Free Press Vs Fair Trial Case Study
Restrictive Orders Against The Press
Check Abuses – Public as Watchdog
Promote Accountability
Maintain Official Records
Promote Due Process:
Ensure that everyone knows the rules of the game
Free Press Vs. Fair Trial, Part I
(1st Amendment) (6th Amendment)
Prejudicial Crime Reporting – Is there such a thing? The “CSI” effect John Marshall, U.S. V. Burr (1807) Irvin V. Dowd (1961) Murphy V. Florida (1975)
Traditional Judicial Remedies To balance 1st & 6th amend. *
US v. Burr (1807)
Impartial juror was “one free from the dominant influence of knowledge acquired outside of the courtroom, free from strong and deep impressions that closes the mind” – Justice John Marshall
3 US Court decisions about …show more content…
pre trial publicity:
Irvin v. Dowd (1961)
Irvin connected to 6 different murders – wanted a relocation of the case due to bias in the original jurisdiction –
** Went all the way to the Supreme court – 430 potential jurors interviewed… 375 told the judge of their predispositions about Irvin’s guilt – murder conviction later overturned and set back – willing to hear the case again **
Murphy v. Florida (1975)
Involved in the theft of millions of dollars of jewels from the NY Museum of Natural History
Defendant claims that jury was biased by massive publicity about case
Only 20 out of 78 told judge of guilt predisposition – ratio not comparable to that in the Irvin case
Patton v Yount (1984)
“Fixed opinion”
Not if jury remembered the case but if their impression of the people in the case were strong enough one way or the other
Remedies for pre-trial publicity:
1. Traditional Judicial Remedies: Free Press v. Fair Trial
Voir Dire: (see/talk) Prosecution and defense gets a certain # of challenges of potential jurors to survey
Challenge for cause: (unlimited) P or D has to tell the judge about undesirable juror and here’s why Has to be a legitimate reason
Peremptory challenge: Each side is told how many challenges they get before the trial – challenge you can assert for any reason
Change of venue: Move trial somewhere else (Tim McVeigh)
Change of venire men: Bring jurors in from a different location – not as familiar with the case at hand
Continuance: (postponement) Push trial ahead of time to let people forget about case about hand – public attitudes calm down
Admonition: Admonish… Judges strict order to jurors to disregard outside influences that could influence the verdict
Sequestration: Secluding jury to limited contact with outside world until case is complete (not used that often, OJ trial)
2. Restrictive Orders to Continue Publicity
Press
What they say to the public
Nebraska Press Association v. Stuart
Intense and pervasive publicity about case
No other alternative measure might mitigate the media pressure
The order will in fact effectively prevent prejudicial publicity from reaching potential jurors
Trial Participants
Jury, lawyers, Plaintiff, Witnesses, Bailiffs
Sheppard v. Maxwell (1966) –
Convicted 1954
Dr. Sam Sheppard of Ohio was accused of bludgeoning his pregnant wife to death – denied and said it was an intruder – turned into a “media circus” – supreme court later blames judge for not controlling court room due to massive amounts of pre-trial publicity
Nebraska Press Association v. Stuart (1976) – gag orders/restrictions
Murder of a family, lots of press coverage.
Court held unconstitutional prior restraints on media coverage during criminal trials.
Courts debated whether or not the press may be prevented from releasing info seen to be "implicative of guilt" related to the defendant.
5:4 decision – 3 part test comes out of case: how do you decide whether a gag order on the press should be issued and whether it would be constitutional? *
Must be intense and pervasive publicity about the case
No other alternative measure might mitigate the media pressure
The order must effectively prevent prejudicial publicity from reaching potential jurors
* As long as media receives information from truthful sources they may proceed and will rarely receive gag orders
Unless you’re a questionable medium who has been known to lie and manipulate facts and information, etc.
U.S. V. Gotti (2004) –
John Gotti JR – indicted on attempted murder of Curtis Sliwa – founder of Guardian Angels
Sliwa verbalized on radio show (WABC) that Gotti ordered him killed (slander), Gotti later asked Sliwa to quit pre-judicial publicity
Court later decides to grant Sliwa freedom of speech saying “voir dire” would be a better remedy rather than shutting Sliwa up – (courts hoped that Sliwa would respect Gotti’s right to a fair trial without major publicity) gag order would be a last resort
Press Enterprise I case: (right to overcome things) voir dire
Press-Enterprise Co. v. Superior Court of California (1984)
* A case involving the rape and murder of a teenage girl. Press Enterprise requested that the voir dire, the process of questioning the jury, be open to the public and press. The request was denied, as well as the request for the subsequent transcripts, and upheld by the California Court of Appeal.
California Supreme Court denied the Press-Enterprise's request for a hearing. The United States Supreme Court decided in favor of the Press-Enterprise, establishing that the public has the right to attend jury selection during criminal trials.
*
Press Enterprise II case: can attend pre trial proceedings
Press-Enterprise Co.
v. Superior Court of Riverside County, California (1986) Press-Enterprise Co. sought release of a transcript of a murder trial
Robert Diaz was accused of 12 patient murders while acting as a nurse at the Community Hospital of the Valleys in Perris, California.
Gave patients too much heart medication
The defendant requested that the public be excluded from the proceedings. The California Superior Court granted the request because of the national attention the case received -- wanted to assure a fair trial.
Post preliminary trial Press-Enterprise asks for transcripts of trial, magistrate refuses
Case later goes to superior court and rules that initially they did not have to be released – once defendant dropped right to trial they released
The United States Supreme Court disagreed with state superior court because the defendant had requested a closed preliminary hearing. They decided that the public has the right to attend pretrial hearings in criminal cases, including preliminary hearings.
Press Enterprise Test
Person trying to keep things closed must come up with an overriding interest likely to be harmed if proceeding was for some reason to remain opened “it would be
bad”
Must show a substantial probability that this interest may be harmed if proceeding stays open to the public
Court is required to look at reasonable alternatives to shutting things down “there has to be another way”
Closure must be narrowly tailored
The court must make adequate findings to support the closure decision – must write down the reasons why that lead to closure decision
3. Closed Proceedings & Sealed Documents
Open:
Juvenile hearings
When charged with a crime
Military Tribunals
Only exception is in w/ 9/11 (with suspected terrorism)
Voir Dire, Pre-Trial,
Lawyer Disciplinary Proceedings (over accusation of misconduct)
Deportation (vary nowadays, some closed)
Closed:
Juvenile hearings (mostly closed)
When the children are the victims (assault, etc.)
Victim or Witness protection
Grand Jury (indictments)
Grand jury of ordinary, everyday people, meet for months before hand to see if there’s enough evidence to prosecute
Zimmerman case it never reached grand jury.
Documents
Open:
Court docket sheets: Open
Dox filed in pretrial proceedings: Open
Pre & post-sentencing reports: Open
Parole: Open
Closed:
Out of courts settlements/plea agreements: Closed
Notes from the jury → judge: Closed
Records provided by one party → other: Closed
Nat’l security (proceedings): Closed
Will the broadcast (cams in the court room) sway the right to a fair trial. But most places allow cam in a court room (presumed) Florida, but other states permission must still be asked like Arizona. Have to get defendant or plaintiffs permission to be photographed. Cant get any footage/photo of the jury
Cameras in the courtroom
Must state reason – able to be appealed to determine whether judge is acting ethically or not
Will material enhance public understanding?
Will broadcast cause prejudice in regards to trial?
Chandler v. Florida (1981)
Case can be broadcast court proceedings as long as it is ethical.
Can’t be disruptive or obtrusive
Wake of case appeals judge rules that televising is not constitutionally protected and has to be agreed on by the court
Televising trial might not necessarily be ‘bad’ but in some cases cam can be there and cause harm therefore the need to seek permission
State Courts allow in almost all 50 states (depending on case/w permission)
Federal courts do not allow
Cams are also banned from jury deliberation, photos of jury members and from executions in all states
Obscenity (regulation of)
History
Self-Censorship
Terms
Obscenity- always illegal
Indecency- sometimes illegal
Profanity- sometimes illegal
Pornography- not illegal if not either of the above
Evolution of the Law
1815, 1821, 1842 (First federal statute), 1873 (Fed Comstock Act)
Hicklin Case/ rule (1868)
U.S. V. Roth (1957)
Miller V. California (1973)
Obscenity: ALWAYS illegal, “Hardcore” pornography
Hicklin Rule: 1868 Case in England – determined that if a work is obscene, whoever the weakest minds are – if it can corrupt them then the rest of us can’t see it either… “If a kid can’t see it, you can’t see it”
Supreme court later adopted the “Roth Memoirs Test” – US v. Roth: Found 3 things to look for in regards to obscenity: DOMINANT THING AS A WHOLE MUST APPEAL TO A PRURIENT INTEREST, COURT HAS TO FIND THAT MATERIAL IS PATENTLY OFFENSIVE BECAUSE IT CONFRONTS COMMUNITY STANDARDS, MUST BE UTTERLY WITHOUT REDEEMING SOCIAL VALUE
Pornography:
No legal significance, passionate love scene that is merely offensive to the viewer
Offensive:
“Indecent”, matter of taste, protected by the First Amendment – barred availability to children
May be morally objective (in print and broadcast) but is still legal
Profane:
May be objectionable but still legal. Even the name itself has been used to describe actual pornography and obscenity to a passionate love scene in a TV show
Jesse Sharpless:
Prosecuted in 1815 and fined for exhibiting a picture of a man in a vulgar posture with a woman
Before this prosecuted for “crimes of god” under common law, but wasn’t in actual statute and there’s an actual “law”
1821
Peter Holmes prosecuted for publishing an “erotically enhanced version” of a book called “memoirs of a woman of pleasure”
1842
First nation wide statute regulating obscene articles from outside the U.S.
1873
Comstock Act: mailing obscene materials prohibited – REMAINS FEDERAL LAW TODAY
Lyndon Johnson
Creates obscenity panel, Nixon later rejects it
Hicklin Rule: how to determine if something is obscene
"To deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.
US v. Roth “Roth Test”
Dominate theme of the material must appeal to a highly augmented interest in Sex
A Court must find the material offense because it doesn’t meet community standards
Before something can be found to be obscene must find “utterly without social value or importance”
Miller v. California –
Miller Test:
An average person applying local community standards – community applies to prurient interests
Work depicts in a patently offensive way violating state law
Work in question lacks serious literary, artistic, political or scientific value to an average person
Jenkins v. Florida – Film “carnal knowledge is patently offensive” – Supreme Court overruled it and said that “to be patently offensive – material must include representations of sexual acts simulated”
Scienter – Latin for “guilty knowledge” – WAS THE DEFENDANT KNOWLEDGEABLE ABOUT THE CONTENT BEING SOLD OR PUBLISHED?
FILM CENSORSHIP
- Censorship Boards – “G, PG, PG13, R” MPAA
- Barnes v. Schwada (ASU) – Mark Barnes student body president at ASU – sued Schwada over a policy banning all X rated films being show on campus… Student group showed X Rated films… Judge agreed that state must not use private rating system to determine what can and can’t be shown – judge later sends decision back to School to determine what can and what can’t be shown – student government later decides unable to show X rated films…
If your film has a plot you can get away with saying there’s a deeper meaning or artistic value
ZONING LAWS
- SOB have to be a certain distance away from schools, houses, places of worship
- Safe haven from police harassment
- Doesn’t sell material that is obscene
(2006) – 3 foot distance required between stripper and customer be extended to 4 feet – voters over turned…
Warning labels on albums “warning parents this contains, etc.” late 80s early 90s not censorship but information, ratings.
Children’s Internet Protection Act (2001) filters (fed)
Communications Decency Act (1996) (struck down)
Section 230 (upheld)
Intellectual Property Law
Patents
Trademarks
Copyrights
Something that can be seen or heard – books, plays, music, movies, etc…
Considerations:
Nature of work
Amount used
Commercial Impact – what court relied on
Parody
The defense of fair use is what you use when you don’t have permission
Patent
Protects work of inventor, issued by federal government (utility, design or appearance of article or manufacturer, plants) mostly inventions are patented*
Utility: Inventions that do something, appearance of something and botanical plants
Trademarks
Any word, name, symbol, device, or any combination, used to identify and distinguish the goods/services of one seller from those of others, and to indicate the source of the goods/services.
(Coca Cola (brand name is trade mark the drink itself is patent), Nike Swoosh, Pepsi logo, etc…)
You don’t need to register a trademark
Copyrights
An intangible right granted by federal statute to authors of certain types of literary or artistic works. The right grants the owner for a limited amount of time the sole privileged of owning, publishing and selling the work. The work must be stored in a tangible place so others can observe by sight, smell, taste, etc.
What’s not covered?
Ideas, Facts and News Events cannot be copyrighted
Telephone book (has to be original and creative)
Title slogans or minor variations within the public domain
Someone stealing another persons work = infringement
Utilitarian goods cannot be copyrighted, unless it’s a certain design (like a tiffany lamp, etc.)
Mathematic ideas and principles cannot be copyrighted only certain teaching methods concerning such principles
Can own copyright up to 120 years
Anything before 1978 you have the original 28 terms, with an option of 28 more but then was changed to be a total of 90 more years.
Fair Use 1. Purpose/character 2. Nature of work 3. Amount & sustainability of the portion used 4. Effect of the use on the marketplace or the works value
Harper & Row v. Nation Enterprises *
Harper & Row published former President Gerald Ford’s memoir including an account of his decision to pardon Richard Nixon.
TIME magazine contracted with Harper & Row to publish an excerpt from Ford’s book
The Nation gets a copy of Ford’s manuscript – published a 300-word verbatim excerpt before TIME could – time later breaks contract with H&R and then The Nation was sued for copyright infringement
H&R won – Nation lost *
Decision that Fair Use is not a defense to the appropriation of work by a famous political figure just because of public interest in that political figure's account of an historic event.
Parody
Campbell v. Acuff-Rose Music Inc. (1994)
Fair use as a defense when using a parody, must use enough of the original to make a comedy
Song used base rift of “pretty woman” and the first line and then changed the rest to sell a completely different song
Can even use it for commercial purposes
Dr. Seuss Enterprises v. Penguin Books (1997) 9th circuit
More about OJ Simpson and trial then Dr. Seuss= OK
Have to use a part of the original to make fun of the original cannot use parts of the original to make fun of something else in order to make a profit
File Sharing: The Digital Millennium Copyright Act (1998)
A&M Records Inc. v. Napster Inc
First major case to address copyright laws on peer-to-peer file sharing.
Napster produced software that allowed its Internet users to search for, request, download, and play music files, free of charge, by exchanging the files with other users.
A&M Records sued, alleging that Napster users infringed on their copyrighted music.
Napster filed a motion for summary judgment, arguing that the safe harbor provision of the Digital Millennium Copyright Act protected it from liability.
The courts denied it because the allegedly infringing material did not pass through defendant's server to its users, but rather from one user to another. Napster just facilitated the initiation of connections.
Therefore, defendant did not meet the requirements of the safe harbor provision of the Digital Millennium Copyright Act.
Regulation of Telecommunications
Radio Acts of 1912
Radio Act of 1927
Created a system of who and who couldn’t broadcast & content of programming to eliminate the amount of confusion from one frequency.
In 1920s now that there was broadcasting there was going to be more questions about freedom of speech. All they wanted the govt to do was regulate who gets what frequency. First things you heard on radio (unlike first things you saw in newspapers) weren’t news and speaking out against govt it was music, comedy, and drama. News was a foreign idea until late 1930s
Radio seemed more like movies (without pictures) all they wanted to do was be entertained and that didn’t meet first amendment rights in their eyes.
KDKA 1920
Fed. Communications Act 1934 “PICON
”
The law that’s the base for all telecommunication acts. Expanded 1927 law to include telephones, telegraph and radio. Created the Federal Communication Commission (FCC), which now regulates phone, TV, radio, cable, etc. (not satellite radio or Internet)
They also made sure that even though govt owns equip that public owns airwaves so they needed to regulate a balance.
PICON: Public interest, convenience or necessity. In order to receive a license to broadcast and then you were also doing the right thing by govt and the public and could continue to be on the airwaves. Also need competition, diversity and localism to make sure that the same people didn’t own the entire broadcast license. You also had to entertain, inform and educate.
They also have to give equal air time of political candidates – now gone as well as majority ownership rules (clear channel is best example)
Change of philosophy Public interest - marketplace interest/ capitalism 1920s-‘60s c. 1975 -- present
1985 Fairness Doctrine abandoned
“Cross Ownership” Prometheus Radio Project V. FCC (2004, 2005)
“39 percent rule” you cant own or reach an audience of more than that percent of the national or local market aka four local networks
You’re now able to own different mediums and in the same market. Gannett here in PHX owns AZ republic and NBC channel 12 now in same building after 2007 dropping cross ownership laws. Concerns about competition and the fact that if there’s only one owner that there’s only one view point going out to mass public otherwise why have free speech.
The FCC – What it is and what it does?
Independent agency of US govt. created by Congressional statute and considered a federal power not controlled by any of the states
The FCC consists of 5 members, serve 5-year terms.
Commissioners appointed by the current President & confirmed by US senate
Whenever there’s a job open its widely advertised for diversity
Only 3 may be members of the same political party
None may have financial interest in any FCC-related business
The FCC works towards six goals in the areas of broadband, competition, the spectrum, the media, and public safety and homeland security.
Regulates broadcast stations. Obscenity Regulations.
Grant broadcasters 8 year license (have to constantly renew)
Anyone who operates has to have a license.
Broadcast licenses are to be renewed if the station meets the "public interest, convenience, or necessity".
Must also receive a construction license (the facility and equipment it must have, can tie up process if they don’t like you)
Contested license (where more than one person wants a particular license) they partake in an auction system to see who is willing to pay more. New frequencies are rare, usually new companies come in and buy out/rename existing stations
Regulations of Program Content.
No power to censor or practice prior restraints but has power to determine how much reach a network has, their frequency, the amount of fines they have to pay and if they even get a renewable license.
Children’s Programming
The heaviest regulated, for maturity and there’s a limitations on the number of advertisements per hour as well as content of the ads. Also a rule that certain stations should carry an amount of educational/informational content
Children’s Television Act of 1990 show has to be at least 30 minutes long, must air between 7 am and 10 pm and it must be a regularly scheduled weekly program and its not preemptive of any other show (to push products, etc.)
21`Over 90 percent of all complaints to the FCC comes from parents television council
“Obscene, Indecent & Profane” material
FCC V. Pacifica Foundation (1978)
FCC V. FOX (2012)
Violence on TV – the “V Chip”
Since 2003 has been required to be included in all TV sets
Can be controlled by parents to regulate what stations are allowed to be viewed by children
Prometheus Radio Project v. FCC
Series of cases in U.S. Third Circuit Court of Appeals from 2003 to 2010.
In 2003 the FCC tried to get rid of protections against media consolidation allowing them to buy up unlimited media properties and monopolize local markets.
In 2004, the Third Circuit Court of Appeals ruled 2-1 in favor of Prometheus. The court mandated that the FCC retain the old media rules until they could provide a rational explanation for the changes. The court ruled that the FCC "diversity index" to weigh cross-ownership of radio, television, and newspapers, was irrational and inconsistent.
In 2007 the new FCC chairman proposed a scaled back version of the consolidation proposal. Court placed a stay on the FCC, so that the rules could not be enforced. In March 2010, the court removed the stay so until the FCC acts to reverse them or the court settles the original challenge to the 2003 rules; the 2007 rules are in effect.
Political Programming
Personal Attack Rules
Fairness Doctrine
Both Tossed out and/or abandoned
New Rules (section 312)
Candidate Access Rule
Equal Opportunity/Equal Time Rule
(section 315 of Fed. Comm. Act of 1934)
News Programming
News & Public Affairs
FCC largely avoids regulating news
“Payola” (not the 50’s kind)
Govt. paying opinion media (“propaganda”) to pass on its messages
Video News Releases (VNRs)
(“propaganda”)
stations who use VNRs need to fully disclose what content the viewers are watching
Satellite Radio
Not regulated by FCC
Cable TV, Etc.
Cable TV
Laws: 1984, 1986, 1992
The first one is still the main law
Feds regulate cable but can let local Govt. do it too
Marketplace determines rates (1996)
Must-carry rules
Scrambled signals *
Indecency and Profanity
Marketplace now governs what is considered what is obscene *
FCC V. CBS: Janet Jackson/ Justin Timberlake Superbowl
CBS's appealed its $550,000 indecency fine.
FCC said the broadcast was indecent, that CBS should have known that the striptease was possible, and that it was both vicariously liable for the actions of the performers, who did know, and liable because management should have known something shocking could happen and didn't take sufficient steps to prevent it.
CBS did not defend the broadcast but argued that it did everything any reasonable broadcaster would do to guard against an unforeseeable and unprecedented event. It also said the FCC was fishing for a justification for its decision, in this case vicarious liability, after turning up no evidence CBS had any prior knowledge of the event. Courts ruled in favor of CBS and threw out fine
FCC V Fox (2012) “fleeting expletive”
Bono, Cher, Nicole Richie (FOX)
In 2009, United States Supreme Court upheld regulations of the FCC that ban "fleeting expletives" on television broadcasts, finding they were not arbitrary under the Administrative Procedure Act
In 2012 the Supreme Court continued the case to decide whether the FCC's scheme for regulating speech is unconstitutionally vague
FCC V. Pacifica foundation (1978)
“Seven Dirty Words” or “Filthy Words” by George Carlin
Supreme Court defined the power of the FCC (FCC) over indecent material as applied to broadcasting.
First time courts were debating outside of the lines of obscenity and were able to rule in regards to indecency and profanity
They could regulate the airwaves especially during the mornings and afternoons when children could be listening
They can put the indecent/profane material on between 10pm and 6am (deemed children won’t be watching)
In July 2010, a Second Circuit decision effectively argued that the Pacifica Decision was outdated
“NYPD Blue” (ABC)
TEST REVIEW
free press fair trial
CSI Effect: demanding dna evidence even though it may not be necessary
Impartial jurors Irvin v. dowd? Us vs burr, Murphy v florida
Two remedies to get to impartial jurors without harming 1st amendment
Traditional: Voir dire, change of veniremen, etc.
Restrictive Orders: @ Press & Trial Participants- gag orders, sequestration
What’s open and closed
Press enterprise case (to close trial to media and cams in courtroom)
Chandler v. florida (cam in the courtroom including az to appeal judges orders but has to have reasonable reason)
Hicklin Rule
Roth Case (community standards/redeeming social value) and the Miller test (essentially an reasonable person not just average and does it lack political, social, literary context. Just add a plot)
Child pornography is always obscene
Motion Picture & Cable restrictions
Library Filters
Copyright, Patents, Trademarks
What can and cannot be copyrighted has to be something you create…sweat of the brow doesn’t qualify actually has to be a format *
Check Abuses – Public as Watchdog
Promote Accountability
Maintain Official Records
Promote Due Process:
Ensure that everyone knows the rules of the game
Free Press Vs. Fair Trial, Part I
(1st Amendment) (6th Amendment)
Prejudicial Crime Reporting – Is there such a thing? The “CSI” effect John Marshall, U.S. V. Burr (1807) Irvin V. Dowd (1961) Murphy V. Florida (1975)
Traditional Judicial Remedies To balance 1st & 6th amend. *
US v. Burr (1807)
Impartial juror was “one free from the dominant influence of knowledge acquired outside of the courtroom, free from strong and deep impressions that closes the mind” – Justice John Marshall
3 US Court decisions about …show more content…
pre trial publicity:
Irvin v. Dowd (1961)
Irvin connected to 6 different murders – wanted a relocation of the case due to bias in the original jurisdiction –
** Went all the way to the Supreme court – 430 potential jurors interviewed… 375 told the judge of their predispositions about Irvin’s guilt – murder conviction later overturned and set back – willing to hear the case again **
Murphy v. Florida (1975)
Involved in the theft of millions of dollars of jewels from the NY Museum of Natural History
Defendant claims that jury was biased by massive publicity about case
Only 20 out of 78 told judge of guilt predisposition – ratio not comparable to that in the Irvin case
Patton v Yount (1984)
“Fixed opinion”
Not if jury remembered the case but if their impression of the people in the case were strong enough one way or the other
Remedies for pre-trial publicity:
1. Traditional Judicial Remedies: Free Press v. Fair Trial
Voir Dire: (see/talk) Prosecution and defense gets a certain # of challenges of potential jurors to survey
Challenge for cause: (unlimited) P or D has to tell the judge about undesirable juror and here’s why Has to be a legitimate reason
Peremptory challenge: Each side is told how many challenges they get before the trial – challenge you can assert for any reason
Change of venue: Move trial somewhere else (Tim McVeigh)
Change of venire men: Bring jurors in from a different location – not as familiar with the case at hand
Continuance: (postponement) Push trial ahead of time to let people forget about case about hand – public attitudes calm down
Admonition: Admonish… Judges strict order to jurors to disregard outside influences that could influence the verdict
Sequestration: Secluding jury to limited contact with outside world until case is complete (not used that often, OJ trial)
2. Restrictive Orders to Continue Publicity
Press
What they say to the public
Nebraska Press Association v. Stuart
Intense and pervasive publicity about case
No other alternative measure might mitigate the media pressure
The order will in fact effectively prevent prejudicial publicity from reaching potential jurors
Trial Participants
Jury, lawyers, Plaintiff, Witnesses, Bailiffs
Sheppard v. Maxwell (1966) –
Convicted 1954
Dr. Sam Sheppard of Ohio was accused of bludgeoning his pregnant wife to death – denied and said it was an intruder – turned into a “media circus” – supreme court later blames judge for not controlling court room due to massive amounts of pre-trial publicity
Nebraska Press Association v. Stuart (1976) – gag orders/restrictions
Murder of a family, lots of press coverage.
Court held unconstitutional prior restraints on media coverage during criminal trials.
Courts debated whether or not the press may be prevented from releasing info seen to be "implicative of guilt" related to the defendant.
5:4 decision – 3 part test comes out of case: how do you decide whether a gag order on the press should be issued and whether it would be constitutional? *
Must be intense and pervasive publicity about the case
No other alternative measure might mitigate the media pressure
The order must effectively prevent prejudicial publicity from reaching potential jurors
* As long as media receives information from truthful sources they may proceed and will rarely receive gag orders
Unless you’re a questionable medium who has been known to lie and manipulate facts and information, etc.
U.S. V. Gotti (2004) –
John Gotti JR – indicted on attempted murder of Curtis Sliwa – founder of Guardian Angels
Sliwa verbalized on radio show (WABC) that Gotti ordered him killed (slander), Gotti later asked Sliwa to quit pre-judicial publicity
Court later decides to grant Sliwa freedom of speech saying “voir dire” would be a better remedy rather than shutting Sliwa up – (courts hoped that Sliwa would respect Gotti’s right to a fair trial without major publicity) gag order would be a last resort
Press Enterprise I case: (right to overcome things) voir dire
Press-Enterprise Co. v. Superior Court of California (1984)
* A case involving the rape and murder of a teenage girl. Press Enterprise requested that the voir dire, the process of questioning the jury, be open to the public and press. The request was denied, as well as the request for the subsequent transcripts, and upheld by the California Court of Appeal.
California Supreme Court denied the Press-Enterprise's request for a hearing. The United States Supreme Court decided in favor of the Press-Enterprise, establishing that the public has the right to attend jury selection during criminal trials.
*
Press Enterprise II case: can attend pre trial proceedings
Press-Enterprise Co.
v. Superior Court of Riverside County, California (1986) Press-Enterprise Co. sought release of a transcript of a murder trial
Robert Diaz was accused of 12 patient murders while acting as a nurse at the Community Hospital of the Valleys in Perris, California.
Gave patients too much heart medication
The defendant requested that the public be excluded from the proceedings. The California Superior Court granted the request because of the national attention the case received -- wanted to assure a fair trial.
Post preliminary trial Press-Enterprise asks for transcripts of trial, magistrate refuses
Case later goes to superior court and rules that initially they did not have to be released – once defendant dropped right to trial they released
The United States Supreme Court disagreed with state superior court because the defendant had requested a closed preliminary hearing. They decided that the public has the right to attend pretrial hearings in criminal cases, including preliminary hearings.
Press Enterprise Test
Person trying to keep things closed must come up with an overriding interest likely to be harmed if proceeding was for some reason to remain opened “it would be
bad”
Must show a substantial probability that this interest may be harmed if proceeding stays open to the public
Court is required to look at reasonable alternatives to shutting things down “there has to be another way”
Closure must be narrowly tailored
The court must make adequate findings to support the closure decision – must write down the reasons why that lead to closure decision
3. Closed Proceedings & Sealed Documents
Open:
Juvenile hearings
When charged with a crime
Military Tribunals
Only exception is in w/ 9/11 (with suspected terrorism)
Voir Dire, Pre-Trial,
Lawyer Disciplinary Proceedings (over accusation of misconduct)
Deportation (vary nowadays, some closed)
Closed:
Juvenile hearings (mostly closed)
When the children are the victims (assault, etc.)
Victim or Witness protection
Grand Jury (indictments)
Grand jury of ordinary, everyday people, meet for months before hand to see if there’s enough evidence to prosecute
Zimmerman case it never reached grand jury.
Documents
Open:
Court docket sheets: Open
Dox filed in pretrial proceedings: Open
Pre & post-sentencing reports: Open
Parole: Open
Closed:
Out of courts settlements/plea agreements: Closed
Notes from the jury → judge: Closed
Records provided by one party → other: Closed
Nat’l security (proceedings): Closed
Will the broadcast (cams in the court room) sway the right to a fair trial. But most places allow cam in a court room (presumed) Florida, but other states permission must still be asked like Arizona. Have to get defendant or plaintiffs permission to be photographed. Cant get any footage/photo of the jury
Cameras in the courtroom
Must state reason – able to be appealed to determine whether judge is acting ethically or not
Will material enhance public understanding?
Will broadcast cause prejudice in regards to trial?
Chandler v. Florida (1981)
Case can be broadcast court proceedings as long as it is ethical.
Can’t be disruptive or obtrusive
Wake of case appeals judge rules that televising is not constitutionally protected and has to be agreed on by the court
Televising trial might not necessarily be ‘bad’ but in some cases cam can be there and cause harm therefore the need to seek permission
State Courts allow in almost all 50 states (depending on case/w permission)
Federal courts do not allow
Cams are also banned from jury deliberation, photos of jury members and from executions in all states
Obscenity (regulation of)
History
Self-Censorship
Terms
Obscenity- always illegal
Indecency- sometimes illegal
Profanity- sometimes illegal
Pornography- not illegal if not either of the above
Evolution of the Law
1815, 1821, 1842 (First federal statute), 1873 (Fed Comstock Act)
Hicklin Case/ rule (1868)
U.S. V. Roth (1957)
Miller V. California (1973)
Obscenity: ALWAYS illegal, “Hardcore” pornography
Hicklin Rule: 1868 Case in England – determined that if a work is obscene, whoever the weakest minds are – if it can corrupt them then the rest of us can’t see it either… “If a kid can’t see it, you can’t see it”
Supreme court later adopted the “Roth Memoirs Test” – US v. Roth: Found 3 things to look for in regards to obscenity: DOMINANT THING AS A WHOLE MUST APPEAL TO A PRURIENT INTEREST, COURT HAS TO FIND THAT MATERIAL IS PATENTLY OFFENSIVE BECAUSE IT CONFRONTS COMMUNITY STANDARDS, MUST BE UTTERLY WITHOUT REDEEMING SOCIAL VALUE
Pornography:
No legal significance, passionate love scene that is merely offensive to the viewer
Offensive:
“Indecent”, matter of taste, protected by the First Amendment – barred availability to children
May be morally objective (in print and broadcast) but is still legal
Profane:
May be objectionable but still legal. Even the name itself has been used to describe actual pornography and obscenity to a passionate love scene in a TV show
Jesse Sharpless:
Prosecuted in 1815 and fined for exhibiting a picture of a man in a vulgar posture with a woman
Before this prosecuted for “crimes of god” under common law, but wasn’t in actual statute and there’s an actual “law”
1821
Peter Holmes prosecuted for publishing an “erotically enhanced version” of a book called “memoirs of a woman of pleasure”
1842
First nation wide statute regulating obscene articles from outside the U.S.
1873
Comstock Act: mailing obscene materials prohibited – REMAINS FEDERAL LAW TODAY
Lyndon Johnson
Creates obscenity panel, Nixon later rejects it
Hicklin Rule: how to determine if something is obscene
"To deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.
US v. Roth “Roth Test”
Dominate theme of the material must appeal to a highly augmented interest in Sex
A Court must find the material offense because it doesn’t meet community standards
Before something can be found to be obscene must find “utterly without social value or importance”
Miller v. California –
Miller Test:
An average person applying local community standards – community applies to prurient interests
Work depicts in a patently offensive way violating state law
Work in question lacks serious literary, artistic, political or scientific value to an average person
Jenkins v. Florida – Film “carnal knowledge is patently offensive” – Supreme Court overruled it and said that “to be patently offensive – material must include representations of sexual acts simulated”
Scienter – Latin for “guilty knowledge” – WAS THE DEFENDANT KNOWLEDGEABLE ABOUT THE CONTENT BEING SOLD OR PUBLISHED?
FILM CENSORSHIP
- Censorship Boards – “G, PG, PG13, R” MPAA
- Barnes v. Schwada (ASU) – Mark Barnes student body president at ASU – sued Schwada over a policy banning all X rated films being show on campus… Student group showed X Rated films… Judge agreed that state must not use private rating system to determine what can and can’t be shown – judge later sends decision back to School to determine what can and what can’t be shown – student government later decides unable to show X rated films…
If your film has a plot you can get away with saying there’s a deeper meaning or artistic value
ZONING LAWS
- SOB have to be a certain distance away from schools, houses, places of worship
- Safe haven from police harassment
- Doesn’t sell material that is obscene
(2006) – 3 foot distance required between stripper and customer be extended to 4 feet – voters over turned…
Warning labels on albums “warning parents this contains, etc.” late 80s early 90s not censorship but information, ratings.
Children’s Internet Protection Act (2001) filters (fed)
Communications Decency Act (1996) (struck down)
Section 230 (upheld)
Intellectual Property Law
Patents
Trademarks
Copyrights
Something that can be seen or heard – books, plays, music, movies, etc…
Considerations:
Nature of work
Amount used
Commercial Impact – what court relied on
Parody
The defense of fair use is what you use when you don’t have permission
Patent
Protects work of inventor, issued by federal government (utility, design or appearance of article or manufacturer, plants) mostly inventions are patented*
Utility: Inventions that do something, appearance of something and botanical plants
Trademarks
Any word, name, symbol, device, or any combination, used to identify and distinguish the goods/services of one seller from those of others, and to indicate the source of the goods/services.
(Coca Cola (brand name is trade mark the drink itself is patent), Nike Swoosh, Pepsi logo, etc…)
You don’t need to register a trademark
Copyrights
An intangible right granted by federal statute to authors of certain types of literary or artistic works. The right grants the owner for a limited amount of time the sole privileged of owning, publishing and selling the work. The work must be stored in a tangible place so others can observe by sight, smell, taste, etc.
What’s not covered?
Ideas, Facts and News Events cannot be copyrighted
Telephone book (has to be original and creative)
Title slogans or minor variations within the public domain
Someone stealing another persons work = infringement
Utilitarian goods cannot be copyrighted, unless it’s a certain design (like a tiffany lamp, etc.)
Mathematic ideas and principles cannot be copyrighted only certain teaching methods concerning such principles
Can own copyright up to 120 years
Anything before 1978 you have the original 28 terms, with an option of 28 more but then was changed to be a total of 90 more years.
Fair Use 1. Purpose/character 2. Nature of work 3. Amount & sustainability of the portion used 4. Effect of the use on the marketplace or the works value
Harper & Row v. Nation Enterprises *
Harper & Row published former President Gerald Ford’s memoir including an account of his decision to pardon Richard Nixon.
TIME magazine contracted with Harper & Row to publish an excerpt from Ford’s book
The Nation gets a copy of Ford’s manuscript – published a 300-word verbatim excerpt before TIME could – time later breaks contract with H&R and then The Nation was sued for copyright infringement
H&R won – Nation lost *
Decision that Fair Use is not a defense to the appropriation of work by a famous political figure just because of public interest in that political figure's account of an historic event.
Parody
Campbell v. Acuff-Rose Music Inc. (1994)
Fair use as a defense when using a parody, must use enough of the original to make a comedy
Song used base rift of “pretty woman” and the first line and then changed the rest to sell a completely different song
Can even use it for commercial purposes
Dr. Seuss Enterprises v. Penguin Books (1997) 9th circuit
More about OJ Simpson and trial then Dr. Seuss= OK
Have to use a part of the original to make fun of the original cannot use parts of the original to make fun of something else in order to make a profit
File Sharing: The Digital Millennium Copyright Act (1998)
A&M Records Inc. v. Napster Inc
First major case to address copyright laws on peer-to-peer file sharing.
Napster produced software that allowed its Internet users to search for, request, download, and play music files, free of charge, by exchanging the files with other users.
A&M Records sued, alleging that Napster users infringed on their copyrighted music.
Napster filed a motion for summary judgment, arguing that the safe harbor provision of the Digital Millennium Copyright Act protected it from liability.
The courts denied it because the allegedly infringing material did not pass through defendant's server to its users, but rather from one user to another. Napster just facilitated the initiation of connections.
Therefore, defendant did not meet the requirements of the safe harbor provision of the Digital Millennium Copyright Act.
Regulation of Telecommunications
Radio Acts of 1912
Radio Act of 1927
Created a system of who and who couldn’t broadcast & content of programming to eliminate the amount of confusion from one frequency.
In 1920s now that there was broadcasting there was going to be more questions about freedom of speech. All they wanted the govt to do was regulate who gets what frequency. First things you heard on radio (unlike first things you saw in newspapers) weren’t news and speaking out against govt it was music, comedy, and drama. News was a foreign idea until late 1930s
Radio seemed more like movies (without pictures) all they wanted to do was be entertained and that didn’t meet first amendment rights in their eyes.
KDKA 1920
Fed. Communications Act 1934 “PICON
”
The law that’s the base for all telecommunication acts. Expanded 1927 law to include telephones, telegraph and radio. Created the Federal Communication Commission (FCC), which now regulates phone, TV, radio, cable, etc. (not satellite radio or Internet)
They also made sure that even though govt owns equip that public owns airwaves so they needed to regulate a balance.
PICON: Public interest, convenience or necessity. In order to receive a license to broadcast and then you were also doing the right thing by govt and the public and could continue to be on the airwaves. Also need competition, diversity and localism to make sure that the same people didn’t own the entire broadcast license. You also had to entertain, inform and educate.
They also have to give equal air time of political candidates – now gone as well as majority ownership rules (clear channel is best example)
Change of philosophy Public interest - marketplace interest/ capitalism 1920s-‘60s c. 1975 -- present
1985 Fairness Doctrine abandoned
“Cross Ownership” Prometheus Radio Project V. FCC (2004, 2005)
“39 percent rule” you cant own or reach an audience of more than that percent of the national or local market aka four local networks
You’re now able to own different mediums and in the same market. Gannett here in PHX owns AZ republic and NBC channel 12 now in same building after 2007 dropping cross ownership laws. Concerns about competition and the fact that if there’s only one owner that there’s only one view point going out to mass public otherwise why have free speech.
The FCC – What it is and what it does?
Independent agency of US govt. created by Congressional statute and considered a federal power not controlled by any of the states
The FCC consists of 5 members, serve 5-year terms.
Commissioners appointed by the current President & confirmed by US senate
Whenever there’s a job open its widely advertised for diversity
Only 3 may be members of the same political party
None may have financial interest in any FCC-related business
The FCC works towards six goals in the areas of broadband, competition, the spectrum, the media, and public safety and homeland security.
Regulates broadcast stations. Obscenity Regulations.
Grant broadcasters 8 year license (have to constantly renew)
Anyone who operates has to have a license.
Broadcast licenses are to be renewed if the station meets the "public interest, convenience, or necessity".
Must also receive a construction license (the facility and equipment it must have, can tie up process if they don’t like you)
Contested license (where more than one person wants a particular license) they partake in an auction system to see who is willing to pay more. New frequencies are rare, usually new companies come in and buy out/rename existing stations
Regulations of Program Content.
No power to censor or practice prior restraints but has power to determine how much reach a network has, their frequency, the amount of fines they have to pay and if they even get a renewable license.
Children’s Programming
The heaviest regulated, for maturity and there’s a limitations on the number of advertisements per hour as well as content of the ads. Also a rule that certain stations should carry an amount of educational/informational content
Children’s Television Act of 1990 show has to be at least 30 minutes long, must air between 7 am and 10 pm and it must be a regularly scheduled weekly program and its not preemptive of any other show (to push products, etc.)
21`Over 90 percent of all complaints to the FCC comes from parents television council
“Obscene, Indecent & Profane” material
FCC V. Pacifica Foundation (1978)
FCC V. FOX (2012)
Violence on TV – the “V Chip”
Since 2003 has been required to be included in all TV sets
Can be controlled by parents to regulate what stations are allowed to be viewed by children
Prometheus Radio Project v. FCC
Series of cases in U.S. Third Circuit Court of Appeals from 2003 to 2010.
In 2003 the FCC tried to get rid of protections against media consolidation allowing them to buy up unlimited media properties and monopolize local markets.
In 2004, the Third Circuit Court of Appeals ruled 2-1 in favor of Prometheus. The court mandated that the FCC retain the old media rules until they could provide a rational explanation for the changes. The court ruled that the FCC "diversity index" to weigh cross-ownership of radio, television, and newspapers, was irrational and inconsistent.
In 2007 the new FCC chairman proposed a scaled back version of the consolidation proposal. Court placed a stay on the FCC, so that the rules could not be enforced. In March 2010, the court removed the stay so until the FCC acts to reverse them or the court settles the original challenge to the 2003 rules; the 2007 rules are in effect.
Political Programming
Personal Attack Rules
Fairness Doctrine
Both Tossed out and/or abandoned
New Rules (section 312)
Candidate Access Rule
Equal Opportunity/Equal Time Rule
(section 315 of Fed. Comm. Act of 1934)
News Programming
News & Public Affairs
FCC largely avoids regulating news
“Payola” (not the 50’s kind)
Govt. paying opinion media (“propaganda”) to pass on its messages
Video News Releases (VNRs)
(“propaganda”)
stations who use VNRs need to fully disclose what content the viewers are watching
Satellite Radio
Not regulated by FCC
Cable TV, Etc.
Cable TV
Laws: 1984, 1986, 1992
The first one is still the main law
Feds regulate cable but can let local Govt. do it too
Marketplace determines rates (1996)
Must-carry rules
Scrambled signals *
Indecency and Profanity
Marketplace now governs what is considered what is obscene *
FCC V. CBS: Janet Jackson/ Justin Timberlake Superbowl
CBS's appealed its $550,000 indecency fine.
FCC said the broadcast was indecent, that CBS should have known that the striptease was possible, and that it was both vicariously liable for the actions of the performers, who did know, and liable because management should have known something shocking could happen and didn't take sufficient steps to prevent it.
CBS did not defend the broadcast but argued that it did everything any reasonable broadcaster would do to guard against an unforeseeable and unprecedented event. It also said the FCC was fishing for a justification for its decision, in this case vicarious liability, after turning up no evidence CBS had any prior knowledge of the event. Courts ruled in favor of CBS and threw out fine
FCC V Fox (2012) “fleeting expletive”
Bono, Cher, Nicole Richie (FOX)
In 2009, United States Supreme Court upheld regulations of the FCC that ban "fleeting expletives" on television broadcasts, finding they were not arbitrary under the Administrative Procedure Act
In 2012 the Supreme Court continued the case to decide whether the FCC's scheme for regulating speech is unconstitutionally vague
FCC V. Pacifica foundation (1978)
“Seven Dirty Words” or “Filthy Words” by George Carlin
Supreme Court defined the power of the FCC (FCC) over indecent material as applied to broadcasting.
First time courts were debating outside of the lines of obscenity and were able to rule in regards to indecency and profanity
They could regulate the airwaves especially during the mornings and afternoons when children could be listening
They can put the indecent/profane material on between 10pm and 6am (deemed children won’t be watching)
In July 2010, a Second Circuit decision effectively argued that the Pacifica Decision was outdated
“NYPD Blue” (ABC)
TEST REVIEW
free press fair trial
CSI Effect: demanding dna evidence even though it may not be necessary
Impartial jurors Irvin v. dowd? Us vs burr, Murphy v florida
Two remedies to get to impartial jurors without harming 1st amendment
Traditional: Voir dire, change of veniremen, etc.
Restrictive Orders: @ Press & Trial Participants- gag orders, sequestration
What’s open and closed
Press enterprise case (to close trial to media and cams in courtroom)
Chandler v. florida (cam in the courtroom including az to appeal judges orders but has to have reasonable reason)
Hicklin Rule
Roth Case (community standards/redeeming social value) and the Miller test (essentially an reasonable person not just average and does it lack political, social, literary context. Just add a plot)
Child pornography is always obscene
Motion Picture & Cable restrictions
Library Filters
Copyright, Patents, Trademarks
What can and cannot be copyrighted has to be something you create…sweat of the brow doesn’t qualify actually has to be a format *