Generally, no First Amendment claim without evidence of state action, but the bounds of state action can be difficult to interpret.

D. First Amendment is either a set of five freedoms from government intervention or a series of “negative rights.”

E. The Marketplace of Ideas i. Marketplace of ideas: the free exchange of ideas that is vital to the discovery of truth, as defined by John Milton in Areopagitica (1644). ii. John Stuart Mill’s On Liberty (18th century) argued against censorship because under marketplace theory, we must know falsehoods to have a basis for the determination of truth.

iii. Abrams v. United States—dissenting opinion argued truth succeeds in the marketplace, which is why courts seek to keep the speech landscape as open as possible. iv. Rests on several assumptions (e.g., notions of equal access). v. Marketplace theory can justify protections for political lies, “socially worthless untruths,” mis- and disinformation, and technological “robotic speech.” vi. Critics argue if the Constitution is solely a check on government, it has no proactive role in addressing imbalances of power.

F. The Principle of Self-Governance i. Prior restraint: the requirement detailed in the British Licensing Act which mandated that texts must be reviewed before publication. ii. Defamation: criticism of individuals. iii. Seditious libel: the illegal colonial practice of publishing anything harmful to the reputation of a colonial governor. iv. Founders’ experiences with British regulations led to the First Amendment and the Bill of Rights and prioritization of self-governance. v. Proponents of self-governance theory see the right of free expression as flowing from the government’s grant of that right. vi. Jean-Jacques Rousseau’s furthering of the social contract: a. All people are born free and equal but need the constraints of morality and law to become civilized and nonviolent. b. People form a social contract to remain sovereign and retain their human rights. vii.Alexander Meiklejohn argued unless self-governing citizens had access to information and opinions about issues about which they must decide, democracy could not flourish.

G. Self-Governance and the Press Clause i. Sir William Blackstone (mid-18th century) argued for a free press under common law. ii. American colonies tried to dismantle some British common law traditions (e.g., Alexander Hamilton’s defense of John Peter Zenger).

iii. First Amendment intended to provide a ban on prior restraints and may have intended to eliminate the common law regarding sedition, blasphemy, and libel. iv. U.S. laws continued to punish criticism of government, but the Alien and Sedition Acts expired without the U.S. Supreme Court reviewing their constitutionality. v. Fourth Estate: a term created by Professor Vincent Blasi referring to the press because it is seen as an unofficial fourth branch of representative government, serving as part of the checks and balances system.

H. Autonomy and Self-Fulfillment i. John Locke argued that government censorship was an improper exercise of power. ii. Professor C. Edwin Baker’s “liberty theory” of free speech argues that “the First Amendment protects a broad realm of nonviolent, noncoercive, expressive activity,” serving two primary values, “self-fulfillment” and “self-realization.” iii. Thomas Emerson proposed that individual protections for free expression can actually benefit the larger society by offering it a type of “safety valve.” iv. Critics argue that while such arguments have personal appeal, such personal expression can present problems for social welfare and a democratic state (e.g., the “anti-vax” movement).

I.

Critical Perspectives and the Role of Theory in Law i. Legal theories in a democracy justify judicial decision-making and doctrine related to human behavior that serves (or does not serve) democracy. ii. Legal doctrine: a rule or set of rules or principles that are followed within a particular legal field. iii. Dicta: discussions that form the background against which precedent and legal doctrine are developed and later followed in subsequent cases. iv. Some critics argue this often relies on jurists with longstanding power to establish which theories and doctrine help establish new precedent (e.g., critical race theorists).

II. Technology and the First Amendment A. New media provide new types, reach, modes, and uses of communication.

B. As consumers of media also become producers of that content, the lines between press and speech also blur.

C. Six companies now control most communications across the United States. i. This consolidation can yield easy censorship and threaten access to diverse voices and content. ii. However, the internet has offered new ways for diverse voices to be heard.

D. New companies are altering the U.S. media (e.g., Netflix, Amazon, AT&T).

E. Some scholars suggest the threat to the marketplace of ideas today is more about increasing “noise” in the marketplace of ideas.

F. Siva Vaidhyanathan’s three-layer theory of media consolidation: i. Ground level—are the cable and telecommunication companies flooding our lives with data and content. ii. Second layer—the Google–Facebook duopoly means nearly every other media company depends on these companies to be seen and monetized. iii. Third level—content providers, who must pay close attention to the second level to sustain their business models.

G. Some members of Congress have introduced antitrust law proposals to break up the monopolistic hold of the second layer.

H. SCOTUS has struggled to decide whether and how the First Amendment protects new media. i. Previously, the Court treated each medium differently because each presented unique First Amendment capabilities. ii. The internet has complicated the American news and entertainment landscape (e.g., Reno v. ACLU, North Carolina v. Packingham).

III. How Courts Interpret the First Amendment A. British common law and fast-changing communications create obstacles to a consistent, stable interpretation of the Constitution.

B. Original intent: trying to determine the framers’ intentions when writing the Constitution to interpret it.

C. Other justices view the Constitution as a living document, arguing the ambiguity of constitutional language is its greatest strength.

D. Ad hoc balancing: the courts’ reasoning when they weigh the specific facts on each side of the case.

E. Categories of speech (e.g., political or commercial speech) and their varying level of protection can help justices reach First Amendment decisions.

F. Chaplinsky v. New Hampshire—government may prevent and punish narrowly defined speech without violating the First Amendment (e.g., blackmail, extortion, perjury, false advertising, disruptive speech in the public classroom).

G. Categorical balancing: the courts’ reasoning when they balance the nature of the speech against any competing societal values.

H. Lane v. Franks—First Amendment protects the public employees to testifying on matters of public concern (e.g., public testimony about government corruption).

I.

United States v. Alvarez—Court sidestepped a decision on the amount of First Amendment protection given to false speech.

J.

Ninth Circuit distinguished between false action and lies.

K. Sixth Circuit found an Ohio law prohibiting “false statements” during a political campaign unconstitutional.

IV. When Government Restrains First Amendment Freedoms A. Near v. Minnesota (1913)—freedom of speech and the press cannot coexist with prior restraint. i. Court held that the First Amendment placed a heavy (not absolute) burden on government prior restraints. ii. Prior restraints may be permissible but only in “exceptional cases.” iii. Government can prevent the publication of obscenity, incitements to violence and overthrow of government, and “words that may have all the effect of force.”

B. New York Times Co. v. United States (1971): i. Nixon administration asked for a court injunction to stop publication of the Pentagon Papers. ii. The Court ruled preventing publication of these news stories was an unconstitutional prior restraint. iii. Similarities to the WikiLeaks posting of U.S. military documents on the war in Afghanistan.

C. Nebraska Press Association v. Stuart—prior restraints are generally unconstitutional because they pose too great a risk that government will censor ideas it disfavors and distort the marketplace of ideas. Prohibited prior restraints have three elements: i. Government oversight over whole categories of speech, content, or publications. ii. Government determination of acceptable content. iii. Government power to stop content before it reaches the public.

D. Jack Balkin argues prior restraints are imposed by the digital pipelines and platforms that host and control expression; government can attempt to regulate speech through a digital prior restraint, mostly through subpoenas and warrants.

V. How the Supreme Court Reviews Laws Affecting First Amendment Rights A. Laws of general application: laws that are reasonable and serve a legitimate government purpose (e.g., minimum-wage regulations, laws that prevent monopolies).

B. Rational review: the least rigorous or minimum review, under which a law is constitutional if government can show it serves a rational purpose.

C. Content-based laws: laws that regulate what is being said; they single out certain messages or types of speech for particular treatment.

D. Content-neutral (time/place/manner) laws: laws that restrict where, when, and how ideas are expressed and often advance public interests unrelated to speech.

E. Content-Based Laws i. Strict scrutiny: the toughest standard of review that finds laws that apply different treatment to different types of speech unconstitutional unless they use the least restrictive means to advance a compelling government interest. ii. Compelling interest: an interest of the highest order that relates to core constitutional concerns or the most significant functions of government (e.g., national security, the electoral process, public health, and safety). iii. Simon & Schuster v. Crime Victims Board—the Court struck down a law that required those convicted of crimes to turn over the profits of publications that made even passing reference to their crimes. a. Found the law content based and that advancing compelling government interest, but punished fully protected writings. b. Did not use the least restrictive means to achieve its goal.

F. Content-Neutral Laws i. Intermediate scrutiny: the standard of review applied to content-neutral laws, which are found to be constitutional if they restrict speech as little as necessary to advance an important government interest unrelated to speech. ii. United States v. O’Brien—upheld O’Brien’s conviction for burning his Vietnam draft card in protest. a. Found the law content neutral because it: a. Did not target disfavored viewpoints. b. Was narrowly tailored. iii. Symbolic expression: the combination of speech and action (e.g., draft-card burning), which can undergo a small burden from the government. iv. O’Brien test: a three-part test for incidental regulations of speech, under which a law is found content neutral and constitutional if it: a. Is unrelated to the suppression of speech. b. Advances an important or substantial government interest. c. Is narrowly tailored to achieve that interest. v. Important or substantial government interest: weighty or significant government interests, such as laws intended to serve government goals unrelated to content (e.g., regulating the sizes of commercial or political signs in a municipality). vi. Ward v. Rock Against Racism—O’Brien requires a loose fit; a law is narrow tailored if the government interest would suffer without a law that serves the interest reasonably well. vii.Hill v. Colorado—law creating moving, non-protest zones around people entering abortion clinics was valid, narrowly tailored, content neutral, and directly advancing the government’s interest in protecting the public from harassment. viii.

McCullen v. Coakley (2014)—a fixed, 35-foot buffer zone around clinics was an unconstitutional prior restraint. ix. Reed v. Town of Gilbert—struck down a sign ordinance that established nearly two dozen categories of signs, each with its own restrictions.

x. City of Austin v. Reagan National Advertising (2022)—SCOTUS reversed the Fifth Circuit’s finding that Austin’s ordinance allowing “on premises” signs and restricting “off premises” signs violated the First Amendment.

VI. Protections and Boundaries for Different Categories of Speech A. Political Speech i. Core of what the First Amendment is designed to protect and includes any communication concerning political change. a. Ballots and voting. b. Electioneering speeches and lobbying. c. Campaign spending and yard signs. d. Political advertisements, cartoons, and blogs. e. Petitions and buttons. f.

Sometimes protests.

ii. SCOTUS ruled that a state ban on wearing political insignia/slogans inside a polling place on Election Day violated the First Amendment (2018). iii. Sixth Circuit allowed a candidate targeted by an anti-abortion billboard to sue for defamation, but he did not win his case. a. Found the law unconstitutional. b. 38 states still have laws targeting false statements around elections. iv. News organizations and government may punish employees whose political expression violates their policies.

B. Government Speech i. Applies to those who work for the government and the government itself. ii. Government employees do not lose their personal freedom of speech, but the government can: a. Classify sensitive materials and control their distribution. b. Control employee speech to advance governmental interests. iii. SCOTUS has held that government control of employee speech only applies to speech directly related to government employment.

iv. Garcetti v. Ceballos—clarified distinction between speech as a government employee and independent speech of a government employee. v. The Court has further ruled that the: a. First Amendment prevented a police department from demoting an employee to stop their involvement in a political campaign. b. Attempted retaliatory firing by a city council did not violate the Constitution and the employee’s claim was just a workplace grievance. c. State of Illinois could not require workers hired by Medicaid clients and funded through that federal program to pay union dues. vi. Courts should use caution before extending government-speech precedents. vii.Walker v. Texas Division, Sons of Confederate Veterans—upheld states’ authority to control “quasi-government” speech on license plates (see Pleasant Grove v. Summum). viii.

Manhattan Community Access Corp. v. Halleck (2019)—First Amendment did not apply when a municipally created and licensed company rejected programming for public access channels that it deemed offensive (controversial ruling).

C. Compelled Speech i. Compelled speech doctrine: an aspect in the First Amendment that states the government may not force citizens to express ideas with which they disagree. ii. Foundational ruling—mandatory flag salute and Pledge of Allegiance in schools were unconstitutional (extended later to license plates). iii. Ruling that states cannot force state-licensed “crisis pregnancy centers” to notify clients that public family-planning services were available (2018). iv. Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)—state violated the First Amendment rights of a baker. He was found guilty of violating an anti-discrimination law by refusing to bake a wedding cake for a same-sex couple.

D. Election Speech i. Citizens United v. Federal Election Commission—the Bipartisan Campaign Reform Act’s (BCRA) restrictions on corporate and union election spending facially were unconstitutional.

ii. McCutcheon v. FEC—removed BCRA’s cap on individual political contributions. iii. SCOTUS also ruled that government may refuse to assist employee political contributions.

E. Anonymous Speech i. McIntyre v. Ohio Elections Commission (1995)—anonymous speech is an aspect of protected freedom of speech protected by the First Amendment. ii. Laws against anonymous campaign literature aim to prevent fraud and political influence, but the law must be narrowly tailored. iii. SCOTUS suggested citizens active in the political process do not have an absolute right anonymity (2010). iv. Ninth Circuit denied a request from Glassdoor, Inc. to quash a subpoena requiring the company to disclose the identity of people criticizing a government contractor.

VII. Forums, Assembly, and Association A. Public forum: gatherings of people exchanging ideas in public (e.g., public street corners, town parks, elementary school cafeterias, university lecture halls). i. SCOTUS has ruled the Constitution allows the people to march and assemble in public places. ii. Snyder v. Phelps (2011)—even “outrageous” speech on a public sidewalk about a public issue cannot be punished.

B. Traditional public forums: lands historically intended for public use (e.g., parks, streets, sidewalks adjacent to public buildings). i. Government facilitates use of traditional public forums. ii. Certain regulations are constitutional if they are fairly applied and are content neutral. iii. Government may ban public picketing and protests to protect core privacy, safety, or health interests. iv. Example: targeted picketing outside a doctor’s residence, no-protest buffer zones outside abortion clinics.

C. Designated or limited public forums: areas that government can choose to allow public use of spaces, limiting public use (e.g., public schools, university classrooms, newspapers, fairgrounds). i. Government may impose well-tailored, reasonable, content-neutral licensing and usage regulations. ii. SCOTUS reviews regulations under intermediate scrutiny. iii. SCOTUS adopted language around the internet that evoked public forum analysis (2017). iv. Fourth Circuit found a state official violated the First Amendment by banning a constituent from the official’s Facebook page (2019). v. Second Circuit ruled Trump violated the First Amendment by blocking followers on Twitter (2019).

D. Nonpublic forums: areas where public access, assembly, and speech would conflict with the proper functioning of the government service and where there is no history of public access (e.g., military bases, prisons, post office walkways, utility poles, airport terminals, private mailboxes).

E. Private Property as a Public Forum i. When private property functions as a traditional public space, it may be treated as a public forum. ii. Law in this area is unclear. iii. When an online private forum becomes a public forum it is an open legal question (e.g., Knight v. Trump).

F. Funding as Forum i. If government funding supports broad speech and associational activities, the government may not discriminate on the basis of ideas expressed. ii. Government allocation of benefits and costs must be content neutral and evenhanded. iii. Many government programs discriminate among applicants according to the ideas they express (e.g., National Endowment for the Arts funding, book purchases for public school libraries).

G. Associating Freely

i. Right to freedom of association has developed somewhat separately from freedom of speech precedents. ii. SCOTUS rulings have established government cannot force private organizations to include individuals/support messages with which they disagree.

Lecture Notes Chapter 3: Speech Distinctions: Disruptive Speech, Student Speech, and Media Harm Learning Objectives 3-1 Assess when disruptive speech falls into one of the categories of unprotected speech, including incitement, true threats, harassment, or fighting words.

3-2 Determine when symbolic speech is and is not protected by the First Amendment.

3-3 Recognize situations that may and may not result in negligence suits against members of the media.

3-4 Apply the appropriate legal test to determine when non-university-student speech is and is not permitted on and off school premises.

3-5 Understand when university student speech may be restricted.

3-6 Recognize efforts by state legislatures and school boards to restrict access to controversial materials and chill student speech.

Annotated Chapter Outline I.

Disruptive Speech A. From a Bad Tendency to a Clear and Present Danger i. Clear and present danger: extremely serious and imminent harm; speech that presents a clear and present danger that can be constitutionally restricted. ii. Schenck v. United States—ordinarily harmless words may become criminal during times of war because of the heightened danger they pose. iii. Espionage Act, Sedition Act, and Supreme Court rulings have upheld convictions for anti-war protests, speeches, and pamphlets, as they might tend to endanger the nation (e.g., Abrams v. United States, Gitlow v. New York, Whitney v.

California).

iv. Incorporation doctrine: applies to the Fourteenth Amendment’s due process clause and limits the power of state and local governments to abridge the Bill of Rights. v. 1950s: the Court used the clear and present danger test to uphold a federal law requiring labor union officers to swear they were not communists. vi. Later, the Court ruled government may not punish the mere expression of radical ideas.

B. From Clear and Present Danger to Incitement i. Brandenburg v. Ohio (1969)—the First Amendment protects the right to advocate but not to incite, or provoke, immediate violence. ii. The Brandenburg test—government may punish advocacy of violence by showing the advocacy was intended to and likely to incite imminent lawless action. iii. Hess v. Indiana—unless a speaker so inflamed a crowd that people responded with immediate, illegal acts, speech is protected. iv. Bell Atlantic v. Twombly and Ashcroft v. Iqbal—raising the bar, charges should be dismissed if judges’ common sense and judicial experience indicate the preliminary facts did not make a plausible showing that the necessary elements of the crime were met. a. Twombly/Iqbal standard applied to dismiss an incitement suit brought against President Donald Trump. b. President Trump was impeached (and acquitted) for his speech to a group of supporters before the January 6, 2021, insurrection and charged him with “incitement to insurrection.” v. For claims against media, the incitement test requires a plaintiff to show that exposure to the media content would cause immediate violent/unlawful activity (nearly impossible to prove).

C. Intimidation and Threats i. True threats: expression that is directed toward an individual or historically identified group with the intent of causing fear or harm (e.g., cross burnings in Virginia v. Black). ii. For speech to become a punishable threat, a speaker must direct the threat toward 1+ individuals with the intent of causing them to fear bodily harm/death.

iii. Elonis v. United States (2015)—a conviction for a true threat cannot rely on the recipient’s perception and the speaker’s mere negligence. iv. Cases with issues of intent: a. Kansas Supreme Court stated Kansas’ criminal threats statute was overbroad and left room for statements made without intent to be considered punishable threats. b. Pennsylvania Supreme Court upheld conviction of a performer for terrorist threats toward police for his song, “Fuck the Police,” ruling he intended to threaten and intimidate. c. Colorado Supreme Court held a true threat is made when a recipient reasonably perceives a serious expression of intent to commit an act of unlawful violence.

D. Online Harassment, Cyberstalking, and Cyberbullying i. Online harassment (cyberharassment)—behaviors that involve repeated/severe online expression targeted at a person/group that causes substantial emotional distress and/or fear of bodily harm. ii. Cyberstalking—pattern of threatening/malicious behaviors by a single perpetrator who uses electronic means to stalk their victim. iii. Most states have laws prohibiting cyberharassment and cyberstalking, but some have been successfully challenged on First Amendment grounds. iv. Cyberbullying—willful and repeated harm inflicted through the use electronic devices, usually in reference to the online behavior of school-aged children and young adults. v. 48 states have laws addressing cyberbullying/electronic harassment by individuals under 18. vi. These laws are difficult to enforce because of: a. Anonymity online. b. Jurisdictional issues. c. Lack of police investigation.

E. Fighting Words

i. Chaplinsky v. New Hampshire (1942)—the government may punish speech that provokes a violent reaction from a listener. ii. Fighting words: comments that by their very utterance inflict injury or tend to incite immediate breach of peace. iii. Terminiello v. Chicago—speech may best serve its purpose when it induces unrest, creates dissatisfaction, or even stirs people to anger. iv. Sixth Circuit Court of Appeals has ruled that even profane speech directed at police is not fighting words unless circumstances created a situation where violence was likely to occur. v. Different interpretations of when certain speech, such as racial slurs, are considered fighting words (Fourth Circuit Court of Appeals case vs. Connecticut Supreme Court case).

F. Hate Speech i. Protected by the First Amendment; not a legal term. ii. Expression that seeks to malign people based on their fixed identity (e.g., spoken slurs and epithets, symbols, and images). iii. Distinct from a hate crime (speech vs. acts). iv. Used by those in power to dehumanize marginalized racial/ethnic groups to make violence against them more palatable. v. Many other democracies prohibit in-person and online incitement to hatred. a. In the United States, courts and legislatures have held it is necessary to tolerate even the most hateful expression to preserve democracy. b. Prominent scholars have discussed the misuse of hate speech laws against the people they were designed to protect (e.g., case of Mike Love). vi. Underinclusive: a law that is too narrow. vii.Viewpoint-based discrimination: punishment for certain forms of hateful speech but not others (e.g., local statute in R.A.V. v. City of S. Paul). viii.

Efforts to tailor a constitutional hate speech ordinance have failed, and Supreme Court decisions make the level of protection afforded to fighting words unclear.

ix. Supreme Court ruled if speech relates to a matter of public concern, it does not fall under tort laws and cannot be grounds for an emotional distress claim. x. However, when the government is the speaker, it cannot be compelled into using hateful words or images (e.g., Confederate flag license plates). xi. Social media platforms’ regulation of hateful content is a concern; they are not required to extend First Amendment protection to hate speech. a. Solution of automatic detection and community flagging. b. Facebook likely only takes action on 3–5% of hate speech. c. Engagement-based formulas also prioritize extreme viewpoints.

G. Offensive Speech i. Cohen v. California—Court overturned Paul Robert Cohen’s conviction because the First Amendment protected his pure political speech. ii. Although courts maintain decorum, they cannot punish speech that does not disrupt the court’s functioning. iii. First Amendment protects both content and feelings expressed in a message.

II. Symbolic Speech A. Symbolic speech—nonverbal expression (e.g., burning flags, wearing armbands, marching through public streets).

B. Only actions that are “closely akin to ‘pure speech’” are symbolic speech.

C. Debate around symbolic speech during the Civil Rights Movement and anti-Vietnam War protests in the 1960s.

D. Burning Speech i. O’Brien ruling focused on why the government enacted the law (intent) and how the law operated (effect) while acknowledging expressive content destroying a draft card. ii. Texas v. Johnson—strict scrutiny, struck down a Texas law that made it a crime to desecrate the American flag; the law neither served compelling interest nor used the least intrusive means. iii. Constitution also protects exaggeration, hyperbole, and excess in speech by looking at context to determine if words should be taken on their face.

III. Do Media Incite Harm?

A. Physical Harms i. Ronny Zamora case—networks do not have a duty to stop showing violent programs and cannot be held responsible for viewers’ actions; a limit on violent content would violate the First Amendment rights of the networks and public. ii. Hustler case—the magazine was not responsible because it did not urge readers to perform the act described and repeatedly warned against it. iii. Paramount Pictures and “The Warriors” case—the fictional portrayal of gang warfare did not constitute incitement, even if the distributor knew of violence, because it did not advocate violent or unlawful acts.

B. Negligence i. Negligence: a breach of a duty of care that causes injury. ii. NBC and “Born Innocent” case—the network did not have a duty of care to those injured in ways similar to media depictions; to do otherwise would cause networks to self-censor. iii. Foreseeability a. If a reasonable person would not foresee harm, there was no duty of care. b. Soldier of Fortune magazine ads case—varying foreseeability depending on the court’s interpretation. c. Sixth Circuit Court of Appeals found video game manufacturers do not have a duty to protect against an individual’s decision to kill, even if their video games depict violence. iv. Proximate Cause a. Proximate cause: the direct relationship between a defendant’s action and a plaintiff’s injury. b. “Dungeons & Dragons” case—actions that result in harm can be independent of media influence. c. “Suicide Solution” case—connection between song lyric and action was too tenuous to show proximate cause.

d. Brown v. Entertainment Merchants Association—the Court refused to create a new category of disfavored speech for video game violence; violent video games deserve full First Amendment protection. e. Some have sued social media companies for their conduct, claiming negligence (e.g., sex trafficking victims).

C. Harmful Images i. United States v. Stevens—Constitution fully protects even violent and deeply disturbing images (e.g., animal cruelty). ii. SCOTUS found the Animal Crush Video Prohibition Act substantially overbroad and struck it down.

D. Other Harms i. Media can be sued for breaching a contract (e.g., documentarians distributing a film more widely than an interviewee’s contract allowed). ii. Masterpiece Cakeshop v. Colorado Civil Rights Commission and a case with a web designer refusing to make a site for gay weddings; ruling will hopefully clarify whether public accommodation laws compelling artists to speak violate the free speech clause of the First Amendment. iii. State v. Packingham—law barring sex offenders from using social media was unconstitutional.

IV. Speech in Schools A. Struggle to determine how and where to draw the line between advancing parents’ and educators’ concerns and protecting students’ freedom of speech and association.

B. West Virginia State Board of Education v. Barnette—schools may not indoctrinate students into particular ideologies (e.g., mandatory Pledge of Allegiance and flag salute).

C. Public Forum Analysis i. SCOTUS often views public schools/universities as limited public forums and applies the O’Brien test. ii. Schools/universities can adopt regulations to advance educational goals even if they incidentally limit freedom of speech (e.g., clothing, certain school hours, school-related expression, school-sponsored student speech and publications).

D. The Tinker Test

i. Tinker v. Des Moines Independent Community School District (1969)— Constitution does not allow officials to suppress unpleasant student expression unless it substantially disrupts educational activities (Tinker test). ii. Morse v. Frederick—substantial disruption rule is not limited to speech during school hours/in the school building. iii. Mahanoy Area School District v. B.L. (2021)—comments made off school grounds outside of school hours fall under the purview of parental (not school) responsibility, and cannot be regulated by the school.

E. The Fraser Approach i. Bethel School District v. Fraser—during a school-sponsored event, students’ liberty of speech may be limited to protect educational purpose, particularly if the forum suggests the student is speaking for the school (e.g., limiting vulgarity/profanity). ii. Appropriate for a school to impose student sanctions to dissuade speech that threatens the school’s core purpose.

F. The Hazelwood Test i. Hazelwood School District v. Kuhlmeier—when a school creates and supervises a forum for student speech (e.g., student assembly, teacher-supervised student newspaper), the school endorses that speech and is required to control the content to achieve educational goals. ii. Does not apply to university student press. iii. Student Press Law Center has tried to pass New Voices Laws to ensure student media can only be censored if it: a. Is libelous/slanderous. b. Contains unwarranted invasion of privacy. c. Violates state/federal law. d. Incites disruption.

G. Choosing the Proper Test i. Uncertainty over when Tinker applies and when Fraser, Hazelwood, or O’Brien should dictate outcome. ii. Generally, rules limiting student expression are constitutional if they do not:

a. Limit content that is compatible with the school’s educational priorities. b. Target specific content without a strong justification. iii. SCOTUS generally protects the free speech and press of university students as an essential part of their educational experience.

V. Campus Speech A. Papish v. Board of Curators of the University of Missouri—dissemination of ideas on a state university campus may not be shut off in the name of decency alone.

B. SCOTUS has held a university’s mission is well served if students can engage in dynamic discussions outside the lecture hall.

C. Public universities must support all messages to enhance open extracurricular debate and free speech interests.

D. However, some universities limit student speech to certain “zones,” require authorization, and impose vague nondiscrimination/nonharassment policies.

E. Student Fees and Speech i. SCOTUS has held that public universities must fund student groups on the basis of content-neutral policies. ii. Christian Legal Society v. Martinez—a law school could deny funding/benefits to a religious student group whose members had to sign a statement of faith.

F. Student Publications at Universities i. SCOTUS generally has viewed campus publications as forums for student expression; universities may not control content. ii. Sixth Circuit ruled the confiscation of a university’s yearbook violated students’ First Amendment rights; the university had neither need nor authority to control speech in the student yearbook. iii. Seventh Circuit, using Hazelwood, held the student newspaper was a limitedpurpose public forum beyond university control. iv. Ninth Circuit found editors of a conservative student university newspaper had a First Amendment claim to distribute the paper on campus. v. Pressure from university administrations to try to influence student media has led to student protests (University of Georgia) and lawsuits (Kansas State University).

G. Professional Standards and Student Speech i. Tatro v. University of Minnesota—state supreme court upheld sanctions on a student and ruled the university could regulate student speech related to legitimate pedagogical concerns. a. University’s rules were narrowly tailored and directly related to professional conduct standards. b. University could regulate off-campus conduct that violated specific professional obligations. c. University could not regulate students’ personal expression any time, any place, for any claimed curriculum-based reason. ii. Oyama v. University of Hawaii—Ninth Circuit affirmed the university’s expulsion of a student based on his unprofessional and inappropriate speech because it related directly to established professional standards and was narrowly tailored. iii. Keefe v. Adams—Eighth Circuit ruled college administrators and educators can require compliance with standards of the profession (on and off campus) as long it is related to legitimate pedagogical concerns.

H. Speech Codes i. Universities adopted and strengthened campus speech codes in the 1980s. ii. Generally, prohibit campus: a. Harassment. b. Bigotry. c. Discrimination. iii. Courts found speech codes targeting offensive speech unconstitutional because they reduced exchange of ideas based on content. iv. Universities argue codes protect civil discourse and advance educational missions. v. Recently, universities’ rules implement Title VII prohibitions against workplace harassment, hostile work environments, and discrimination (e.g., University of Wisconsin, University of Michigan).

vi. Faculty language that provokes student protest has led universities to examine the boundary between faculty First Amendment freedoms and an equitable educational environment (e.g., University of Rochester, Columbia University).

VI. Emerging Law A. Although K-12 schools must ensure curriculum is age appropriate and of good quality, schools may not constitutionally remove library books.

B. Efforts to remove books (esp. those focused on anti-racism, anti-Semitism, and LGBTQ issues) have increased in recent years. i. Part of a larger to ban the teaching of Critical Race Theory (generally taught in law/graduate school). ii. “Critical Race Theory” as a term was co-opted by pundits to challenge the teaching of anti-racist concepts. iii. Proponents claim this gives parents more control over what their children are taught in school. iv. Opponents fear it creates a chilling effect on classroom discussion and further marginalizes racial minorities and the LGBTQ community.

Lecture Notes Chapter 4: Libel and Emotional Distress: The Plaintiff’s Case Learning Objectives 4-1 Review the brief history of libel law.

4-2 Apply the elements a plaintiff must prove to win a libel case.

4-3 Examine what may be considered emotional distress.

4-4 Explain the elements of intentional infliction of emotional distress.

4-5 Describe the elements of negligent infliction of emotional distress.

4-6 Consider how emerging law could change libel and emotional distress claims.

Annotated Chapter Outline I.

A Brief History

A. Earliest recorded Western prosecution for reputation-damaging remarks: execution of Socrates in 399 BCE. B. Libel (“little book”)—legal term comes from Roman practice of publishing booklets to defame one another.

C. 15th-Century England: defamation complaints heard in the court of common law or court of the Star Chamber.

D. 18th-Century England: Sir William Blackstone’s “Commentaries on the Law of England” played a role in development of law in the United States.

E. Sedition Act of 1798: law that made it a federal crime to write “any false, scandalous and malicious” statements against either the president or Congress in the United States.

F. 19th-Century United States: Chief Justice John Marshall’s defense of the Sedition Act. II. Elements of Libel: The Plaintiff’s Case A. Libel—a tort governed by state law, with some protection under the First Amendment.

B. Libel law checks the power of the media.

C. Burden of proof: the requirement for a party to a case to demonstrate one or more claims by the presentation of evidence (on the plaintiff in libel suits).

D. Plaintiff: the party who initiates a lawsuit.

E. Statement of Fact i. Fact: as defined by the dictionary, “a piece of information presented as having objective reality.” ii. Difference between fact and opinion is important in libel proceedings. iii. Example: federal district court in Illinois and blogger articles.

F. Publication i. Published: a statement made to more than the plaintiff and defendant; one requirement a plaintiff must prove if a statement is to be found libelous (e.g., a group text). ii. Single publication rule—multiple copies of a single edition can only be the basis of one defamation claim. iii. Republication rule—providing the same information in a new edition to a new audience may lead to a separate claim.

iv. Republication a. Republishing libelous information is seen as a new publication. b. Rationale—to prevent individuals or the media from freely committing defamation simply by attributing the libelous material to another source. c. Hyperlinks require context to determine whether a piece is a single publication or a republication. d. Ongoing evolution of law with technology. e. Communications Decency Act: the part of the 1996 Telecommunications Act that largely attempted to regulate internet content; the fair report privilege; the neutral reportage defense; and the wire service defense. v. Vendors and Distributors a. Publisher liability—determined by whether publishers are or should be aware of the material they disseminate (presumption that they have read and edited the content). b. Communications Decency Act: internet service providers are not publishers or distributors (AOL Zeran decision; Joy Reid case). vi. Unknown Publisher/Anonymous Speech a. The ability to speak anonymously can allow ideas to enter the marketplace of ideas by reducing the fear of reprisal. b. State courts have taken multiple approaches to “unmask” anonymous posters on the internet in libel cases (e.g., Dendrite v. John Doe #3). c. Motion to dismiss: a formal request to the court to dismiss a case often filed by the defendant immediately after a plaintiff files suit. d. Prima facia: a showing based on looking at the evidence on its face, which is considered a sufficient showing of evidence to establish a fact unless substantially contradictory evidence is presented. e. Yelp, Inc. and Glassdoor cases in California. f.

Different approaches (Summary judgement standard, Tenth Circuit Courts, Virginia).

G. Identification i. Identification: a test that asks whether the allegedly defamatory statement reasonably refers to the plaintiff (e.g., Kshama Sawant’s identification of two police officers who shot a Black civilian). ii. Group Identification a. Libel law can allow any member to sue when the group has been libeled as long the information is “of and concerning” the specific individual bringing the suit. b. Normally less than 25 members of the group. c. Examples: group libel claim of tanning salons in Nebraska, teenager from Kentucky wearing a MAGA hat.

H. Defamation i. Defamatory: harmful to reputation. ii. Libel per se: a statement whose injurious nature is apparent on its face and requires no further proof. iii. Examples: court of appeals in Louisiana (2021), California appeals court case (2021), Iowa district court slander case (2020), New York Supreme Court HIV libel case, Eighth Circuit Court of Appeals Facebook clip case. iv. Article headlines can occasionally be libelous (e.g., Tennessee federal court case regarding Daryle Singletary). v. Libel per quod: a suit that is actionable as defamation only when the plaintiff introduces additional facts to show defamation. vi. Plaintiffs must show material “is reasonably capable of sustaining defamatory meaning.” vii.Business Reputation a. Businesses/corporations can suffer harm that can impair their ability to conduct business. b. Individuals within a business may have legitimate libel claims if criticism of the business falsely implies wrongdoing on their part. viii.

Trade Libel

a. Trade libel: defamatory material that pertains to criticism of products rather than criticism of people or businesses. b. Examples: “veggie libel;” Texas cattlemen sued Oprah Winfrey for remarks about mad cow disease, “pink slime”, and Beef Products, Inc. c. Most states have different approaches for defamation of a person, corporation, or product.

I.

Falsity i. False: one of the requirements for a statement to be libelous; not true. ii. The plaintiff is responsible for proving an issue is false (historically, this was reversed). iii. Substantial Truth a. Substantial truth: the idea that minor inaccuracies do not amount to falsity so long as the substance of the libelous charge can be justified. b. Example: CNN’s 2019 coverage of President Trump’s first impeachment. iv. Libel by Implication a. Implication or innuendo can create a libelous message (e.g., dismissed case of a crane operator who said wrongdoing was implied in headlines and images). b. Different courts vary on their definition of defamation by implication.

J.

Fault i. Fault: responsibility; one of the requirements a plaintiff must prove regarding the defendant to support a libel claim. ii. New York Times Co. v. Sullivan. a. Supreme Court ruling that made fault an element of common law libel. b. Impact on journalism and democracy. c. Arose within the context of the Civil Rights Movement and reporting around illegal measures to stop protests. d. Decision was based on the premise that punishing a media organization for publishing criticism of government officials was contrary to the First Amendment.

e. Actual malice was the new level of fault established in the Sullivan case. f.

Gave news media license to more aggressively criticize the government.

K. Actual Malice i. Actual malice: knowledge of falsity or reckless disregard for the truth. ii. Knowledge of Falsity a. Knowledge of falsity: lying—publishing information with awareness it is false. b. Generally uncommon in the news media. c. Important cases: a. Sen. Barry Goldwater—only publishing damaging expert opinion. b. Psychoanalyst Jeffrey Masson—alteration to source’s wording. c. ATSA reporting—immunity for reporting “suspicious” behavior to the TSA. iii. Reckless Disregard for the Truth a. Highly irresponsible journalism. b. Important cases: a. Saturday Evening Post—failure to check credibility. b. The Associated Press—leniency for hot news that requires immediate dissemination. c. Importance of determining a defendant’s (e.g., a publisher’s) state of mind. d. Purposeful avoidance of the truth: publishing information when there are obvious doubts about the accuracy of information and not taking obvious steps to check its accuracy; often present in actual malice libel claims (e.g., case involving reporting on special agent Beth Desmond). iv. Public Officials a. Sullivan established that the standard of fault for public official plaintiffs is actual malice; private figures usually required to show some lesser level of fault, typically negligence.

b. “Public official” designation—those among the hierarchy of government employees who have a substantial responsibility for or control over the conduct of government; not all governmental employees qualify. v. Public Figures a. Butts and Walker cases defined public figures. b. Public figures: plaintiffs who are in the public spotlight, usually voluntarily, who must prove the defendant acted with actual malice to win damages. vi. All-Purpose Public Figures a. All-purpose public figure: term defined in Gertz v. Robert Welch, Inc.; anyone who occupies positions of persuasive influence a court deems to be “public figures” under all circumstances. b. Examples: celebrities or high-profile athletes, activists, religious leaders, and business leaders. vii.Limited-Purpose Public Figures a. Voluntary limited-purpose public figure: a public figure who invites attention and comment but whose prominence may apply only to a narrowly drawn context (e.g., a doctor who has written extensively on health as a columnist). b. Example: Russian business conglomerate case (2021). c. An individual can be a limited-purpose public figure in smaller publics but a private figure in larger spheres. d. Bootstrapping: the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit. e. The question is whether the plaintiff volunteered for an activity from which publicity would foreseeably arise (e.g., Kathrine McKee’s story in the New York Daily News). viii.

Involuntary Public Figures a. Involuntary limited-purpose public figure: a person who becomes a public figure through no purposeful action of their own. b. Court believes these public figures to be rare.

ix. Losing Public Figure Status a. To return to private status, plaintiffs likely need to demonstrate that they are no longer subjects of public concern and that their libel claims are not connected to events/controversies about which the public remains concerned. b. Example: Texas small-town police chief is still a public figure after resigning. x. Private Figures a. Private figure: a libel plaintiff who does not qualify as a public official or public figure who typically needs to only show that the libel defendant acted with negligence. b. Definition of negligence varies, but it is easier to prove than actual malice. c. Example: Ohio courts applied negligence standard in a television station’s coverage of a robbery. xi. The Nature of the Statement a. Whether a plaintiff is considered an all-purpose or limited-purpose public figure can depend on whether the material being published relates to a matter of public concern (e.g., Supreme Court case regarding a credit reporting agency). xii.Strict liability: a standard under which the plaintiff does not need to demonstrate fault on the part of the defendant to win the suit (e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.; Cox and Padrick case in Oregon).

III. Emotional Distress A. Intentional infliction of emotional distress: a category of emotional distress suit that involves extreme and outrageous intentional or reckless conduct causing plaintiffs to endure severe emotional harm; public official and public figure plaintiffs must show the defendant acted with actual malice.

B. Negligent infliction of emotional distress: a category of emotional distress suit that addresses a careless breach of a duty that causes the plaintiff severe emotional harm.

C. Reckless: an action that is taken with no consideration of the legal harms that might result.

D. Negligent: an act or statement made by mistake or without anticipating the possible harm the act or statement could cause.

E. Emotional distress cases also called “emotional injury” or “mental distress” suits. i. Emotional distress: legally defined as serious mental or emotional pain and suffering or mental anguish.

IV. Intentional Infliction of Emotional Distress A. Intentional or Reckless i. Plaintiff must prove the defendant acted in a way that intentionally—willfully or purposely—or recklessly—deliberate in its disregard of potential distress— caused severe emotional distress (willful, wanton, or reckless conduct). ii. If plaintiffs cannot prove intentional emotional distress, they may be able to prove recklessness.

B. Extreme and Outrageous i. Outrageous: conduct that is so extreme as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community (e.g., dismissed defamation case against John Oliver). ii. High standard plaintiffs must meet is meant to prevent lawsuits being filed over mere insults, annoying comments, and other remarks. iii. Important cases: a. Dismissal of a law student’s defamation and intentional infliction of emotional distress (IIED) case in Massachusetts (2020). b. Fox News settlement of an IIED case with the Rich family. c. Website found outrageous and intolerable by perpetuating conspiracy theories in Virginia.

C. Emotional Distress i. Proving severe emotional distress requires proving more than mild annoyance or embarrassment (e.g., a woman was not found to have endured severe emotional distress as a result of a text message falsely stating she had a sexually transmitted infection in Georgia). ii. A famous person suing for IIED also must prove actual malice.

D. Actual Malice

i. Hustler Magazine, Inc. v. Falwell (court extended its actual malice ruling to IIED cases). ii. Court found that, as satire, the First Amendment protected the magazine’s Campari ad. iii. Does not protect all parodies/satire (e.g., it cannot include false statement of fact published with actual malice).

E. Matters of Public Concern i. Snyder v. Phelps established that speech about matters of public concern, even “particularly hurtful” expression, is protected against an IIED lawsuit. ii. In response, Congress adopted a law limiting protests at funerals. iii. Court of Appeals found the First Amendment barred an IIED claim addressing a news report that described conduct as stalking (2021).

V. Negligent Infliction of Emotional Distress A. If one person carelessly causes emotional harm, the injured person may sue using negligent infliction of emotional distress (NIED).

B. A plaintiff suing for NIED must prove that the: i. Defendant had a duty to use due care. ii. Defendant negligently breached that duty. iii. Breach caused the plaintiff’s injury. iv. Breach was the proximate cause of the plaintiff’s severe emotional distress.

C. Duty of due care: indicates the defendant should have foreseen that negligence could cause harm to the person or people to whom they owed a duty; breaching it means the defendant did not act reasonably.

D. Proximate cause: the law’s way of asking if it is reasonable to conclude the defendant caused the plaintiff’s injury.

E. Courts in some states require plaintiffs to show a degree of physical harm.

F. Example: U.S. Court of Appeals dismissed a NIED claim against Twitter, Google, and Facebook. i. NIED suits against the media usually fail, but plaintiffs have won NIED cases when the media put them in harm’s way.

VI. Emerging Law A. Electronic media evolved, and courts have considered significant questions about defamation, IIED, and NIED. B. Courts have seen a surge of defamation cases in which plaintiffs seek damages and a court order (injunctive relief) to stop future publication of defamatory content. i. Bar is high because of concerns about prior restraint. ii. Example: judge in Georgia granted a permanent injunction against YouTuber Tasha K. C. Important cases: i. Coral Ridge Ministries Media, Inc. alleged defamation when the Southern Poverty Law Center listed the organization on a “Hate Map.” ii. Tah v. Global Witness Publishing, Inc. (2021).

D. Certain justices on the Supreme Court may be open to reconsidering New York Times v.

Sullivan.

E. Consideration of media defendants’ use of social media, email, and other technologies in evaluation of whether defendants acted with actual malice (e.g., Congressman Devin Nunes’s libel claim).

F. NBC 10 WJAR case—they did not act with purposeful avoidance of the truth when reporting on a parking ticket scandal.

G. Other recent cases: i. Texas IIED as gap-filler tort (2021). ii. Massachusetts’ finding that a failed defamation claim cannot be recycled as IIED/NIED (2020). iii. New York IIED may be invoked when other laws would not allow recovery of damages.

Lecture Notes

Chapter 5: Libel: Defenses and Privileges Learning Objectives 5-1 Determine when truth can function as a defense for libel.

5-2 Compare federal courts interpretations of various states’ Anti-SLAPP legislation.

5-3 Apply the concepts of absolute and qualified privilege to questions regarding newsgathering.

5-4 Analyze whether a statement is a false fact or a protected opinion using the Ollman test.

5-5 Evaluate when computer service providers can rely on Section 230 immunity as a defense for libel.

5-6 Assess when credible accusations may or may not be subject to libel suits.

5-7 Be familiar with how elements of the legal system such as jurisdictions, statutes of limitations, and summary judgement may influence outcomes in libel cases.

5-8 Analyze recent developments in the application of the single publication rule.

Annotated Chapter Outline I.

Truth A. As long as the statement is substantially true, it cannot meet the standard for falsity and therefore cannot be libelous.

B. Libel defendants may try to show they conducted themselves responsibly while gathering/reporting the news (e.g., media defendant may disprove plaintiff’s claim that employees acted with reckless disregard for the truth).

C. Courts have said no single element is sufficient to prove a defendant acted with reckless disregard.

D. News media libel defendants strengthen their position by showing: i. They thoroughly investigated the story. ii. They conducted interviews with credible people who had knowledge of facts related to the story, including the subject of the story. iii. They did not solely rely on previously published material. iv. They did not solely rely on biased stories. v. Their reporting was careful, systematic, and painstaking.

vi. They sought multiple viewpoints, which were included in the story when possible. vii.They showed a willingness to retract or correct a story when facts warranted such action. viii.

If applicable, there was a demonstrable deadline.

II. Anti-SLAPP Protection A. Strategic lawsuits against public participation (SLAPPs): lawsuits whose purpose is to harass critics into silence, which suppresses the critics’ First Amendment Rights.

B. Example: a news media outlet publishes a story critical of a large corporation. That corporation sues the outlet for libel to try to discourage any further criticism.

C. Anti-SLAPP laws: legislation that allows defendants to make a motion to strike a lawsuit because it involves a matter of public concern.

D. Few instances where state Supreme Courts struck down anti-SLAPP laws because they violated a plaintiff’s right to a jury trial (e.g., Washington, Minnesota).

E. Other states (e.g., New York, California) have recently amended anti-SLAPP legislation to provide more robust protection.

F. 29 states, District of Columbia, and Guam either have an anti-SLAPP statute or have state courts that recognize anti-SLAPP protections.

G. Federal Rules of Civil Procedure: dating back to the 1930s, rules that govern all civil proceedings in the U.S. district courts. i. Split between the Ninth and Second Circuits in 2020. ii. D.C., Fifth, and Eleventh Circuits have rejected state anti-SLAPP laws. iii. First and Ninth Circuits have held state anti-SLAPP laws are applicable federally. iv. Supreme Court has not taken cases involving state anti-SLAPP laws.

III. Fair Report Privilege A. Fair report privilege: the recognition that accurate and fair reporting of official government records or proceedings provides protection from defamation and related claims.

B. Absolute privilege: the complete exemption from liability for defamation because the statement was relevant to, pertinent to, and made during official government proceedings.

C. Fair report privilege covers: i. Executive, judicial, and legislative branches of state. ii. Local and federal governments. iii. Private individuals communicating with the government. iv. Media accounts of judicial proceedings that are typically available to the public (e.g., Pennsylvania and New York courts held minor inaccuracies are protected). v. Documents relating to the judicial branch. vi. Law enforcement agencies, including reports of police activity. a. Example: a newspaper was protected from an Illinois police chief’s libel suit because its article was a fair and accurate report. b. Privilege is determined on a case-by-case fact basis and varies by state.

D. Decisions have tended to uphold the privilege in a broad variety of contexts. i. Second Circuit upheld dismissal of a case against The New York Times because the reporting was based on court proceedings. ii. Eleventh Circuit ruled an Associated Press story accurately reported information from a lawsuit because the information came directly from litigation materials.

E. Courts have not generally extended privilege to attorneys’ statements about their clients’ defamatory allegations via traditional and social media (e.g., Texas Supreme Court ruled attorneys’ statements to media promoting clients’ allegations are not related to proper administration of the justice system and are not protected).

F. Privilege has been extended to hyperlinks to other news articles that cite an official proceeding (e.g., Second Circuit upheld a ruling that a hyperlink to a story that described a sworn declaration made in a lawsuit was sufficient to invoke the privilege).

IV. Opinion A. Holding and expressing opinions, however pernicious, is a First Amendment right.

B. Lack of guidance on applying the Gertz decision and the opinion defense.

C. Ollman test: i. Is the statement verifiable (can it be proven true/false)? ii. What is the common usage/meaning of the words?

iii. What is the journalistic context in which the statement occurs? iv. What is the broader social context into which the statement fits?

D. After the Ollman test, courts granted opinion a wide berth of protection (e.g., Newsweek was allowed to reference a false accusation of sexual assault).

E. Milkovich decision—reframing the opinion defense, First Amendment protection applies to statements that i. Are not provably false. ii. Cannot reasonably be interpreted as stating facts.

F. Dallas Morning News v. Tatum—illustrates how courts apply Milkovich and analyze defamatory meaning and statements of fact and opinion.

G. Derogatory opinions are protected when based on disclosed facts (e.g., Third Circuit affirmed the dismissal of a lawsuit filed by a Trump supporter who claimed that a Newsweek article had defamed him).

H. Letters to the Editor and Online Comments i. Protection for online comments is based on earlier cases that focused on letters to the editor of a newspaper. a. Opinion blogs. b. Comments on review websites. c. Comments below news articles on websites/social media. ii. Stems from journalistic context in the Ollman test. iii. A comment in a section of a publication set aside for opinions is much more likely to be viewed as an expression of opinion. iv. Examples: a. Elon Musk won his case against a man who Musk had called “pedo guy” on Twitter because the comments were opinion in context. b. Appellate court in California affirmed the dismissal of a libel case against Gizmodo because its article was a sarcastic, opinion-based review.

I.

Rhetorical Hyperbole, Parody, and Satire

i. If material for a libel claim is so outrageous that no one would believe it, a plaintiff cannot show damage to reputation (e.g., Hustler Magazine, Inc. v.

Falwell). ii. SCOTUS first recognized rhetorical hyperbole as protected speech when a developer sued a publisher after their newspaper reported some characterized the developer’s tactics as blackmail. iii. (Rhetorical) hyperbole—figure of speech that uses extreme exaggeration to make a point/show emphasis (e.g., Ninth Circuit ruled that a reasonable person would understand Rachel Maddow’s statement during a news story was an obvious exaggeration). iv. Satire/parody meant to be humorous or offer social commentary is often not libelous (e.g., federal judge dismissed Roy Moore’s case against Sacha Baron Cohen because the segment with Moore was a clear joke).

V. Section 230 Immunity A. Critical to the functioning of the internet.

B. Generally provides legal protection to website operators and internet service providers when issues arise on interactive services that rely on: i. User-generated content. ii. Information provided from third-party RSS feeds. iii. Reader comments.

C. Key question: What is the source of the content and the extent to which the ISP interacted directly with the content?

D. California state court ruled that because Facebook creates and develops commercial content without user consent, Facebook is not immune (creation vs. distribution).

E. In a case with TheDirty.com, the Sixth Circuit extended Section 230 protection if the operator of a website creates/adds content to a post that is potentially libelous.

F. Not an ironclad protection (e.g., Ninth Circuit refused to grant immunity to Internet Brands, Inc. in a case a networking website it operated).

VI. Other Defenses A. Neutral Reportage

i. Neutral reportage: a defense accepted in some jurisdictions that provides First Amendment protection for reporting of an accusation made by a responsible and prominent organization, even when it turns out the accusation was false and libelous. ii. Scope of application has sometimes expanded beyond public figures, but courts have not uniformly embraced neutral reportage. iii. SCOTUS has not heard a neutral reportage case, so application is down to individual state and federal districts. iv. Potential applications: a. Media reporting on #MeToo allegations that emerged on social media. b. Ongoing case against Fox Corporation for Fox News statements about Smartmatic voting machines.

B. Wire Service Defense i. Related to the neutral reportage doctrine and provides a defense for republication on the condition that the reporting meets certain standards. ii. Reflects and acknowledges the extent to which news media are dependent on news services, particularly for nonlocal news. iii. Available to libel defendants if four factors are met: a. The defendant received material containing the defamatory statements from a reputable newsgathering agency. b. The defendant did not know the story was false. c. Nothing on the face of the story reasonably could have alerted the defendant that it may have been incorrect. d. The original wire service story was republished without substantial change. iv. Has succeeded even when a newspaper published a story that relied on past wire service articles and when a network affiliate broadcast news reports of its parent network.

C. Single-Publication Rule

i. Single-publication rule: the limitation on libel victims to only one cause of action even with republications of the libel in the same outlet, which is common in mass media and online. a. The entire edition of a newspaper or magazine is a single publication. b. Subsequent sales/reissues are not new publications. ii. Also applies to online publications and social media. a. Shares, links, or re-tweets are not republication unless the post involves content changes that create a new libel. b. Recent decision from the Eighth Circuit suggests resharing the link to defamatory content may be grounds to bring a new claim.

D. The Libel-Proof Plaintiff i. Libel-proof plaintiff: a plaintiff whose reputation is deemed to be so damaged that additional false statements of and concerning that person cannot cause further harm. ii. Two different ways to implement this concept as a libel defense: a. Any reputational harm to the plaintiff caused by a false accusation only incrementally adds to the already damaged reputation. a. Supreme Court of New York dismissed a case from former Major League Baseball player Lenny Dykstra, who the court deemed a libel-proof plaintiff. b. Acceptance of this part of the doctrine has not been universal (e.g., D.C. Circuit rejected the libel-proof plaintiff doctrine). b. Plaintiffs with tarnished reputations with regard to a particular issue are libel-proof only with respect to that issue.

VII. Additional Defense Considerations A. Summary Judgment i. With libel, generally means a plaintiff is clearly unable to meet at least one element of the burden of proof. ii. If it is granted, the plaintiff’s opportunity to prove a case ends; if a defendant’s motion is denied, they can still prove their case at trial.

iii. Can be important for protecting free expression, particularly when plaintiffs have harassed media by filing frivolous lawsuits.

B. Motion to Dismiss for Actual Malice i. 1979: SCOTUS cast doubt on summary judgment in libel cases because any examination of actual malice questions a defendant’s state of mind. ii. Motions for summary judgment are still granted more often than not. iii. 1986: SCOTUS ruled judges should decide whether public libel plaintiffs can meet the actual malice standard. If not, summary judgment should be granted. iv. Under Twombly and Iqbal, judicial common sense is used to determine the plausibility of a claim and sufficiency of evidence. v. 2012–2016: Circuits begin applying Twombly and Iqbal to actual malice proceedings and dismissing cases. vi. Used to dismiss a 2020 case against Fox News brought by Karen McDougal for statements Tucker Carlson made about her on air.

C. Jurisdiction i. Traditional libel standard: a court in any locale where the material in question could be seen or heard has jurisdiction. ii. Fourth Circuit applied a three-pronged test for determining jurisdiction: a. Whether the defendant purposefully conducted activities in the state. b. Whether the plaintiff’s claim arises out of the defendant’s activities there. c. Whether the exercise of jurisdiction would be constitutionally reasonable. iii. First applied when Connecticut newspapers published articles critical of a Virginia prison; because the newspapers did not direct their website content to a Virginia audience, courts there had no jurisdiction. a. Placing content online is not sufficient on its own to subject a person to the jurisdiction in another state. b. Bottom line: jurisdiction rests where the publication’s intended audience is located.

D. Statutes of Limitations

i. While not a defense per se, delay in filing a libel lawsuit can sometimes require a dismissal if it is barred by the statute of limitations. ii. For libel, statutes of limitations are one, two, or three years depending on the state. iii. Clock begins ticking when the material was made available to the public (not necessarily the official publication date). iv. Arguments in the context of adding new defendants to libel lawsuits and to the filing of anti-SLAPP motions. v. The single-publication rule also applies to statutes of limitations.

E. Retractions i. While not a libel defense per se, retractions and corrections published to correct content can help libel defendants by mitigating damage to the plaintiff. ii. Helpfulness to a defendant’s case depends on the degree to which a retraction is: a. Offered promptly. b. Displayed prominently c. Stated plainly. iii. Retraction statutes: state laws that limit the damages a plaintiff may receive if the defendant has issued a retraction of the material at issue. iv. Some retraction statutes have been found unconstitutional (e.g., Arizona Supreme Court ruled that the retraction statute violated the state constitution).

VIII.

Emerging Law A. Hassell v. Bird—California Supreme Court upheld application of Section 230 immunity, saying Yelp was unprotected and required to comply with an injunction against speech already deemed defamatory.

B. Split between the Fourth and Eighth Circuits regarding whether resharing a link amounts to republication. i. Fourth: hyperlinking does not amount to republication in the Lokhova decision. ii. Eighth: Esquire journalist’s tweet with a link to a story at the center of an earlier defamation suit amounted to republication.

a. Concluded that the Fourth Circuit did not categorically hold hyperlinking never constituted republication. b. Said the single publication rule was not intended to apply to separate aggregate publications on different occasions.

Lecture Notes Chapter 6: Protecting Privacy: Conflicts Among the Press, the Government, and the Right to Privacy Learning Objectives 6-1 Review the constitutional right to privacy relevant to controlling access to information.

6-2 Explain the four privacy torts and to what they apply.

6-3 Describe the elements of a plaintiff’s intrusion claim.

6-4 Apply the elements of a plaintiff’s false light claim.

6-5 Differentiate between right of privacy and right of publicity-based appropriation claims.

6-6 Identify the elements of a plaintiff’s private facts claim and relevant First Amendment privileges.

6-7 Recognize data protection standards related to information privacy.

6-8 Discuss how emerging trends are protecting privacy and publicity rights.

Annotated Chapter Outline I.

Constitutional Right to Privacy A. Grounded in the founders’ recognition of important personal liberties (Third, Fourth, Fifth Amendments).

B. Griswold v. Connecticut—the word “liberty” in the Fourteenth Amendment also includes personal privacy (birth control ban violated privacy rights of married couples).

C. Roe v. Wade—affirmed qualified constitutional protection for personal privacy established in Griswold (abortion rights).

D. Search warrants: legal orders issued to authorize law enforcement to search locations and seize items.

E. Probable cause: sufficient information and facts to think a crime was committed based on reliable information and facts.

F. 1928: court held an electronic eavesdropping device did not amount to a search under the Fourth Amendment because placing it did not involve physical entry into the home.

G. Silverman v. United States—federal officers eavesdropping using a microphone placed through the wall of a home constituted a search (violated Fourth Amendment).

H. Katz v. United States—recording a phone conversation without a warrant is a Fourth Amendment violation.

I.

City of Ontario v. Quon—government employers may see public employees’ text messages sent/received on government-issued equipment if they are legitimately work related, and public employees have been told not to expect privacy.

J.

Challenges to privacy involving communication via new technologies, such as: i. United States v. Jones (GPS transmitter). ii. Riley v. California (cellphone search). iii. Carpenter v. United States (cell-site location information). a. Decision did not neatly fit with the previous cases (United States v.

Miller and Smith v. Maryland) but also did not overturn them. b. Third-party doctrine: the concept that people who voluntarily give information to third parties, such as banks, phone companies, or internet service providers, forfeit any reasonable expectation of privacy.

II. Privacy Torts A. Professor William Prosser’s four categories of privacy law: i. Intrusion—physically/technologically disturbing another’s reasonable expectation of privacy. ii. False light—making people seem to be someone they are not in the public eye. iii. Appropriation—using a person’s name/picture/voice without permission for commercial purposes or for one’s own benefit. iv. Private facts—publicizing in a manner that would be highly offensive to a reasonable person, true, private information that is not newsworthy/a matter of public significance.

B. Only living individuals may sue for intrusion, private facts, and false light.

C. Businesses, associations, unions, and other groups generally do not have personal privacy rights and most often cannot sue for a privacy tort.

III. Intrusion A. Intrusion upon seclusion: physically or technologically disturbing another’s reasonable expectation of privacy.

B. Plaintiff’s Case i. Reasonable person: the law’s version of an average member of a community. ii. Reasonable Expectation of Privacy a. Intrusion may occur when an intentional intrusion interferes with a person’s interest in solitude/seclusion. b. Ninth Circuit found plaintiffs could sue Facebook for intrusion based on the company’s use of plug-ins on third-party sites to track browsing histories (2020). c. Journalists might commit intrusion by intentionally entering private property without permission. d. Third Circuit has ruled that no reasonable person would be highly offended by Google’s entry onto a private road for their Street View feature. e. Hill v. Colorado—Colorado’s abortion clinic privacy law meets the intermediate scrutiny test; people entering health clinics have a reasonable expectation of privacy even if people do not have this expectation on ordinary public streets. f.

Journalists should not assume people involved in a news event occurring on public property lack a reasonable expectation of privacy.

g. Public records: government records that are available for people to inspect that have no reasonable expectation of privacy. iii. Intentional Physical or Technological Intrusion a. The more technology develops, the more ways intrusion can occur (e.g., drones, tracking devices, and private computer hacking). b. Older technology (e.g., camera’s telephoto lens, camera recordings) also can intrude.

iv. Highly Offensive to a Reasonable Person a. Ninth Circuit ruled this requires considering the: a. Likelihood of serious harm to the victim. b. Degree and setting of the intrusion. c. Motives and objectives for an intrusion. d. Social norms. b. Plaintiff must demonstrate the intrusion is outside the bounds of socially acceptable activity.

C. Defenses i. Consent is the only defense for an intrusion suit based on trespass in nearly all cases. ii. Consent a. Cannot claim reasonable expectation of privacy if consent was given for someone to be on private property. b. Consent can also be implied. iii. False Pretenses a. Courts do not agree but say reporters sometimes can deceptively gain entry without invading privacy. a. Seventh Circuit ruled people posing as patients could enter clinics without invalidating consent to enter. b. A court ruled a patient had a reasonable expectation of privacy in a hospital emergency room; a photographer’s deception invalidated the patient’s consent. b. One federal appellate court said that combining false pretenses with surreptitious image and audio recording after entering a home was intrusive (e.g., people have a reasonable expectation of privacy in their homes even though a person might expect a visitor to repeat what is seen and heard in the house). c. It is illegal in most states to pretend to be a law enforcement officer. d. In some states, it is unlawful to pretend to be any public official.

IV. False Light A. False light: a privacy tort that involves making a person seem in the public eye to be someone they are not.

B. Often involves the misattribution of a person’s actions or beliefs.

C. Typically does not require a plaintiff to show injury to reputation.

D. Some states do not recognize false light because it is so similar to libel.

E. 2022: federal district court dismissed a false light claim with prejudice that addressed a plaintiff’s public professional life; she had not proven the statements about her public professional life intruded into her private life.

F. Plaintiff’s Case i. Only individual persons can bring a false light suit. ii. Publication a. Material must be distributed to the public/a large segment of the community. b. Courts in a few states equate publication to dissemination to one person/a few people. iii. Identification a. Material in question must be about the plaintiff. b. Large segment of the public must believe the material refers to the plaintiff. c. Courts in some states rule 1+ people must say it identified the plaintiff. iv. Falsity a. Published material must be false/imply false information (not just a minor error). b. Some courts hold true facts can lead to false implications if the defendant intended that result. v. Highly Offensive

a. Fact finder: the jury, if there is one, or the judge, who assess the facts presented as evidence in each case and determine whether the published material would be highly offensive to a reasonable person. b. Defining “highly offensive” is very subjective; some scholars try to clarify the term by using three categories: a. Embellishment—false material is added to otherwise true facts. b. Distortion—facts are omitted/the context in which material is published makes an otherwise accurate story appear false. c. Fictionalization—taking real facts and making them fiction. vi. Fault a. Time, Inc. v. Hill—jury should have been told that the Hills could win only if they proved actual malice; First Amendment protects the press from being sued for negligent misstatements when reporting stories of public interest. b. Cantrell v. Forest City Publishing Co.—upheld a jury verdict in the Cantrell family’s favor because the trial judge correctly told the jury to apply the actual malice standard. c. Courts in at least 11 states follow the precedents in Hill and Cantrell (e.g., Tenth Circuit affirmed the dismissal of a case addressing a Sports Illustrated series on the Oklahoma State University football program; plaintiff could not prove actual malice). d. Courts in at least five states and the District of Columbia have applied Gertz v. Robert Welch, Inc., requiring a private individual to prove negligence.

G. Defenses i. Many courts say if a plaintiff proves all elements of their case, a media defendant may use libel defenses (e.g., fair report privilege). ii. People with absolute privilege in libel suits also have it in false light suits. iii. Truth is a defense in a false light suit. iv. Few courts have decided whether opinion is a defense, and they disagree. v. Some appellate courts have also applied anti-SLAPP statutes to false light claims (e.g., Supreme Court of Nevada).

V. Appropriation A. Appropriation includes two torts: commercialization and the right of publicity.

B. Commercialization and Right of Publicity i. Commercialization (misappropriation) prohibits using another person’s name/likeness for commercial purposes without permission. ii. Right of publicity—the protection of celebrities’ rights to have their names, pictures, likenesses, voices, and identities used for commercial purposes only with permission. a. Everyone has a right to protect their privacy and to decide when their name/picture may (not) be used commercially by others. b. A right of publicity could be transferred, but the right of privacy cannot. iii. Commercialization protects dignity connected with personal privacy; right of publicity protects monetary value. iv. Commercialization is a personal right and does not survive in death; right of publicity may be considered a property right and can be controlled after death. v. Post-mortem rights of publicity: persons’ abilities to control the commercial use of their names, pictures, likenesses, voices, and identities after death. a. Maryland, Massachusetts, and New Hampshire did not extend statutes to 70 years beyond death. b. Indiana’s amended statute applies 100 years beyond death. c. Jurisdiction is determined by primary residence at the time of death.

C. Plaintiff’s Case i. Name, Image, or Likeness a. Something in the ad must show it was of and concerning the plaintiff (e.g., Hasbro and anchor Harris Faulkner case). b. There must be reasonable grounds for identifying the plaintiff (e.g., 50 Cent’s likeness was invoked for commercial purposes without consent). c. Example: Seventh Circuit upheld a dismissal of a case from a Guinness World Record holder, noting the Illinois right of publicity law does not apply to the use of a person’s name when it truthfully identifies a person as an author/performer.

d. Names and associated information widely available to the public are not protected (e.g., online fantasy baseball league can use Major League Baseball players’ names and statistics without permission). e. A district court dismissed a right of publicity claim because the advertisements failed to identify the specific plaintiffs in the case. ii. Voice a. Sound-alike: someone whose voice sounds like another person’s voice. a. Require permission or a disclaimer. b. Example: Bette Midler’s suit against Ford Motor Co. for appropriating part of her identity. iii. Identity a. People have characteristics beyond their face/voice that are protected (e.g., Vanna White sued Samsung Electronics for their ads showing a robot standing by a “Wheel of Fortune”-style letter board in an evening gown, jewelry, and a long blond wig). b. Actors impersonating celebrities in noncommercial/non-advertising situations (e.g., satire or parody) are not appropriating the celebrities’ likenesses or voices. iv. Commercial Use or Appropriation a. Famous people are protected against unapproved uses of their names and likenesses to advertise or promote services or goods (e.g., Sacha Baron Cohen sued a corporation for using an image of him as his character, Borat, without permission on a billboard ad). b. Cases that clarify when names may be used commercially: a. Whitepages, Inc. case. b. Thomson Reuters Corp. case. c. Example: Sixth Circuit Redbubble case. v. Consent a. Providing permission for a specific entity to use one’s image for one purpose does not equate to providing permission for other uses.

b. Models with no connection to a strip club won their case against a club owner for using their images to advertise on Facebook without consent. c. Models, actresses, and businesswomen received a summary judgment in a similar case; Second Circuit reasoned defendants lacked written consent to use the images for promotional purposes and reversed the judgment.

D. Defenses i. Newsworthiness a. Defined broadly in relation to matters of public interest. b. Judges do not carefully analyze content to determine its newsworthiness. c. SCOTUS has heard one appropriation case; rejected a TV station’s claim when a local newscast showed an entertainment act in its entirety without consent or compensation. ii. First Amendment Defenses a. Common today, particularly in the context of news or artistic works. b. Courts have also considered whether commercial products (e.g., posters, dolls, T-shirts, and games) have First Amendment protection. a. Most often, posters do not have First Amendment protection. b. Distinction between merchandise exploiting celebrities’ names or likenesses and posters conveying newsworthy information. c. Question arises most frequently when a well-known person is used in an artistic work a. One approach used is the artistic relevance test. b. Transformative use test: a commonly used metric that determines whether the First Amendment protects a work that uses a person’s name, picture, likeness, voice, or identity for artistic purposes against a right of publicity suit. c. Predominant use test: a metric that determines whether the use of a name or picture was more for commercial purposes or protected expression.

iii. Ads for the Media a. Mass media may use their own content in advertisements for themselves when using the names and likenesses of public figures without consent if those figures were part of the media’s original content. b. Recognized in the Holiday/Shirley Booth case. c. But the Seventh Circuit found that because a grocery store logo was prominently featured in an ad with its slogan linked in the ad text to Michael Jordan, it constituted image advertising. iv. Consent a. Best appropriation defense. b. Professional photographers use releases when taking pictures for advertisements or other commercial uses. c. Oral consent can be a defense but proving it can be difficult. d. Cannot be given by certain people (e.g., minors, those who are not mentally/emotionally capable of entering a legal agreement). e. Limited to the agreement’s terms. f.

Most often explicit, but may be implied (e.g., because a man decided to use an app that sent invitation messages to his smart phone contacts, a reasonable user would understand his name was necessary to include in the invitation messages).

v. Incidental Use a. Use of a person’s name/likeness may be incidental to a work’s primary purpose. b. Typically arises in appropriation claims and not right of publicity claims. c. Someone’s name/likeness can be used so briefly that the purpose was not to make a profit or gain commercial benefit (e.g., a name applied to a fictional terrorist in a comic book appeared in 1 of 116 panels). d. Example: Ohio couple sued for the use of their engagement photo on the cover of a self-published novel; Sixth Circuit held they could not demonstrate the commercial value of their image.

VI. Private Facts A. Plaintiff’s Case i. Private facts tort: a suit that can be brought against a defendant if they publicize truthful private information that is not of legitimate public concern and is highly offensive to a reasonable person. ii. Publicity a. Widespread publicity: making material available to a lot of people or the general public. b. Revealing intimate information in the media. c. Some courts hold that revealing private facts to small groups of people who have a special relationship with the plaintiff is sufficient. iii. Private, Intimate Facts a. Sensitive details a person would not want the community to know. b. Suits could relate to a person’s: a. Financial condition. b. Medical information. c. Domestic difficulties. d. Sexual activities. c. Facts are not private when: a. In a public record. b. A person made them public. c. Told them to more than a few close relatives/friends. d. Example: federal court in Illinois considered whether a plaintiff’s transgender status was a private fact and reasoned this was private because the defendant revealed concrete information that had previously remained private. e. If a person reveals intimate facts publicly, the media is not barred from publishing the information (e.g., book written about teenagers’ feud).

f.

Current issue: a private facts lawsuit is hard to win in revenge porn cases because often the victim initially shared the image with someone.

iv. Highly Offensive to a Reasonable Person a. Supreme Court of Indiana said this disclosure must offend the society’s norms. b. Plaintiff must prove a reasonable person would feel seriously aggrieved by disclosure. v. Legitimate Public Concern a. Courts give the media leeway to determine what is newsworthy (e.g., crimes, suicides, divorces, catastrophes, diseases, etc.) b. Courts have distinguished between: a. Information the public is entitled to know. b. Facts publicized for a morbid or sensational reason. c. Example: federal court in Florida dismissed a claim from a former congressional candidate against political groups and individuals because information about the way a political candidate conducts their professional and personal life is valuable to voters. d. Other courts determine whether there is a connection between the news event and private facts. a. Pamela Anderson Lee and Bret Michaels successfully prevented distribution of their sex tape. b. Hulk Hogan won a suit against Gawker Media for reporting on and showing excerpts of a sex tape. c. Jason Pierre-Paul settled a suit with ESPN after a reporter tweeted photos of his hospital records from a 2015 hand injury. e. Some courts put the newsworthiness burden on the defendant while others put it on the plaintiff. a. Transgender student body president was required to prove remarks about her gender were not newsworthy because putting the burden on the media could lead to self-censorship.

f.

A mug shot (police photograph of an arrested person’s face) is newsworthy.

g. Several plaintiffs have filed privacy-related lawsuits against websites that publish mugshots. a. Federal court in Pennsylvania dismissed one lawsuit but left the question open. b. District court in Illinois decided Mugshots.com and its second website, which removed listings for a fee, were not entitled to First Amendment protection. h. Some plaintiffs have argued the passage of time means information is no longer of legitimate concern, but courts have rejected this argument.

B. First Amendment Defense i. Truthfully Reported a. Florida Star v. B.J.F—the First Amendment protected a newspaper that truthfully published the name of a rape victim, reasoning that violent crime is a publicly significant topic, when that information was lawfully obtained from public records. a. The government itself supplied the information. b. State law forbidding the names from being published had no exceptions. c. State law applied to the media, allowing others to disseminate a victim’s name. b. Information in public government records/presented in public meetings is not private. c. Unless a judge seals a record, court records are public. ii. Lawfully Obtained a. Cox Broadcasting Corp. v. Cohn—truthful information lawfully obtained from a public court record cannot be the basis of a private facts lawsuit. b. Oklahoma case—the press had lawfully obtained information about a juvenile defendant; First Amendment prohibits punishing the press for revealing information taken from public records.

c. West Virginia case—First Amendment protects news reports where journalists have lawfully obtained truthful information from publicly available sources. iii. Matter of Public Significance a. First Amendment sometimes protects publication of unlawfully obtained private information if the information is newsworthy when the publisher was not involved in unlawful activity. b. Bartnicki v. Vopper—punishing the media for publishing information they obtained without acting illegally (even if the source did) does not further a compelling government interest.

VII. Privacy and Data Protection A. Concerns about privacy add additional threats from marketers, data brokers, and other businesses that amass personally identifiable information.

B. Data are collected via: i. Online communications. ii. Financial transactions. iii. WiFi connected devices.

C. California Consumer Privacy Act of 2018—consumers can request and receive information about business collection of categories of personal information and purposes for which that information would be used.

D. California Privacy Protection Agency—enforces consumer privacy law in that state.

E. Colorado Privacy Act—data privacy rights for consumers to opt out of the processing of personal data for targeted advertising, selling personal data, or profiling consumers.

F. Virginia’s Consumer Data Privacy Protection Act—limits the collection of personal data to purposes disclosed to consumers and considered reasonably necessary.

G. Utah Consumer Privacy Act—consumers can opt out of having sensitive for-profit entities process their personal data.

H. Nevada Privacy of Information Collected on the Internet Act—operators who collect and maintain information must notify consumers about collection of certain personally identifiable information (e.g., names, addresses, contact info, and social security numbers).

I.

Privacy Law Professor Woodrow Hartzog notes state data privacy laws are narrow in scope and cannot tackle the massive power of bigger businesses. i. In some states, bills could require companies to get consumers’ consent/have consumers opt in. ii. Biometric data: information that relates to personal characteristics that may be used to identify an individual (e.g., fingerprints or unique facial features). iii. Illinois Biometric Information Privacy Act (BIPA)—prevents private entities from collecting, capturing, purchasing, or obtaining a person’s biometric information.

To do so, a company must get consent and inform people: a. That biometric information will be collected and stored. b. Purpose. c. Amount of time.

J.

Fair Credit Reporting Act (FCRA): topic-specific legislation that addresses the accuracy, fairness, and privacy of information stored in consumer reporting agency files. i. Spokeo, Inc. v. Robins—Robins could not sue the search engine for damages because he could not show that he suffered harm as a result of Spokeo’s alleged FCRA violation. ii. TransUnion case—being labeled a potential terrorist showed the plaintiffs suffered injury, but only when those reports were disseminated to third-party businesses.

K. Federal Trade Commission (FTC)—protects consumer privacy and enforces federal privacy laws; it called on companies to adopt its recommended best practices. i. Consumer privacy protections at all stages of development. ii. Procedures to promote data accuracy. iii. Give consumers control over how they share their information and the ability not to be tracked. iv. Transparency in how companies collect and use consumer information. v. Data education for the public.

L. 2021: FTC order prohibits Zoom from misrepresenting security features or collection and use of information; also requires implementation of a comprehensive security program.

VIII.

Emerging Law

A. Questions over whether implicit constitutional rights to privacy after overturning Roe v.

Wade.

B. Privacy rights for data stored on electronic devices are not absolute (First, Ninth, and Eleventh Circuit decisions).

C. Telephone Consumer Protection Act of 1991 (TCPA): a federal law that now prohibits most robocalls to cell phones and home phones and is intended to protect individuals against intrusive telemarketing. i. Noah Duguid case—an auto dialer must have capacity for randomness; rejected Duguid’s argument that narrow interpretation would yield a torrent of robocalls. ii. Karen Hepp case—affirmed dismissal of claims against Reddit and Imgur but remanded the dismissal of the claim against Facebook under Section 230 (publicity rights are similar to trademarks).

D. Meta (Facebook) settled a lawsuit alleging it used cookies and plug-ins to track and save information about users’ online activities even after users logged out.

E. TikTok settled a lawsuit alleging it violated federal and state laws by collecting personal and biometric data.

F. Congress and state legislatures have considered how to protect rights from computergenerated simulations may harm (e.g., Hawaii, New York Civil Rights Law). i. NCAA and lawmakers have reconsidered student-athlete rights—by 2023, more than half of the states will recognize student-athlete rights to benefit from uses of their names, images, or likenesses. ii. Congress in 2022 circulated a draft bill intended to provide more comprehensive data privacy protection in the United States.

G. Dobbs v. Jackson Women’s Health Organization—leaked draft majority opinion stated any implicit constitutional right must be rooted in U.S. history and tradition (five justices did not believe the right to abortion existed before the 20th century).

Lecture Notes Chapter 7: Gathering Information: Opportunities and Obstacles Learning Objectives 7-1 Identify general rights of access.

7-2 Explain the First Amendment right of access.

7-3 Describe statutory right of access to information and places.

7-4 List the statutory limits to access information and places.

7-5 Appraise other limits to gathering information.

7-6 Discuss how communication professionals’ information-gathering rights are changing.

Annotated Chapter Outline I.

Brief Overview of Access A. Courts have a history of openness; Congress can keep some records secret, but no law ensures openness from the executive branch.

B. Administrative Procedure Act of 1946—federal officials have discretion to make records public except “for good cause” or “in the public interest.”

C. Mid-1960s: SCOTUS says there is no unrestrained right to gather information.

D. Freedom of Information Act (FOIA, 1966)—presumption of access to all official executive agency records unless the material was exempt.

E. 1970s: access to meetings of federal advisory committees and policymaking bodies.

F. Privacy Act—protected seven types of agency-held personal information from openness.

G. Sunshine laws: laws for access to government information and meetings.

H. Many states enacted open-records and open-meetings laws; federal and state legislatures have amended laws to respond to changing recordkeeping and have passed exemptions.

I.

Courts have struggled to reconcile national security with the uncertain guarantee of government openness since the 9/11 attacks.

J.

USA Freedom Act (2015)—restored post-9/11 anti-terrorism provisions and increased public access to the government’s national security apparatus.

II. First Amendment Right of Access A. SCOTUS has said that newsgathering is important in advancing First Amendment interests.

B. First Circuit (2020)—secretly recording police on duty in public is newsgathering but there is no protection when it interferes with officers’ ability to do their jobs.

C. Several circuit courts have found a First Amendment right of public access to governmental proceedings (e.g., Ninth Circuit Court’s ruling on judicial proceedings).

D. First Amendment access does not: i. Extend to information about specific drugs, personnel, and procedures in executions (e.g., Ninth and Eleventh Circuit’s rulings). ii. Provide a right to access all government property/proceedings and protection against liability for violating rules (e.g., Seventh Circuit ruled the Governor of Wisconsin had not violated two journalists’ First Amendment rights by excluding them from press conferences).

E. Access to Public and Quasi-Public Places i. Complex array of statutes and court precedents establish protections for public and quasi-public spaces (e.g., government restrictions and police arrest). ii. Court decisions consider the nature of the location (e.g., Customs and Border Patrol regulations, courthouses, polling places, and national parks). iii. Some seemingly public property may at times be closed to the public (e.g., roadblock). iv. First Amendment interest in receiving a White House press pass is a liberty interest that cannot be denied without fair notice, as required under the Fifth Amendment.

F. Right to Record i. Generally, it is legal to record whatever can be viewed/heard on or from public property, but it may be restricted in certain circumstances (e.g., murder trial, township planning commission meeting, around courtrooms). ii. Most circuit courts have ruled the First Amendment protects individuals from punishment for recording police activity, but interpretations vary. a. Right to record police in public spaces (Tenth Circuit vs. First Circuit cases). b. Loss of right to record when disobeying orders from police (Fifth Circuit and Court of Appeals of Georgia vs. Supreme Court of Hawaii cases). c. Limitations in public or private locations (Pennsylvania policy forbidding filming in a police station).

III. Statutory Right of Access

A. Two sets of federal and state laws establish boundaries for public access to government meetings and records.

B. Other statutes determine particular conditions under which recordings are permitted.

C. Access to Federal Records i. Freedom of Information Act (FOIA): a federal law that requires records held by federal government agencies be made available to the public. a. Exemptions and exclusions must be interpreted narrowly for greatest possible access. b. Open Government Act of 2007—clarified exemptions, specified application to electronic records, and limited fees and response times. c. FOIA Improvement Act of 2016—permitted agencies to withhold records only if disclosure would harm interests protected by FOIA’s exemptions. d. Specific wording: “agency record.” e. Excludes: a. White House. b. Congress. c. Federal courts. d. Quasi-executive organizations. ii. Legislative history: Congressional reports and records of debate about proposed legislation. iii. Courts have said it applies to all tangible/fixed items that: a. Document government actions. b. May be reproduced. iv. Federal court of appeals ruled an agency’s mere possession of a document did not transform it into an agency record. v. Requests: a. Relatively easy (telephone, email, and mail). b. Written requests are helpful if one sues to obtain the records.

c. Should be as specific as possible (agencies can charge for searches and/or duplication fees). d. Federal agency websites and Reporters Committee for Freedom of the Press also provide request guides. e. Agencies have 20 working days to respond to requests. f.

Burden of proof is on the agency to show why delay/nondisclosure is valid.

vi. Appeals: a. Keep track of: a. Date on which a request is submitted. b. When responses are received. c. What responses are received. d. What records, if any, are released. e. Which exemption, if any, is cited if records are not disclosed. b. Within 90 days of receiving an agency denial, a requester may submit an appeal in writing. c. After receiving the appeal, an agency has 20 working days to respond and may receive an additional 10 working days. d. If the agency still does not disclose the records, the requester may file a lawsuit. e. Example: Circuit Court of Appeals for the District of Columbia case with the CIA. f.

Glomar: a nonreply response taken from the CIA’s refusal to disclose whether it had information related to the rumored involvement of Howard Hughes’ Glomar Explorer in the United States’ attempts to recover a lost Soviet submarine.

vii.Electronic Freedom of Information Act (EFOIA): a 1996 amendment to FOIA that applies the law to electronically stored information and extends FOIA to computer records. a. Requires federal agencies to create a FOIA section on their websites and to provide electronic reading rooms with online copies of records.

b. Encourages agencies to provide expedited access to records when the requester can demonstrate a compelling safety or public interest need.

D. Access to State Records i. Each state and the District of Columbia has an access-to-information/openrecords statute. ii. Freedom of Information laws (FOILS): state open-records laws (vary widely from state to state).

a. State agencies are not required to create/acquire records in response to a request. b. Few states require agencies to produce record indexes. c. Some states require that requesters be state residents. d. Many states have exemptions similar to those of FOIA. e. Most state open-records laws cover electronic and computer-stored records, but some do not require records to be user-friendly. f.

Some state open-records laws cover legislature, executive branch, and courts.

g. Some state laws do not specify response time limits. h. Some states do not specify penalties for agencies violating the law. iii. State open-records laws also apply to cities, school districts, and other state authorities. iv. Debate over when electronic or text messages are public records (content and circumstances). v. Metadata: a set of data that describes and gives information about data, that record the creation date, authorship and edit history of a digital file were a public record. vi. Growing number of states have ruled government employees cannot avoid disclosure by using personal accounts/devices to conduct public business (e.g., Chicago Public Schools’ drinking water case). vii.Almost 2/3 of states and the District of Columbia provide civil/criminal sanctions for failure to comply with records requests.

viii.

Reverse FOI lawsuits: cases against public records requesters (e.g., Missouri election information case, Louisiana case).

E. Access to Federal and State Meetings i. Government in the Sunshine Act (Federal Open Meeting Law): foundational law that establishes public access to federal government meetings. a. Requires federal executive branch agencies, commissions, and boards to conduct their business in public. b. ~1,000 advisory boards are not covered because they have no independent authority. ii. All states and the District of Columbia have varying laws/constitutional provisions ensuring some degree of public access to government meetings. Most of these laws: a. Define a meeting as a physical gathering/videoconference where members interact in real time. b. Require agencies to provide public notice in advance of meetings. c. Require agencies to record minutes of their business. iii. Courts and legislators recently have addressed the importance of providing clear notice about what discussions and actions are planned for public meetings (e.g., Norman, Oklahoma case, Pennsylvania’s amended open-meetings law). iv. Most state open-meetings laws allow nondisruptive audio/video recordings of public meetings (e.g., Hawaii, Iowa, and Utah statutes). v. Several states outline the enforcement of open-meetings laws. vi. People may be forbidden to attend public meetings due to disruptive behavior (e.g., Atlanta Independent School System case, overbroad California city ordinance was struck down).

F. Face-to-Face and Participant Recordings i. Recording audio/video with plainly visible equipment where there is no reasonable expectation of privacy is generally legal. ii. Federal law allows recording conversations with one participant’s consent. iii. Some states require notice and consent of all parties, but 38 states and the District of Columbia allow recording with one-party consent.

iv. Generally, the law in the location of the recording device applies, but it is wise to follow the strictest of the laws that might apply (e.g., California and Georgia case, Maryland case). v. FCC requires broadcasters to notify (not get consent from) callers if the station intends to broadcast a call live/record the call for later broadcast. vi. Bartnicki v. Vopper—First Amendment allows media to use an illegal recording if they were not involved in its production. Media were protected because they: a. Played no part in the illegal interception. b. Had lawful access to the information on the tapes. c. Correctly judged the conversation to be of public concern. vii.Under federal/some state laws, a recording made to commit a crime/tort is always illegal (e.g., antiabortion activists and Planned Parenthood case). viii.

Some recording laws are complicated (e.g., civil/criminal statutes in Delaware).

IV. Statutory Limits to Access A. Trespass and Ag-Gag Laws i. Trespass: entering private property without permission. ii. Ride-along: media representatives accompany government officials to various scenes. iii. Hanlon v. Berger—news media was not protected by law enforcement’s privilege because the recording was not intended to aid law enforcement. iv. Wilson v. Layne—ride-along violated the Fourth Amendment rights of those who were not the target of a warrant. a. Third parties (e.g., media) have greater leeway to accompany the police on public property, but they are not immune from liability. v. Tenth Circuit found that collection of resource data constitutes the protected creation of speech. vi. Federal district court in Florida reasoned the government may exercise control over access to government workplaces to avoid interruptions to its employees. vii.Under some circumstances, consent to record may be revoked (e.g., someone on public had permission to film but is then told to stop).

viii.

“Ag-gag” laws: state laws which prohibit recording, photographing, or entering agricultural facilities to document animal abuse or other activity without the owners’ informed permission. a. Tenth Circuit has found that several sections of the Kansas ag-gag law violate the First Amendment. b. Recording may be protected by the First Amendment; provisions targeting recording could not survive constitutional scrutiny. c. Eighth Circuit ruled that a provision in an Iowa ag-gag law was too broad to survive strict scrutiny.

B. Drone Laws i. Federal Aviation Administration rules govern drones; each operator must: a. Register the drone. b. Obtain a remote pilot certificate. c. Have proof of registration and certification available. ii. To hover, drones must: a. Have remote identification capabilities. b. Be properly maintained. c. Be safe to fly over people. iii. To fly over moving vehicles, drones must also be in a closed-/restricted-access area where people have been notified. iv. For night flights, a drone must also: a. Have operational anti-collision lighting. b. Be operated by a pilot with night-flight training. v. Drones are prohibited in and above national parks. vi. Drone operators must receive FAA permission to be within 15 miles of Washington, D.C., and cannot interfere with traffic. vii.Noncommercial drone photographers and news operations can capture photographs and videos.

viii.

Commercial operators must be registered and apply for FAA exemptions to photograph and fly in controlled airspace. ix. Many state and municipal laws impose additional limits on drone photography. x. Wisconsin, Oregon, Nevada, and Virginia have revised trespass and intrusion statutes to incorporate drones; Texas’s law was overbroad and struck down.

C. Exemptions to Open Records i. Redact: to strike out. ii. When an agency denies all/part of a FOIA request, they must explain why the record is exempt. iii. Denials have been affected by the 9/11 terrorist attacks (e.g., Homeland Security Act). iv. Kisor v. Wilkie—courts should independently review executive agencies’ interpretations of their own rules. v. Exemption 1: National Security a. Records classified as confidential, secret, or top secret. b. Most difficult to overturn. c. Example: requests from the U.S. Central Command (CENTCOM). vi. Exemption 2: Internal Agency Rules and Procedures a. “Housekeeping” exemption; records related to the practices of the agency itself. b. Example: requests from Air Force Academy honor and ethics hearings. vii.Exemption 3: Disclosures Forbidden by Other Statutes a. Cannot override laws that forbid the disclosure of certain information. b. Government must show: a. Information sought falls within the scope of the cited statute. b. Statute grants no discretion to the agency holding the information. c. Example: Child Victims Act applied to request seeking demographics. viii.

Exemption 4: Trade Secrets

a. Private business information provided to agencies. b. Example: Food Marketing Institute’s challenge to FOIA, Chrysler v.

Brown. ix. Exemption 5: Agency Memoranda a. Agency memoranda, studies, or drafts prepared and used inside agencies to create final reports/policies. b. Example: Sierra Club’s FOIA requests from the Environmental Protection Agency. x. Exemption 6: Personal Privacy a. Personnel, medical, and similar files (generally interpreted broadly to include lists, files, records, and letters). b. Example: U.S. Geological Survey, Small Business Association’s Paycheck Protection Program, and Economic Injury Disaster Loans program. xi. Exemption 7: Law Enforcement Records a. Records compiled within the context of law enforcement investigations. b. Government must show that the request: a. Interferes with enforcement proceedings. b. Deprives a person of the right to a fair trial. c. Constitutes an unwarranted invasion of privacy. d. Discloses the identity of a confidential source. e. Discloses law enforcement techniques and procedures. f.

Endangers the life or physical safety of any individual.

c. Examples: U.S. Department of Justice v. Reporters Committee for Freedom of the Press, death scene photographs of former legal counsel to President Bill Clinton. xii.Exemption 8: Financial Records a. Sensitive financial reports or audits held by government. b. Government must show the release would undermine public confidence in banks/financial institutions.

c. Example: Wells Fargo. xiii.

Exemption 9: Geological Data a. Rarely comes into play with news media. b. Prevents oil/gas companies from obtaining information from agencies that can provide them a competitive advantage.

D. Exemptions to Open Meetings i. Ten exemptions for the Government in the Sunshine Act allow boards to close meetings/hold closed, nonvoting executive sessions. ii. Exemptions 1–9 are similar to Freedom of Information Act. iii. Exemption 10 applies to portions addressing agency litigation/arbitration.

E. Limits Placed on Access to Personally Identifiable Information i. Student Records a. Family Educational Rights and Privacy Act of 1974 (FERPA): a federal law, sometimes called the Buckley Amendment, that forbids any school that receives federal funding from releasing students’ academic records unless the subjects, as adults, or their parents provide consent. b. Also includes: a. Grade. b. Information related to student health. c. Student IDs. d. Student email addresses. c. Violation puts government funding at risk. d. Important cases: a. Sixth Circuit ruled FERPA shields student disciplinary records. b. Supreme Court of Montana held a journalist could not receive records pertaining to university disciplinary proceedings related to allegations of sexual assault. c. Supreme Court of Pennsylvania ruled a school bus surveillance video is an educational record under FERPA.

ii. Campus Crime a. Campus Security Policy and Campus Crime Statistics Act of 1990 (the Clery Act): the federal law, which requires universities that receive federal funds to maintain up-to-date police logs and to compile and publish campus crime statistics that do not include personally identifiable information. b. Important case: Michigan State University was fined $4.5 million for not addressing a former doctor’s sexual abuse of hundreds of athletes. iii. Medical Records a. Health Insurance Portability and Accountability Act (HIPAA): a federal law that prevents health professionals and institutions from revealing individuals’ personal medical information. b. Standards for Privacy of Individually Identifiable Health Information— federal medical privacy regulations that give patients more control over their health information and limit the use/release of records. c. Does not exempt: a. Medical information stored in public records. b. De-identified information. iv. Drivers’ Information a. Drivers’ Privacy Protection Act of 1994 (DPPA): the federal law, which prohibits states from “knowing disclosure” of information obtained from the department of motor vehicle records without permission except under specific circumstances. b. Important cases: a. Ninth Circuit affirmed a summary judgment to Sirius XM Radio because it did not get the information in question from state records. b. Seventh Circuit held the DPPA’s ban on disclosure of private information applied to police’s driver’s licenses.

F. Covert Recording or Intercepting “Wire” Communications i. Cellphone cameras and recording have prompted laws to protect against eavesdropping/unlawful surveillance (e.g., voyeurism laws).

ii. Wiretapping and Electronic Surveillance Act: a federal law that prohibits the interception (and recording, dissemination, or private use) of a “wire” voice communication without a participant’s permission. iii. Stored Communications Act: a federal law that offers “considerably less protection” than the Wiretap Act. iv. Electronic Communications Privacy Act (ECPA): the federal law that prohibits the unauthorized interception of an electronic communication while it is in transit or storage. v. Computer Fraud and Abuse Act (CFAA): the federal law that, along with the ECPA, prohibits computer and phone hacking, which violates a user’s expectation of privacy. vi. Violation of the ECPA has been a claim in suits against internet service providers who reveal anonymous communicators (e.g., AOL termination of contract case). vii.Foreign Intelligence Surveillance Act (FISA)—government investigators can wiretap, surveil, and track personal communications without a court order. viii.

Van Buren v. United States—SCOTUS narrowed the scope of the CFAA and made it a crime to exceed authorized access to a computer with authorization and to obtain/alter information that the accessor is not entitled to.

V. Other Limits to Gathering Information A. Harassment and Stalking i. Can apply to aggressive newsgathering that crosses the line (e.g., paparazzi pursuing celebrities). ii. Tortious newsgathering: the practice of using reporting techniques that are wrongful and unlawful for which a victim may obtain damages in court. iii. Broadly encompasses a range of problematic behaviors. iv. Example: injunction against “Inside Edition.”

B. Fraud and Misrepresentation i. Food Lion won a suit against ABC News reporters after they went undercover; all counts but the trespass and breach were reversed on appeal. a. Attorney fees were costly. b. Costs and verdict raise questions about deceptive newsgathering.

c. Jury showed animosity toward media, especially powerful organizations. d. Appeal relied on specific state laws (can differ across states). ii. Can also occur when journalists disclose who they are but disguise the nature of their story (e.g., settlement for truckers in a “Dateline” story).

C. Problems With Sources and Confidentiality i. Falsehoods are likely to spread rapidly on social media (e.g., COVID-19 vaccines misinformation). ii. Guidelines for Associated Press employees say to contact the person who posted the information to combat issues of fake accounts. iii. Promise of confidentiality is a currency used to get tips and insights. iv. Reporters and news organizations typically keep promises of confidentiality even when asked to break it. v. Promissory estoppel: the legal doctrine that requires courts to enforce a promise if the individual who received the promise relied on it and its breach created a harm that should be remedied by law. vi. Cohen v. Cowles Media Co.—First Amendment does not protect journalists from the consequences of broken promises.

VI. Emerging Law A. U.S. Press Freedom Tracker reported between May 2020–May 2021: i. 153 journalists were arrested. ii. 415 were assaulted. iii. 100+ reported their equipment was damaged. iv. 21 had equipment searched or seized.

B. Before June 2022, 50+ journalists sued law enforcement for violating their First Amendment rights during protests (e.g., Andrea Sahouri, journalists in North Carolina).

C. Journalist Protection Act—attacks on reporters are a federal crime.

D. Civil rights (1983) claims: claims that indicate state or local government actors deprived individuals of constitutionally guaranteed individual rights.

E. Important cases:

i. Nieves v. Bartlett—the presence of probable cause for arrest generally defeats a First Amendment retaliatory arrest claim. ii. Ninth Circuit kept journalists’ restraining order against law enforcement in place. iii. Egbert v. Boule—SCOTUS declined to recognize an inn-keeper’s First and Fourth Amendment claims against a Border Patrol agent. iv. Bivens v. Six Unknown Federal Narcotics Agents—court cannot issue a remedy if Congress/Executive has provided an alternative structure; political branches are better equipped to decide whether to create a new remedy in certain cases.

F. Questions over what conditions/technology may be used to record government officials. i. Livestreaming in Tennessee. ii. Activist group’s appeal to record public officials in public spaces.

Lecture Notes Chapter 8: Overseeing Justice: Speech and Press Freedoms in and About the Courts Learning Objectives 8-1 Recognize how the First Amendment and common law may provide rights for the public to access court proceedings and records.

8-2 Identify steps courts and journalists may take to advance fairness in trials.

8-3 Describe how courts balance constitutional fair trial rights with the public interest in learning about criminal justice.

8-4 Compare the ways First Amendment rights and statutory rights may advance the flow of news.

8-5 Discuss the emerging legal decisions around cameras in the Supreme Court, social media, and journalists as sources for legal action.

Annotated Chapter Outline I.

Access to Courts and Court Records A. Gannett v. DePasquale—because publicity could prejudice the defendant’s right to a fair trial, judges may use means that are not strictly and inescapably necessary.

B. Justice Harry Blackmun said judges should presume the court should be open and the party seeking closure must show: i. Probability that publicity would infringe on the right to a fair trial. ii. Inadequacy of alternatives to closure. iii. Effectiveness of closure.

C. Presuming the Openness of Trials i. Experience and logic test: a doctrine that evaluates both the history of openness and the role it plays in ensuring the credibility of a judicial process to determine whether it is presumptively an opinion. Closure of such proceedings should be used only when it is essential to avoid a substantial probability of harm to some overriding interest where no effective alternative exists. ii. Richmond Newspapers, Inc. v. Virginia—Sixth Amendment right to a public trial belongs to both the defendant and the public. iii. Gag orders: restraining orders that prohibit communication about specific material. iv. Globe Newspaper Co. v. Superior Court for Norfolk County—SCOTUS struck down a Virginia law that closed courtrooms during testimony of any minor who was a sexual assault victim; to justify closure, the state must show it is necessary to protect a compelling interest and is narrowly tailored. v. Supreme Court of North Dakota found a district court had erred in excluding the public from hearing the testimony of a child victim’s counselor without recording findings for closing that portion of a trial. vi. Press-Enterprise decisions—court procedures and associated records are presumptively open when: a. They have historically been open. b. Public access plays a significant role in the process. vii.SCOTUS has held: a. Right of access may be overcome by compelling overriding interests. b. Right of access applies to jury selection and preliminary hearings. c. Right of access to trials/records may be overcome by overriding interests.

d. Access to the hearings themselves, not simply transcripts, is vital to ensure public confidence. viii.

Voir dire questioning of potential jurors as part of the jury selection process, which, as stated in Presley v. Georgia, is covered by the Sixth Amendment right to a public trial. ix. Important cases: a. Sir Mario Owens a. Courts prohibited information from being made public, including: i.

Prior criminal record.

ii. Defendants’ statements. iii. Defendants’ examination results/refusal to participate in examinations. iv. Identity/credibility of witnesses. v. Possibility of plea deals. vi. Opinions of guilt. vii. Predictions of outcomes. b. In camera: discussions or hearings held without the public present. c. Colorado Supreme Court affirmed a court order refusing to release information related to defendants’ challenge to death-penalty sentences. b. BuzzFeed reports on Russian hacking in the Democratic National Committee defamation case. c. Transfers from juvenile courts to criminal courts in Connecticut.

D. Broadcasting and Recording Court Proceedings i. Chandler v. Florida—right of access to public trials does not include presumptive access for cameras. ii. Federal Rule of Criminal Procedure 53 prohibits cameras in federal criminal trial courts, and federal policy bans televised civil proceedings. iii. Each federal circuit court decides whether to allow media coverage.

iv. Judges in federal appellate courts generally permit cameras in the courtroom some of the time. v. Cameras are allowed in some state courtrooms some of the time. vi. Judges may limit the number and location of cameras, require pooled cameras, or prohibit recording of jurors/vulnerable witnesses. vii.Those wishing to record the court proceedings must be familiar with the details of the laws in the states where they report.

E. Using Newer Technologies in the Courts i. Studies suggest new media sensationalize rather than educate/inform (e.g., Tennessee judge failed to question a juror in a murder case who exchanged Facebook messages with a state’s witnesses during jury deliberation). ii. Courts are integrating social media into administrative offices, courtrooms, and public outreach (e.g., streaming, blogs, webcast, and social media posts). iii. Michigan Supreme Court was the first to ban all electronic communication by jurors during trials.

F. Accessing Court Records i. Public right to access court records is grounded in common law and the U.S. and state constitutions. ii. Sealing court records is strongly disfavored and must pass the Press-Enterprise experience and logic test. iii. Nixon v. Warner Communications—courts are not required to provide access to all records in their custody, particularly when the records are available through alternative means. iv. Redact: to remove sensitive information or seal records to minimize serious harm. v. Federal and state courts tend to require the government to provide a compelling need to maintain the secrecy of presumptively open court records. vi. Fourth and Ninth Circuits have ruled delays in journalistic access violate the First Amendment. vii.Florida Star v. B.J.F—states may not punish media for publishing truthful information obtained legally from court files unless the penalty is narrowly tailored.

viii.

Unclear judicial standards lead to disparities in the sealing of court records. a. Hawaii Supreme Court unsealed the legal file in the prosecution of a Honolulu police officer. b. Pennsylvania appeals court unsealed all trial court records connected to sexual assault proceedings against Jerry Sandusky. c. Indiana’s open-records law covers all court records not closed by a specific exemption. d. Washington’s broad Public Records Act excludes courts. e. Ohio Supreme Court ruled a judge could seal an entire court record after the defendant was acquitted.

G. Electronically Accessing Court Records i. Organizations facilitate online access to court records while protecting privacy (e.g., National Center for State Courts, Justice Management Institute). ii. Public Access to Court Electronic Records (PACER) provides online access to federal court records—fees cover the expenses for providing access. iii. Electronic access to state records varies by: a. Which are online. b. For what purposes. c. To whom they are open. iv. Fears about how searchable data compilations alter the nature and extent of access to courts (limited access to records containing sensitive information). v. U.S. Department of Justice v. Reporters Committee for Freedom of the Press— federal law does not allow journalists access to an FBI electronic compilation of arrest sheets. vi. Virginia Supreme Court held a newspaper must seek access to court records from each court jurisdiction rather than from the court-records database. vii.Uneven and shifting pattern of electronic access requires those seeking records to check federal and state rules and procedures.

II. Advancing Fairness in Trials

A. Estes v. Texas—televised coverage of the criminal trial of a Texas financier charged with a multimillion-dollar con was inherently prejudicial.

B. Sheppard v. Maxwell—judges must protect fair trials by controlling the trial process and participants, including the media.

C. Following Sheppard i. Judges apply the measures suggested in Sheppard to prevent/correct jury prejudice by establishing: a. Where and how the jury is chosen. b. Where and when the trial takes place. c. Limiting the speech jury members and others have during trial. ii. In high-profile cases, judges have barred media from attending/using cameras during pretrial hearings (e.g., Harvey Weinstein, defendants accused of attacking a man with disabilities). iii. Selecting Jurors a. Venire: the pool of jurors. b. Summons: a notice asking an individual to appear in court as a potential juror. c. For-cause challenge: an attorney’s attempt to remove a potential juror for a reason the law finds sufficient (e.g., prejudice relevant to the case). d. Impartial jurors: those with no fixed opinion of the guilt or innocence of the defendant. e. Impaneled: selected for a jury. f.

Example: Dzhokhar Tsarnaev Boston Marathon bombings case.

iv. Instructing the Jury a. Admonitions: instructions and warnings to jurors to avoid potential prejudice. b. Example: Fourth Circuit ruled an evidentiary hearing on potential juror bias was unnecessary because a juror used Twitter but did not engage with the case. v. Sequestering the Jury

a. Rarely, a judge will sequester (isolate) a jury and prohibit jurors from having unsupervised contact with anyone outside of court. b. Example: judge denied a request to sequester jurors after a police officer fatally shot a man near Minneapolis, where a former police officer was on trial for murder. c. May alter juror attitudes and the trial outcome. vi. Relocating the Trial a. Change of venue: a request to change the location of a trial. b. Example: Dzhokhar Tsarnaev Boston Marathon bombings case. vii.Delaying the Trial a. Criminal defendants may waive their right to a speedy trial. b. Defendants may seek a delay (continuance) to try to reduce the prejudice of publicity; prosecution may oppose because this often reduces the availability of witnesses. c. Examples: a. Fifth Circuit found a defendant’s right to a speedy trial was not violated by the years of requests for delays he/his codefendants filed. b. SCOTUS ruled the Sixth Amendment right to a speedy trial does not require speedy sentencing. viii.

Making Jurors Anonymous a. Question of a right of access to juror information is unsettled. b. Some courts refuse to release the identities of jurors in high-profile cases/cases where jurors may legitimately be concerned for their personal safety. c. Example: Judge ordered jurors to be anonymous in cases involving former police officers charged with homicide-related offenses. d. Also justified on grounds that release of personal information violates jurors’ privacy interests.

ix. Limiting Speech Outside of Court

a. Restraining orders: court orders forbidding specific conduct or speech that can prevent trial participants from discussing potentially prejudicial information outside the courtroom. b. Mu’Min v. Virginia—restraining attorneys’ speech outside the courtroom during a trial did not violate the First Amendment. c. Gag orders are generally upheld if they are: a. Narrowly drawn. b. Supported by evidence that unfettered speech poses a substantial likelihood of jeopardizing a fair trial. c. Carefully considered along with alternatives. d. Judges concerned about prejudicial pretrial publicity may issue sweeping gag orders on all trial participants. e. Examples: a. Alabama judge banned lawyers and (potential) witnesses from making media statements, interviews, and posting information on social media. b. Supreme Court of Georgia lifted a gag order in a highly publicized murder case because the persons the order covered would not make prejudicial statements. c. Fourth Circuit vacated a judge’s ban on comments to the media about a criminal trial related to the Upper Big Branch Mine disaster.

D. Judging Impartially i. Sometimes the fairness of the judge is cast into doubt. ii. SCOTUS has ruled the Constitution requires judges to recuse themselves from hearing a case when a risk of prejudice exists. iii. Conversely, SCOTUS struck down a state law banning judges from campaigning on issues that might come before their court.

III. Balancing Interests A. Requiring Evidence i. Reporter’s privilege: a legal right to not divulge confidential information, such as the identity of a confidential source.

ii. Courts provide search warrants/subpoenas to collect evidence and ensure it is presented in court. iii. Search warrants permit law enforcement to search a specified place for particular items/people. iv. Fourth Amendment requires that searches be conducted reasonably. v. To receive a search warrant, investigators must show probable cause; national security can allow search/seizure without a warrant/with a secret warrant. vi. Search warrants demand immediate compliance. vii.Zurcher v. Stanford Daily—newsrooms are entitled to no special treatment beyond that afforded to any citizen’s property.

B. Penalizing Failure to Disclose i. If reporters refuse to testify/respond to a subpoena, judges may punish them with contempt. ii. Examples: a. Judith Miller. b. Chelsea Manning. c. Glassdoor’s anonymous users. d. Three anonymous Twitter users.

C. Protecting Juveniles i. SCOTUS has said confidential juvenile processes reduce the stigmatization of minors. ii. Juvenile court procedures must ensure minors receive all constitutional guarantees; juvenile defendants have the right to counsel and notice. iii. Federal law permits closure of juvenile proceedings/records on a case-by-case basis. iv. All states allow certain juveniles to be treated as adults within the justice system. v. Most states bar cameras from juvenile courts.

vi. To determine right of access to juvenile proceedings, individuals should consult state laws and reports from Reporters Committee for Freedom of the Press/National Center for Juvenile Justice.

D. Protecting Sexual Assault Victims i. All states and the District of Columbia have a rape shield law to protect the victim from questions that might prejudice jurors against them (e.g., sexual history, identity). ii. Appellate courts recently rejected challenges to Michigan and Pennsylvania’s rape shield laws.

E. Protecting State Secrets and National Security i. SCOTUS has granted the executive branch power to keep secret information it says presents a threat to national security. ii. Administrations since the 9/11 terrorist attack have used this privilege aggressively to thwart open judicial proceedings or to prevent trials. iii. Foreign Intelligence Surveillance Act (FISA)—government may conduct covert surveillance of foreign nationals and countries suspected of espionage; proceedings and records are secret. iv. ACLU and Media Freedom of Information Access Clinic requested and were denied classified opinions and orders issued from 2001 to 2015 under the First Amendment and Foreign Intelligence Surveillance Court Rule 62. v. Ninth Circuit has held national security privilege may completely bar lawsuits: a. When subject matter is highly threatening to national security. b. That require exclusion of all privileged evidence. vi. D.C. Circuit reversed a trial court ruling that unsealed a video of government treatment of a Guantanamo Bay detainee on hunger strike.

F. Closing Courts i. Press-Enterprise II—general privacy concerns alone do not justify closing a courtroom or voir dire. ii. Before closing a courtroom, judges must determine that facts demonstrate: a. Openness poses a substantial threat to a fair proceeding.

b. No alternative exists that would effectively eliminate the threat to fairness. c. Closure will effectively eliminate the threat. d. Closure will be narrowly tailored to protect maximum public access to the judicial process. iii. Before closing trial, judges must permit interested parties and the public to raise objections; many courts still close doors and seal records. iv. Sua sponte—the act of judges closing trials of their own accord without prejudice. v. Courts sometimes close portions of court proceedings/records in business cases that involve trade secrets and proprietary information (e.g., monopolization case between Advanced Micro Devices and Intel). vi. Right of public access does not extend to all criminal trial proceedings (e.g., grand jury hearings and documents are generally sealed). vii. Courts protect the secrecy of jury deliberations; however, SCOTUS accepted an appeal to impeach a verdict due to a juror’s racially biased statements.

G. Challenging Closures i. Anyone may challenge court closures/sealed public records. ii. Requests should be made in writing and/or in open court. iii. Individuals should: a. Stand. b. Request recognition by the judge. c. Politely state an objection to the closure. d. Request the record includes their objection. iv. Anyone may ask the court to delay proceedings to seek legal advice to object to the closure.

IV. Advancing the Flow of News A. Nebraska Press Association v. Stuart—decisions about news content are the domain of editors, not judges.

B. Guiding Media Coverage of Courts i. SCOTUS upheld a restraining order preventing newspapers from publicizing the confidential membership and donor list of a religious group. ii. Before imposing a media gag, courts must consider: a. Quantity and content of media coverage. b. Potential effectiveness of alternatives to a gag. c. Likelihood that a gag would remedy the harmful publicity. iii. Yet, courts continue to place gags on the media (e.g., Alabama Gas Corp. case). iv. Courts may limit communications of participants in grand jury investigations; states cannot punish witnesses who discuss their testimony after the grand jury. v. National Center for State Courts produces guides and encourages court personnel to be liaisons between the court and media for fair reporting.

C. Protecting Confidential Information i. Individuals who receive subpoenas may move to quash them (e.g., via state reporter’s privilege/shield laws). ii. Example: Mark Boal’s lawsuit to stop a government subpoena for his unedited interviews with Bowe Bergdahl.

D. Providing a Limited Privilege i. Journalists argue that the reporter–source relationship is a privileged relationship protected by the First Amendment. ii. Reporter’s privilege belongs to both the source and the reporter and a journalist may argue for privilege even after release from the promise. iii. Branzburg v. Hayes—reporter’s privilege to withhold information should be determined case-by-case; refusal to provide information may be permissible if the information fails to serve a legitimate need for law enforcement. a. Justice Potter Stewart said the burden could be met only when: a. Reporter has information relevant to a specific violation of law. b. Information cannot be obtained by less intrusive means. c. There is compelling and overriding interest in the information.

b. Narrow, speaks only to a journalist being called before a grand jury. c. Various Branzburg opinions did not make clear how to determine privilege beyond grand juries. d. Examples: a. Pennsylvania Supreme Court ruled the state shield law grants absolute privilege to journalists and protects their sources in all cases. b. Federal district court in Massachusetts ruled disclosure of two of Glenn Beck’s sources was necessary because accurate reports of what they said were essential to Abdulrahman Alharbi’s lawsuit. iv. United States v. Sterling—no First Amendment or common law privilege exists for journalists. v. Some lower courts have balanced Branzburg’s three factors against damage to newsgathering; if one factor favors the journalist, they may have reporter’s privilege protection. vi. Reporter’s privilege may not protect news organizations from identifying those who post anonymously on their websites (e.g., Idaho case involving The Spokesman—Review). vii.Reporter’s privilege may not protect freelance journalists or filmmakers (e.g., Ken Burns and “The Central Park Five”).

E. Applying Shield Laws i. Shield laws: laws that protect journalists from being found in contempt of court for refusing to reveal sources. ii. Enacting effective shield laws to protect confidential sources/information has been difficult and only created varying, limited protection. iii. No federal shield law protects journalists involved in federal proceedings.

Legislators struggle to pass one because they have problems: a. Protecting legitimate sources of news without shielding illegal leakers of secret government information b. Allowing government to engage in secret surveillance and data gathering while prohibiting fishing expeditions into newsgatherers’ private communications.

iv. Most laws are outdated in how they define “journalist” and fail to protect against government surveillance and data delivery laws. v. Wording often limits who/what the laws protect and in what situations. vi. Courts tend to: a. Require compliance with a subpoena when withholding information that could threaten a fair trial. b. Hand down fact-specific rulings that do not lend themselves to broad, predictive conclusions. vii.Timing also matters when considering whether a subpoena may be quashed (e.g., New York Supreme Court held the state shield law did not allow a reporter to appeal while the criminal case was proceeding). viii.

Some shield laws apply protection to several categories of people, but they leave out people like freelancers/internet users/magazine writers, book authors, and bloggers. ix. Reporter’s privileges generally are limited, and they can be waived.

F. Clarifying What Shield Laws Cover i. Information protected by shield laws varies by state. ii. Most statutes do not protect journalists who are called to testify about the events they witnessed. iii. Shield often crumbles when journalists are defendants (e.g., Tenth Circuit’s “Dateline” ruling). a. Supreme Court of New Hampshire did not quash a subpoena for a journalist to provide nonconfidential information in cases involving voter suppression. b. Virginia judge quashed a subpoena for a journalist to testify in the perjury trial of one of the organizers of the Unite the Right rally.

G. Finding Other Protections i. The Privacy Protection Act a. Privacy Protection Act of 1980—significantly limits state and federal agencies’ use of search warrants against public communicators by

prohibiting government agents from searching/seizing journalists’ product or documentary materials as part of a criminal investigation. b. Journalists may sue government employees for violating the law, with limited exceptions if a news organization has refused an order to disclose and all other remedies have been exhausted. c. Visual journalists have filed claims that law enforcement violated the Privacy Protection Act by seizing cameras/materials to varying degrees of success. ii. Facing National Security Claims a. Ninth Circuit recently ruled Homeland Security’s border agents do not have unlimited power to search people’s electronic devices. b. Reporter settled a lawsuit against the DHS for seizure of newsgathering materials—including information about a whistleblower.

V. Emerging Law A. COVID-19 and security threats inspired courts to change procedures (e.g., livestreaming, video/teleconferencing).

B. Congress has failed many times to pass laws that would presume SCOTUS broadcast access unless a majority of the Supreme Court justices voted for closure to protect specific, enumerated interests.

C. Concerns about distractions, technological challenges, and fairness.

D. Cellphones and social media present questions about First and Sixth Amendment rights and new opportunities for covert juror misconduct.

E. Student journalists and journalists’ rights have been challenged as attorneys have turned to journalists for evidence in civil and criminal cases.

F. Law enforcement has sought information about journalists’ communications from technology corporations. i. Department of Justice has secretly seized journalists’ phone/email records. ii. Local law enforcement has sought access to electronics for information about confidential sources.

Lecture Notes

Chapter 9: Electronic Media Regulation: From Radio to the Internet Learning Objectives 9-1 Understand which mediums are considered electronic media and which are not.

9-2 Demonstrate how the history of broadcast regulations has shaped today’s industry.

9-3 Analyze the roles of spectrum scarcity and public interest standards as justification for broadcast media regulation.

9-4 Summarize the Federal Communication’s various roles and responsibilities.

9-5 Apply relevant rules to questions regarding children’s programming and political advertising.

9-6 Compare the regulatory framework for broadcast radio and television to rules governing MVPDs. 9-7 Describe the FCC’s Role in Internet Regulation and evaluate the proposed changes to Section 230 and net neutrality.

9-8 Analyze the relationship between social media regulation and the First Amendment.

Annotated Chapter Outline I.

What is Electronic Media?

A. Electronic media: all forms of media that utilize electronics or digital encoding to distribute news and entertainment; do not include media that have historically been distributed through printed means, even though most print media today are created electronically and live on the internet.

B. Term acknowledges the history and evolution of media technologies and has a distinct meaning in the area of mass communication law.

C. Not all electronic media are treated the same under the law, although each has basic free speech protection.

II. History of Broadcast Regulation A. Electromagnetic spectrum: the spectrum of different types of energy that radiate from where they are produced (electromagnetic radiation) that form electromagnetic waves (e.g., microwaves, radio waves) that can transmit signals.

B. 1897: Nikola Tesla filed patents explaining how electrical energy could be transmitted without wires; patents could be used for wireless communication.

C. 1910: first public broadcast was transmitted in New York City, featuring the Metropolitan Opera.

D. Wireless Ship Act (1910)—first federal regulation of broadcast; ocean vessels were required to carry radio equipment and operators; other nations pressured Congress to establish standards everyone could adopt, allowing messages to reach their destinations without interference.

E. Radio Act of 1912: i. Prompted by the Titanic disaster. ii. Required ships to have 24-hour radio operators. iii. Gave the secretary of commerce power to grant radio station licenses, assigning each licensee a specific frequency. iv. Radio frequency: any one of the electromagnetic wave frequencies that lie within a specified range that is used for communication.

F. Radio Act of 1927: i. Established the Federal Radio Commission (FRC): a federal agency charged with issuing or denying radio licenses and assigning frequencies to prevent stations from interfering with each other. ii. FRC cannot censor radio content. iii. Electromagnetic spectrum is a public resource; FRC must make decisions based on public interest, convenience, and necessity. iv. Federal government has exclusive control over radio broadcasting.

G. Communications Act of 1934: i. Established the Federal Communications Commission (FCC): a federal agency, directly responsible to Congress that regulates interstate and international communications, overseeing radio, television, wire, satellite, cable, and broadband.

III. Reasons to Regulate Broadcasting A. Broadcasting: as defined by the Communications Act of 1934, the use of the electromagnetic spectrum to send signals to many listeners and viewers simultaneously.

B. Spectrum Scarcity i. Spectrum scarcity: the limitation on the number of segments of the broadcast spectrum that may be used for radio or television in a geographic area without causing interference.

ii. FCC took more control over the radio industry than expected, regulating the relationship between the emerging radio networks and local stations. iii. Networks sued the FCC, but SCOTUS ruled the few companies using the spectrum have a special privilege, making it reasonable to regulate them. iv. Fairness doctrine: regulations adopted by the FCC in 1949 that said television and radio stations must: a. Air programs discussing public issues. b. Include a variety of views about controversial issues of public importance. v. Red Lion Broadcasting Co., Inc. v. FCC—SCOTUS upheld the fairness doctrine and reinforced the spectrum scarcity rationale. vi. Five years later: SCOTUS ruled print media do not have the same right-of-reply requirement as broadcasters. vii.1987–1989: FCC and D.C. Circuit ended the fairness doctrine, but two features remained for another decade: a. Personal attack rule (Red Lion)—broadcast stations must provide free reply time to any person/group that was attacked on air. b. Political editorial rule—broadcasters must give free time for a legally qualified candidate to respond to opposition. viii.

2000: D.C. Circuit ordered the rules’ elimination.

ix. 2011: FCC formally eliminated the fairness doctrine. x. Spectrum scarcity remains the main reason courts allow broadcast regulation. a. Courts seem to ignore emerging technologies. b. SCOTUS will not alter its rationale without signal from Congress/FCC that technology has advanced so far and that revision may be required. xi. Other rationales (particularly concerned with children) for regulating broadcast radio and television: a. Broadcast media are pervasive. b. Broadcast media have a special impact greater than print media.

C. The Public Interest Standard

i. 1927 Radio Act and the 1934 Communications Act say that federal regulation is to be guided by public interest, convenience, and necessity; they do not define the terms. ii. 1980s: FCC said the public interest required deregulation and shifted to the market to help regulate broadcasting in the public interest. iii. First Responder Network Authority (FirstNet)—independent broadband network dedicated exclusively to the public safety community (e.g., 9/11 attacks, Hurricane Katrina). iv. Broadband: a high-capacity transmission technique that uses a wide range of frequencies on the spectrum, which enables a large number of messages to be communicated simultaneously; allows faster connection to networks (e.g., internet). v. FirstNet’s Nationwide Public Safety Broadband Network: a. Almost completes and covers 2.71+ million square miles. b. Provides cellular and data service to first responders. c. Used to help with COVID-19 patients in 2020.

IV. Federal Communications Commission A. United States’ primary authority for communications law, regulation, and technological innovation.

B. Adopts and enforces regulations affecting large segments of the electronic media.

C. Licenses spectrum users.

D. U.S. president selects and Senate approves: i. Five commissioners, appointed to 5-year terms. ii. A commissioner to be FCC chair (CEO).

E. Commissioners: i. No more than three sitting commissioners may be from the same political party. ii. May not have financial interests in any company/industry the FCC oversees. iii. Must be U.S. citizens.

F. Administrative Procedure Act—law telling federal agencies how they may propose and adopt regulations and giving federal courts power to rule on challenges to those decisions.

G. Funded by Congress.

H. How Does the FCC Work? i. Step 1: commissioners identify a problem/receive a petition from the public that warrants attention; Congress can also initiate the rulemaking process. a. Examples: industry behavior that adversely affects consumers, difficulty in enforcing a rule, and need to update a rule. ii. Step 2: staff members prepare a notice of proposed rulemaking: a notice issued by the FCC announcing that it is considering changing certain regulations or adopting new rules. iii. Step 3: the public/interested companies/industry organizations may submit comments. iv. Step 4: staff members consider all the submissions and draft a report and order. v. Step 5: commissioners discuss the draft, suggest changes, and vote on a final version in a public meeting. vi. Step 6: those who object to the final decision may ask the commissioners to reconsider (rare to have FCC reconsider). vii.Step 7: final regulations become part of FCC rules, which affect law; noncompliance can result in sanctions. viii.

Step 8: those affected by the decision may challenge it in a federal appellate court (e.g., D.C. Circuit); a ruling overrides an FCC decision.

I.

What Does the FCC Do? i. Adopts rules and regulations; grants license to broadcast (8-year period, can be renewed for subsequent 8-year periods). ii. Illegal to operate any broadcast station in the United States without an FCC license. iii. Renewal is ensured unless the licensee has: a. Not operated in the public interest. b. Repeatedly violated FCC rules.

c. Shown a pattern of abusing the law. iv. No limit on number of renewals. v. License is not transferable. vi. If 2+ competing applicants want a license for a frequency not already in use, FCC holds an auction. vii.To obtain a license, an individual must be an American citizen. viii.

Foreign corporation/corporation with +20% foreign ownership/foreign government/corporation controlled by another corporation with +25% foreign ownership may not hold a license. a. Justified by national security concerns (e.g., foreign propaganda). ix. Quadrennial Regulatory Review—FCC conducts a review of its ownership rules every 4 years. a. Mired in legislation by legal challenges to FCC rule changes (especially those regarding gender and race imbalances in broadcast media ownership).

J.

FCC Ownership Rules i. FCC has limited the number of stations a single licensee can own. ii. Broadcast and newspaper industries (dislike ownership rules) versus public interest groups (support ownership rules). iii. Station owners help set the public agenda and frame important issues. iv. Example: Sinclair (owns 186 television stations in 87 markets) forced dozens of local news anchors to read the same speech to their viewers, mirroring commentary by former President Donald Trump. v. Cross-ownership rules: regulations that govern when one entity can own two or more companies with related interests. vi. Modernization of Media Regulation Initiative—FCC has reduced/removed restrictions on how many and what type of media outlets a single entity could own in a given market. a. Said this was a response to the explosive growth of local news and information in the modern marketplace.

b. Media policy scholars said changes were a response to the failed Sinclair–Tribune merger. c. Said this would advance the public interest by removing unnecessary regulations that hinder competition and innovation. d. Media Activists groups said deregulation would: a. Increase media consolidation: the concentration of media ownership into the hands of fewer and fewer corporations or individuals. b. Reduce viewpoint diversity. c. Set back the small progress in addressing diversity issues. vii.2017 Reconsideration Order: a. Recalculated how audience reach is determined for the national television ownership rule (prohibits a single entity from owning enough stations to reach +39% of television households in the United States). b. Removed local newspaper/broadcast cross-ownership rule (prohibited common ownership in a full-power broadcast station and a daily newspaper in the same market). c. Removed radio/television cross-ownership rule (prohibited ownership of 2+ television stations and one radio station in the same market). d. Exceptions to Top Four Prohibition (a company may own two television stations in the same market if 1+ of the stations is not ranked among the top four stations in the market). e. Eliminated “Eight Voices Test” (at least eight independently owned television stations also had to remain in the market following the combined ownership of stations). f.

Terminated the JSA rule (barred companies from using one advertising sales staff for 2+ stations in the same local market).

g. Removed main studio rule that required television stations to maintain at least one local studio in licensed markets, allowing station owners to create centralized newsrooms and distribution models. h. Did not substantively change the local radio ownership rule (total number of radio stations commonly owned in a local radio market is tiered).

i.

Created an incubator program to promote ownership diversity.

viii.

Women own 9% of all commercial broadcast radio and television stations; people of color own ~4%. ix. Several different approaches to tackling this issue, for example, tax breaks (successfully challenged in court as discriminatory). x. Telecommunications Act of 1996—deregulation of the telecommunications and broadcast industries. a. Brought substantial consolidation and even fewer opportunities for members of marginalized groups. b. Created the quadrennial review. xi. FCC’s attempts to modify ownership rules has been repeatedly challenged in court by media activist organizations (e.g., Prometheus Radio Project, the National Association of Broadcasters). a. Prometheus case #1: Third Circuit vacated FCC’s rule and remanded the case back to the FCC because it did not show how the effect would impact potential marginalized station owners. b. Prometheus case #2: Third Circuit ruled FCC failed to demonstrate how a revenue-based approach addressed the lack of diversity in ownership and remanded the case back to the FCC. c. Prometheus case #3: Third Circuit ordered FCC failed to address how it would define entities eligible to receive preferences to promote people of color and female broadcast ownership rules. d. Prometheus case #4: Third Circuit struck down 2017 Reconsideration Order and Incubator Order. a. FCC and broadcast industry groups (e.g., National Association of Broadcasters) appealed the decision to SCOTUS. b. SCOTUS ruled in their favor, citing the lack of data demonstrating the harm the rule changes would have on ownership diversity (FCC made almost no effort to collect this data).

K. Public Broadcasting i. Corporation for Public Broadcasting (CPB)—private, nonprofit corporation whose purpose is to ensure universal, public access to free news, information, and entertainment programming.

a. Supports NPR and PBS. ii. Public Broadcasting Act—public stations must strictly adhere to objectivity and balance in programs of a controversial nature. a. SCOTUS has allowed public stations to air editorials favoring/opposing public and political issues. iii. Public broadcasting stations must comply with most of the same rules commercial broadcasters follow, but cannot allow advertising.

V. Broadcast Programming Rules A. FCC cannot censor broadcast content but may set general programming rules.

B. Political Broadcasting Regulations i. Radio Act of 1927 and Communications Act of 1934 (Section 315) ensure broadcasters cannot favor one political candidate over another. ii. Section 315 guarantees equal opportunity (not equal time) to legally qualified candidates: those who have publicly announced a bid for office, have their name on the ballot, or are serious write-in candidates. iii. Section 315 does not apply to ballot issues. iv. “Equal opportunity”—all candidates have the chance to reach approximately the same audience as an opponent; this does not apply to social media. Factors include: a. Day of the week. b. Time of day. c. Length of broadcast. d. Cost. v. “Use”—candidate or their picture being seen or their voice being heard on a broadcast station or cable system. vi. Applies to both explicitly political (e.g., candidates’ commercials) and nonpolitical (e.g., lifestyle programs, even if they do not discuss politics) programming. vii.Four exceptions to the use of this rule: a. Regularly scheduled news programs.

b. Regularly scheduled news interview programs. c. Live coverage of bona fide news events. d. Appearances in documentaries. viii.

Candidates who want equal opportunity must request time within 7 days of the opponent’s appearance. ix. Federal law requires candidates to promise they will refer to their opponents in a commercial only under specific conditions, a candidate’s: a. Radio commercial must include the candidate’s voice approving the contents. b. Television commercial must show the candidate or their picture with a printed statement of approval. x. FCC regulations require any commercial on a broadcast station to identify who paid for the ad. xi. Broadcast stations and cable systems cannot edit/censor political appearances and are not responsible for what candidates say (e.g., if candidates libel an opponent, the opponent may sue the candidate but not the station). xii.If the first legally qualified candidate does not appear on a station, Section 315 would not be triggered for other candidates. xiii.

FCC has suggested that stations should allow candidates airtime because of public interest. xiv.

Section 312(a)(7) of the Communications Act requires radio and television stations to provide federal candidates with reasonable access. a. “Reasonable access” is not clear. b. Broadcasters must consider each request individually and are required to tailor their responses to accommodate a candidate’s purposes in seeking airtime. c. Broadcasters may consider factors like: a. Amount of time previously sold to the candidate. b. Disruptive impact on regular programming. c. Likelihood of requests for time by rival candidates.

d. Broadcasters must cite a realistic danger of substantial program disruption or the likelihood of too many requests. xv. 2021: FCC proposed minor updates to political advertising rules. a. Adding social media and campaign websites as considerations for whether a write-in candidate qualifies. b. Requiring broadcasters to record any request to purchase advertising related to any political matter of national importance.

C. Children’s Programming Requirements i. Children’s Television Act: a. Broadcast television stations must provide programming intended for children up to 17 years old that meets educational/informational needs. b. Limits commercial time before, during, and after children’s programs on broadcast and cable television. a. 12+ years old: 12 min/hr during the week and 10.5 min/hr on weekends. ii. Characters in children’s programs cannot appear in commercials before, during, or after children’s programs. iii. Cartoon characters or children’s program hosts cannot sell products in commercials during/adjacent to shows in which the character/host appears. iv. “Core programming”—broadcast television stations must carry 3 hrs/week of programming specifically intended to meet children’s intellectual/cognitive and social/emotional needs. a. 30+ minutes long. b. Regularly scheduled weekly. c. Broadcast between 7 a.m. and 10 p.m. local time. v. FCC may choose not to renew a station’s license if it does not meet the requirements. vi. 2018: FCC changed children’s television rules as part of the FCC’s media modernization initiative. vii.2019: FCC approved changes to the core programming requirements.

a. Begin airing children’s programming at 6 a.m. b. Some children’s programming that is not regularly scheduled (e.g., educational specials) counts toward the annual core programming requirement. c. Some short-form programming counts toward the core programming requirement. d. Eliminated requirement that a station air an additional 3 hours of children’s programming for each 24/7 multicast stream. e. Revised reporting requirements for children’s programming. f.

Retained rules requiring program guides.

g. Eliminated requirement of on-air notification of core programs on noncommercial stations.

VI. Multichannel Video Programming Distributor Regulation A. Multichannel video programming distributors (MVPDs): entities that provide multiple channels of video programming for purchase (e.g., cable and direct broadcast satellite services).

B. Major MVPDs offer hundreds of linear television channels and thousands of nonlinear video-on-demand and pay-per-view programs.

C. MVPDs also offer internet/phone services as core elements of their business models.

D. History of Cable and Satellite Regulation. i. MVPD regulation has evolved from early cable regulation. ii. 1940s: power company employee built a large antenna in the Appalachian Mountains; a wire ran from the antenna to a building to homes, giving birth to cable television, or “community antenna television” (CATV). iii. 1962: FCC adopted CATV rules, upheld by SCOTUS. iv. Mid-1970s: cable systems could carry signals of stations outside the local community (e.g., HBO). v. Cable Communications Policy Act of 1984—local and state governments and the federal government have shared authority over cable. vi. Critics: law gave the cable industry monopoly power.

vii.Cable Television Consumer Protection and Competition Act of 1992: a. Regulated rates cable systems charged subscribers. b. Required cable systems to carry local broadcast television stations and deliver other programming to direct broadcast satellite companies and other competitors. c. Barred local governments from allowing one cable system to monopolize service. viii.

Telecommunications Act of 1996: a. Loosened many cable regulations imposed in 1992. b. Deregulated cable subscriber rates, allowing companies to raise prices without government permission.

ix. SCOTUS ruled the cable industry had protection similar to print media, then suggested it was not certain what First Amendment analysis should be applied, and finally applied strict scrutiny. x. Direct broadcast satellite (DBS) services use a small dish to receive signals from a high-powered satellite. a. FCC declined to classify satellite service as broadcasting, relieving DBS of the regulations broadcasters and cable faced. xi. Cable Television Consumer Protection and Competition Act of 1992—required DBS providers to abide by political broadcasting rules in Sections 315 and 312(a)(7). xii.DBS emerged as a challenger to cable when Congress allowed satellite services to offer subscribers their local television stations and satellite programming. xiii.

As DBS grew, the FCC imposed additional regulations: a. Satellite operators had to set aside 4% of their channel capacity for educational/informational programming. b. DBS systems had to comply with the same advertising limits during children’s programming as broadcast television stations.

E. Must-Carry and Retransmission Consent i. The Cable Television Consumer Protection and Competition Act of 1992:

a. Must-carry rule: the broadcaster has the ability to negotiate with the MVPD for carriage. b. Retransmission consent: providers cannot retransmit a broadcast station without the broadcaster’s explicit permission. c. Allowed broadcasters to negotiate with cable systems to permit retransmission of their content generally for a fee. d. FCC does not have the authority to force broadcasters to consent to carriage. e. Cable carriage requirement (must-carry)—if a broadcast station chooses must-carry status, it may not be dropped from an MVPD’s channel lineup; broadcaster cannot demand payment from the MVPD. ii. Every 3 years, commercial broadcast stations choose between must-carry and retransmission consent. iii. Turner Broadcasting System, Inc. v. FCC.—SCOTUS upheld the must-carry rules. iv. Second Turner Broadcasting System, Inc. v. FCC (1997)—SCOTUS did not accept the cable industry’s argument that the must-carry rules were content specific. a. Must-carry rules are content neutral; they do not dictate specific programming. b. Applied the O’Brien test; rules protect broadcast stations, and Congress did not intend to directly affect cable systems’ speech. v. 2009: Second Circuit rejected cable industry’s argument that must-carry rules violate cable operators’ First Amendment rights. vi. Satellite Television Extension and Localism Act Reauthorization Act of 2014— modernization of must-carry and retransmission consent rules but maintained basic framework of 1992 Cable Act. a. Satellite market modification rule: allows a television station, satellite operator, or county government to request the addition or deletion of communities from a broadcast station’s local television market to better reflect current market realities. vii.FCC receives a market modification request and considers five factors that show a petitioner provides local service to the community.

viii.

FCC initiated a review of the current process for evaluating whether broadcasters and MVPDs are negotiating for retransmission consent in good faith to ensure negotiations are conducted fairly and benefit consumers. ix. Challenges to MVD decisions about networks in subscription packages: a. 2016: D.C. Circuit decided when a network brings forward a complaint about carriage requirements, it must show its request would provide a net benefit to the MVPD. b. Game Show Network alleged but did not prove that Cablevision discriminated against it when the cable company repositioned the network to a premium sports tier. c. 2017 and 2018: FCC’s Media Bureau decided The Word Network did not demonstrate Comcast discriminated against it by replacing it with Impact; Comcast’s demand for an exclusive license for digital distribution was not a demand for a financial interest in the network.

F. Public Access Channels i. PEG access channels: channels that cable systems set aside for public, educational, and governmental use. a. Public access channels—allow local citizens to put on programming they choose. b. Local school boards and colleges use educational channels. c. Government channels often carry city council and county board meetings. ii. Cable Communications Policy Act of 1984 does not require cable system operators to carry PEG channels, but they usually do; it also prohibits cable system operators from exercising editorial control over PEG/leased access programming. iii. Cable Television Consumer Protection and Competition Act of 1992 required DBS operators to offer leased access channels for educational purposes (rejected by federal appellate court). iv. SCOTUS ruled a cable operator is not a state actor because it did not perform a function traditionally exclusively performed by the state (even though state law can extensively regulate cable operators).

VII. Internet Regulation

A. As new media technologies emerge, Congress, state legislatures, regulatory agencies, and courts must determine whether/how to regulate service and content.

B. Reno v. American Civil Liberties Union—SCOTUS held the internet has complete First Amendment protection. i. Overturned CDA’s restrictions on transmitting indecent and patently offensive material using the internet. ii. Upheld the ban on obscene content sent over the internet.

C. Section 230 i. Says ISPs and other computer services, including social media platforms, will not be treated as publishers/speakers of user-generated content. ii. States online service providers will not be held liable for good faith filtering/blocking of user-generated content. iii. Small number of instances when immunity may not apply, such as violations of: a. Federal criminal law. b. Intellectual property law. c. Sex trafficking. iv. Cases that helped shape Section 230: a. 1991: CompuServe was sued for libelous posts made on one of their discussion forums; CompuServe did not review posts before they appeared on the forum and could not be treated as a publisher. b. 1995: Prodigy was successfully sued for libelous posts because it reviewed and filtered posts; lawmakers did not want to discourage content moderation. v. Courts’ interpretations of Section 230 have been consistent; computer services are not responsible for how their product/platform was used (e.g., Doe v.

Myspace, Internet Brands case, Grindr case). vi. While it is unlikely that courts will shift their interpretation, Congress is strongly considering revising the law; 230 Reform Legislative Tracker keeps tabs on all bills introduced. a. Repeal. b. Place limits on scope.

c. Impose new obligations to use it as a defense. d. “Good Samaritan” bills. vii.Democrats want to address the harms against vulnerable communities; Republicans want to limit what they see as the liberal bias (e.g., Protecting Americans from Dangerous Algorithms Act vs. Stop Suppressing Speech Act). viii.

Some argue carve outs to remove immunity for civil rights violations are likely underinclusive and problematic and would need to be updated regularly. ix. Reforms that exclude bad actors from protection are more likely to be more effective. x. Others strongly oppose any change to the law because they believe it is responsible for creating the robust, wide-open internet.

D. The FCC’s Role in Internet Regulation i. FCC has said it has ancillary jurisdiction of the internet under the Communications Act of 1934 (both upheld and rejected by courts). ii. ~15 years ago, SCOTUS held cable television systems do not have to give their customers a choice of internet service providers. iii. SCOTUS said the Telecommunications Act of 1996 was ambiguous and the FCC had a right to interpret how it applied to ISPs. iv. 2015 Open Internet Order—FCC reclassified internet services from information service to basic telecommunications service. a. Allows regulation of broadband providers as common carriers, meaning they are treated like utilities. b. Must make services available to everyone on the same terms. v. Restoring Internet Freedom Order (2018)—reinstated information service classification of broadband internet. a. Restored earlier determination that broadband is subject to strict regulation. b. Restored the authority of the Federal Trade Commission to provide oversight of ISPs’ privacy practices. vi. D.C. Circuit largely upheld the FCC’s Restoring Internet Freedom Order, but remanded three discrete points for further consideration:

a. One focused on public safety. b. Other two were related to the mechanics of attaching broadband cable to telephone poles and to the low-income communications access program. c. FCC analyzed the issues and found no basis to alter their conclusions.

E. Net Neutrality i. 2018 FCC order rolled back net neutrality: ISPs cannot charge content providers to speed up the delivery of their content; ISPs cannot sabotage competitors’ content. ii. Supporters of net neutrality say it is important for the internet to maintain its democratic status (generally Democrats). iii. Opponents of net neutrality say that if ISPs cannot charge more money for different kinds of transmissions, it stifles innovation and runs against the ISPs’ financial interests (generally Republicans). iv. Four out of five Americans support net neutrality rules. v. D.C. Circuit Court of Appeals has held the FCC did not have jurisdiction to regulate ISP broadband services and struck down FCC’s new net neutrality rules. vi. 2015 Open Internet Order—high-speed internet service became a telecommunications service and was treated like a public utility. a. Banned throttling (blocking and paid prioritization of content). b. Providers could not impair/degrade/block lawful internet traffic on the basis of content. c. Prohibited providers from creating paid fast lanes. vii.D.C. Circuit Court consolidated all challenges to the 2015 order and denied petitions for review of the 2015 order. viii.

Mid-2017: FCC began loosening net neutrality enforcement regulations.

ix. 2018: Restoring Internet Freedom Order eliminated net neutrality rules against blocking, throttling, and paid prioritization and general conduct rule. a. Twenty-two state attorneys general, several companies, and several public interest groups filed challenges to the order. b. Seven states enacted their own net neutrality laws.

c. Several other states and D.C. have introduced bills and resolutions regarding net neutrality. x. 2021: President Biden issued an executive order directing FCC to restore Obamaera net neutrality laws.

VIII.

Emerging Law A. Social media have impacted the society in a variety of ways, both positive and negative. i. President Biden has said Facebook’s misinformation about the COVID-19 vaccine was killing people. ii. Platforms were criticized for their decision to deplatform users (e.g., President Donald Trump).

B. In response to perceived anti-conservative bias, Florida passed a law that would fine social media companies for deplatforming/shadow banning political candidates (struck down by Eleventh Circuit).

C. Texas enacted a law that prohibited social media platforms from censoring users based on viewpoint (SCOTUS put the law on hold while challenge was adjudicated).

D. Social media differ considerably from other forms of media: i. No scarcity of spectrum. ii. Offers very little of the editorial oversight. iii. Algorithms determine which content we have access to. iv. Companies are free to regulate themselves however they would like; the company, not the government, regulates content.

E. Despite efforts at self-regulation, problems persist, and lawmakers are debating how to best regulate social media. i. Making changes to Section 230. ii. Utilizing existing anti-trust laws.

Lecture Notes

Chapter 10: Obscenity and Indecency: Social Norms and Legal Standards Learning Objectives 10-1 Apply the Miller Test to determine whether sexual expression is constitutionally protected or not.

10-2

Assess whether broadcast content violates existing indecency regulations.

10-3 Critique government and social media organizations’ attempts to moderate sexual content online.

10-4

Appraise efforts to regulate deepfakes and other nonconsensual pornography.

Annotated Chapter Outline I.

Obscenity A. Obscenity: outlined in Miller v. California, material that an average person would say appealed to prurient interest, that offensively depicts sexual conduct specifically defined by the applicable state law, and that, on the whole, does not have redeeming social importance.

B. Pornography: vague term encompassing both protected and unprotected sexual material.

C. Indecency: sexual expression and expletives inappropriate for children on broadcast radio and television. i. Not synonymous with obscenity. ii. Defined and regulated by FCC. D. Comstock and Hicklin i. Two centuries ago, governments generally did not adopt laws/bring criminal charges related to sexual material. ii. Anthony Comstock—launched an anti-obscenity movement after the Civil War. iii. Comstock Act (1873)—prohibited mailing of obscene/lewd/lascivious material. iv. Hicklin rule: defined in Regina v. Hicklin, a test for obscenity that examines whether the tendency of the matter is to deprave and corrupt people’s minds. a. Adults could be exposed only to material acceptable for the most susceptible minds (children).

b. Broad scope gave state legislatures substantial leeway to define obscenity; targeted members of the LGBTQ community. v. Hicklin was not always applied (e.g., 1913 case: federal judge noted the standard did not answer to the understanding and morality of the present). vi. 1933: federal district court rejected Hicklin when deciding a case regarding “Ulysses” and proposed a new standard. a. Test for obscenity should be the entire work’s impact on an average person. b. Court said “Ulysses” was literary art and was not obscene. c. Upheld by Second Circuit. d. Decision suggested: a. Courts should determine what is obscene by reviewing the material in its entirety. b. Test should ascertain a work’s effect on an average person. e. Despite the ruling, many courts applied the Hicklin rule into the 1950s.

E. Current Obscenity Definition i. Roth v. United States (1957)—SCOTUS confirmed the First Amendment did not protect obscene publications and materials and narrowed the obscenity definition to give sexual expression more freedom. Material was obscene if: a. The average person, applying community standards, found the work as a whole appealed to prurient interest (lustful thoughts). a. “Community standards” was implicitly heteronormative. b. It is without redeeming social importance. ii. 1958: SCOTUS overturned the Los Angeles postmaster’s decision to label ONE Magazine as obscene and prohibit its mailing. iii. Roth test remained difficult for government prosecutors to meet; SCOTUS refined Roth several times, but this caused confusion. iv. Jacobellis v. Ohio (1964)—SCOTUS overturned the conviction of a movie theater manager who showed an acclaimed French film that Ohio deemed obscene. a. Justice Potter Stewart: “I know it when I see it.”

b. Feminist legal scholar Catharine MacKinnon characterized this famous statement as a manifestation of power and credibility. v. Miller v. California (1973)—established a three-part definition of obscenity and the Miller test. To be obscene, a work, considered in its entirety, must: a. Arouse sexual lust. b. Be hard-core pornography. c. Have no serious social value.

F. The Miller Test i. “Prurient” refers to “morbid or lascivious longings.” a. Material arousing morbid/shameful sexual thoughts meets this standard. b. SCOTUS has not explained how a juror can know the standards of an average person; conventional perspectives regarding sexual expression have often been accepted as the norm. c. “The community” may be the city or county where jurors live, the state, or even a “deviant sexual group, rather than the public at large.” a. Made murkier by the internet. b. Example: Fifth Circuit upheld a man’s conviction after he shared obscene content with a minor and tried to challenge on the grounds that the court improperly applied the community standard. c. No court has set a binding precedent for a national standard. d. Outlier: Ninth Circuit suggested jury instructions could include national community standard considerations. d. Recently SCOTUS recognized the variation in community standards constitutes a particular burden, but the Court has not adopted a national community standard for internet obscenity. ii. Patently offensive: outlined in Miller v. California, representations or descriptions of ultimate sexual acts (actual or simulated) masturbation, excretory functions, or lewd exhibition of genitals.

a. At least has to include hard-core sexual conduct (SCOTUS made this clear when it rejected a jury’s finding that the 1971 movie “Carnal Knowledge” was obscene). b. Miller’s examples of patently offensive material are not an exhaustive list. c. Courts have found Snapchat videos that show genitalia/masturbation and texted photographs of genitalia are patently offensive (intended recipients were minors). iii. Wide gap between any social value and serious social value. a. Material falling in the space between could be found obscene if it meets the first two parts of the Miller test. b. Pope v. Illinois—SCOUTS ruled serious social value should be decided using national standards and a determination of serious social value should be based on what a reasonable person would decide. c. Cincinnati Contemporary Arts Center was charged with obscenity for hosting a retrospective of photographer Robert Mapplethorpe’s work but found not guilty thanks to expert testimony. d. Federal district court found a two Live Crew album to be obscene; Eleventh Circuit ruled expert witnesses’ testimony was required to prove a material does not possess serious social value.

G. Testing the Miller Test i. “Porn Wars”—cultural debate about whether pornographic materials should be prohibited. a. Anti-pornography feminist legal scholars (e.g., Catharine MacKinnon, Andrea Dworkin) argued that pornography subordinates women and prevents equality, leading to sexual discrimination and sexual violence. b. Anti-censorship feminists based their arguments on a desire to protect unfettered sexual expression, resist stereotypes, and subvert existing sex roles. c. Social conservatives, including many Republican senators, seeking to negate female empowerment sided with anti-pornography feminists.

ii. Sexual harassment: unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature, which is unlawful in U.S. workplaces. iii. Indianapolis Antipornography Civil Rights Ordinance—sexually explicit material depicting women as sexual objects (appearing to enjoy pain/humiliation, domination, rape) or as sexually subordinates/in humiliating roles would be considered a civil rights violation; struck down by Seventh Circuit.

H. Sexually Explicit Material and Children i. Variable obscenity: restricting minors’ access to sexual material. ii. Ginsberg v. New York—minors do not have a First Amendment right to sexually explicit material acceptable for adults, and a state can adjust the definition of obscenity accordingly. iii. Child pornography: federally defined as any visual depiction involving a minor engaging in sexually explicit conduct or that has been created to appear to show a minor engaging in sexually explicit conduct. iv. New York v. Ferber—SCOTUS upheld New York’s strict child pornography law. a. Children endure psychological harm. b. Pornography showing children in sexual situations perpetuates sexual exploitation of children and encourages pedophilia. v. Courts strictly interpret child pornography laws. vi. Child Pornography Prevention Act—criminalizes possession of digital images of children in sexual poses/activities, even if images were of young-looking adults; SCOTUS found the law unconstitutional because provisions were too broad. vii.Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act—crime to offer/solicit sexually explicit images of children; SCOTUS held it was constitutional because it was narrowly tailored. viii.

2014: defendant challenged the definition of child pornography including visual depictions that are modified to appear like a minor; Eighth Circuit disagreed, noting there was no less restrictive means available. ix. Child pornography victims can seek restitution from the person who created the sexually explicit images and those who possess them. a. Ten U.S. courts of appeals ruled the victim must show a person who possessed/transmitted images caused specific harm.

b. Fifth Circuit is the only federal appellate court to disagree and rule if the victim showed they were harmed the image being shared, anyone found guilty of possessing that image might be liable. c. Paroline v. United States (2014)—SCOTUS found Congress intended to limit restitution to only those losses proximately caused by the defendant in the PROTECRT Act. a. Proximate cause—a cause that most directly produces the effect. b. Victim should receive restitution only in an amount that represents the extent of loss the defendant caused the victim. c. Justice Sonia Sotomayor argued the Court’s opinion could not be reconciled with the law Congress passed. d. One legal scholar suggested that restitution for victims of child pornography is not straightforward and Congress should clarify the language in the law.

I.

Other Considerations i. Stanley v. Georgia—merely categorizing films as obscene did not justify a drastic violation of the First Amendment. ii. Racketeer Influenced and Corrupt Organizations Act (RICO)—forbids using money earned from illegal activities to finance (il)legal businesses/nonprofit enterprises engaged in interstate commerce. a. Authorities have tried to control obscenity using RICO laws. b. Implicate the First Amendment. c. Example: SCOTUS found the RICO seizure of the contents of a defendant’s adult theaters and bookstores was constitutional.

II. Indecency A. Indecent speech is protected in print media, movies, recordings, and on the internet.

B. Communications Act of 1934—illegal to broadcast indecent material.

C. SCOTUS has said ‘indecent’ refers to nonconformance with accepted standards of morality; content some people find offensive.

D. FCC has defined it as language/material that depicts, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual, or excretory activities or organs.

E. Radio Act of 1927 and Communications Act of 1934 prohibit broadcasting any obscene, indecent, or profane language. i. Congress later eliminated this provision but put a ban on indecent broadcasts in the federal criminal code. ii. 1960: Congress gave FCC the power to impose fines on broadcasters who violated indecency regulations.

F. Limiting indecent programs on broadcast radio/television is intended to protect children.

G. First Amendment protects indecent material in other media because they can separate children in their audiences; broadcast radio and television are too pervasive, and children are continually exposed to them.

H. Federal Communications Commission Regulation. i. FCC v. Pacifica Foundation—broadcasters have First Amendment protection; it is limited because of spectrum scarcity. ii. Pacifica Test for determining whether broadcast material is patently offensive: a. How explicitly or graphically the material described sexual activities. b. Whether the material dwelt on sexual activities. c. Whether the material was meant to shock or sexually excite the audience. iii. 1987: FCC adopted a new, broader standard to define indecency that considered a broadcast’s context, tone, and language. iv. FCC has tried to clarify its indecency standard by adopting broadcast industry indecency guidelines; a material is indecent if it met the generic Pacifica test, and it would consider: a. How explicitly/graphically the material described sexual activities. b. Whether the material dwelt on sexual activities. c. Whether the material was meant to shock/sexually excite the audience.

v. FCC took action against several live broadcasts that would bring more refinement to the FCC’s indecency standard. a. 2003 Golden Globe Awards; Bono said, “This is really, really, fucking brilliant.” FCC concluded the comment was not indecent because it did not describe sexual activity and was fleeting and isolated; it later reversed that decision. b. Billboard Music Awards programs were patently offensive because two celebrities uttered fleeting expletives that were shocking and gratuitous. c. Second Circuit rejected the FCC’s decision, saying it failed to adequately explain why it changed its nearly 30-year policy on fleeting expletives. d. SCOTUS overturned the Second Circuit’s decision, to uphold the new rule. e. Second Circuit reheard the case and accepted the new argument that the fleeting-expletives rule violated the First Amendment; chilling effect went beyond the fleeting-expletives regulation, forcing broadcasters to self-censor. f.

SCOTUS (2012) ruled: a. FCC could not fine broadcasters for carrying the utterances because it adopted the fleeting-expletives rule after they aired. b. Broadcasters could not be held liable for violating a rule they did not know would change.

vi. Justin Timberlake briefly accidentally exposed one of Janet Jackson’s breasts during the 2004 Super Bowl halftime show. a. FCC said this violated the indecency standard and imposed $550,000 in fines against Viacom-owned stations that aired the Super Bowl. b. Third Circuit overturned the decision, saying isolated/fleeting material did not fall within the scope. c. SCOTUS told Third Circuit to reconsider its decision in light of its 2009 ruling concerning fleeting expletives. d. 2011: Third Circuit said the 2009 Fox decision supported its conclusion in the Super Bowl case that the FCC could not impose fines for airing a fleeting image of Jackson’s breast.

a. FCC and SCOTUS acknowledged the commission changed the definition of indecency in its fleeting-expletives ruling, which applied to both words and images. b. Jackson incident occurred before the new fleeting-expletives rule, so the CBS network and stations could not have anticipated the change. e. Decisions left broadcasters with little guidance. vii.Few indecency rulings/fines since the Fox Television decision; FCC has received complaints about particular broadcasts but has not acted on any. viii.

Safe harbor policy: adopted by the FCC in 1993, a broadcast station will not be punished if it airs indecent, but not obscene, material between 10 p.m. and 6 a.m. local time. ix. 2017: The Late Show host Stephen Colbert made a joke saying the only thing President Trump’s mouth was good for was “being Vladimir Putin’s cock holster”; FCC’s Enforcement Bureau concluded it was not actionable since it occurred after 10 p.m. x. 1980s: some states adopted laws forbidding cable indecency, and courts uniformly rejected these restrictions (e.g., Miami, Florida, and Utah laws struck down because Pacifica restrictions did not apply to cable television and was overbroad). xi. 1984 Cable Communications Policy Act—required cable operators to provide a method for subscribers to block individual channels. xii.1992 federal law included three provisions limiting indecent content on two types of cable channels: a. Cable operators may ban indecent programming on channels provided for community, local school, and government agency use (PEG access channels). b. Cable systems can ban any programming a cable operator believed describes/depicts sexual/excretory activities/organs in a patently offensive manner. xiii.

Denver Area Educational Telecommunications Consortium, Inc. v.

Federal Communications Commission—SCOTUS upheld leased-access provision but said cable systems could not prohibit indecent programming on PEG access channels.

a. Fractious—even when justices agreed on a result, they could not agree on a reason for the outcome. b. Congress continued to try to limit indecency on PEG access channels. xiv.

Telecommunications Act of 1996—banned cable operators from exercising editorial control over PEG content; could refuse to transmit any (portion of a) public access program containing obscenity, indecency, or nudity. a. SCOTUS overturned other sections dealing with sexually explicit cable programming. b. Congress required cable operators to scramble the signal of any indecent programming on adult-oriented channels. c. Alternatively, cable programmers could offer adult programming only during hours when children are unlikely to be watching. xv. Today, more Americans subscribe to digital streaming services; FCC has not sought to extend indecency regulations to these streaming services. xvi.

2020: Netflix came under fire for hosting the award-winning French film “Cuties” and saw an eight-fold increase in cancellations of subscriptions in the United States.

III. Obscenity, Indecency, and the Internet A. The internet has made it easy to access sexually explicit content (e.g., Pornhub).

B. According to one legal scholar, society remains mostly concerned with protecting nonconsenting adults and children from sexually explicit content.

C. Communications Decency Act, Title V of the Telecommunications Act of 1996—made it illegal to transmit obscene/indecent messages to any recipient under 18 or make available patently offensive messages to anyone under 18.

D. Reno v. American Civil Liberties Union—SCOTUS rejected the indecency provision, finding it overbroad.

E. Child Online Protection Act in 1998—banned internet distribution to children of material harmful to minors and restricted transmitting harmful content only to people intending to profit from using the internet. i. Consistently found to be unconstitutional.

ii. Affected a narrower range of materials but focused on all materials inappropriate for minors; reduced adult access to only materials appropriate for children just as the CDA had.

F. Child Pornography Prevention Act (1996)—made it illegal to send/possess digital images of child pornography.

G. Ashcroft v. Free Speech Coalition—language making it illegal to send/possess images that were not obscene was overbroad.

H. 2008: SCOTUS found the PROTECT Act constitutional because it focused not on the material but on the speech that could put the material into distribution.

I.

Children’s Internet Protection Act in 2000—schools and libraries that wanted to continue receiving federal funds would have to install filtering software that blocked obscenity, child pornography, or material harmful to minors.

J.

United States v. American Library Association—Congress had the right to set conditions for receipt of federal money.

K. 2017: Senate investigative committee concluded Backpage was knowingly assisting human traffickers; the website said it would close its adult section while it fought several lawsuits.

L. Washington and Massachusetts: Backpage successfully argued the First Amendment protected it from enforcement of state laws that created criminal liability for anyone who knowingly advertises sexual abuse of a minor.

M. Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA)—allows victims to sue websites that knowingly supported sex trafficking on their sites. i. Craigslist suspended its personals section. ii. Law enforcement praised shutdown of adult-oriented advertising but also said they were key in identifying and charging sexual predators. iii. Sex workers said they used the sites for screening, providing some additional protections from violence. iv. Legal experts have raised concerns about broader harms it might cause to Section 230 immunity. v. Challenges assert FOSTA is overbroad. a. D.C. Circuit originally dismissed the suit.

b. 2020: D.C. Circuit ruled two of the plaintiffs had standing to pursue their constitutional challenge. vi. Cases against social media companies that allegedly failed to remove content associated with sex trafficking (e.g., 2021 suit against Twitter alleging the company failed to remove links to sexually explicit videos created by teens who had earlier been solicited for sex trafficking). vii.One of the only carve outs for immunity from Section 230; most social media platforms prohibit posting sexually explicit images/video and content containing nudity.

N. Social media platforms’ Community Standards around sexually explicit content are often vague. i. Application can be biased (e.g., Instagram repeatedly deleted and blocked content from Black plus-sized model Nyome Nicholas-Williams for violating the policy on nudity while leaving similar content from petite, white women up). ii. Can be too vague/contradictory for users to understand (e.g., Twitch addressed sexual content and related issues in six different public-facing policy documents but offered no concrete definition of sexual content in any).

IV. Emerging Law A. Nonconsensual pornography: the disclosure of sexually explicit images and video without consent and for no legitimate purpose. i. One in eight social media users has been the victim of nonconsensual pornography. ii. Women are 1.5 times more likely to be victims of nonconsensual pornography. iii. Societal level: normalizes nonconsensual sexual activity and sexual surveillance.

B. 2019: The Daily Caller posted a link to a photo on Twitter, saying “some people described as a nude selfie of Alexandria Ocasio-Cortez.” i. Actually featured a woman named Sydney Leathers. ii. Representative Ocasio-Cortez tweeted about the incident, noting that women in leadership face more scrutiny.

C. Nonconsensual pornography plays a role in: i. Intimate partner violence.

ii. Sexual assault. iii. Stalking. iv. Harassment. v. Loss of jobs. vi. Being forced to change schools.

D. 2010: Hunter Moore launched IsAnyoneUp.com, the first and arguably the most notorious revenge porn site. Many sites made money from: i. Advertising. ii. Merchandise. iii. Charging victims to remove images.

E. Cyber Civil Rights Initiative began to advocate for victims of nonconsensual pornography, and by 2021, 48 states and the District of Columbia had passed laws criminalizing nonconsensual pornography.

F. Many states have exceptions for nonconsensual pornography shared in the name of the public interest (e.g., Congresswoman Katie Hill resigned from her post after sexually explicit pictures of her and a staffer were leaked to the press).

G. Illinois and Minnesota State Supreme Courts have upheld the states’ law against nonconsensual pornography, ruling that prohibiting dissemination of private sexual images without consent does not unconstitutionally restrict freedom of speech.

H. Lobbying for a national law against nonconsensual pornography to address inconsistencies and help states combat the growing problem of nonconsensual pornography created using deepfake technology. i. Deepfake: the fabricated but incredibly convincing images, videos, and audio recordings that can be created using facial mapping and artificial intelligence technology. ii. Began attracting public attention in 2017 when a Reddit user transposed celebrities’ faces onto the bodies of actors in pornographic videos. iii. Today, there are millions of deepfaked pornographic films/images online; ~90% feature women.

I.

Some websites have taken marginal steps to prohibit/remove deepfakes created using photos of non-consenting individuals (e.g., Reddit, Twitter, Pornhub).

J.

Very few remedies are available to victims. i. Celebrities may be able to bring right of publicity claims. ii. Private individuals could potentially sue for appropriation. iii. If a copyrighted photo/video is used, intellectual property laws may apply. iv. If a victim can prove the deepfaked photo/video was meant to harm/blackmail them, criminal harassment/extortion laws may apply.

K. Difficulties in finding and charging individuals responsible for deepfaked content are due to: i. Anonymity online. ii. Legitimate uses for this technology.

Lecture Notes Chapter 11: Intellectual Property: Protecting and Using Intangible Creations Learning Objectives 11-1 Understand what copyright protects and be able to identify the requirements for an infringement claim and defenses to such a claim.

11-2 Identify the requirements for federal trademark law protection and what constitutes a trademark infringement claim and defenses to such a claim.

Annotated Chapter Outline I.

Copyright A. Copyright: an exclusive legal right protecting intellectual creations from unauthorized use, therefore protecting the rights of creators of original works of authorship to use their creations.

B. Statute of Anne of 1710: the first copyright law in England which protected authors’ works and granted authors copyright protection if they registered their works with the government. i. Authors controlled their creations but often sold their rights to printers to make money.

ii. When the copyright period ended, the work entered the public domain, and anyone could use it without permission.

C. In 1970, the First Congress adopted a law giving books, maps, and charts a 14-year copyright; SCOTUS later ruled it superseded state statutes and common law copyright claims.

D. 19th century: Congress amended the law to protect musical compositions, photographs, and paintings.

E. 1870 act established the Library of Congress: i. Power to register copyrights. ii. Required creators to deposit two copies of a copyrighted published work.

F. Berne Convention for the Protection of Literary and Artistic Works (1886): a global document signed by several countries attempting to protect works globally. i. United States did not join. ii. Spurred a major revision of U.S. copyright law in 1909; extended copyright protection to 28 years, with a renewal period of another 28 years. iii. 1978: Copyright Act of 1976 took effect. a. What may be protected by copyright. b. What rights does that protection include. c. Any restrictions on the rights. d. Formalities necessary to exercise the rights. iv. 1988: Congress amended the 1976 act to permit the United States to join the Berne Convention. v. Digital Millennium Copyright Act (1988)—bans software and hardware that facilitate circumventing copyright protection technology and prohibits removing/changing copyright information.

G. What Does a Copyright Protect? i. Two broad criteria: a. (Substantially) original works of authorship. b. Work fixed in any tangible medium.

ii. 1976 Copyright Act lists eight categories of eligible works: a. Literary works. b. Musical works, including any accompanying words. c. Dramatic works, including any accompanying music. d. Pantomimes and choreographic works. e. Pictorial, graphic, and sculptural works. f.

Motion pictures and other audiovisual works.

g. Sound recordings. h. Architectural works. iii. 2017: SCOTUS held design features in clothing could be eligible for copyright protection if they: a. Are a 2- or 3-dimensional work of art separate from the useful article. b. Would qualify as protectable work if imagined separately from the useful article. iv. 1971: updated federal copyright law gave protection for songs recorded in 1972 or later. v. 2018: Ninth Circuit ruled despite a sound engineer’s remastering, these changes were not substantial enough to be considered original. vi. The 1976 statute protects all works eligible for copyright, published and unpublished. vii.Collection of previously created works can be protected if there is substantial originality in the choice or arrangement of the works (“compilation”). viii.

News stories can receive copyright protection, but the underlying facts cannot be copyrighted. ix. Google v. Oracle—SCOTUS assumed an application programing interface (API) was protected by copyright. x. Work made for hire: a work created as a part of someone’s employment; its copyright lies with the employer.

xi. SCOTUS’s factors for courts to consider in determining whether a person acted as an employee: a. Organization’s right to control how the work is accomplished. b. Who owns the equipment used to create the work. c. Where the work took place. d. Who determined the days and hours worked. e. Whether there was a long-term relationship between the two parties. f.

Who hired any assistants that may have been used.

g. Etc. xii.Freelancers and independent contractors should carefully read the agreements to understand who owns the copyright to their work. xiii.

Copyright ownership can be changed by contract by “assigning” or “licensing” rights to others (e.g., publishing houses or music publishers). xiv.

New York Times Co., Inc. v. Tasini—SCOTUS said online publications are reproduced and distributed individual articles; freelancers retain their copyrights in individual articles. xv. Some individual creators have chosen to license their work directly using online contracts/terms of service (e.g., Creative Commons).

H. Exclusive Rights and Limitations i. Six exclusive rights that copyright holders have in their works, including the right to: a. Reproduce the work. b. Make derivative works. c. Distribute the work publicly. d. Perform a work publicly. e. Display a work publicly. f.

Transmit a sound recording through digital audio means.

ii. Derivative work: a work that is obtained from or created in relation to an original work (e.g., HBO’s Game of Thrones is a derivative work of George R.R. Martin’s book series). a. Ebooks, remasterings, and creative output from a computer program are not derivative works. b. Copyright owner determines when a work will be publicly distributed (e.g., Daniel Morel’s distribution of his photographs). iii. Transmit Clause (of the 1976 Copyright Act): a broadcast network is performing when it transmits content; a local broadcaster is performing when it transmits the network broadcast; and a cable television system performs when it retransmits a broadcast to its subscribers. a. In cable television’s infancy, SCOTUS held it did not infringe anyone’s copyright when it retransmitted broadcast station signals to subscribers. b. Congress overrode the decision in 1976 and adopted a compromise, allowing cable operators to retransmit radio and television broadcast signals without obtaining permission in exchange for a compulsory fee. c. American Broadcasting Companies, Inc. v. Aereo, Inc (2014)—SCOTUS held a system utilizing thousands of antennas to offer subscribers broadcast television over the internet violated the Transmit Clause. d. Ninth Circuit affirmed this decision. e. Protecting Lawful Streaming Act (PLSA, 2020)—made unlawful streaming a felony. iv. Copyright holders have the right to publicly display a work; no one may display a work without the copyright owner’s permission. v. Ninth Circuit created the “server test”: a copyright holder’s display right for an image is not infringed when it is embedded/linked from a third-party server. a. At least two courts have rejected the “server test.” b. Embedding a tweet that contains a potentially infringing copy of a photo can constitute infringement, unless it is fair use. c. Free Speech Systems, LLC v. Menz—court allowed for direct infringement claim to proceed and left the fair use defense open. vi. Final exclusive right of a copyright holder is the right to transmit a sound recording through digital audio means—requires obtaining permission from a

recording company to play a recording via the internet, satellite radio, or other digital media. vii.Some protections are not absolute under U.S. copyright law (e.g., photocopies in libraries/for educational purposes). viii.

First-sale doctrine: the author has no right to stop the purchaser from giving art away, selling it, renting it, or throwing it away. a. Meant for a pre-digital world—when a digital copy is sent, the receiving computer makes an additional copy. b. Congress limited the first-sale doctrine by restricting the ability to share digital copies without the copyright holder’s permission. c. Second Circuit held when a digital music file moves from one person’s computer to another, the file is reproduced, infringing on copyright.

I.

Understanding NFTs i. Non-fungible token (NFT)—programmable digital unit of value recorded on a digital ledger. ii. Not exchangeable because they are one of a kind. iii. Most common: metadata file containing information encoded with a digital version of the work being tokenized. iv. Many works that are traded as NFTs are protected by copyright, and it is often unclear about what the buyers are getting; buyers usually buy only the metadata associated with the work, not the work itself. v. 2022: Nike filed a lawsuit against StockX for trademark infringement and unfair competition for selling Nike brand sneaker NFTs without Nike’s permission.

J.

Duration, Licensing, and Scope i. Copyright is a property right and includes a number of rights. ii. Example: an author can sell both the right to reproduce their novel as a hardback and a paperback because the right of copyright encompasses many different rights. iii. License—a contract giving limited permission for use. iv. The 1976 copyright law gives creators a termination right, which can require the transferred rights be returned 35–40 years after the original transfer.

v. Music Modernization Act (MMA, 2018)—first major update of copyright law since the DMCA in 1998 that: a. Ensures songwriters and artists receive royalties for songs recorded before 1972. b. Created a new, independent entity called the Mechanical Licensing Collective (MLC) to help streaming services pay copyright holders. c. Improved royalty compensation. vi. New blanket license for streaming music, managed by the MLC, which is required to: a. Collect, distribute, and audit royalties generated. b. Create and maintain a public database that identifies musical works, their owners, and ownership sharing information. c. Provide information to help match musical works with their sound recordings. d. Hold unclaimed royalties for at least 3 years before distributing them. vii.Sonny Bono Copyright Term Extension Act of 1998—extended all copyright periods by 20 years. viii.

Works made for hire are protected for 95 years from publication or 120 years from creation, whichever is shorter. ix. Copyright protection’s duration depends on: a. Whether works were in the public domain on Jan. 1, 1978. b. Whether a work was copyrighted under the 1909 law and not renewed x. Eldred v. Ashcroft—extending the copyright period is constitutional; Congress can determine what “limited” means as long as the copyright period is not forever (creator’s life 70+ years). xi. Golan v. Holder—Congress can give copyright protection to works that were in the public domain.

K. Copyright Infringement i. Infringement: using any part of a copyrighted work without permission (unless there is an applicable defense).

ii. Copyright statute allows a court to award statutory damages even if the infringer does not make a profit. iii. Rimini Street v. Oracle USA—Oracle had argued it was entitled to the full costs of legal action ($29 million in attorney’s fees, $3.4 million in taxable costs, and $13 million in nontaxable costs). SCOTUS ruled $13 million in nontaxable costs was not allowed under Section 505. iv. SCOTUS held a copyright infringement lawsuit may only commence after the copyright is registered by the U.S. Copyright Office. a. Can recover for infringements that occurred before and after the copyright’s registration but cannot bring a claim until the Register of Copyrights has registered the copyright. b. Arnstein test: was a plaintiff’s work actually copied? a. Did a defendant have access to the work? b. Were the works substantially similar? c. Expert witness testimony can help better explain differences in various contexts. v. Arnstein decision deliberately empowered juries to play a central role in copyright claims. a. Example: Marvin Gaye won a copyright infringement case against Robin Thicke, Pharrell Williams, and Clifford Harris for “Blurred Lines.” b. Experts argue copyright law has become so complex that jury decisions create ad hoc and arbitrary results. vi. Accidental infringement violates the law but may result in reduced or waived statutory damages. a. Showing the defendant knowingly aided/contributed to copyright infringement is sufficient for contributory infringement (not specifically banned in copyright law, but statute implies and courts have held it violates the law). b. Sony Corp. of America v. Universal City Studios, Inc—SCOTUS said Sony might have known viewers used VCRs to record programs, but Sony was not liable because the VCRs could be used for noninfringing purposes.

vii.Vicarious infringement: a company has a financial interest in the infringement and the ability to control it even if the company does not have direct knowledge of the infringement. a. Example: early digital music file-sharing services (e.g., Ninth Circuit ruled Napster violated copyright law because its sole purpose was to aid copyright infringement by allowing users to share copyrighted music). viii.

Infringement by inducement: as a person or entity who does not directly infringe induces others to do so and can be held liable for that infringement. a. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.—Grokster infringed on MGM’s copyright because it knew people used its software to download music files; it did not matter that software could be used legally because Grokster induced users to infringe on copyrights.

L. The Copyright Alternative in Small-Claims Enforcement Act of 2020 i. Copyright Alternative in Small-Claims Enforcement Act (CASE Act, 2020)— established a Copyright Claims Board as a low-cost alternative to litigation in federal court. ii. Organizations supporting the law are: a. Professional Photographers of America. b. Society of Composers & Lyricists.

M. Fair Use Defense i. Fair use: use of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity. ii. The 1976 Copyright Act’s four criteria that courts use in deciding fair use: a. The purpose and character of the use a. Criticism, comment, news reporting, teaching, scholarship, parody, searchable databases, and research. b. Transformative use: the more the parody transforms the work it mimics, the more likely it is that the nature of the use is fair.

c. Fair use is more likely if the new work adds something and alters the copyrighted work (e.g., two Live Crew parody of Roy Orbison’s song “Oh, Pretty Woman”). d. Seventh Circuit ruled a parody by “South Park” of a viral video was fair use because the program commented on and critiqued the social phenomenon of the viral video. e. Second Circuit held an unauthorized derivative work of “Point Break” was fair use and could itself be copyrighted because it added sufficient originality. f.

New York judge found that a celebrity gossip website infringed on copyrights of celebrity photos it used.

g. Federal judge held legal databases did not violate copyright law when they copied legal briefs to create an interactive legal research tool. h. Federal district court held a service that monitors and records television and radio broadcasts to turn them into a searchable database amounts to fair use; the Second Circuit reversed. i.

Second Circuit held that Google’s mass digitization of millions of books was a transformative fair use.

j.

Example: Google LLC v. Oracle America, Inc.

b. The Nature of the Copyrighted Work a. Examines whether copyrighted work is largely creative or more informational/functional. b. Courts often find more copyright protection for creative works. c. Question of unpublished materials: court allowed J.D. Salinger to stop distribution of an unauthorized biography including excerpts from his letters. d. Congress amended the Copyright Act to clarify that while unpublished materials are afforded more protection, fair use is an appropriate defense if a person can meet all four factors. c. The Amount and Sustainability of the Portion Used a. How much of the copyrighted work was used without permission?

b. What particular portion of the copyrighted work was used, and how important was it to the copyrighted work? c. Students sued Turnitin because it archived their work in the company’s computers; the Fourth Circuit ruled although the company copied each student paper in its entirety, Turnitin’s archiving was fair use. d. Federal appellate court said reprinting full pictures of Grateful Dead posters and concert tickets did not preclude fair use. e. Professors, film and media studies students, and documentary filmmakers may use short clips from movies for criticism, commentary, or to make new, noncommercial videos. d. The Effect on the Plaintiff’s Potential Market a. Typically, second most important factor. b. Kinko’s store made a professor’s course packets by copying chapters from numerous books without permission; several publishers sued, and a court rejected Kinko’s fair use defense. c. SCOTUS has said, typically, the more of a work someone copies, the less likely it is someone else will purchase the original, causing market harm to the copyright holder. d. Conversely, copying an entire work for a searchable database can make it more widely available, enhancing its value.

N. Section 512 and the DMCA Safe Harbor Protections i. Section 512 shields internet service providers (ISPs) and platforms from copyright infringement claims if they remove material a copyright holder tells them is posted without permission (“notice and takedown”). ii. Websites can: a. Name an agent to receive takedown requests. b. Let site users know of the site’s copyright infringement policy. c. Comply with takedown requests it receives. iii. Users can: a. Engage in counter notification.

b. Challenge notice and takedown process. iv. Customers cannot sue the platform for removing material even if they later show that the material did not violate copyright. v. Platforms that knowingly transmit material that violates copyright are not protected. vi. Safe harbor: provision stating a copyright holder cannot successfully sue the site operator if the operator did not know that the content infringed someone’s copyright, did not earn money directly from posted material, and promptly complied with a takedown notice (affects video-sharing sites, such as Veoh Networks and YouTube, in particular). vii.Second Circuit ruled that DMCA safe harbor did not protect a handful of infringing videos that Vimeo employees viewed and did not flag. a. Red-flag knowledge: phrase referring to a platform that is subjectively aware of the facts that would make infringement obvious to a reasonable person. b. If a website/platform has red-flag knowledge and does not remove the material, a court could find it responsible for infringement. viii.

DMCA safe harbor does not offer protection if an ISP/sharing service does not implement its policies for enforcement (e.g., Fourth Circuit rejected Cox Communications’ safe harbor defense in a case involving subscribers’ use of BitTorrent). ix. Tenth Circuit held Examiner.com was protected under the DMCA safe harbor provision after individuals contributing to the website posted photographs without permission.

II. Trademarks A. Trademark: a word, name, symbol, or design used to identify a company’s goods and distinguish them from similar products that other companies make.

B. Distinctiveness Requirement i. Fanciful marks: invented marks, including made-up words, which are the most distinctive (e.g., Lexus, Xerox, Exxon). ii. Arbitrary marks: the next most distinctive category, words that have ordinary meanings unrelated to the product or service (e.g., Apple, Inc.).

iii. Suggestive marks: words that suggest a product’s qualities or a manufacturer’s business but do not describe either and require consumers to use their imaginations to discern the company’s exact business (e.g., CarMax). iv. Descriptive mark: words that leave little to a consumer’s imagination, describing the product or service and may or may not suggest what company provided it (e.g., soft drink companies using “refreshing” to describe their products). a. May be a trademark if it has acquired a distinctive connection to the product for which it is used (secondary meaning). b. Courts do not agree on a test for finding a secondary meaning, but the Ninth Circuit considers: a. Whether actual purchasers associate the trademark with the producer. b. Degree and manner of advertising. c. Length and manner of use. d. Whether use has been exclusive. c. Fifth Circuit held that Viacom held the common law trademark to “The Krusty Krab,” the name of the restaurant central to “SpongeBob SquarePants.” d. Certain groups of descriptive words (e.g., geographic terms) rarely acquire a secondary meaning (e.g., a court refused to find “Boston” had a secondary meaning in the phrase “Boston Beer”). e. Geographic terms cannot be registered if they are deceptive (e.g., ham processor in Nebraska cannot use “Danish ham” as a trademark). f.

People’s names must acquire a secondary meaning to be protected (e.g., Fabrikant & Sons vs. Fabrikant Fine Diamonds).

g. Courts often consider three interests when ruling in competing name cases: a. Plaintiff—protecting good will. b. Defendant—using their own name in business activities. c. The public—being free from confusion and deception.

v. Generic words: everyday words that cannot be given trademark protection (e.g., Harley-Davidson could not use “hog” as a mark for its motorcycles). a. Some marks that were once protected became generic (and unprotected) when the public used the mark to mean a category of goods (e.g., “Thermos,” “cellophane,” “aspirin,” and “monopoly”). b. If a word primarily means a particular manufacturer (e.g., Xerox makes Xerox copying machines), it will remain a trademark. c. Companies often take steps to prevent a trademark from becoming generic: a. Select a distinctive mark. b. Advertise goods using both the trademark and generic word (e.g., Kleenex facial tissue). c. Use advertisements to educate the public the product’s trademark is not generic. d. Use the trademark on several different products.

C. Registering a Trademark i. History of using a distinctive mark for a product can give it protection even if it is not registered; the first person/company to use the mark owns it. ii. State courts recognize common law rights in marks within the geographic area where they are used. iii. Not necessary to register a mark to give it common law protection. iv. Mark must be registered with U.S. Patent and Trademark Office to have statutory protection under the Lanham Act. a. Submit an application form, drawing of the mark, and a filing fee to the PTO. b. Trademark attorney must be involved. c. Excludes marks: a. With a flag/other insignia of any country, state, or city. b. With a name/other identification of a living person without their consent.

c. That are only descriptive without secondary meaning. d. That are identical/similar to an existing mark. v. Trademark Modernization Act of 2020—allows third parties to petition for reexamination/expungement of marks and provides shorter examination periods to clear a trademark and faster removal of trademarks that are not in use. vi. Federal registration: a. Provides more protection. b. Establishes date of mark’s first use. c. Protects nationwide use. d. It lets the competitors know that a company owns the mark. e. Allows a company to use the statutory symbol for registered marks. f.

Allows an owner to sue for infringement in federal court.

g. Gives mark nearly complete protection after 5 years of use. h. Sixth year after registration—mark owner must file an affidavit confirming that the mark has been in continued use. i.

Grant marks registered after Nov. 16, 1989, have a 10-year term.

j.

Allows registrations to be renewed indefinitely.

vii. Disparaging marks: trademarks that are considered immoral, disparaging, or deceptive (e.g., Asian American band the Slants). viii.

Matal v. Tam—SCOTUS held that the disparagement clause violates the First Amendment. a. Section 2(a) of the Lanham Act also prevented the USPTO from registering a mark that was considered immoral. b. After the Matal ruling, D.C. Circuit found Section 2(a)’s ban violated the First Amendment because it was a content-based restriction that should be subject to strict scrutiny. c. SCOTUS said the Lanham Act’s ban was viewpoint based and overly broad and violated the First Amendment.

D. Domain Names, Keywords, and Hashtags

i. Domain names may be trademarked and protected against infringement, but suffixes (e.g., .com or .org) are not part of a trademarked domain name. ii. Anticybersquatting Consumer Protection Act (ACPA)—provides civil and criminal remedies for registering a domain name with the intention of selling it to the trademark owner. a. Example: Spider Webs registered hundreds of domain names, including ErnestandJulioGallo.com. Gallo winery sued, and a federal appellate court held the unauthorized domain could injure Gallo’s trademark. iii. If two companies have identical/similar trademarks for two different products, the companies’ domain names might be the same; one court said trademark law takes precedence over domain registration. iv. If two domain names are similar but describe products, courts may allow firms to continue using the names; a federal appellate court has allowed both companies in this type of case to use their domain names. v. Federal court held use of a competitor’s trademark as an advertising keyword in a search is not a trademark infringement (e.g., Alzheimer’s Foundation of America’s purchasing of trademarks as search engine keywords). vi. Companies can register hashtags as trademarks only if it functions as an identifier of the source of goods or services (e.g., #smilewithacoke, #cokecanpics, #McDstories).

E. Trademark Infringement i. Lanham Act says trademark infringement occurs when a mark is likely to cause confusion/mistakes/deception as to the: a. Affiliation/connection/association of such person with another. b. Origin/sponsorship/approval of one’s goods, services, or commercial activities by another. ii. First Amendment protects using a competitor’s trademark in comparative advertising, but a competitor may not alter a mark. a. Court ruled a competitor’s comparative ad that distorted and animated John Deere’s logo diminished it. b. Facebook claimed that it won a trademark infringement lawsuit against a social networking site named Teachbook.

iii. Similar (even identical) marks may not cause confusion if the goods are not the same. iv. Tacking: the practice of a trademark owner slightly altering a trademark without abandoning ownership of the original mark. a. Must show the two trademarks create the same commercial impression. b. Later mark should not materially differ from/alter the character of the original mark. c. Owner must show consumers believe both trademarks represent the same company/product and there is no marketplace confusion. d. Example: “Pepsi-Cola” in cursive font to a circle logo with “Pepsi” in the center. e. 2015: SCOTUS ruled a jury should decide questions of tacking because it involves a question of fact. f.

Criteria: a. Marks’ similarities. b. Similarities of products/services for which the marks are used. c. How consumers purchase the goods. d. How well known the first-used mark is. e. Proven, actual confusion. f.

How long both marks have been used without confusion.

v. Dilution: using a famous trademark in a way that disparages or diminishes the mark’s effectiveness. a. Blurring: a product name similar to a well-known trademark could make the famous mark less distinctive, whittling away a trademark’s selling power. b. Tarnishment: a poorly made or unsavory product using a name similar to a famous trademark could cause consumers to think less of the wellknown mark. vi. SCOTUS ruled Victoria’s Secret had to show actual dilution of its trademark due to an adult novelties store called Victor’s Secret.

a. Congress revised anti-dilution law to require companies with famous trademarks to show only a likelihood of dilution. b. Company must show that another firm’s similar mark has diminished the well-known mark’s distinctiveness or injured its reputation. c. Nearly half the states have anti-dilution statutes that protect dilution of all marks used in the state.

F. Defenses i. Descriptive fair use: a legal use of a mark to describe a company’s goods and not as a trademark that does not cause customer confusion (e.g., Ninth Circuit’s “web celeb” decision). ii. Nominative fair use: a legal reference to a defendant’s own product or service by using the plaintiff’s mark without permission (e.g., two newspapers used the trademarked name “New Kids on the Block” to promote the newspapers’ telephone polls about the band). iii. Rogers v. Grimaldi—Second Circuit established a two-part test to determine whether the title of an artistic work is entitled to the First Amendment protection. iv. Rogers test—a defendant must show that the title: a. Has some artistic relevance to the underlying work. b. Is not explicitly misleading as to the source/content of the work. v. Example cases: a. Ninth Circuit case with VIP Products’ sales of Bad Spaniels Silly Squeaker dog chew toy. b. Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC—Fourth Circuit ruled a dog company’s imitation of Louis Vuitton branding would never be mistaken for the idealized image of Louis Vuitton.

Lecture Notes

Chapter 12: Advertising: When Speech and Commerce Converge Learning Objectives 12-1 Understand how the Supreme Court came to protect commercial speech and the development of judicial doctrine for it.

12-2

Identify the powers of the FTC to protect consumers.

12-3

Learn about the role of other executive agencies in protecting consumers.

12-4

Describe and define the development of judicial doctrine for corporate speech.

Annotated Chapter Outline I.

Commercial Speech A. Law of commercial speech is rooted in the: i. First Amendment. ii. Commerce Clause (Article 1, Section 8 of the Constitution)—enumerates Congress’ power to regulate commerce with foreign nations, and among states.

B. Commerce—the provision of goods/services in exchange for compensation, usually payment.

C. Industrial Revolution, rise of consumer culture, and broadcast media ignited the consumer landscape and grew the U.S. advertising market.

D. Increase in unfair/monopolistic business practices (e.g., business “trusts” like Standard Oil).

E. Sherman Antitrust Act (1890)—required trusts like Standard Oil to divest major holdings.

F. Federal Trade Commission: established in 1914 and expanded under the Lanham Act, is the regulating body that prohibits unfair or deceptive acts or practices in or affecting commerce. i. Protects consumers by ensuring advertisers have evidence to support claims. ii. Ensures a fair and competitive marketplace for businesses.

G. Early Case Law i. Valentine v. Chrestensen: a. Involved distribution of a handbill encouraging people on the streets of New York to pay to tour a decommissioned U.S. Navy submarine.

b. Although the handbill contained a law protesting the ban on the distribution of such pamphlets, SCOTUS ruled the handbill was commercial advertising and soliciting and emphasized the public’s right to be free of interference on public thoroughfares. c. Many interpreted Chrestensen to mean that a message whose primary purpose was to promote commerce did not receive First Amendment protection. ii. Breard v. Alexandria—SCOTUS upheld a law banning unsolicited door-to-door sales of magazines; the primary purpose was commercial and, therefore, regulable. iii. New York Times Co. v. Sullivan: a. SCOTUS distinguished a civil rights ad from Chrestensen’s overt commercial advertising. b. Sullivan ad communicated information and opinions and seeking support on behalf of a movement that was a matter of public interest and concern. c. Affirmed the regulation of commercial messages more readily than noncommercial messages. iv. Bigelow v. Virginia—SCOTUS looked to the political nature and public interest in advertising legal abortions in New York state to determine neither payment for/format of such commercial speech deprived it of First Amendment protection.

H. Difficulties Defining Commercial Speech i. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council—SCOTUS ruled a state ban on pharmacists’ advertising prescription drug prices violated the public’s right to receive information about the prices and need for a free flow of commercial information. ii. Applying this reasoning, SCOTUS struck down laws prohibiting: a. “For sale” signs on lawns. b. Ads for contraceptives. c. Lawyer advertising. iii. Central Hudson Gas & Electric Corp. v. Public Service Commission—cornerstone of modern commercial speech law, SCOTUS defined commercial speech as

expression related solely to economic interests of the speaker and audience and/or speech proposing a commercial transaction. iv. Scholars define advertising/commercial speech as paid, mass-mediated attempts to persuade. v. Native advertising: an approach that disguises commercial advertising content by mirroring the tone, style, and design of the nonadvertising copy in which it is embedded. a. Generated by Wall Street Journal, BuzzFeed, HuffPost, etc. b. Promoted tweets. c. Suggested Facebook posts. d. Editorial-based content recommendations. vi. Content marketing: a technique in which brands are themselves becoming publishers, creating their own platforms, and posting content directly to consumers (also called sponsored content, branded content, or brand promotion). a. Video shorts. b. Brand documentaries. c. Brand podcasts. vii.Celebrity marketing is a hallmark of advertising and remains popular. viii.

Influencer marketing: an approach in which generally less famous fans of brands who develop expertise and a significant social media following are used to promote a brand. ix. Combination of old and new techniques has been called “integrated brand promotion.” x. Advertisers are increasingly addressing social issues. a. Some publicists argue resulting public controversy fuels viewing and impact of ads. b. Mingling commerce with public issues/political speech moves speech away from being purely commercial. xi. Lower courts struggle to define what is, and is not, commercial speech.

a. Fifth Circuit ruled one company’s claim that the chief employee of another firm was a “deadbeat dad” was commercial speech. b. Seventh Circuit ruled in Michael Jordan’s favor when he sued a grocery store for printing his photograph and a message congratulating him in a magazine ad with the store’s logo and marketing slogan; on remand, trial court found for the store. c. Ninth Circuit ruled film “The Hurt Locker” was not commercial speech because it did not propose a commercial transaction. d. Federal district court ruled a hybrid combination of commercial and non-commercial speech could be regulated if the ad referenced a specific product/service to advance the speaker’s economic interests.

I.

Testing Commercial Speech Protection i. 1970s: SCOTUS established that if truthful commercial speech is of core public interest, the First Amendment protection outweighs regulating advertising. ii. Central Hudson Gas & Electric v. Public Service Commission of New York—SCOTUS established nondeceptive advertising for legal products and services is constitutional only if: a. Government demonstrates substantial state interest in regulation. b. Regulation directly advances that interest. c. Regulation is no more extensive than necessary. iii. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico—SCOTUS walked used steps set out in Central Hudson to find a regulation banning the advertising of casino gambling was legal. iv. Board of Trustees of the State University of New York v. Fox—SCOTUS said advertising regulation did not need to employ the least restrictive means but must demonstrate a reasonable fit to state’s interest. v. SCOTUS has tried to help lower courts grapple with the determination: a. A law does not fit its objective when alternatives are available. b. Scope of the restriction on speech must be reasonably targeted to address the harm intended to be regulated. c. Required match between the law and its goals must be narrowly tailored.

d. Sorrell v. IMS Health, Inc.—SCOTUS ruled proper fit ensures the State’s interests are proportional to the resulting burdens and the law does not seek to suppress a disfavored message. vi. Lower courts and scholars criticized SCOTUS’s shifting definition of Central Hudson’s required fit. a. 44 Liquormart, Inc. v. Rhode Island—SCOTUS emphasized that government could not ban advertising even for dangerous/disfavored vice products (e.g., alcohol). a. Advertising bans are the most egregious regulatory approach; courts should use special care in review of their use. b. Sorrell v. IMS Health, Inc—SCOTUS said strict scrutiny applies to government’s attempts to prohibit dissemination of truthful, nonmisleading information about a lawful product even when speech is commercial. a. Vermont law was a content- and a speaker-based restriction and an attempt to prohibit certain uses of truthful information. b. Strict scrutiny was justified because the government tried to suppress flow of information out of disagreement with its message. c. Law was found to be unconstitutional without relying on commercial speech precedents. vii.Critiques of Sorrell: a. Incoherent. b. New rationale pinched the already narrow space between First Amendment protection accorded commercial and non-commercial speech. c. Eviscerated precedent that speech intended solely for profit should not receive the full constitutional protection afforded to political, artistic, or scientific speech. d. Courts to heightened scrutiny for laws regulating truthful, nondeceptive advertising, twisting outcomes in cases of advertising/product labeling. viii.

J.

Circuit courts were uncertain when to apply Sorrell or Central Hudson.

Compelling Commercial Speech

i. SCOTUS has held government efforts to compel and silence speech are equally suspect. ii. Government-mandated disclosures threaten the First Amendment freedoms because they: a. Alter the speaker’s coherent message. b. Force a speaker to declare something as fact that they dispute. iii. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio—SCOTUS ruled government can prescribe what is orthodox in commercial advertising. a. Required factual disclosures infringe more narrowly on First Amendment interests than other forms of compelled speech. b. Government may require warnings/disclaimers reasonably related to the state’s interest in preventing deception. iv. Lower courts struggled to distinguish Zauderer’s purely factual disclosures from mandates imposing intrusive/ideological messages triggering strict scrutiny. v. Courts did not agree on how to apply Zauderer’s lesser review for an uncontroversial disclosure that: a. Was factually accurate b. Reflected a commonly accepted understanding. vi. National Institute of Family and Life Advocates v. Becerra—SCOTUS suggested Zauderer’s departure from strict scrutiny review of government-compelled commercial disclosures should apply narrowly and only to disclosures unrelated to a subject of disagreement. a. Struck down a law requiring commercial pregnancy-crisis centers to provide factual information about public abortion services without deciding what standard of review applied. b. Compelled disclosures must remedy potentially real—not purely hypothetical—harm and be no broader than what is reasonably necessary. vii.CTIA—The Wireless Association v. City of Berkeley (2018)—SCOTUS instructed the Ninth Circuit to reconsider a Berkeley city commercial speech mandate and to use NIFLA rather than Zauderer. a. Ninth Circuit upheld its original decision.

b. Ordinance required cellphone retailers to tell customers carrying a cellphone in certain ways could expose them to radiation beyond Federal Communications Commission recommended limits. viii.

Ongoing Ninth Circuit case regarding an ordinance requiring health warnings on sugar-sweetened beverages and their fixed advertising.

K. Regulating Vice Products i. Tobacco a. D.C. Circuit ruled the federal Public Health Cigarette Smoking Act’s ban on broadcast TV/radio ads for cigarettes did not violate free speech of tobacco companies; the government had the power to regulate tobacco advertising to protect minors and others. b. Lorillard Tobacco Co. v. Reilly (2001)—SCOTUS used Central Hudson to rule restrictions on tobacco ads addressed a state interest unrelated to the communication of ideas; the ban was unconstitutional because it did not reasonably fit the state interest. c. 2017: federal district court upheld authority of the Food and Drug Administration to regulate all tobacco products and a West Virginia district court ruled an e-cigarette consumer could pursue a First Amendment claim against the FDA and its new rules. d. Trump administration blocked enforcement of new FDA rules regulating the sale and labeling of cigars, e-cigarettes, and vaping materials. e. Later, Trump administration raised the federal legal age for purchasing tobacco from 18 to 21, encompassing e-cigarettes and vaping. f.

2020: Trump administration proposed legislation blocking FDA’s authority to regulate tobacco.

g. Under the Biden administration, FDA continues to regulate tobacco/tobacco products but remains under scrutiny. h. Uncertainty has led some experts to call it a “regulatory muddle.” ii. Gambling a. SCOTUS reviewed the constitutionality of a federal law banning a radio station in North Carolina (gambling was illegal) from advertising lotteries when most listeners lived in Virginia (lotteries were legal).

b. SCOTUS upheld the ban, finding state power to ban gambling provided a legitimate government interest in discouraging gambling promotion. c. SCOTUS also said the radio station’s audience-based argument has no logical stopping point once the state boundaries are ignored. iii. Alcohol a. Rubin v. Coors Brewing Co.—SCOTUS ruled that while combating strength wars might be a substantial interest, a ban on alcohol content advertising/labeling did not fit that goal as well as less intrusive alternatives. b. 44 Liquormart, Inc. v. Rhode Island—SCOTUS ruled the state’s ban on pricing in alcohol ads was unconstitutional because it did not agree that it would significantly advance state’s interest in promoting temperance. c. Fourth Circuit held Virginia’s ban on alcohol ads in college newspapers violated the First Amendment because it was not narrowly tailored to state interest in reducing alcohol abuse on college campuses. d. Federal court in North Carolina struck down a state regulation prohibiting alcohol advertising depicting the use of alcoholic beverages in a scene that is undignified, immodest, or in bad taste. iv. Prescription Drugs a. In Sorrell, SCOTs found the state burdened protected expression that it found too persuasive and left unburdened speakers whose messages are in accord with its own views. v. Guns a. Federal law shields the gun industry from nearly all civil liability for the dangers their products pose. b. Attempts regulate gun advertising have been unsuccessful. c. 2018: applying Central Hudson, the federal trial court in California said that gun advertising that was attempted to ban was lawful and nonmisleading even though the state’s interest in reducing handgun suicide was substantial; the law was unconstitutional because it: a. Did not substantially advance the state’s legitimate interest. b. Was intended to suppress truthful speech the government found too persuasive.

d. Earlier ruling: First Amendment challenge to the law would likely succeed because the state goals of dampening demand and reducing violence were tenuous and only indirectly advanced by limiting speech. e. 2022: families of nine Sandy Hook Elementary School shooting victims agreed to a $73 million settlement with Remington. f.

2020: father of a student who was killed in the Stoneman Douglas High School shooting filed a complaint with the FTC alleging Smith & Wesson used unfair/deceptive practices to market rifles; complaint is still pending.

L. Regulating Ads on Government Property i. Case outcomes vary: a. Favoring advertisers: determined by nature of speech involved. b. Favoring government: focused on the nature of forum. ii. Ninth Circuit upheld the authority of Seattle Metro Transit to prohibit ads on buses criticizing Israeli policies toward Palestinians because of real and substantial fears ads presented a foreseeable threat of disruption to passengers. iii. First Circuit affirmed a Massachusetts ban on ads that demean or disparage individuals/groups from transit vehicles because it was a constitutional application of reasonable, viewpoint-neutral limits. iv. Federal district court ruled the Philadelphia public transit authority’s refusal to display Islamophobic ads violated the First Amendment and enjoined the ban.

M. False or Misleading Speech i. SCOTUS has steadfastly held the Constitution does not protect false or deceptive advertising. ii. In Virginia State Board of Pharmacy, SCOTUS established government could regulate commercial lies and deceptions. iii. SCOTUS developed this thought further in Lorillard Tobacco Co. iv. For four decades, SCOTUS opinions have flatly stated commercial speech loses its protection if it is misleading, fraudulent, false, deceptive, or coercive. v. In Zauderer, SCOTUS said government could justify regulation if an ad had a tendency to mislead consumers.

vi. Cincinnati v. Discovery Network—SCOTUS seemed to suggest regulation of a literally true but misleading disclosure that creates the possibility of consumer deception might be permitted. vii.SCOTUS has not defined when advertising becomes impermissibly deceptive or misleading. viii.

Circuit Courts have wrestled to decide when ads are inherently likely to deceive or where the record indicates a particular form/method has been deceptive. ix. Determining truth/falsity of an ad involves a fact-based inquiry (e.g., Canada Dry Ginger Ale’s false “made from real ginger” ad claim). x. Identifying deceptive advertising that misleads potential customers requires determination of probable audience response.

N. The Lanham Act i. Lanham Act: a 1946 law prohibiting any false or misleading description or promotion of goods, services, or commercial activities. ii. Amended in 1988. iii. Today, applies to competitors, not consumers. iv. Five elements for a successful claim: a. Defendant must have made a false/misleading statement of the fact in advertising. b. Statement must have actually deceived/had the capacity to deceive a substantial segment of the audience. c. Deception must have been material. d. Defendant must have caused its goods to enter interstate commerce. e. Plaintiff must have been/is likely to be injured as a result. v. SCOTUS has said a plaintiff has standing to sue when the defendant allegedly caused an injury to the plaintiff’s commercial interest that lies in the law’s “zone of interest” (undefined but suggested to be roughly equivalent to legislative intent). vi. California district court ruled in a Lanham Act case for a restaurant who said DoorDash deceptively directed customers away from its business.

vii.Courts continually wrestle with the act’s scope. viii.

SCOTUS interpreted the Food, Drug and Cosmetic Act to complement the Lanham Act; this allowed POM Wonderful to sue Coca-Cola over labeling on Minute Maid pomegranate blueberry juice. a. Coca-Cola was incorrect in arguing because food/beverage labeling is involved, it has no Lanham Act liability. b. Lanham Act requires that false advertising only proximately cause injury.

O. State Law Claims i. Many states have laws prohibiting unfair competition and false/deceptive advertising (e.g., North Carolina prohibits unfair methods of competition and unfair or deceptive acts or practices). ii. Some states (e.g., Minnesota) legislate against ads containing any assertion, representation, or statement of fact which is untrue/deceptive/misleading. iii. States regulate particularly in areas where federal government has not claimed jurisdiction. iv. In recent years, plaintiffs have tried to sue under the state law on the basis of advertising claims made on a product’s labels (e.g., “white” non-chocolate false advertising claims like Prescott v. Nestle USA, Inc.) P. Confusion and Doctrinal Pressures i. Regulation of commercial speech attempts to balance the rights of commercial speakers against concerns for public welfare and state interest. ii. Since the 1970s, SCOTUS has provided increasing First Amendment protection for commercial speakers. iii. Although courts have allowed a wide room for false political speech, SCOTUS has consistently held false/deceptive commercial speech receives no protection. iv. Courts have justified the separation between political and commercial speech doctrines by arguing commercial speech is harder and less likely to be chilled when regulated. v. Justice Thomas has favored increased protection for commercial speech in several opinions (e.g., 44 Liquormart Inc., v. Rhode Island).

II. Consumer Protection and the Federal Trade Commission (FTC)

A. Empowered to investigate and prevent: i. Unfair/deceptive acts or practices affecting commerce; cases against advertisers. ii. Unfair methods of competition; cases caused by businesses generally.

B. Oversees nearly all parts of commerce.

C. Has used unfairness authority to regulate digital platforms (e.g., Facebook).

D. 2021: SCOTUS ruled the FTC can no longer grant monetary relief from companies engaged in deceptive practices under Section 13(b).

E. 2022: voting to update rules and seek more authority to collect penalties under other provisions.

F. Has lobbied Congress to revise the law to make its ability to collect civil penalties clearer.

G. Build Back Better bill provides for expanded FTC powers.

H. Led by five commissioners, nominated by the President and confirmed by the Senate. i. No more than three can be of the same political party. ii. President chooses the chair.

I.

Bureaus: i. Bureau of Consumer Protection. ii. Bureau of Competition. iii. Bureau of Economics.

J.

Deception Authority i. The 1983 Policy Statement on Deception serves as the guide for all false, deceptive, and misleading advertising cases. ii. Three elements that comprise deception cases: a. Representation, omission, or practice likely to mislead the consumer. b. Case must be examined from the perspective of a consumer acting reasonably. c. Representation, omission, or practice must be material.

iii. 2009: updated rules on endorsements to consumers are not deceived/misled. iv. Likely to Mislead a. Ad is misleading when it is likely to mislead. b. Express claims: claims that make explicit representations without the need for additional evidence. c. Implied claims: claims based on a reasonable consumer take away, where the FTC considers factors such layout, wording of claims, and phrasing. d. Extrinsic evidence may be considered, but FTC will act as the reasonable consumer to make its determination. e. 2021: FTC took action against several manufacturers claiming their products helped prevent/mitigate/kill COVID-19. v. A Reasonable Consumer and Disclosures a. FTC considers the perspective of the reasonable consumer acting under reasonable circumstances and the average target audience member. b. Disclosure: the mention of express or implied claims that might be misleading without additional information; can only qualify or limit a claim to avoid a misleading impression; this cannot cure a false claim or contradict a material claim. c. A disclosure must be “clear and conspicuous.” d. FTC’s “The 4 Ps” to help guide advertisers with disclosures: a. Prominence—is the disclosure large enough for consumers to read? b. Presentation—can consumers understand the disclosure? c. Dark patterns or “negative options” practices: tactics used by companies and individuals to trick consumers into making certain choices, such as purchasing a good, subscribing to a service, or agreeing to a contract (e.g., box that is already checked that says to continue a subscription to an app beyond the initial subscription period). d. Placement—is the disclosure in a place where the consumers are likely to look?

e. Proximity—is the disclosure close to the claim it modifies? e. Puffery: obviously exaggerated claims or statements in ads; FTC assumes reasonable consumers would not take them seriously. f.

FTC report found only 1/4 of the celebrities were following its regulations that require clear notification of compensation for content on social media.

g. 2015: FTC announced its disclosure requirements applied to native advertising. vi. Materiality a. Material decision: a decision that is likely to affect a consumer’s choice or conduct regarding a product or service. b. Advertisers must substantiate (proof) to back up express and the implied claims they make. c. FTC’s statement regarding advertising substantiation requires advertisers and ad agencies have a reasonable basis for advertising claims before they are disseminated. a. Scientific/engineering tests. b. User surveys. d. Efficacy claims: claims for products that perform the advertised function or yield the advertised benefit but do not suggest scientific proof of the product’s effectiveness. e. FTC identified several factors to help determine the appropriate level of substantiation an advertiser must have for efficacy claims: a. Type and specificity of the claim made (e.g., safety, efficacy, dietary, health, medical). b. Type of product (e.g., food, drug, potentially hazardous consumer product, other consumer product). c. Possible consequences of a false claim (e.g., personal injury, property damage). d. Degree of reliance by consumers on the claims.

e. Type and accessibility of evidence adequate to form a reasonable basis for making the particular claims. f.

Establishment claim: a claim that suggests effectiveness or superiority of the product is established by scientific proof (e.g., POM Wonderful v.

FTC in 2013).

vii.Endorsements a. Endorsement: any advertising message that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. b. Sometimes, experts (individuals, groups, or institutions possessing, as a result of experience, study, or training, knowledge of a particular subject that is superior to what ordinary individuals generally acquire) can be used as endorsers, often in the case of health products. a. Must have relevant expertise b. Any claims of expected results/superior performance must be substantiated. c. Endorsements must be truthful, nondeceptive, and substantiated. d. Any advertiser who presents endorsements by “actual consumers” should use actual consumers or disclose they are not. e. All material connections must be disclosed. f.

FTC’s guide for social media influencers: a. Must disclose financial, employment, personal, or family relationship with a brand. b. Financial relationship may include free/discounted products or other perks. c. Tags, likes, and pins can be endorsements if influencers have a relationship with the brand. d. Influencers should also follow the “4 Ps.”

g. 2016: FTC issued a complaint against Lord & Taylor for not disclosing paid content and prohibited Lord & Taylor from making any representations that suggest paid content is independent or objective.

h. Another FTC order required Machinima to ensure its ad campaigns carried proper disclosure. i.

A 2016 study found 40% of publishers were not complying with FTC rules requiring labeling of native ads.

j.

A 2018 study found a significant percentage of consumers could not identify some native advertising even with prominent labeling.

K. Unfairness Authority i. 1970s: FTC faced criticism for using unfairness powers to legislate against perceived violations of public policy (e.g., attempt to ban all advertising directed to children because it was immoral, unscrupulous, and unethical and based on generalized public policies to protect children). ii. Three-part definition guides what constitutes the FTC’s unfairness authority: an act or practice that (1) causes/is likely to cause substantial injury; (2) which is not reasonably avoidable by consumers themselves; and (3) not outweighed by countervailing benefits. iii. Examples can include: a. Coercion or fraud. b. Withholding of information from consumers. c. Targeting of vulnerable consumers. d. Lack of “privity.” iv. FTC v. Wyndham Worldwide Corp.—suit against the hotel chain for a series of data breaches in which online hackers accessed consumer accounts, resulting in ~$10.6 million in fraud. v. 2015: Third Circuit ruled FTC had such authority to regulate data security under its unfairness powers and it had given businesses fair warning about new cybersecurity rules; FTC subsequently published a new guide for businesses that experience a data breach. vi. 2012 FTC’s order against Facebook: a. Prohibited it from making misrepresentations about privacy/security of consumers’ personal information. b. Required it to maintain a program to safeguard the privacy and confidentiality of user information.

vii.2019: FTC alleged Facebook violated the 2012 order by sharing data of users’ Facebook friends with third-party app developers, and Facebook was fined$5 billion, agreed to new restrictions, and modified its corporate structure. viii.

2021: Frances Haugen revealed Facebook understood its platform impacted teens’ mental health and understood the extent of misinformation on its platforms. ix. 2022: a complaint from Haugen had been filed with the Securities and Exchange Commission (SEC).

L. Enforcement i. FTC also initiates inquiries into products, services, or advertising practices. ii. FTC enforcements (preventative and corrective): a. Least formal preventive action: nonbinding opinion letter. b. Next step: official FTC advisory opinion. c. FTC industry guides suggest policies about products/services. d. FTC trade regulation rules mandate a particular practice. iii. FTC generally seeks voluntary compliance and asks advertisers to provide evidence of their own corrective steps before initiating investigations/corrective measures. a. Consent orders—FTC contract with a private party but not filed in court. b. Decree—filed with and sanctioned by a court. iv. Example: FTC ordered American Nationwide Mortgage Co. to cease and desist its direct mail ad campaign that in a virtually illegible footnote on the reverse side, listed a higher cost than the front of the ad. v. Consent decree: a. Settlement purposes only. b. Does not constitute an admission of guilt. c. First one issued for deceptive online advertising. vi. FTC actions can produce negative publicity for companies involved and may result in court- or FTC-imposed fines, are often publicized (e.g., cases involving Uber, Volkswagen, Rite Aid).

vii.If advertisers refuse to sign a consent order, the FTC may issue a litigated order in an administrative court. a. If affirmed, advertiser may appeal to a federal court. b. Failure to follow a litigated order may result in fines up to $10,000/day. viii.

FTC’s substantiation requirements demand advertisers prove their claims with competent and reliable evidence (e.g., case against Tropicana’s Healthy Heart orange juice). ix. Corrective advertising: if an advertiser fails to substantiate its advertised claims, the FTC may impose fines, initiate court action and/or order requiring the advertiser to correct the misleading claims through new ads or other means (e.g., Listerine mouthwash ad campaign, Doan’s analgesic products). x. FTC also may seek court injunctions/restraining orders to stop advertising that is false/misleading and may cause immediate harm. a. Generally stop advertising until a full hearing takes place. b. FTC can seek permanent injunctions to stop companies from making unsubstantiated claims. c. Example: case involving Camel’s use of the cartoon character Joe Camel. xi. Online Advertising a. Provides space for fraud and unwanted ads. b. Cost-effectiveness is attractive to companies. c. Can reach an enormous audience targeted because their online behavior indicates interest. d. Can provide advertisers with user data and a back door to illegal snooping. e. Cases: a. FTC settled an action against the Canadian dating site Ashley Madison after it created fake profiles to lure others to pay to initiate/end memberships. b. FTC settled a complaint that app developers violated the Children’s Online Privacy Protection Act by enabling advertisers to use trackers to target ads to children.

f.

FTC has asked internet platforms and advertisers to give consumers effective and meaningful privacy protection via an easy, internet-wide “Do Not Track” option; however, the FTC’s proposed rules allow internet publishers with a direct relationship with consumers to collect a wide array of data.

g. 2019 FTC review of opt-out, labeling, and identification requirements imposed on spam advertising found rules were effective. h. Most states have their own anti-spam laws (e.g., Jeremy Jaynes case in Virginia).

III. Other Agencies A. Federal Communications Commission (FCC) i. Imposes requirements on advertisers to prevent consumer deception. ii. Oversight of broadcast television includes regulation of certain types of advertising, marketing, and promotional content. iii. Prohibits paid, for-profit business, and campaign advertising on public television stations. iv. SCOTUS denied certiorari to review the Ninth Circuit’s summary judgment upholding the FCC ban against a public television station’s First Amendment challenge. v. Regulates offensive broadcast advertising, but no federal agency/law controls offensive nonbroadcast ads or advertising of disfavored activities. vi. Guidelines suggest offensiveness can arise from the: a. Nature of the product. b. Time at which the ad appears. c. Manner in which it is presented. vii.Rules banned broadcasters in Louisiana from airing ads for private casinos because they reached states where such gambling was illegal; SCOTUS held the rules failed the Central Hudson test because they did not advance public interest.

B. Federal Election Commission (FEC) i. D.C. Circuit affirmed FEC rules requiring disclosure of corporate and union funding for broadcast electioneering communications.

a. Focused on tension between unfettered free speech and forced disclosures. b. D.C. Circuit suggested SCOTUS has failed to provide clear guidance on when the First Amendment does (not) permit government-compelled disclosures.

C. Food and Drug Administration (FDA) i. Jurisdiction over labels and labeling; often works with the FTC. ii. Challenge to rules designed to stop sale of tobacco to children in a federal district court in North Carolina; court said FDA could regulate access and labeling of tobacco products, but its authority cannot encompass conditions on advertising and promotion. iii. Family Smoking Prevention and Tobacco Control Act—FDA adopted graphic labeling requirements for cigarettes. a. D.C. and Sixth Circuits disagreed on the constitutionality of the FDA rules. b. SCOTUS declined review of both cases. iv. 2017 and 2018: federal district court’s decisions upheld the FDA’s inclusion of vaping devices under tobacco products subject to disclosure and other advertising requirements. v. Government’s interest in promoting certain messages generally does not outweigh a company’s First Amendment right to refuse to carry government speech. vi. 2021: FDA issued warning letters to companies selling vaping products that made various unproven health and wellness claims.

D. Securities and Exchange Commission (SEC) i. Mission: a. Protect investors. b. Maintain fair, orderly, and efficient markets. c. Facilitate capital formation. ii. Created by the 1933 Securities Act and the 1934 Securities Exchange Act.

iii. Policy on the disclosure of information around commercial/corporate speech: investors should be treated fairly and have access to certain facts about investments and those who sell them. iv. Requires public companies, fund and asset managers, investment professionals, and other market participants to regularly disclose financial/other information so that investors have information they need to make decisions about investing. v. Section 5(c) of the Securities Act of 1933 prohibits promotion of an initial public offering (IPO) before registration is filed with SEC and declared effective. a. SEC requires the time between an intention to file and registration to be a quiet period (advertising and promotion of the IPO are prohibited). vi. Securities Exchange Act of 1934 prohibits fraudulent/misleading statements by publicly traded corporations. a. Corporate executives and hired public relations firms may be held accountable. b. Section 10 (b) and Rule 10b-5 prohibit fraudulent statements that are deliberate and misleading. c. Other parts regulate insider trading: the trading of a company’s stocks or other securities by those with access to non-public information about the company. vii.2021: Frances Haugen disclosed tens of thousands of pages about harms to users on Facebook and filed 8+ complaints with the SEC. IV. Corporate Political Speech A. SCOTUS has distinguished the First Amendment right of a business to communicate political messages from its commercial speech (e.g., 1977 case with First National Bank of Boston opposing a ballot initiative).

B. Citizens United v. Federal Election Commission (2010)—increased First Amendment protection for corporate and nonprofit funding of political speech. i. SCOTUS held independent political spending did not present a threat of corruption as long as it was not coordinated with a candidate’s campaign. ii. Corporations can spend unlimited funds on campaign advertising as long as they are independent and not formally associated with a candidate or political party. iii. Advocates: win for corporations and an open marketplace of ideas.

iv. Critics: ushered massive political spending from outside groups and expanded outsized political influence of wealthy donors/corporations/special interest groups. v. Fueled Super PACs (outside groups, separate from official political campaigns).

C. Consumer Activism and Corporate Speech i. Businesses have stepped increasingly into public debates on social issues. ii. Some publicists argue public attention and even legal controversy effectively increase viewing and the impact of commercial messages. iii. Nike, Inc. v. Kasky—SCOTUS was asked to determine whether Nike’s published communications responding to accusations of illegal, unsafe, and abusive conditions in overseas plants could be punished as false advertising. a. Dismissed the case. b. California Supreme Court ruled speech contained statements of fact that might be punishable. c. Nike reportedly settled and paid $1.5 million to the Fair Labor Association. iv. People of New York v. Exxon Mobil Corp.—Supreme Court of New York ruled Exxon had not violated securities law by misleading investors regarding what the company understood about climate change.

D. Professional Speech i. Corporate, business, and professional ads designed to enhance sales and revenue. ii. SCOTUS has said absolute prohibition on truthful advertising was unconstitutional, but reasonable restrictions might survive scrutiny (did not indicate how to review professional association limits in other fields). iii. Professional speech of doctors has been a focus of several cases: a. Class action lawsuit to stop policy that threatened to punish physicians for communicating the medical use of marijuana). b. Firearm Owner’s Privacy Act (2011)—Florida law preventing doctors from asking about patients’/family members’ ownership of firearms; Eleventh Circuit ruled the state might believe doctors should not ask

about/express views hostile to firearm ownership, but it may not burden the speech of others.