Exam 2 Flashcards
(163 cards)
1
Q
What type of law suit has taken precedence over libel suits?
A
Invasion of privacy suits
2
Q
What kind of right to privacy has the Supreme Court recognized?
A
Right to privacy from government intrusions
3
Q
Are invasions of privacy by non government actors prohibited by the constitution?
A
No.
4
Q
What kind of law governs invasions of privacy by non government actors ?
A
State common law or state or federal statutes limit this kind of invasion. Means privacy law is different from state to state
5
Q
Is privacy law old or new?
A
Relatively new
6
Q
What are the origins of privacy law?
A
- It all began with Harvard Law Review by Warren and Brandeis in 1890, which recommended the recognition of an invasion of privacy lawsuit
- Closeness of individuals due to industrialization and immigration cause upper echelon of people to feel like the lower class was invading their privacy and spreading information about them
7
Q
Do states have to recognize invasion of privacy claims? Can they recognize only a few of the 4 types of privacy claims?
A
No. Yes.
8
Q
What are the 4 kinds of invasion of privacy claims?
A
Appropriation (or misappropriation)
Intrusion
Publication of private facts
False light
9
Q
What are 4 general principles of invasions of privacy?
A
1: Like libel, is an individual injury
2: Like libel claims, cannot be filed on behalf of dead people (with one exception)
3: Unlike libel, claims can only be made by people, not businesses, associations, corporations, etc.
4: Prior restraints presumed not allowed (maybe for intrusion or right of publicity)
10
Q
What type of invasion of privacy claim is using a person’s name or likeness for commercial purposes without that person’s consent?
A
Appropriation or misappropriation
11
Q
What are the two kinds of appropriation claims?
A
Right of privacy, right of publicity
12
Q
What type of appropriation claim is for emotional damage? Can anyone make this claim? Does it die with the person?
A
Right of privacy. Yes. Yes
13
Q
What type of appropriation claim is for economic harm? Who does it apply to? Does it die with the person?
A
Right of publicity. Applies only to those whose name or likeness already has commercial value. Can be passed on to heirs. These are basically for celebrities, and not all states recognize them. Largely in NY and Cali
14
Q
What are the three elements of an appropriation claim?
A
1: Use of a protected attribute (something that is of you. Ex: Name, likeness, etc.)
2: For an exploitive (commercial) purpose
3: Without consent
15
Q
What are four things to know about protected attributes?
A
- person must be identifiable (name, photo, sketch, drawing, voice, character portrayal)
- Single, original artistic works often exempted
- “Transformational” works can be exempted (Ex: Warhol)
- Satire, commentary, opinion, may be protected
16
Q
What is using the name or likeness of someone for commercial or trade purposes (trying to make money off of something)?
A
Exploitive (commercial) purposes
17
Q
What are some common examples of use for exploitive purposes?
A
Advertisements, testimonial, promotional displays, commercial entertainment vehicle
18
Q
Is a depiction or narrative of a person’s life an invasion of privacy?
A
You are probably okay with this one
19
Q
What does the news and information exception entail?
A
- Dissemination of news protected (books, mags, tv news, programs, web news sites,etc.) if they are a depiction of what is being covered.
- What is news is defined broadly, and includes celebrity gossip
20
Q
What are three standards of consent?
A
- Consent can be verbal or in writing, but written is more reliable (Model Consent Form)
- Can be implied
- Will be invalid if photo is altered
21
Q
What is a Model Release form?
A
Person being depicted agrees to use in this contract; only used when for commercial purposes
22
Q
What is an exemption for colleges and universities?
A
OH statute says colleges and universities can use names and likenesses for promotional purposes without students’ consent
23
Q
What is an exempted use because the use of the image was fleeting or insignificant?
A
Incidental use
24
Q
What is an exempted use that states the use of a person’s name or likeness as depicted in an information medium can be used to advertise that information medium (ex: Magazine cover)?
A
Booth Rule
25
How did the Booth rule come about?
Shirley Booth, in Hazel, was offended that a magazine who had done an article on her used her image to later promote their publication. Court rejected her claim: As depicted by that medium is allowed
26
What is defined as intruding upon the seclusion or solitude of another?
intrusion
27
Is an intrusion claim require publication?
No. It is a information-gathering claim
28
What is the key question when dealing with a claim of intrusion?
Is there a reasonable expectation of privacy? If no, there is no intrusion claim
29
What are some examples of places with a reasonable expectation of privacy?
- Private home/office
- Med evac helicopter on the way to the hospital
- Private conversation overheard by a hidden device or tapped phone
- images accessible only by telephoto lenses
30
What are some examples of places with no reasonable expectation of privacy?
- Standing in a doorway or window that is visible from the sidewalk
- At an accident scene on a public home
- Internet chat room
- Email messages stored on a computer server
- Conversation in a public restaurant that can be overheard by others
31
What are three kinds of common intrusions?
- trespassing
- surreptitious recording
- misrepresentation (including exceeding consent)
32
When recording conversations, do you need consent from all parties?
38 states and DC is one party, including Ohio
| -12 states you need all party consent
33
What are the FCC rules when it comes to recording telephone conversations?
- Person recording must give notice to other party that they are being recorded (all parties must know they are being recorded)
- penalty is loss of phone service
34
What are the three elements of public disclosure of private facts?
- Publicity of private facts about a person
- Release of which is offensive to a reasonable person
- Not of legitimate public concern (not newsworthy)
35
What are 2 examples of when information isn't considered to be private facts?
- Information in public records is not private (even if press obtained it from other sources)
- Information already known by a significant segment of the public is not private
36
When is the release of private facts considered offensive?
The publication of the information must cause great offense to a reasonable person, not just someone who is overly sensitive. Examples: Pregnancy outside of marriage, in extreme financial difficulty, having an extramarital affair, or a virgin
37
What decides when are private facts are newsworthy?
- Legitimate public interest outweighs embarrassment
- Public interest/newsworthiness is broadly defined
- Courts focus on what people are interested in, not what we think they should be interested in (celebrity "news" is considered newsworthy)
38
When it comes to private facts claims, does sensational diminish newsworthiness?
No.
39
When it comes to private facts claims, does the person have to voluntarily put themselves in the spot light?
No. Unlike libel claims, even someone who becomes an involuntary public figure may be considered newsworthy
40
When it comes to private facts claims, what happens to those associated with public figures?
People closely associated with public figures may lose some of their privacy as well (ex: families of celebrities)
41
When it comes to private facts claims, what happens to facts that comment on the public persona of a person?
To the extent private facts comment on the public persona of someone, they will probably be considered newsworthy
42
What is an example of private facts being newsworthy because someone involuntarily put themselves in the spotlight?
Oliver Sipple saved Gerald Ford from being assassinated. It was printed that he was gay, and he wasn't out to his family yet. His family disowned him. Court rejected his privacy claim because he put himself in a newsworthy position.
43
What is placing someone in a light that would be offensive to a reasonable person?
False light
44
Do false light claims require damage to reputation?
No. It only requires that the information would be offensive to a reasonable person.
45
Who must be at fault when it comes to a false light claim?
The publisher
46
Is false light recognized by states?
It is the least recognized by states. It is libel light
47
Does actual malice have to be found for false light claims?
Yes.
48
Can false light claims arise from the way things are presented?
Yes.
49
What are the sources of law that protect newsgathering?
```
Common law (not much absent an "interest")
Executive and administrative orders (can be important but can change quickly and with political whim)
Constitutional law
Statutory law (state and federal)
```
50
In most cases, what have the courts said about the 1st Amend granting a right of access to records or people?
No, but SC has said there has to be some recognition of the role of news gathering
51
What are three prison access cases and what did they state?
Pell v. Procunier, Saxbe v. Washington Post, Houchins v. KQED
All stated that the media shouldn't have rights beyond those of an average person.
Right to access isn't guaranteed
52
What are the 4 exceptions of the no right to access precedent?
- SC has recognized 1st Amendment right of access to judicial proceedings
- Lower courts have recognized some 1st Amendment right of access to government records/meeting in limited contexts
- SPLC v. Alexander (DDC 1991): 1st Amendment right to campus police reports
- WJW v. Cleveland (DN Ohio 1988): Later vacated on other grounds, 1st amendment right to city council meetings)
53
Generally, when found, what are some characteristics of rights to access?
- Same right as that of any member of the public (no special treatment for journalists)
- A right to receive info or a right to be free from government restrictions on access to info otherwise available, not a right of access (your ability to use it can't be limited)
54
Do government officials have to submit to interviews?
No
55
What are two cases dealing with if government officials have to submit to interviews and what did they say?
- Youngstown Publishing Co. v. McKelvey (ND Ohio 2005): Mayor of Youngstown ordered all gov't officers not to talk to a particular news org. Court upheld mayor's right to not give info to that org. (same access as everyone else)
- Citicasters v. Finkbeiner (6th circuit 2006): Toledo mayor couldn't exclude a specific person from a news conference that was generally open to any member of the public (can't give extra restrictions or limitations)
56
Are there special protections for other news gathering agencies? What are some examples?
Generally, not special protections for journalists from laws that apply to everyone
- can't run a red light on the way to a story
- can't steal bank records to prove embezzlement
- can't download child pornography for a story about related government tactics
57
What is one prohibited activity?
Trespassing
58
What are some things that can constitute trespass?
It is a civil and criminal defense
- Entering a private property without the owner or occupant's permission can constitute trespass (Especially if the property is fenced or has no trespassing signs)
- If in a public space in a private property (example waiting room) not trespassing unless..
- If owner or occupant asks you to leave and you don't you will be trespassing
- Helicopter trespass: must be in immediate airspace over private land and interfere substantially with use and enjoyment
59
Does accompanying police onto private property protect you? Why or why not? How?
Generally, no. Police don't have the authority to waive someone else's rights
- Ned permission of occupant or owner (Police can't give you that permission)
- And if you are acting in concert with police, you could be seen as a "state actor" and liable for constitutional violations like the police are
60
What is making a knowingly false statement of a material fact with the intent to induce someone to rely on it and that they do in fact rely on it causing harm or injury? Is it prohibited?
Fraud. Yes.
61
What did the case Food Lion v. Capital Cities/ABC (4th Circuit) say?
- Journalists get jobs with Food Lion-began working and found way store treated meat and fish was gross (bleaching, changing expiration dates, etc.)
- Food Lion didn't argue they were libeled, they argued fraud because the people obtained the jobs fraudulently (said they wasted resources on them)
- Court said waste of resources wasn't a valid argument, said Food Lion couldn't claim harm because article was truthful
- But proved it is possible for news agencies to sue for fraud
62
Is impersonating government officials (including police) a crime?
Yes.
63
What are some considerations with fraud when news gathering with video?
Have you engaged in fraud to get the video?
| Are you exceeding consent if you don't identify yourself as a journalist?
64
Is failure to obey lawful orders of law enforcement prohibited? Why?
Yes.
- Journalists generally have to respect orders/police line/crime scene tape. The 1st Amend gives press no special access to crime or accident scenes
- But media access can't be restricted more than that of the public
65
Does Ohio have any special protections that give journalists access to crime scenes?
Yes. Ohio Revised Code Section 2917.13
- Law Enforcement have to give journalists access in crimes scenes in a way that wouldn't interfere
- News media isn't interfering when they are doing their jobs
66
What law ensures public access to records and meetings?
Freedom of Information Laws
67
Why do we have freedom of info laws?
Public oversight of the government requires some access to government information (But it isn't really recognized in the Constitution)
68
What are some other names for the Freedom of Information Laws?
Sunshine Laws
Open records and open meetings laws
Open government laws
FOIA laws (Freedom of Information Act)
69
What are three types of FOI laws and where are they recognized?
- General open records laws: All 50 States, Federal FOIA
- General open meetings laws: All 50 States, Federal Government in Sunshine Act
- Subject specific FOI laws: Can be federal or state (or even local) and typically deal with a particular kind of record or info
70
Who do open info laws apply to?
Generally only to government bodies or public agencies. Law is intended to ensure openness of gov't business.
71
What are examples of public agencies?
Federal, state and local government agencies (FBI, BMV, City Council)
72
What are examples of private agencies?
private schools, companies, private individuals, most non-profit organizations
73
When can you get access to private companies'/organizations' records?
When they:
- are acting in place of the government (take on a traditional government function)
- receive government funding some or some other government benefit
- are subject to a subject-specific FOI law
74
What is the Clery Act and why do private schools have to follow it?
Requires any college or university that receives federal funding must provide campus statistics and open up their police logs. Private schools have to do it because it is a subject-specific FOI law
75
What are exceptions dealing with non-profits and come corporations?
- non-profits must release tax returns due to their tax exempt status (includes break down of expenses, assets, top 5 paid employees)
- Corporations generally not under these laws, but if they offer stock to the public they must release certain kinds of annual reports
76
What about university foundations?
Courts have said they are covered by open records laws, even if they are non-profits
77
What does the Federal Freedom of Information Act cover?
- Enacted in 1966
- Applies to records kept by federal agencies
- Does not cover records kept by congress or federal courts
78
What are 9 exemptions for the Federal Freedom of Information Act?
1: National security
2: Housekeeping materials (routine internal agency workings)
3: Material exempted by statute
4: Trade secrets
5: Working papers (lawyer/client privilege materials)
6: Personal privacy
7: Law enforcement records (not all)
8: Financial institution materials
9: Geological database
79
How is compliance enforced?
Law says agency must respond within 20 days, but the time periods are rarely enforced
80
How are state open records laws written?
They are written with the presumption that all records of state or local government agencies must be open to the public unless they fall under a specific statutory exemption
81
Who has to justify a public record denial?
Burden is on the government. They must give an explanation
82
What are some common exemptions to public record laws dealing with law enforcement?
- relating to ongoing criminal investigation when release would interfere with the investigation
- that would reveal identity of undercover agents, confidential sources
- that would reveal secret police investigative techniques
-Incident reports and arrest logs are public records
83
What are 3 other common exemptions to public record laws?
- Some personnel records (Hiring, firing, disciplinary action, etc.) Salary info is public record
- Records that would result in invasion of personal privacy (Ex: Health records)
- "Education records" maintained by a school that identify individual students (Difficult because "education records" are broadly defined)
84
What does FERPA stand for?
Family Educational Rights and Privacy Act
85
What does FERPA do?
- Federal law regulates the release of students' education records
- Requires schools to provide student access to their own records
- Creates potential consequences to school (loss of federal funding for release of education records without the permission of student (or parent, if a minor)
- You have a right to any record that deals with you
86
Has any school ever lost funding because of FERPA?
No.
87
What is the problem with FERPA?
- Educational records is broadly defined
| - School use it for things that don't really count
88
What does FERPA apply to?
- Only applies to records that identify individual students (Doesn't apply to faculty either)
- Only applies to release of records by school officials not students or others (If student media find it elsewhere ti isn't a violation)
89
When an exemption applies to a record, what is typically required?
A redaction and release of the record is typically required
90
What are the 5 steps to requesting public records?
1: Identify the records you're seeking and the records holder (record they already keep)
2: Make a verbal request, preferably in person. Be polite, don't presume you won't get what you want
3: If denied, ask for the specific statutory exemption that justifies the denial
4: Know at least the citation to the relevant law. Good to know what it says too
5: Be persistent, but be professional
91
Do you have to answer who you are are why you want a record?
No
92
What should you do if your verbal request is denied?
File a written request
- Narrow and specific as possible
- You can be charged a reasonable fee
- Ohio doesn't have an exact time frame
- Make sure they can get in touch with you
93
What if your written request is denied?
Make an appeal to a higher placed public official (maybe go to the agency's lawyer or the person in charge)
94
What if you have to go to court?
- It is an option
| - Attorneys fees and costs can be covered if suit is successful (lawyers know they will be paid)
95
What do you call protecting the identity of sources and the confidentiality of unpublished information?
Reporters' privilege
96
Are unnamed sources less credible than named sources?
Yes
97
What are some reasons a confidential source would be used?
Dealing with personally private info, wouldn't get info otherwise, could be dealing with retribution after. There are contexts when sources have legitimate reasons
98
What are the differences between anonymous, unnamed and confidential sources?
Anonymous: means no one knows who it is. It is generally not used by any news organizations
Unnamed: You know identity, but you won't name them (can describe)
Confidential: Identity is not revealed in any way
99
What does on background mean?
Can't cite at all, but can verify independent
100
What should you do when a source wants to be confidential or unnamed?
Make sure you and source are clear on the agreement
101
What are some consequences of the reporter being forced to reveal a confidential source or not being allowed to make a promise of confidentiality in the first place?
- You don't get the story in the first place
- Other people won't think you can keep your promise
- Lose benefit of stories being told
102
Can journalists be sued for breaking a promise of confidentiality?
Yes
103
What question does the case Cohen v. Cowles Media pose and what did the case state?
- Does the 1st Amendment give the press a constitutional right to break a promise of confidentiality?
- Information was leaked by a confidential source
- Editor said identity of source was too critical not to include it
- Cohen lost his job and sued claiming agreement was violated
- SC said 1st Amend doesn't protect journalists (they can be sued like everyone else)
104
What should journalists do when making a promise of confidentiality?
They should make sure everyone is clear on the terms because they are legally bound by it
105
What was the outcome of the case between the Indiana Daily Student and the police?
- After a bicycle race, a part got out of hand
- Police ordered the paper to turn over its unpublished photos
- Paper said if they did it, it would limit their picture taking abilities in the future because their reputation would be harmed (would be seen as acting as an investigative arm of the police)
- Paper was forced to turn over the photos
106
What do courts generally say about people's obligation to cooperate with the government?
They agree it is the obligation of every citizen to cooperate with the government to testify before the proper authorities because without this, justice can't work
107
What two benefits to people are often in conflict?
Journalists' ability to report the news vs. the government's ability to enforce the law
108
Does common law recognize some who are entitled to special protections from being forced to reveal info? What are those protections called? Who has them?
Yes. Absolute or qualified privilege. Examples: Spouses, doctor and patient, lawyer and client, clergy members
109
Do journalists have special protections?
No. They argue they should.
110
What did the case Branzburg v. Hayes (1972) state?
- Paul Branzburg was a reporter who had witnessed the manufacture and use of illegal drugs and he wrote an article about it
- grand jury subpoenaed him and demanded he tell when and who he saw doing it
- He refused-said he had 1st amend privilege not to be compelled to reveal
- Justices divided into three groups
111
What are the three different opinions presented by justices in the Branzburg case?
Court's opinion: 4 votes for no privilege
Dissenting opinion: 4 votes for some privilege didn't full define, some qualified reporter's privilege
Concurring opinion: 1 vote for some qualified privilege, but agreed with court's opinion in this case
112
How do many courts read the Branzburg case?
They read it as if the dissenting opinion was the majority opinion
- Recognize some qualified privilege for journalists because of the concurring opinion
- But not all courts agree
- SC hasn't confronted the issue again
113
What is the three part test for qualified privilege?
1: Is the info sought highly material and relevant to the case?
2: Does the info go to the heart of the case? Is it critical to the outcome?
3: Are there no other sources who could provide the information (has the requester exhausted all other options)?
114
When are some instances where privilege is more likely to be recognized?
Civil case, non-grand jury proceeding, promise of confidentiality, evidence of government harassment, material unpublished, reports of others, case in which journalist isn't a party
115
When are some instances where privilege is less likely to be recognized?
criminal case, grand jury proceeding, no promise of confidentiality, no evidence of government harassment, already published, eyewitness report of journalists, case in which journalist is a party
116
What is a statute providing journalists testimonial privilege?
Shield law
117
Where are shield laws recognized?
38 states and DC have them. Federal shield law is pending in both houses of Congress. State ones only apply to state court proceedings.
118
What are some questions surrounding shield laws?
Who and what do they protect? (language is key)
| Will they protect non-traditional journalists?
119
What does Ohio's shield law protect?
Only protects confidential sources. Unpublished information isn't protected
120
What did the case Zurcher v Stanford Daily state?
- Does the 1st Amend require police to get a subpoena before they search a newsroom?
- Had photos of a violent demonstration, police demanded to search newsroom to get the photos, paper said it was a violation of the 1st amend
- SC said it wasn't
121
What law offers qualified protection to both work product and documentary material (within a year and a half response)?
- Privacy Protection Act of 1980
- It is a federal law: If agent of government confiscates work product or documentary material without reason they can be sued and forces to pay damages
- Applies only to those collecting and disseminating information to the public
122
How should you respond if you get a subpoena or police show up at your door with a search warrant or demand you to turn over notes or images?
- don't actively refuse, but don't immediately turn over the info
- don't volunteer info and voice a legal objection to it (call editor or lawyer and say you don't have the authority to hand things over)
- Say you are giving them to them under objection (preferably say it in the presence of someone else)
- volunteering info can hurt later (say you can't answer them and contact lawyer or editor)
- Their tactics are largely intimidation
- don't ignore a subpoena-let people know ASAP to help you
123
What does the 6th Amendment state?
people shall enjoy a right to a speedy and public trial by an impartial jury of their peers
124
When are some instances where people say the media affects and impartial jury?
- When inadmissible evidence is reported (confessions obtained illegally, polygraph test and similar assessments, info about past criminal records, info about defendant's character)
- Stories that just presume the defendant is guilty
125
Is there actual evidence that pretrial publicity interferes with trials?
Evidence is actually quite scarce
- despite the widespread concern, little empirical evidence to support the concern
- most judges surveyed source they rarely confront problems as a result
- Without question not all pre-trial publicity poses a threat to fair trial (Evidence of publicity is not an automatic indication)
126
When is a juror no longer considered impartial?
- When he has knowledge or opinions about a case obtained outside the courtroom that they are not reasonably put aside in the face of evidence presented in the courtroom
- Media coverage is so widespread and prejudiced the juror can't be impartial
127
What is the ultimate question when deciding if a juror is impartial?
Is juror capable of having an open mind about facts of case and guilt or innocence of defendant?
Juror doesn't need to be totally ignorant of facts on issues involved.
128
What are six remedies for pre-trial publicity?
voir dire, change of venue, change of veniremen, continuance, admonition, sequestration
129
What do you call jury selection?
voir dire
130
What is it called when a trial is moved to a different city?
change of venue
131
What is it called when a court brings in jurors from a different location?
change of venireman
132
What is it called when a trial is delayed with the hopes that media coverage later on will not be as intense?
continuance
133
What is it called when a judge tells a jury that they must only pay attention to facts presented in the court room?
admonition
134
What is it called when jurors are separated from the rest of the world during a trial?
sequestration
135
What did the case Sheppard v Maxwell state and what question did it pose?
- man contested his conviction because he said the media affected his ability to get a free trial
- Question: Can pre-trial and trial publicity be so prejudiced as to affect the fairness of the trial?
- SC said the extent of the media coverage of the courtroom became prejudiced
- Sheppard had to be re-tried
136
What did the case Chandler v. Florida state and what question did it pose?
Does the presence of cameras in courtrooms affect fairness?
- The presence of cameras in a courtroom does not inherently create an unfair trial
- Defendant must show the presence of camera did somehow prejudice the jury and affect the outcome
137
Where have cameras been and not been allowed in courtrooms?
All 50 states have allowed cameras in some courts
| Federal courts only have pilot programs (since 2010)
138
What did the case Nebraska Press Association v. STuart state?
- There was a gruesome murder of a farm family, and the court tried to issue a gag order on media
- Court offered a 3-part test for restrictive orders on the press
139
What is the 3-part test for restrictive orders on the press?
1-There must be intense and pervasive publicity about the case
2-No other alternative measure would limit the affects of the pre-trial publicity
3-The restrictive order will effectively prevent the prejudicial publicity from reaching the potential jurors
140
Why do some consider gag orders ineffective in today's society?
Ineffective because people besides media can post about trials anywhere where courts can't restrict them
141
What are the guidelines for restrictive orders on participants? Do they extend after a case is over?
- lawyers and witnesses
- More likely to be presumed permissible
- But some 1st Amend limitation does still apply
- For example, restriction that prohibits talking to the press after the trial is over is probably unconstitutional
142
What did the case Richmond Newspapers v. Virginia state?
- A man was tried several times with several mistrials
- Trial was about to begin for the 4th time when this case came up
- People involved wanted to get through it and asked for closed court proceedings
- Newspapers objected-People have a legitimate interest in the case
- Is there a right of public trials embodied in the 1st Amendment?
- Answer is yes. Whether assembled as right of access or right to gather information, there is some right
- But 1st Amendment is not an absolute bar to closing trials
- Many different opinions without a clear answer to why?
- Court did note history of openness in the country and England before
143
What did the case Press Enterprise v. Superior Court say?
Established a 2-part test for determining whether 1st Amend requires judicial proceedings to be open to the public (history and logic)
144
What does the 2-part test for determining whether 1st Amend requires judicial proceedings to be open to the public state?
History: whether this kind of proceeding has traditionally been open to press and public
Logic: whether public and press access to this hearing will play a positive role in the functioning of the judicial process
145
How could open courts play a positive role in the functioning of the judicial process?
- secret systems are more likely to be unfair
| - openness lets people see what is really illegal and know they shouldn't do it
146
What are 4 other judicial proceedings presumed open?
criminal trials, voire dire, pre-trial hearings, civil court trials
147
Does the history and logic test apply to records of court proceedings?
Yes
148
What are 2 examples of court proceedings that are not open?
- grand jury: proceedings historically closed
- juvenile hearings: Ohio SC ruled in stste v Floyd that such proceedings are neither presumed open or closed. Case-by-case determination. Other states differ
149
What have the two court cases on deportation hearings stated?
North Jersey Media Group v. Ashcroft: no requirement of openness in federal statute; harm to national security if open by revealing information to other terrorists
Detroit Free Press v. Ashcroft: Proceedings are like and should be treated as criminal trials; have traditionally been open. openness enforces fairness, prevent mistrials (?)
150
Can the presumption of openness be overcome?
Yes
151
What did early obscenity law look like?
- 1st official US obscenity prosecution on 1815
- 1st federal obscenity law in 1842
- Comstock Act (1873) declared all books pamphlets, pictures, etc. could not be mailed (enacted by the Post Office)
152
DId the Comstock Act define obscenity?
No
153
What rule did the US use to define obscenity and what did it state?
Used the British Hicklin Rule
Stated the work has a tendency to deprave and corrupt those whose minds are open to such immoral influence and information whose hands it might find
154
What did the Hicklin rule allow for?
Allowed for punishment of material to everyone if it would corrupt only a child. Also allowed censorship of entire work if only one part of it fit the definition
155
In between what years were there several successful prosecutions for obscenity?
1900-1950
156
What is the famous quote when it comes to obscenity?
I'll know it when I see it
157
What did the Roth and Memoirs cases do?
SC rejected the Hicklin rule and established a three-apart test (prurient sexual interest, patently offensive, sexual matters, must be utterly without redeeming social value)
-Beginning of the courts' recognition that not all porn was protected
158
What does the Miller v. California three part test state?
1-An average person applying contemporary community standards finds that the work taken as a whole appeals to prurient sexual interest
2-The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law
3-The work lacks serious literary, artistic, political or scientific value
159
What are two things different states have said about obscenity law?
- Since 1987, Oregon has said no expression between adults will be considered obscene based on restrictions in state constitution
- A number of states have said that protection may exist for material possessed by an individual in their home
160
What did the case Ginsburg v. NY state?
- Established the phrase obscene to minors
- Porn was sold to a 16--year-old
- would not have been obscene to adults
- 1st Amend does allow different standard to be applied when regulating the sale of material to minors
161
What are some of the questions surrounding community standards on the internet?
- Would the adoption of a national standard make it easier or more difficult to pursue obscenity prosecutions?
- If the standard is based on a single geographic community, will anyone do?
- If it is a geographic standard, is it where it is created or where it is accessed?
162
What happened with the case of Paul Little (Max Hardcore)?
He was a purveyor of porn in SoCal, and pictured women in degrading ways and portrayed them as minors
- he was prosecuted in Tampa
- Prosecutors picked the community he thought the definition of obscenity would be the broadest
163
What is an example of a substantial government interest in prohibiting obscene material?
Could lead to violence against women (incite rape and sexual assault)
