The Law of Public Communication, 12th Edition William, Daxton and Jonathan Peters | Test Bank

Test Bank for The Law of Public Communication, 12e William Lee, Daxton Stewart, Jonathan Peters (All Chapters) Chapter 1 Updated 2022 I. True/False Questions 1) The federal constitution is the country’s ultimate legal authority. (True) 2) The U.S. Supreme Court, the nation’s supreme judicial body, has the last word on the meaning of the federal constitution. Each state’s supreme court is the interpreter of that state’s constitution. (True) 3) Amendments to the U.S. Constitution must be ratified by three-fourths of the state legislatures or by state constitutional conventions in three-fourths of the states. (True) 4) The federal constitution is easy to amend and therefore has been changed frequently.

(False) 5) Federal regulatory agencies are bound by the requirements of the Administrative Procedure Act (APA). The APA specifies the procedures that must be employed when an agency enacts rules or enforces regulations. (True) 6) A Federal Communications Commission (FCC) rule limiting the amount of advertising appearing in a magazine may be challenged on the ground that the agency has exceeded its statutory authority. (True) 7) The Supremacy Clause of the U.S. Constitution provides that state law cannot supersede federal law. (True) 8) Most communication cases are brought in criminal court rather than civil court. (False) 9) Common law is enacted by legislatures or administrative agencies. (False) 10) The U.S. Constitution mandates only one federal court, the U.S. Supreme Court, but allows Congress to create other courts. (True) 11) The U.S. Constitution provides that amendments must be ratified by the President.

(False) 12) Three circuits of the U.S. Court of Appeals, the Second Circuit, the D.C. Circuit, and the Ninth Circuit, are especially important to communication law. (True)

13) The U.S. Supreme Court rarely exercises original jurisdiction; it primarily functions as an appellate court. (True) 14) In 2016, Senate Republicans refused to confirm President Obama’s nominee to fill the U.S. Supreme Court vacancy created by the death of Justice Scalia. (True) 15) If the U.S. Supreme Court splits 4–4 on a case, it affirms the lower court judgment without indicating how individual justices voted; no Supreme Court precedent is created by such summary affirmance. (True) 16) The U.S. Supreme Court refuses to grant the vast majority of petitions for certiorari it receives. (True) 17) In criminal cases, the burden of proof requirement is known as “beyond a reasonable doubt.” In civil cases, same burden of proof requirement applies. (False) 18) Unlike federal judges, most state court judges are elected. (True) 19) Of the six sources of law in the United States, the common law is the most important.

(False) 20) The number of cases filed with the U.S. Supreme Court has remained stable since 1954.

(False) 21) With a 6–3 conservative/liberal split on the Supreme Court, the days of a single swing justice may be over. Instead, the center of the Court includes four justices: Chief Justice Roberts and Justices Gorsuch, Kavanaugh, and Barrett. (True) 22) Obscenity law is an example of a type of law enforced by private parties through civil actions. (False) 23) Chief Justice Rehnquist sought to reduce the number of cases heard by the Supreme Court. In the later part of his tenure, the Court agreed to hear arguments in fewer than 100 cases a term. (True) 24) A legal wrong committed by one person against another is often called a tort. (True) 25) Original jurisdiction cases are increasingly rare on the Supreme Court’s docket. (True) II. Key Terms 1) Common law: The body of law developed from custom and tradition as recognized by judicial decisions. Common law is largely based on previous judicial decisions. The judicial policy of stare decisis, which means “let past decisions stand” is critical in common law. In

common law cases, a judge decides a case by applying the law established by other judges in earlier, similar cases.

2) Statutory law: The law made by statutes enacted by legislative bodies such as the U.S. Congress and state legislatures. Statutes set forth enforceable rules to govern social behavior; almost all of this country’s criminal law is statutory. Since legislatures have no enforcement powers, they necessarily rely upon the executive branch to enforce laws. For example, the executive branch decides how vigorously obscenity statutes will be enforced. The judicial branch interprets statutes and has the authority to find that statutes are unconstitutional.

3) Administrative law: Rules and decisions created by administrative agencies such as the FCC, the FTC, and the SEC. Congress creates administrative agencies to supervise activities or industries that require more attention than legislatures can provide. Administrative agencies are unique in the American system of government because they engage in activities that resemble legislative, executive, and judicial functions. Administrative agencies engage in rule making, a process similar to the legislative function. They also perform executive functions when they enforce rules against a firm or individual. Finally, they adjudicate disputes, resolving complaints against firms or individuals.

4) Appellate courts: A court that reviews the actions of a lower court after an appeal by one of the parties in a case. Appellate courts do not hold new trials and generally do not reevaluate the facts of cases. Rather, their responsibility is to ensure that trial courts use the proper procedures and apply the law correctly. Appellate court judges decide cases primarily on the basis of lower court records, briefs written by lawyers, and oral arguments by attorneys. Both the federal and state court systems have intermediate appellate courts and final or supreme courts.

5) Certiorari: The name of a writ asking the U.S. Supreme Court to review a case. The U.S. Constitution specifies only a small number of instances where the Supreme Court has original jurisdiction and few cases go to the Supreme Court on automatic appeal. Thus, the Court has great discretion in selecting which cases it will hear. Parties seeking Supreme Court review of a lower court decision submit a petition for certiorari which explains why the issues in the case warrant the attention of the Supreme Court. The Court usually accepts cases presenting important new legal issues or to resolve disputes among lower courts. Four justices must vote yes if the Court is to grant a writ of certiorari. The Court rejects about 99% of the petitions for certiorari.

III. Essays 1) Explain the three types of challenges that may be raised against an administrative agency’s action.

Federal judges reviewing agency actions ensure that administrative agencies act with the boundaries set by the Constitution and statutory law. An administrative agency is given a specific grant of authority from Congress to regulate certain areas or activities. Thus, one challenge that may be raised against an agency’s action is that the agency has exceeded its statutory authority. For example, until 2009, Congress specifically excluded tobacco products from the FDA’s jurisdiction. In a 2000 case, the tobacco industry claimed the FDA exceeded the

authority then granted by Congress when the FDA banned outdoor tobacco advertisements near schools and playgrounds. The Supreme Court agreed with the tobacco industry, stating that an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.

Administrative agencies are also required to engage in reasonable decision making. This means that agency actions may be challenged as being arbitrary and capricious. Courts reviewing agency actions under this standard do not substitute their judgment as to what is the best policy.

Rather, they merely explore the agency’s action to determine if it is illogical. For example, an appellate court ruled that the FCC was arbitrary and capricious when it ruled that one company could own two television stations in the same market but not a television station and a cable system. The court said it was illogical for the FCC to conclude that tv station and cable system ownership was harmful when the agency found that multiple tv station ownership was in the public interest.

Finally, administrative law must comply with the Constitution. Since regulatory agencies such as the FCC, FTC, FEC, and SEC can affect public communication, courts closely examine the rules of those agencies to ensure that First Amendment rights are not harmed. For example, the Supreme Court ruled that the FEC acted unconstitutionally when it sought to punish the Colorado Republican Party for purchasing radio advertising during a political campaign. The Supreme Court ruled that a political party’s independent expenditures were constitutionally protected speech and exempt from FEC regulation.

2) Describe the U.S. Supreme Court’s process in hearing and deciding a case.

The Constitution specifies only a limited number of instances in which the Supreme Court has original jurisdiction in a case. Thus, the Court has great discretion in deciding which cases it will hear. A party seeking Supreme Court review of a case files a petition for a writ of certiorari; the petition explains why the case involves issues of significance. If four justices agree with the petition, the Court places the case on its calendar.

Once a writ of certiorari is issued, the attorneys file briefs arguing their positions. The briefs describe the facts of the case, the decisions by lower courts, and legal arguments. After the justices review the briefs, the Court hears oral argument. Typically, each side receives one half hour; an attorney’s presentation is frequently interrupted by justices asking questions or challenging the arguments being presented.

After the oral arguments, the justices meet to discuss the case. During this conference, a vote is taken. If the Chief Justice is in the majority, he decides who will write the opinion of the Court.

If the Chief Justice is in the minority, the senior justice in the majority assigns the opinion writing task. The choice of an author for an opinion is significant because the author can weave in his or her political philosophy, view of the role of the Court, and interpretation of law.

After a justice drafts an opinion for the Court, the draft is circulated to the other justices for comment. Drafts of concurring and dissenting opinions may be shared as well. The justices may bargain over the language in the drafts and votes may shift. Once finalized, the opinion of the

ScholarFriends.com

Court is publicly announced. Typically, a justice is identified as the author of the Court’s opinion. Where the opinion is not attributed to a justice, it is noted as a per curiam opinion.

For an opinion to be binding precedent it must have the support of a majority of the justices participating in the case; this is usually five justices. In situations where no opinion attracts the support of the majority of the justices, the opinion with the most support is known as a plurality opinion.

ScholarFriends.com

Test Bank Chapter 2 Updated 2022 I. True/False Questions 1) The framers of the Constitution intended the First Amendment to protect citizens from interference with their freedom of expression by state and local governments as well as by the federal government. (False) 2) When adopted by the states in 1791, the First Amendment protected citizens’ free speech rights from interference by state and local governments as well as from interference by the federal government. (False) 3) The Supreme Court disfavors content regulations, yet the First Amendment protects political speech more than it protects advertising. (True) 4) During the McCarthy Era of the 1950s, the Supreme Court ruled in Dennis v. United States that a citizen's membership in the Communist Party constituted a clear and present danger to the nation. (True) 5) The Supreme Court has ruled that high school students have a constitutional right to criticize the principal in a school sponsored newspaper. (False) 6) "Fighting words," by definition, incite large groups to riot. (False) 7) "Fighting words" are words delivered face-to-face that provoke another individual to retaliate physically. (True) 8) In Brandenburg v. Ohio, the Supreme Court ruled that threatening to get "revengence" at some distant time constitutes a clear and present danger. (False) 9) In Virginia v. Black, the Supreme Court ruled that burning crosses in any location is always an unprotected expressive act intended to intimidate. (False) 10) In Elonis v. United States, the Supreme Court ruled that Anthony Elonis could be convicted of posting a true threat if the prosecution proved he had an intent to intimidate when he posted a vicious message about his estranged wife. (True) 11) It violates the First Amendment to forbid judicial candidates from speaking on public issues during an election campaign. (True) 12) A board of city commissioners could constitutionally prohibit a civil rights parade that might have a "tendency" to draw hostile opposition. (False)

ScholarFriends.com

13) The independent, off-campus student newspaper with website is a traditional public forum.

(False) 14) It is constitutional to punish all expression in the legal category of "hate" speech, the Supreme Court has ruled. (False) 15) The European Union may prohibit hateful speech that is protected in the United States.

(True) 16) It is constitutional to punish all expression in the legal category of "depicting cruelty to animals," the Supreme Court has ruled. (False) 17) A federal appeals court has ruled (Kowalski v. Berkeley County Schools) that school officials can punish a high school student for off-campus internet posts that harass and bully a fellow student. (True) 18) It is a crime, the Supreme Court has ruled, to falsely claim to have won a military medal.

(False) 19) The Supreme Court has ruled the First Amendment prohibits a state university from denying funding to a campus religious magazine if the university funds magazines on other topics.

(True) 20) American courts generally will not enforce judgments against American media by foreign courts for libel, hate speech, invasion of privacy and other torts if the expression would be protected under the First Amendment in the United States. (True) 21) Six members of the current Supreme Court would be considered “absolutists.” (False) 22) One of the main purposes of First Amendment due process is to prevent government officials from acting arbitrarily when they ban or regulate speech. (True) 23) In Texas v. Johnson, the Supreme Court ruled that flag burners might be punished because the government has a compelling interest in maintaining the peace and preserving the flag as a symbol of national unity. (False) 24) The president of State University can remove bottled fetuses from an anti-abortion display at the university's designated public forum if the fetuses are "highly offensive" to other students. (False) 25) A federal appeals court ruled a sheriff running for reelection violated the First Amendment rights of jailors when the sheriff fired them for “Liking” the sheriff’s opponent on Facebook.

(True)

ScholarFriends.com

26) Courts have ruled the First Amendment permits the government to punish Facebook for hosting posts of fake news. (False) 27) The Supreme Court ruled that Westboro Baptist Church protesters engaged in fighting words when they held up signs near military funerals proclaiming, “God hates fags.” (False) 28) The Supreme Court ruled California could ban the sale of violent video games to minors because the state had a compelling interest in preventing antisocial conduct. (False) 29) Public officials may block users from their social media pages on the basis of viewpoint, even if the pages are used for official purposes, because a social media accounts are never considered public forums. (False) 30) In 2019, the U.S. Court of Appeals for the Second Circuit held that then-President Trump’s practice of blocking critics from his Twitter account was unconstitutional viewpoint discrimination. (True) 31) Twitter’s policy of banning all political ads leading up to the 2020 presidential election, to avoid the potential spread of misinformation, violated the First Amendment. (False) 32) Social media platforms are free generally to set their own rules regarding the content they host, and they may do so without engaging in actionable censorship of their users because the platforms are not state actors subject to constitutional limits. (True) II. Multiple Choice 1) If a court applies the strict scrutiny test to a government speech regulation, the government must prove to the court the government has a ___________________ for regulating the speech.

A. rational interest B. compelling interest C. probable cause D. reasonable interest E. none of the above Answer: B 2) A state university speaker's platform, established in 2010, is _________ public forum.

A. a traditional B. a dedicated C. a public content D. a nonpublic E. none of the above Answer: B 3) The City of Midville adopts a law making it illegal for "a large number" to picket at one time.

A court likely will find the law ________________.

ScholarFriends.com

A. unnecessary B. unconstitutionally vague C. content-specific D. viewpoint-specific E. an acceptable time, place, and manner restriction Answer: B 4) The Supreme Court has ruled the government has a compelling interest to stop speech before publication whenever: A. anonymous, libelous political flyers might be circulated B. “sensitive” government documents might be published C. the government declares the national interest “possibly could be harmed” D. all of the above E. none of the above Answer: E 5) A federal appellate court in California ruled that web pages depicting abortion doctors in “Wanted Posters” constitute _________________.

A. a “likely danger” B. protected political speech C. unprotected ethnic slurs D. a true threat E. none of the above Answer: D 6) The state university president can remove bottled fetuses from an anti-abortion display at the Student Public Forum if: A. the fetuses are offensive B. the president opposes abortions C. abortions are legal in the state D. a and b E. none of the above; the president CANNOT control speech content at a public forum Answer: E 7) First Amendment rights include the power for a citizen to: A. refuse to pledge allegiance to a religion or political group B. solicit money for churches, political parties and ideological causes C. petition the government for redress of grievances D. all of the above E. a and c only Answer: D 8) Courts and theorists say the First Amendment serves several purposes, EXCEPT: A. finding Truth B. promoting free economic markets C. allowing change with stability

ScholarFriends.com

D. serving democratic governance E. promoting self-fulfillment Answer: B 9) Which amendments are involved when a court rules that a state violates freedom of expression.

A. 1st Amendment only B. 1st and 5th amendments C. 14th Amendment only D. 1st and 14th E. all of the above amendments Answer: D 10) Which of the following is NOT an unconstitutional content-based regulation?

A. a law prohibiting marches by the American Civil Liberties Union B. a law banning protests aimed at foreign embassies and their government policies C. a law prohibiting distribution of all leaflets inside university buildings D. a regulation banning Neo-Nazi marches E. none of the above is a content-based regulation Answer: C 11) The government can license the following media operators because they operate on a limited spectrum.

A. cable operators B. newspaper publishers C. broadcasters D. internet service providers E. advertising agencies Answer: C 12) In McIntyre v. Ohio Elections Commission, the Supreme Court ruled that a state statute banning anonymous campaign literature "designed to influence voters" was: A. a constitutional prohibition on potentially fraudulent campaign literature B. a constitutional prohibition on potentially libelous campaign literature C. an unconstitutional subject matter regulation D. a and b above E. none of the above Answer: C 13) A county ordinance prohibits a newspaper, its website and its blogs from publishing stories favoring legalization of marijuana, stories the ordinance says "might encourage young people to engage in harmful activity." When a newspaper or website challenges the law as a violation of the First Amendment, a court will subject the ordinance to: A. a balancing test B. a clear and present danger test

ScholarFriends.com

C. strict scrutiny D. the youthful protection exception E. none of the above Answer: C 14) When arrested during an antiwar protest in Indiana, Gregory Hess shouted, "We'll take this fucking street later." The Supreme Court ruled Hess’s speech to be an example of: A. a clear and present danger.

B. a true threat C. obstruction of a police officer D. fighting words.

E. none of the above Answer: E 15) None of the following categories of speech enjoy constitutional protection EXCEPT: A. false advertising B. obscenity C. depictions of animal cruelty D. true threats E. fighting words Answer: C 16) A public official’s social media page may be a __________ public forum if used to conduct official business and/or to interact with citizens about public affairs.

A. traditional B. dedicated C. limited D. nonpublic E. B & C Answer: E 17) Which of the following is generally true about the regulation of user content on social media platforms?

A. the U.S. government cannot, consistent with the First Amendment, require platforms to prohibit hateful user content B. platforms voluntarily combat hateful user content by creating their own site rules regarding user content C. a platform’s content rules often differ from the principles of First Amendment doctrine D. all of the above E. A & B Answer: D 18) In the 2021 case Mahanoy Area School District v. B.L., the Supreme Court held that: A. School administrators have a duty to inculcate values respecting freedom of speech B. Off-campus student speech could be punished if it involved bullying, harassment, or threats aimed at teachers or other students

ScholarFriends.com

C. Parents are better suited than administrators, generally, to supervise what students say off campus D. A school’s regulatory interests are diminished if student speech occurs outside of school hours from an off-campus location and if it is transmitted digitally through a personal device E. All of the above Answer: E 19) In 2017, the Federal Communications Commission, with a new Republican majority, began the process of overturning “net neutrality” regulations imposed on Internet service providers by the Obama-era FCC. Since then …

A. The U.S. Congress has tried unsuccessfully to pass net neutrality legislation B. Individual states have tried to pass net neutrality legislation, with California succeeding.

C. Under the Biden administration, Jessica Rosenworcel, the FCC’s chairwoman, voiced support for restoring net neutrality regulations.

D. All of the above E. None of the above III. Key Terms/Short Answers 1) Absolutist: Explain briefly why Justices Black and Douglas were characterized as absolutists.

Black and Douglas argued that "no law" in the First Amendment prohibited legislatures or courts from imposing restrictions on virtually any speech or publishing.

2) Fourteenth Amendment: What is the contribution of the Fourteenth Amendment to the First Amendment freedom of expression? Give an example.

The Fourteenth Amendment allows the courts to strike down state and local government regulations that would violate First Amendment freedoms if imposed by the federal government.

In Near v. Minnesota, the Supreme Court declared unconstitutional a state statute forbidding scandalous and malicious speech. The Court ruled the statute violated the First and Fourteenth Amendments.

3) Vagueness and Overbreadth: What is the difference between a vague and an overbroad law? Give examples.

A vague law is so unclear that a reasonable person cannot understand it and know what expression is prohibited; to avoid running afoul of a vague law, speakers will censor themselves.

An overbroad law regulates speech that constitutionally may be regulated but it also regulates protected speech. The Supreme Court declared "indecency" in the Telecommunications Act of 1996 to be unconstitutionally vague because it was not precisely defined. The law prohibiting

ScholarFriends.com

indecency was also overbroad because it unconstitutionally prohibited protected indecent speech for adults while constitutionally prohibiting indecency for minors.

4) Bad Tendency Test: Why have courts said good riddance to the "bad tendency" test?

The bad tendency test was vague and elusive, allowing government to prohibit or punish expression having a "tendency" to harm, without the government having to demonstrate the speech would cause concrete harm.

5) True Threat: Define a true threat. Give an example.

A true threat is speech in which the speaker intentionally puts a person in fear of physical harm.

Examples: Burning a cross on a black family’s front yard; YouTube video in which an angry father threatens to kill a judge; “Wanted” posters online threatening abortion doctors.

6) Self-governance theory: Explain briefly the self-governance theory of freedom of expression championed by Alexander Meiklejohn.

Freedom of expression serves a governing value by allowing citizens of a democracy— particularly voters—to discuss, assess and monitor their government. Meiklejohn argued that all political speech is absolutely protected by the First Amendment.

7) Incorporation: What does it mean to “incorporate” the bill of rights into the Fourteenth Amendment? Give an example of incorporation.

The Bill of Rights is incorporated when rights are applied to the states (usually) through the Due Process Clause of the Fourteenth Amendment. That means state or local laws restricting expression violate a citizen’s First Amendment right to speak, as protected against state infringement by the Fourteenth Amendment. The press clause was incorporated into the Fourteenth Amendment when a Minnesota law was struck down in Near v. Minnesota.

8) Net Neutrality: What is net neutrality?

New neutrality is a set of rules enacted by the FCC under the Obama Administration—and rescinded under the Trump Administration—requiring broadband companies, like utilities, to serve all content providers equally, not blocking, slowing or speeding transmission of favored or disfavored content providers.

9) Deepfake: What is a deepfake?

Algorithms have made it possible to synthesize fictitious video, images, voice, and text. For example, photos of imaginary faces can be fabricated by computers, and faces can be swapped from one body to another, creating “deepfakes” and threats to both reputation and privacy.

Journalists should develop strategies to assess whether content was produced by such a mediasynthesis algorithm.

ScholarFriends.com

10) Content moderation: What is the Facebook Oversight Board?

Its members, from around the world, select content cases for review—with the power to uphold or reverse Facebook’s content decisions in light of the company’s stated values and policies. The board’s actions are binding, meaning Facebook must implement them, unless doing so would violate the law. The board is also empowered to make recommendations regarding Facebook content policy. As the Facebook community grew to more than 2 billion people, it became increasingly clear to the company that it shouldn’t be making so many decisions about speech and online safety on its own.

IV. Essays 1) Billy Bob, 28, proclaims on the "I Hate Everyone" web page that he plans to make bombs.

"I'm tired of the media splattering garbage all over the place, and I'm not going to take it no more." Bob says. "If the elite media don't stop ruinating the country, we have to do something drastic." Police arrest Bob for expressing fighting words. True? Define fighting words and explain whether the speech fits the definition. Support your conclusion with a comparison to at least one Supreme Court fighting words case.

Billy Bob's statements on the "I Hate Everyone" web page may be aggressive and hostile, but they do not constitute fighting words. For speech to be considered fighting words, it must motivate someone to respond with violence based on the very utterance of the words. Fighting words are used in face-to-face confrontations; they are a slap that contribute nothing to public discourse. Disseminated broadly over the Internet, Bob's words were not addressed to any individual; the "media elite" is a broad term designating no one. This case is similar to Cohen v.

California in which the Supreme Court ruled that a man did not express fighting words when he wore a jacket in a courthouse proclaiming "Fuck the Draft." People who disagreed with the statement could look away, the Court said. In both cases, the speech was not targeted at anyone specifically, and its intent was not to incite violence, but to express an opinion.

2) Bob Editor, editor of the Palisades High School newspaper, says on the paper's website that a school math teacher named Mr. Whiz is a "loser" who ought to be "got rid of in any way possible." Principal Book suspends Editor from school for two days for his "offensive" posting which the principal characterizes as a "true threat." The website is run by the school as part of a "New Media Class" taught by Lawrence Lenient, an English teacher. Principal Book calls his policy a reasonable regulation of a nonpublic forum. But the ACLU claims that Principal Book violated Editor's First Amendment rights by censoring political speech on a public forum. Citing Supreme Court cases, explain whether the online newspaper is (l) a public forum and whether Principal Book can punish Editor for (2) “offensive" speech that Book says is a (3) “true threat.”

Principal Book is probably within constitutional bounds punishing Editor for "offensive" speech on a non-public forum, but the language was hardly a "true threat."

1) Book can impose reasonable regulations on a non-public forum. In the Hazelwood case, the Supreme Court ruled that high school administrators do not violate the First Amendment if they

ScholarFriends.com

impose reasonable regulations on school-sponsored speech; school sponsored speech does not take place in a public forum. As in Hazelwood, the speech occurred in a class taught by regular faculty, not in a venue dedicated as a limited public forum.

2) Just as the principal in Hazelwood could constitutionally delete two articles from a classroom newspaper, Principal Book might punish Editor for his "offensive" expression. The Court said in Hazelwood that a school does not have to be associated with speech that it does not wish to be associated with.

3) Editor's post, however, is not a true threat, which the Supreme Court has defined as an attempt to intimidate by intentionally creating a pervasive fear in victims that they are a target of violence. Burning a cross could be a true threat, as in Virginia v. Black, if conducted with the intent to intimidate. The Ninth Circuit recognized a true threat in Internet "wanted posters" that named abortion doctors, highlighting dead ones. Doctors testified to a pervasive fear in the context of abortion doctors being murdered. Editor has named no targets and expressed no intent to intimidate by creating a pervasive fear of physical harm in any individual or identifiable group. Editor issued general venom and discontent that would be less threatening than Charles Evers's coercion of blacks to boycott white businesses in NAACP v. Claiborne Hardware. Evers did not create a true threat, the Court said, even though he said during racially tense times that blacks' necks would be broken if blacks traded with white businesses. Editor's vague remarks are even less coercive.

ScholarFriends.com

Test Bank Chapter 3 Updated 2022 I. True/False 1) Although First Amendment doctrine presumes that prior restraints are unconstitutional, in limited instances, such as cases involving false advertising or copyright violations, prior restraints are permissible. (True) 2) The Blackstonian view of press freedom, which prohibits prior restraints but allows subsequent punishment of illegal expression, was familiar to the founders of the U.S. Constitution. (True) 3) In Near v. Minnesota, Chief Justice Hughes stated that the First Amendment’s prohibition on prior restraints was absolute. (False) 4) In New York Times v. United States, the U.S. Supreme Court ruled that the injunction at issue was unconstitutional but provided little guidance about when injunctions in other cases might be constitutional. (True) 5) Just as private corporations may prohibit employees from revealing confidential business information, the government may prevent its employees from divulging information that would jeopardize national security. (True) 6) In 2009, the validity of prepublication agreements was emphasized by the Second Circuit in a case involving CIA operative Valerie Plame’s authorship of a memoir. (True) 7) In Shuttlesworth v. City of Birmingham, the U.S. Supreme Court upheld a parade ordinance that allowed local officials to prohibit parades that were harmful to the “public welfare.” (False) 8) Even though local governments have the legal authority to license films, they no longer do so. (True) 9) Due to the physical limitations of the electromagnetic spectrum, the U.S. Supreme Court regards the licensing of broadcasters as permissible. (True) 10) The government’s authority to revoke or not renew a broadcast license for programmingrelated reasons is similar to the government’s power to control newspaper publishing.

(False) 11) The U.S. Supreme Court ruled in 1997 that unlike broadcasting, the Internet was fully protected by the First Amendment. (True)

ScholarFriends.com

12) In Los Angeles v. Preferred Communications, the U.S. Supreme Court ruled that cablefranchising decisions by local governments are exempt from First Amendment scrutiny.

(False) 13) A tax aimed solely at the largest newspaper in a state is unconstitutional, but a general sale tax treating all newspapers like other businesses is constitutional. (True) 14) A sales tax applicable to religious magazines, but exempting news magazines, is permissible. (False) 15) In the Bartnicki and Florida Star cases, the U.S. Supreme Court held that a journalist’s mere receipt of information from a source is lawful, even when the source obtains the information illegally or is not supposed to disclose it. (True) 16) The unsuccessful 1942 attempt by the Roosevelt administration to get a grand jury to indict the Chicago Tribune for its coverage of the Battle of Midway serves as a powerful reminder to government officials of the obstacles to punishing the press for disclosure of classified information. (True) 17) The draft card law at issue in United States v. O’Brien was content neutral because it did not single out public protestors but applied to all men who destroyed their draft cards.

(True) 18) Although content-based restrictions will generally be subjected to strict scrutiny by courts, content-neutral restrictions are subjected to a less rigorous ad hoc balancing process. (True) 19) The U.S. Supreme Court regards content-neutral restrictions and content-based restrictions as equally harmful to free expression. (False) 20) Eleanor McCullen, a “sidewalk counselor,” won her case challenging a 35-foot buffer zone at the entrance of abortion clinics when the U.S. Supreme Court ruled that Massachusetts could serve its interests with less restrictive measures. (True) 21) Matt Bissonnette, a former member of Navy Seal Team 6, agreed to forfeit $6.8 million in book royalties and speaking fees because he did not clear his disclosures with the Pentagon. (True) 22) Military bloggers must submit posts to commanding officers for prepublication security review. (True) 23) The federal government and 45 states have laws preventing criminals from profiting from the sale of their memoirs. (True) 24) A speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within the subject matter. (True)

ScholarFriends.com

25) Some forms of expression, such as door-to-door advocacy, are exempt from licensing.

(True) 26) Although the U.S. Supreme Court has said that the media may be liable for publishing confidential government information, the media has never been successfully prosecuted for violating the Espionage Act. (True) 27) In 2019, a district court found that the federal government was not entitled to proceeds from Edward Snowden’s best-selling memoir, Permanent Record, even though he did not submit his manuscript discussing classified intelligence activities to federal agencies for prepublication review. (False) 28) In 2020, every U.S. intelligence agency imposed a lifetime prepublication review requirement on at least a subset of their former employees. (True) 29) In 2019, former national security officials filed suit challenging the government’s prepublication review process under the First Amendment, claiming the ambiguous and vague standards place too much discretionary power in reviewing officials who can discriminate against low-ranking critics, while quickly clearing favorable material by senior officials. The case was dismissed by a district court, and the Fourth Circuit affirmed in 2021, drawing on Snepp for the conclusion that the plaintiffs voluntarily signed the agreements and therefore knowingly waived their First Amendment rights.

(True) II. Multiple Choice 1) The 1931 case in which the U.S. Supreme Court established the presumption that prior restraints are unconstitutional, but acknowledged that prior restraints might be permissible in wartime to bar expression harmful to the safety of troops.

A. Gitlow v. New York B. Schenck v. United States C. Near v. Minnesota D. Abrams v. United States E. none of the above Answer: C 2) The 1971 case in which the U.S. Supreme Court ruled that the government had not met its “heavy burden” of proof to overcome the presumption that prior restraints are unconstitutional.

A. Near v. Minnesota B. Smith v. Daily Mail C. Cox v. New Hampshire D. New York Times v. United States E. Snepp v. United States Answer: D

ScholarFriends.com

3) The 1952 case invalidating a state film-licensing statute and establishing that motion pictures are a constitutionally-protected form of expression.

A. Burstyn v. Wilson B. Freedman v. Maryland C. Interstate Circuit v. Dallas D. Mutual Film Corp. v. Ohio E. Cox v. New Hampshire Answer: A 4) The 1969 case establishing that broadcasters can be required to broadcast opposing views on public issues.

A. Los Angeles v. Preferred Communications B. CBS v. FCC C. Red Lion Broadcasting v. FCC D. Trinity Methodist Church, South v. FRC E. FCC v. National Citizens Committee for Broadcasting Answer: C 5) The 1979 case in which the U.S. Supreme Court established that it is extraordinarily difficult for the state to punish the publication of lawfully acquired truthful information of public significance.

A. New York Times v. United States B. Smith v. Daily Mail Publishing Co. C. Bartnicki v. Vopper D. United States v. O’Brien E. Cox Broadcasting v. Cohn Answer: B 6) The 1968 case in which the U.S. Supreme Court ruled constitutional a federal statute protecting draft cards.

A. United States v. Eichman B. United States v. O’Brien C. Clark v. Community for Creative Non-Violence D. Ladue v. Gilleo E. United States v. Grace Answer: B 7) Which of the following is not regarded as a prior restraint?

A. injunction B. discriminatory taxes C. prepublication agreement D. security Review E. post-publication sanctions Answer: E 8) Which of the following is a content-neutral law?

ScholarFriends.com

A. a law punishing treatment of the American flag in a disrespectful manner B. a sales tax applicable to religious magazines but not fashion magazines C. a law punishing “offensive” bumper stickers D. a law prohibiting the sale of violent video games to children E. a law prohibiting picketing inside the U.S. Supreme Court building Answer: E 9) Which of the following is a content-based law?

A. a law prohibiting distribution of leaflets inside university buildings B. a law prohibiting door-to-door solicitation inside university dorms C. a law prohibiting marches through residential neighborhoods D. a law banning billboards in historic neighborhoods E. a law banning picketing near embassies if the message is critical of foreign officials Answer: E 10) In which of the following did the U.S. Supreme Court find a content-neutral law banning residential yard signs to be unconstitutional?

A. United States v. O’Brien B. Clark v. Community for Creative Non-Violence C. Ladue v. City of Gileo D. Ward v. Rock Against Racism E. none of the above Answer: C 11) Why do press advocates fear that a prosecution of WikiLeaks founder Julian Assange for violating the Espionage Act will chill journalism?

A. when Assange was indicted in 2019, the head of the National Security Division of the Department of Justice said there is no doubt that Assange is a journalist B. Assange’s indictment charged him with gaining unauthorized access to a Defense Department computer network—a practice that journalists regularly engage in C. mainstream news outlets sometimes publish leaked classified information D. B & C E. all of the above Answer: C 12) This organization was at the center of the recent dispute over whether computer-aided design (CAD) files posted online—revealing how to create a 3D-printed gun—are protected by the First Amendment: A. National Rifle Association B. Gun Owners Foundation C. Guns for Hire D. Defense Distributed E. none of the above Answer: D

ScholarFriends.com

13) Claims of political manipulation of the prepublication review process permeated the Trump administration’s 2020 efforts to prevent publication of: A. Former national security advisor John Bolton’s memoir The Room Where It Happened B. Former White House press secretary Stephanie Grisham’s memoir I’ll Take Your Questions Now C. Washington Post associate editor Bob Woodward’s book Rage D. Former attorney general William Barr’s memoir One Damn Thing After Another E. none of the above Answer: A 13) In a 2021 action that departed from prior restraint doctrine, a New York judge temporarily prevented: A. The New York Post from publishing a story that included classified information about U.S. foreign policy in China B. The New York Times from publishing information contained in attorney-client memoranda written by a lawyer for Project Veritas, a group known for using unusual information gathering techniques such as fake identities and hidden cameras.

C. The Wall Street Journal from publishing a story that included trade secrets related to Coca Cola’s partnership with Delta Airlines.

D. The New Yorker from publishing information contained in the personal diaries of the former mayor of New York E. None of the above Answer: B III. Key Terms 1) Injunction: Order from a court telling a person or company to perform or refrain from some act. In the context of free expression, injunctions aimed at preventing publication are regarded as a form of prior restraint. Injunctions aimed at political expression are presumptively unconstitutional. As shown in New York Times v. United States, the government bears a heavy burden of proof to overcome this presumption. In other settings, such as copyright infringement, obscenity or false advertising, injunctions are not regarded by courts as being as harmful as in the area of political expression.

2) Security review: Prepublication review by military officials of wartime press reports to ensure classified information is not disclosed. American military officials are not obligated to allow the press to enter military bases or to accompany troops in combat. If press coverage is allowed, military officials establish elaborate ground rules relating to what may and may not be published by the press. As a means of ensuring compliance with the ground rules, commanders may choose to impose security review on journalists. The system of security review has never been challenged by the press. Members of the military who blog must register with their commanding officers and submit posts for review.

3) Franchise: Agreement between a city, county, or state and a cable system operator allowing the operator to provide cable television service. Most communities have awarded only one

ScholarFriends.com

franchise, a process challenged in Los Angeles v. Preferred Communications. After the Supreme Court ruled that prospective cable operators have First Amendment rights that must be balanced against a city’s interests in protecting public safety, lower courts found that the city’s interests did not justify an exclusive franchising scheme. Congress has outlawed exclusive franchising.

Due to intense lobbying by telephone companies, 25 states have enacted laws allowing statewide franchises since 2005. The FCC has also adopted rules designed to make it easier for phone companies to enter the cable television business. Franchise authorities must act on applications within 90 days and the costs of in-kind contributions are counted toward the 5 percent cap on franchise fees.

4) Time, place, and manner regulation: Regulation of when, where, and how expression occurs, rather than regulation of the message conveyed by communicators. A central feature of permissible time, place and manner regulations is that they are content neutral. That is, they are not tied to a particular message or audience reaction. Content neutral time place and manner regulations are presumptively constitutional. Courts generally defer to the judgment of government officials concerning the need for time, place and manner regulations. As long as the regulation narrowly advances a substantial governmental interest, such as preserving park property or promoting residential privacy, and leaves open alternative means or places of expression, it will be constitutional.

5) Computer-aided design (CAD): There is an ongoing debate over whether the government can, or should, prohibit the online publication of CAD files that explain how to create a gun with a 3D printer. Opponents contend 3D-printed guns will allow criminals to evade gun-control laws, while proponents assert a First Amendment right to publish what they describe as gun-related speech. In 2013, the State Department declared that the Arms Export Control Act authorizes restrictions on Internet publication of CAD files. The State Department feared that 3D-printed guns would be undetectable by metal detectors and other security equipment and could be used in an assassination attempt or by terrorist groups. In 2018, however, the State Department reversed its position and concluded that CAD files do not violate controls meant to keep certain military technology out of the hands of the country’s enemies. Several states immediately sued, and ultimately a federal judge vacated the State Department’s new policy because the agency did not comply with statutory requirements in making the change.

IV. Essays 1) Discuss the distinction between content-based and content-neutral regulations of expression.

Content-based regulations are those regulations of expression which facially discriminate on the basis of content or are tied to audience reaction to expressive acts. Content-based regulations compromise the government’s obligation to be neutral in its regulation of the marketplace of ideas; they are treated as presumptively unconstitutional. A classic example of a content-based regulation is the flag desecration statute at issue in Texas v. Johnson. Only certain expressive uses of the flag were illegal; other expressive uses which conveyed ideas acceptable to the government were permissible. The Supreme Court found this statute to be unconstitutional, stating, “If there is a bedrock principle underlying the First Amendment, it is that the

ScholarFriends.com

Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

In contrast, content-neutral regulations permit the government to control aspects of speech, such as noise level, without distorting the range of views available to the public. Content-neutral laws are presumptively constitutional; courts defer to the judgment of government officials on matters such as preserving residential privacy or protecting government property. As long as the government narrowly advances a substantial interest and leaves open alternative means or places for expression, a court will uphold the regulation. The intensity of content-neutral balancing is affected by factors such as the nature of the property (public forum v. non-forum) and the burden on expression posed by the law (total ban v. limited time, place and manner restriction). In rare circumstances, courts find content-neutral regulations to be unconstitutional. For example, in Ladue v. Gilleo, a ban on residential signs was unconstitutional because the city’s interests in minimizing the visual clutter of signs were not sufficiently important to justify the law. Also, the Court considered residential signs to be uniquely important and alternative methods of communication were not considered to be adequate substitutes for signs.

The distinction between content-based and content-neutral regulations is critical to contemporary First Amendment doctrine. Content-based regulations are subject to strict scrutiny; contentneutral regulations are subject to a less rigorous ad hoc balancing process. The Supreme Court believes the government has latitude to regulate non-message aspects of speech, such as noise level, without distorting the marketplace of ideas. Content-based regulations, however, are disfavored because they distort the marketplace of ideas.

2) Discuss the distinction between prior restraints and post-publication penalties.

Sir William Blackstone’s commentaries on English law were influential with the Framers of the U.S. Constitution. Blackstone wrote at a time when press licensing had been supplanted with a system of post-publication penalties. He summarized freedom of the press in the following terms: liberty of the press “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” Scholars agree that at the time of the First Amendment’s adoption, there was universal agreement that the First Amendment prohibited prior restraints. There was no consensus, however, that post-publication penalties were to be forbidden. In Patterson v. Colorado (1905), the Supreme Court adhered to the Blackstonian view, stating that the First Amendment prevented prior restraints, but allowed subsequent punishment of communications “deemed contrary to the public welfare.” In the 1930s the Supreme Court departed from Blackstone in two significant ways. First, in Near v. Minnesota (1931), the Supreme Court stated that prior restraints were disfavored, but might be permissible in limited circumstances, such as during war time. Secondly, in cases after Near v. Minnesota, the Court expanded its view of press freedom and admitted that the Blackstonian view was “too narrow” a view of press freedom. Modern Supreme Court doctrine developed since the 30s acknowledges the “chilling effect” or self-censorship that occurs when post-publication sanctions are severe.

Although contemporary Supreme Court doctrine recognizes that certain post-publication penalties can harm the marketplace of ideas, the Court continues to regard prior restraints as the “most serious and least tolerable” form of regulating expression. Prior restraints can take many

ScholarFriends.com

forms, such as discriminatory taxation, but the classic form involves government scrutiny of content prior to its publication. This is regarded as more inhibiting to expression than the threat of a later punishment. Under a system of licensing, the government may require that public expression be censored by a central authority. This creates a bottleneck that intimidates speakers and greatly diminishes the valuable facts and ideas the public receives. Where prior restraints are permitted, the public has no opportunity to judge the worth of suppressed ideas.

Post-publication penalties offer the advantage of allowing ideas to circulate. Moreover, the effects of a publication are readily assessed. In contrast, prior restraints involve speculation about the harmful effects of a possible communication. When the government engages in postpublication punishments instead of prior restraints, the government may lack the resources to prosecute every publisher it would have censored under a licensing scheme.

ScholarFriends.com

Test Bank Chapter 4 Updated 2022 I. True/False 1) Although the Supreme Court never ruled on the constitutionality of the Alien and Sedition Acts of 1798, the Supreme Court said in New York Times v. Sullivan that seditious libel laws violate the central purpose of the First Amendment. (True) 2) Once libel plaintiffs establish that they have been defamed by the media, they are entitled to compensatory damages. (False) 3) A reporter claims the privilege of "neutral reportage" by including any two opposing viewpoints in a story. (False) 4) To be defamatory, a libelous statement must be "published" to at least one person beyond the person libeled. (True) 5) Michael Malice, a campus writer, posts an internet message that most of the brothers of the APT Fraternity House "have spent time in jail for drug use and violence." In fact, none of the ten brothers or the fraternity has ever been charged with drug use or violence. Thomas Goodie, a member of the fraternity, sues Malice for libel. Some courts have ruled a member of a group the size of APT might bring a libel suit because he has been "identified" and defamed. (True) 6) Assume that Thomas Goodie [previous question] has been identified and that he brings a libel suit against Michael Malice. He could not win a libel case because the statement that most of the brothers "have spent time in jail for drug use and violence" is protected opinion.

(False) 7) Michael Malice's online post [previous two questions] appears on a feisty web site run by MW, an Internet service provider that welcomes controversial viewpoints. Michael Malice does not work for RAW. If Goodie were to sue RAW for libel, RAW could probably successfully claim immunity from liability under section 230 of the Communications Decency Act. (True) 8) Assume that RAW removes the posted slur against the APT fraternity [previous three questions] after it has appeared on the web site for ten days. RAW would then become the "publisher" of the slur and would therefore be responsible for defamation in a lawsuit.

(False).

9) Cussing a police officer as an "asshole" is likely to land a citizen in jail for criminal libel.

(False)

ScholarFriends.com

10) New York Times v. Sullivan is important, in part, because it required public officials in all 50 states to prove actual malice when suing the media for defamation relating to their official conduct. (True) 11) The Supreme Court established in Gertz v. Welch, Time v. Firestone, and other cases that a libel plaintiff might be quite well-known in some circles but remain a private person as a libel plaintiff. (True) 12) The Supreme Court has ruled that lawyers must be considered "public figures" in libel cases if they take on a controversial client. (False) 13) Mrs. Firestone was a vortex or limited public figure because she participated in a wellpublicized divorce. (False) 14) A business can be defamed. (True) 15) State University, a public school, could sue for defamation over the published statement "All State University professors are crack heads." (False) 16) Defamation can occur only through the plain meaning of words, not by implication or innuendo. (False) 17) Defamation suits must be filed before expiration of the statute of limitations. (True) 18) The term "actual malice," as used by the U.S. Supreme Court in New York Times v.

Sullivan, refers to intent to cause harm and is also described as common law malice. (False) 19) Under defamation laws in most states, journalists cannot be sued successfully for defamation if their reporting of legislative and judicial bodies is fair and accurate, even if those reports repeat false statements of fact spoken during the proceedings. (True) 20) The U.S. Supreme Court's contemporary defamation doctrine is based on the premise that some falsehoods must be protected in order to provide an environment for uninhibited debate on public issues. (True) 21) According the U.S. Supreme Court, the Saturday Evening Post did not act with actual malice in the case involving Wally Butts. Evidence presented at trial showed that the magazine's editors acted in good faith regarding the source and the truthfulness of the charges made against Butts. (False) 22) SLAPPs (Strategic Lawsuits Against Public Participation) may discourage citizen activism because defending libel suits is time consuming and expensive. (True) 23) A court might issue summary judgment for the media if a public figure plaintiff cannot establish evidence of actual malice before trial. (True)

ScholarFriends.com

24) Quotation marks indicate a speaker said exactly the words quoted. Therefore, any error in quotation marks is defamatory. (False) 25) The media's "qualified" privilege to report false, defamatory statements at official proceedings requires that media reports be accurate. (True) 26) In New York Times v. Sullivan, the Supreme Court ruled that the newspaper's failure to check the facts in the defamatory advertisement constituted actual malice. (False) 27) New York Times v. Sullivan decision is important, in part, because it established constitutional protection for some content in paid advertisements. (True) 28) The Supreme Court ruled in Milkovich v. Lorain Journal Company that the term liar was not defamatory because it could not be proven to be a false fact. (False) 29) The Supreme Court ruled in Farmers Educational and Cooperative Union of America v.

WDAY, Inc., that broadcasters are not responsible for a political candidate's libelous statements if the broadcasters are fulfilling their "equal opportunities" obligations under Section 315 of the Federal Communications Act of 1934. (True) 30) Under the Communications Decency Act, internet sites that host comment sections are not responsible for libel if someone posts defamatory statements in those comment sections.

(True) 31) All 50 states and the federal government have some kind of Anti-SLAPP law, which make it easier for libel defendants to dismiss meritless lawsuits intended to silence their speech.

(False) 32) Under the “wire service” defense, courts have held that the media can always rely on a wire service copy without verifying it because of the heavy burden that verification places on the media’s ability to report national and world news. (False) 33) The “wire service” defense was developed in response to serial plaintiffs traveling from town-to-town filing libel suits against local newspapers that unknowingly repeated defamatory stories picked up on news wires. (True) 34) All anti-SLAPP statutes include fee-shifting provisions and expedited hearings that allow for early dismissal of meritless defamation actions. (False) 35) Although courts may order websites to remove content proven at trial to be libelous, issuing injunctions against potential future libels would likely be an unconstitutional prior restraint.

(True)

ScholarFriends.com

36) A Georgia jury awarded rapper Cardi B $4 million in actual damages, punitive damages and attorney fees in 2022 in her lawsuit against a celebrity blogger who had made false allegations that Cardi B was a cocaine user, had been a prostitute, and had herpes. (True) II. Multiple Choice 1) A story in a U.S. travel magazine calls the City of Beaufleuve, New York, an "armpit" run by "corrupt officials" who should be sent over Niagara Falls. Beaufleuve might successfully sue on the grounds that the article is: A. criminally libelous because it might lead to a breach of the peace B. criminally libelous because it defames a fine city C. criminally libelous because it is written with hatred and ill will D. all of the Above E. none of the above Answer: E 2) New York Times v. Sullivan is important because: A. it made important aspects of libel law affecting public officials the same in all states B. it held that paid editorial advertisements have First Amendment protection C. it made it easier for public officials to collect "presumed" damages D. all of the above E. A and B only Answer: E 3) The Supreme Court has ruled that a private person might become a public figure if he or she: A. takes on a controversial client as lawyer Elmer Gertz did B. participates in a publicized divorce as Mary Alice Firestone did C. voluntary participates in a public controversy as General Edwin Walker did D. all of the above E. none of the above Answer: C 4) A combination of journalistic practices may constitute actual malice, including: A. failure to check facts B. haste to publish when there are no pressing deadlines C. fabricating interviews D. all of the above E. none of the above Answer: D 5) The media's "qualified" privilege to report false, defamatory statements at official proceedings: A. derives from the absolute privilege enjoyed by public officials

ScholarFriends.com

B. requires that the related media reports be accurate C. allows journalists to report courtroom testimony they know to be false D. all of the above E. none of the above; reports of falsehoods are never protected Answer: D 6) In a letter to the editor, a citizen calls a developer a "blackmailer" because the developer has demanded that the city council rezone a property before the developer will give the city park land. The Supreme Court has ruled in a similar case the term "blackmailer" in the rezoning controversy is: A. libel per quod B. criminal libel C. false light D. rhetorical hyperbole amounting to opinion E. none of the above Answer: D 7) The Supreme Court said that the failure of the New York Times to check the accuracy of the advertisement "Heed Their Rising Voices" constituted: A. actual malice B. negligence C. gross unfairness D. acceptable professional practice E. none of the above Answer: B 8) Ace Reporter reports accurately from the police blotter that Barry Crackup was intoxicated when the car he was driving killed Denise Dead. The police blotter was wrong; Crackup was not driving the "death car." Crackup sues Ace Reporter and his newspaper. Which of the following is Ace's best defense?

A. truth B. neutral reportage C. qualified privilege of reporting D. due care Answer: C 9) A broadcast station WZZZ is fulfilling its obligations under Section 315 of the Communications Act when a candidate for public office falsely calls Kirk Kounter, treasurer of Liberty Bank, an embezzler. Kounter sues the candidate and the station for libel. WZZZ's strongest defense would be A. Kounter is a public figure B. truth is a complete defense C. stations fulfilling Section 315 obligations are not responsible for candidates' libel D. the First Amendment encourages defamatory statements in campaigns Answer: C

ScholarFriends.com

10) Which of the following are good media practices when a caller threatens to sue for libel?

A. take notes B. contact the editor or publisher C. readily admit any possible error D. all of the above E. A and B only Answer: E 11) To win a libel suit against the media, a plaintiff must prove all of the following EXCEPT: A. the plaintiff has been identified B. the plaintiff has been harmed C. the publication was made with fault D. the publication was not "reasonable" E. none of the above are exceptions; all must be proven Answer: D 12) A successful neutral reportage defense usually requires the media to prove the published defamation is: A. newsworthy and related to a public controversy B. made by a responsible person or organization C. about a public official or public figure D. accurately reported alongside opposing views E. all of the above Answer: E 13) Radio Righteous reports that Retro Bookstore sells "obscene videos." When Retro sues the station for defamation, Radio Righteous should win because: A. "obscene" is a matter of opinion B. "obscene" is protected by the neutral reportage defense C. a jury determining the facts cannot find videos to be "obscene" D. all of the above E. none of the above Answer: E 14) All of the following might sue for defamation EXCEPT: A. living individuals B. businesses C. companies whose products have been disparaged D. governments E. all of the above might sue for defamation Answer: D 15) Which words and phrases would be protected opinion in a libel suit?

A. the meal "tasted like yellow death on duck" B. Professor Jones is "teaches the easiest class" C. Dean Smith is "a sexual harasser"

ScholarFriends.com

D. A and B only E. all of the statements would be considered opinion Answer: D 16) When a British man helped rescue children trapped in an underwater cave in Thailand, the entrepreneur and businessman Elon Musk called the man a “pedo guy” on Twitter and a “child rapist” in emails. A jury found that Musk’s statements constituted: A. criminal libel B. false light C. intrusion D. libel per quod E. none of the above Answer: E 17) All of the following are true about state anti-SLAPP statutes EXCEPT: A. they are meant to provide procedural remedies for targets of SLAPPs B. they can encourage “libel tourism” C. they can’t ever be invoked in federal court D. the majority of states have one, in addition to the District of Columbia E. B & D Answer: C 18) In 2019, the U.S. Court of Appeals for the Ninth Circuit permitted an anti-libel injunction requiring a speaker to: A. issue a retraction correcting libelous statements B. take down statements found in court to be libelous C. avoid repeating the same or similar statements in the future D. B & C only E. all of the above Answer: E 19) In late 2020, the FAA released two final rules intended to accelerate the integration of drones into the national airspace system. The rules: A. Allow for drones to be flown over people, at night and over moving vehicles, without the need to seek operation-specific waivers from the FAA. B. Require operation-specific waivers from the FAA in order to fly drones over people, at night and over moving vehicles C. Allow for only U.S. military drones to be flown over people, at night and over moving vehicles D. None of the above Answer: A III. Short Answer/Key Terms 1) Why do media defense attorneys in defamation cases so often (and frequently successfully) ask a judge to issue an order of summary judgment?

ScholarFriends.com

The media seek summary judgment because the media avoid the cost, the risks, the disruption and the stress of a trial when a judge orders summary judgment for the media. With summary judgment, a judge rules as a matter of law that the plaintiff has insufficient evidence to win the case against the media. A judge can issue summary judgment only if there are no facts in dispute that a jury would have to decide. In libel suits, for example, a judge may issue summary judgment for the media if a public official plaintiff fails before trial to present "clear and convincing evidence" that the official can prove—as he must—that a defamatory publication was published with actual malice.

2) Describe the combination of sloppy and unprofessional reporting practices that might add up to actual malice.

Actual malice is knowing falsehood or reckless disregard for the truth. Reporters are reckless when they publish with a high degree of awareness of the probable falsity of their story.

Negligence may be a single unprofessional journalistic practice, such as failing to check a fact.

But actual malice is usually a combination of sloppy and reckless practices, including failure to check facts, reliance on a questionable source, failing to interview obvious relevant sources, and ignoring credible warnings of falsity. In Connaughton, the Supreme Court said deliberate avoidance of the truth is evidence of actual malice. Fabricating stories is also strong evidence of actual malice. In Curtis Publishing Co. v. Butts the Supreme Court found malice where the Saturday Evening Post failed to review films of an allegedly "fixed" football game even though the magazine had time to conduct the review. Furthermore the magazine relied on reports by a known check forger of an overheard telephone conversation.

3) Why did the Supreme Court compare large civil damages to criminal libel statutes in New York Times v. Sullivan?

In Sullivan, the Court said that large civil awards—$500,000 in Sullivan—can be as intimidating as criminal penalties were in the days of seditious libel. It is unconstitutional for the government to fine, jail or physically punish journalists as the government could once do under criminal libel statutes. But the Supreme Court said in Sullivan that large civil monetary awards to public officials, without a showing of actual malice, are also unconstitutional because the large awards also infringe freedom of the press. Large civil awards may make the press excessively cautious, just as criminal penalties can.

4) Why is it NOT protected opinion for the campus television station to report in a newscast: “Some students think Professor Jones may be an alcoholic”?

An opinion is protected speech if it is not provably false. But protected opinion must so exaggerate as to be unbelievable or be based on fact, not on unsubstantiated rumor. The Supreme Court has ruled that calling a developer a blackmailer in the heat of political controversy is hyperbolic speech constituting opinion. Likewise, opinions based on fact-opinions that do not imply unstated, defamatory falsehoods--are protected. The Lorain Journal Co. may have libeled Milkovich because the paper had no facts to support its accusation that Milkovich was a "liar" when he denied contributing to a high school brawl. Jones "may be" an

ScholarFriends.com

alcoholic, but the statement is defamatory absent facts that Jones has been treated for alcoholism, has admitted to alcohol abuse, been convicted of drunk driving or other factual, public evidence. The context does not suggest opinion. The accusation of alcoholism is made in a newscast, not a commentary segment. The format is not an entertainment show during which viewers might expect opinion or fantasy. The subject matter is serious.

5) Briefly describe best practices for handling libel complaints at a newspaper or broadcast station.

The medium should have a policy for handling complaints politely, accurately and efficiently.

A reporter or designated person should take down a complaint accurately and professionally, and pass the information to a designated editor, producer or publisher. No apologies or admissions should be made early on. After investigation and discussion and perhaps consultation with an attorney, the media should get back to the complaining party to explain the publication. If a retraction or correction is to be run, a decision to be made by senior editors and the publisher, it should follow statutory requirements of timeliness, accuracy and prominence.

IV. Essay Gene Green, a widely published professor of accounting, is suing the Daily Caper, the campus newspaper, for libel. The paper reported on its web site that Green was being investigated by a campus committee for drunken behavior and harassing secretaries. The Caper's web site quoted an anonymous source saying rumors had circulated "for years" about Green's "undisciplined and offensive behavior." An unnamed member of the accounting department tells the Caper that Green is "one buttoned down horny dude." Green is a respected scholar who served eight years ago for a brief time in Washington as assistant deputy director of a government agency.

University regulations provide that complaints and grievances will be heard in closed session by the University Disciplinary Tribunal. But usually reliable anonymous sources tell the Caper the chair of the accounting department—to save time—appointed a temporary committee of five faculty to investigate the rumors. However, the department committee dropped the inquiry after two meetings when the members could not get students, secretaries, or other faculty to testify.

No one filed charges or formal complaints against Professor Green. No one will talk to the newspaper on the record. Just before publication, the dean of the business school called the Caper to warn that the damaging rumors about Green were being circulated by an administrator who was jealous of Green and hoped he would be driven from campus. Thirty percent fewer females signed up for Green’s classes after the web stories were published.

Green files suit claiming that the Caper defamed him by publishing false accusations about drunken and harassing behavior. Green says the paper published with negligence. Caper's attorney argues the Caper did not defame Green by publishing the "opinion" of many students and staff on campus that Green sometimes appears drunk and harasses women. The Caper also argues the paper has a qualified privilege to publish fair and accurate reports of the department investigation, just as it would have a privilege to make accurate reports of a legislative committee investigation or a court proceeding. Furthermore, the paper argues,

ScholarFriends.com

Green cannot successfully sue because he is a public figure who cannot prove actual malice, as he must.

Explain (1) whether Green has a good chance of establishing that he was defamed. Then discuss the Caper's defenses, including (2) the paper's claim t at it published protected opinion, (3) that the paper has a qualified privilege to report the investigation, (4) that Green is a public figure and (5) that the paper did not publish with negligence or actual malice. Provide definitions and case examples as appropriate.

The Caper could lose this one, for the following reasons: 1) Green has been defamed by apparently false statements about his drinking and harassing.

There is no evidence—only rumor—that Green drinks or harasses. Defamation is a false, unprivileged statement that harms someone's reputation. Courts have ruled that false statements of alcohol abuse and illegal behavior will cause people to think less of, and perhaps avoid or shun, the defamed person. So far, there is no evidence that the statements about Green are true.

Green appears to be harmed; female students are already avoiding his class.

2) The claim that the Caper is publishing opinion is sophomoric. Opinion is a statement that cannot be proven false, according to the Supreme Court. Like statements in the Milkovich case that a coach instigated a melee, statements that Professor Green drinks too much and harasses women can be proven false. Anonymous, damaging rumors published on a web page are not opinion based on fact, as illustrated in the Phantom of the Opera case. Nor is calling someone a harasser or drunkard mere hyperbole, which the Supreme Court said is protected opinion.

3) The paper has no qualified privilege because it is not reporting on an official proceeding such as a legislative session, an open trial or, perhaps, the campus Disciplinary Tribunal. In those circumstances, reporters are privileged to make fair and accurate reports even of defamatory statements. A brief "investigation" by an ad hoc department committee, appointed by the department head, is hardly an official proceeding. The department head has no authorization to form a committee to gather criminal evidence, no power to subpoena, no power to punish.

Perhaps an official investigation might have been conducted by the University Disciplinary Tribunal.

4) Green is not a public figure. He is neither an all-purpose figure—a household name—nor a vortex figure, someone who voluntarily thrust himself into a public controversy. Involuntary participation in a legal proceeding does not make one a public figure (see Wolston).

5) The Caper may have published with negligence, even actual malice. Negligence is the failure to act as a reasonable person or a reasonable reporter would. Actual malice is knowing falsehood or reckless disregard for the truth. Failure to check is negligence, the Supreme Court said in Sullivan. The Caper checked nothing. In fact, the Caper avoided plausible warnings that it was publishing falsehoods. It might be said the aper avoided the truth, which is evidence of actual malice, according the Supreme Court in Connaughton.

ScholarFriends.com

V. Essay Describe some of the modern challenges to the New York Times v. Sullivan standard.

More than half a century has passed since the landmark New York Times v. Sullivan decision, and its influence has been felt around the world. Several countries, including Argentina, Hungary, India, the Philippines, and Taiwan, have embraced or even expanded the actual malice standard in their libel jurisprudence.

However, the decision that has been the bedrock of American libel law for decades is facing increasing challenges at home. In 2021, two Supreme Court justices called for reconsideration of Sullivan, dissenting in the denial of certiorari in a libel case appeal.

A man had sued for defamation in Florida, saying he was falsely accused of being a member of the Albanian mafia, but the case was dismissed when the court found he was a “public figure” and would be unable to establish actual malice.

Justice Thomas, who had long expressed skepticism of the Sullivan standard, again said that the decision lacked historical support, and noted that the actual malice requirement continues “to insulate those who perpetrate lies from traditional remedies like libel suits.”

Justice Gorsuch, noting “momentous changes in the Nation’s media landscape since 1964,” said the actual malice standard has “evolved into a subsidy for published falsehoods on a scale that no one could have foreseen.”

Other courts have also shown a willingness to soften the actual malice standard. Congressman Devin Nunes, who has filed numerous actions against news media for critical coverage, was allowed to proceed in a case stemming from a news story claiming his family used undocumented labor on their farm. While a federal district court dismissed the case, finding that there was no plausible actual malice in the news report published by Esquire magazine, the Eighth Circuit revived the case in 2021, not based on the underlying story but on a tweet about the story posted by reporter Ryan Lizza a few weeks after its initial publication. The court found that Nunes’ public denial of the allegations contained in the story after it was initially published was enough to trigger potential actual malice when Lizza tweeted about it later, in essence serving as a republication and thus a plausible new avenue for liability.

These types of appellate victories, which extend litigation and thus legal defense costs for publishers by months or years, stand as warnings for news media counting on a more robust actual malice standard typical in decades past.

ScholarFriends.com

Test Bank Chapter 5 Updated 2022 I. True/False 1) The founders wisely included “The Right to Privacy” in the Bill of Rights. (False) 2) The Supreme Court ruled in Cox v. Cohn that the First Amendment permits the media to disseminate private information—such as the name of a young rape victim—revealed in a record submitted in open court. (True) 3) The Supreme Court has ruled that a citizen has no privacy claim if private information is revealed in a public court record. (True) 4) In the case Florida Star v. B.J.F., the Supreme Court ruled that a newspaper was NOT liable for violating the privacy of a rape victim when the newspaper published her name, which was provided by a sheriff’s office. (True) 5) Journalists and public relations practitioners hoping to avoid private facts suits should be especially careful to get permission when publishing personal medical information, particularly information about children. (True) 6) While privacy law allows the media great latitude to disseminate private information, courts have ruled that the media may invade a private person’s privacy if they gather or disseminate medical information about children or adults without consent. (True) 7) When journalists or public relations professionals shoot pictures and videos of young children receiving therapy at a hospital, the photographers and videographers may need to get written consent from parents and officials. (True) 8) Hulk Hogan often bragged about his wide-ranging sexual adventures, but Gawker paid him $31 million for posting a secretly recorded video of Hogan having sex with a friend’s wife. (True) 9) Edward Snowden revealed that the National Security Agency was collecting bulk data about Americans’ phone calls and emails without authorization under the Patriot Act. (True) 10) Courts have ruled that it is newsworthy and not highly offensive to disclose the unusual behavior of a surfer, the sexual orientation of a veteran who saved the president’s life, the whereabouts of a former child prodigy, and the photo of a partially nude crime victim in a public place. (True) 11) In the case Glik v. Cunniffe, a federal appeals court ruled that citizens have a First Amendment right to record police conducting official duties in a public place. (True)

ScholarFriends.com

12) Under the Right to be Forgotten that is recognized in Europe, Google and other American internet companies must, if asked, remove links on their servers (at least within European countries) to nude photos, long-ago convictions for minor crimes, and ads for Nazi memorabilia. (True) 13) Courts have ruled that a photographer intrudes if he or she shoots a couple, without their permission, having lunch at McDonalds, because the couple has a well-established expectation of privacy in any restaurant. (False) 14) Businessman Bob is on a trip with a lover unknown to his wife. Photographer Paul shoots—but does not publish—a picture of Bob and his lover kissing on a public beach.

Bob should be able to sue successfully for intrusion. (False) 15) Businessman Bob is on a trip with a lover unknown to his wife. Photographer Paul shoots a picture of Bob and his lover kissing on a public beach. Paul also posts the picture on social media. Bob should be able to sue successfully for publication of private facts.

(False) 16) Once private information becomes newsworthy, it may remain newsworthy for years.

(True) 17) Broadcasters must tell participants in a telephone conversation if the conversation is being recorded for broadcast. (True) 18) It is legal in a majority of states for a participant to secretly record a conversation. (True) 19) It is legal in [enter your state] for a participant to secretly record a conversation. [See chapter 5 for list of states where participant recording is lawful.]

20) It is unlawful for journalists to tap telephones. (True) 21) Law enforcement officials must always get a search warrant before acquiring records of citizens' phone calls. (False) 22) A photographer for the campus newspaper and website, the Caper, took an awardwinning photo of Professor Bong in front of his house during a drug raid at the residence.

The photographer was standing on the sidewalk. Professor Bong has no privacy claim against the paper and website if the Caper publishes the photo without Bong's permission.

(True) 23) Professor Bong [previous question] has no privacy claim against the Caper and website if the newspaper later publishes the same photo to advertise the great photography readers will find regularly in the Caper. (True)

ScholarFriends.com

24) The Supreme Court has ruled that journalists have a privilege to accompany public officials onto private property if the officials have a search warrant. (False) 25) The Supreme Court has ruled that journalists have a privilege to accompany public officials onto private property even if officials have no search warrant. (False) 26) Journalists may commit a trespass if they fly a drone low over private property or an accident scene. (True) 27) Plaintiffs claiming they were cast in a false light in an issue of public interest must prove that the publication was made with actual malice. (True) 28) Zacchini v. Scripps-Howard Broadcasting Co., the human cannonball case, teaches that broadcasters are at risk of commercial appropriation if they broadcast a fragment of an entertainer's act. (False) 29) Unauthorized commercial appropriation of someone's identity can occur in advertisements but usually not in news stories. (True) 30) Some states recognize a right of publicity for the estates of dead celebrities. (True) 31) Federal courts have ruled that manufacturers of interactive video games violate the publicity rights of athletes if the virtual athletes in the video games resemble real athletes.

(True) 32) Employees who smile for the camera have given consent for their photos to be printed in company brochures and advertisements. (False) 33) Broadcasters must cut the most violent or dangerous filmed conduct because they have a duty to foresee the harm that may result when viewers copy violent and dangerous programming. (False) 34) In Hustler Magazine v. Falwell, the Supreme Court ruled that a public figure may successfully sue the media for intentional infliction of emotional distress if the publication is "outrageous." (False) 35) The Rev. Jerry Falwell claimed to be "outraged" by the Campari parody advertisement stating that the pastor had sex with his mother in an outhouse. The Supreme Court ruled that Falwell, a public figure, could collect damages for emotional distress. (False) 36) Members of the Westboro Baptist Church "intentionally inflicted emotional distress" on mourners at a military funeral by carrying signs proclaiming "God hates fags" on a sidewalk near the funeral, the Supreme Court ruled in Synder v. Phelps. (False) 37) The right to be forgotten is recognized worldwide, including in the United States. (False)

ScholarFriends.com

38) Although the media are rarely sued successfully for intentional infliction of emotional distress (IIED), recently several courts have allowed private citizens to pursue IIED claims against the media in cases involving irresponsible and offensive commentary or aggressive news coverage. (True) 39) In 2019, InfoWars founder and conspiracy theorist Alex Jones was ordered to pay legal fees to the parent of a 6-year-old school-shooting victim in an IIED suit for repeatedly stating that the Sandy Hook shooting was a hoax. (True) II. Multiple Choice 1) The constitutional right of privacy: A. is explicitly stated in the First Amendment B. is explicitly stated elsewhere in the Constitution C. has been created through Supreme Court decisions D. there is no constitutional right of privacy E. none of the above Answer C 2) The Supreme Court ruled in Florida Star v. BJF that: A. the government has no interest in protecting the privacy of rape victims B. rape is not a matter of public importance C. information is "lawfully acquired" if obtained from a report issued by a sheriff’s office D. all of the above E. none of the above Answer: C 3) To win a private-facts suit, a plaintiff must prove that the publication: A. is disgusting to the average person B. is highly offensive to a reasonable person C. injures the plaintiff's reputation D. all of the above E. none of the above Answer: B 4) Cassandra is walking on a public sidewalk holding hands with her boyfriend, Ralph. Tommy Snapper, a media photographer, shoots a picture from across the street and publishes it on the Banner-Guardian website accompanying a story about downtown redevelopment. After seeing the photo, Ralph's wife divorces him. Ralph will likely recover damages from the website for which tort?

A. commercial appropriation B. intrusion C. emotional distress D. Ralph could probably successfully sue for all of the above E. none of the above

ScholarFriends.com

Answer: E 5) Tommy Snapper climbs a ladder to snap a photo with his telephoto lens of Ima Starr, a popular local singer, as she watches television, dressed in street clothes, in her den. Snapper never publishes the picture. Starr might successfully sue for: A. exposure of private facts B. intrusion C. commercial appropriation D. intentional infliction of emotional distress E. none of the above Answer: B 6) To sue successfully for publication of private facts, a plaintiff must establish, among other things: A. the publication was highly offensive B. the publication was intentionally misleading C. the defendant acted with actual malice D. the publication was commercial E. none of the above Answer: A 7) Sidis v. F-R Publishing Corp., the case involving the former child prodigy, illustrates that: A. newsworthiness includes information that may be merely interesting B. newsworthiness can last longer than 10 years C. collecting subway tokens is of no public interest D. all of the above E. A & B only Answer: E 8) Courts have ruled that it is newsworthy and not highly offensive for media to disclose: A. the unusual behavior of a surfer B. the sexual orientation of a veteran who saves the president’s life C. a partially nude crime victim in a public place D. all of the above E. none of the above Answer: D 9) Broadcasters may: A. not record telephone conversations for broadcast B. record a telephone conversation for broadcast if they tell the person being recorded at the beginning of the recording C. may record for broadcast only if they are collecting information "in the public interest, convenience and necessity" D. B and C only E. none of the above Answer: B

ScholarFriends.com

10) Courts have ruled that citizens have a legitimate expectation of privacy everywhere EXCEPT: A. a medical helicopter B. a doctor's office C. a hospital room D. a street corner E. A and D only Answer: D 11) The Supreme Court has ruled that anti-gay organizations picketing a military funeral from a public sidewalk are liable for: A. outrageous infliction of emotional distress B. commercial appropriation C. intrusion D. A and C E. none of the above Answer: E 12) Which statements are true of cellphone conversations?

A. it's illegal for a third party to secretly record or otherwise "intercept" a conversation B. it's generally illegal to broadcast or otherwise "disclose" an illegally intercepted conversation C. it’s legal to broadcast a conversation about an issue of public importance even if the conversation was illegally intercepted D. all of the above are true E. none of the above is true Answer: D 13) If a viewer copies a violent act he sees on television, the victim can probably successfully sue the broadcaster for: A. emotional distress B. copycat harm C. outrage D. negligence E. none of the above Answer: E 14) IIED claims against Fox News over its coverage of the murder of Democratic aide Seth Rich, who was falsely reported to have leaked information to WikiLeaks, were dismissed because: A. Fox News retracted the story, negating any evidence of actual malice B. an anti-SLAPP statute required its dismissal C. although deficient, Fox’s coverage did not rise to the level of extreme and outrageous conduct D. Fox used reliable sources and had no warning that the story was wrong E. A & D

ScholarFriends.com

Answer: C III. Short Answers and Key Terms 1) Private facts and intrusion. Distinguish between the torts of disclosure of private facts and intrusion. Cite key cases.

Private facts is a tort in which private, intimate information is published that is highly offensive to an average person and not of legitimate public interest, i.e., not newsworthy. The plaintiff must establish that the private information was disseminated to the public. Plaintiffs are seldom successful bringing private facts cases because the media have broad First Amendment rights recognized in Florida Star v. B.J.F. to publish lawfully acquired truthful information and most newsworthy information, newsworthiness being defined very broadly.

Intrusion is the highly offensive invasion of someone's solitude or seclusion through physical, mechanical or electronic means. Intrusion is accomplished through the use of recorders, telephoto lenses or other means of sensory enhancement. Intrusion is a newsgathering tort that does not require publication, while private facts is a tort of publicity.

2) Publicity. Describe the right of publicity.

The right of publicity is the right of celebrities and public figures to control the commercial use of their identities, their names, faces, voices and distinctive characteristics. Celebrities can authorize or halt the use of their identities in advertisements, posters, endorsements and other commercial activities. Not all states recognize a right of publicity. Where it is recognized, some states hold that the right of publicity dies with the celebrity; other states, including California, allow a celebrity's heirs or estate to control and profit from the celebrity's identity. Bette Midler and Tom Waits successfully sued advertisers who imitated the singers' distinctive voices in unauthorized commercials.

3) Florida Star v. B.J.F. What is the significance of the Florida Star v. BJF case?

In Florida Star the Supreme Court accorded the media a very broad constitutional protection to disseminate lawfully acquired, truthful information about matters of public importance, even if that information is private or embarrassing. The Court said a government must demonstrate an interest of "the highest order" to overcome the constitutional right of the media to publish lawfully acquired, truthful information. The Florida Star newspaper lawfully acquired the name of a rape victim from a government office when the sheriff inadvertently included the name in a press release. The Court has not defined when the media might be punished for publishing truthful private information about an issue of public importance.

4) Incitement. Can the media be held liable for inciting dangerous or violent acts when readers and viewers copy or take inspiration from violent or dangerous acts they read or view?

Almost never. Courts generally rule that the media are not responsible for the foolish and dangerous acts of readers and viewers who copy or are inspired by what they read or view. The

ScholarFriends.com

media are not responsible if a violent viewer rapes a woman after viewing a simulated rape in a television drama. The media lack the close relationship and duty of care to readers and viewers that licensed doctors have toward their patients or lawyers toward their clients. However, a federal appeals court did rule in Rice v. Palladin that a book incited crime by providing a very detailed manual on how to commit murder. The book was a manual for murder that intentionally provided detailed directions for readers intent on murder.

5) Consent. Advise a corporate PR practitioner on the type of consent she should acquire from employees who will be pictured in company promotional brochures.

The PR practitioner should get written consent specifying how the picture will be used. Courts have ruled that employees have not given consent for commercial use of their identities when they fail to object when their pictures are taken. Silence does not constitute implied consent.

6) GDPR. What is the significance of the European Union’s General Data Protection Regulation (GDPR) for American media companies?

The GDPR is a set of privacy regulations that went into effect in 2018 and apply to any organization worldwide that serves EU residents and collects data about them. One of the GDPR’s provisions requires advance consent from users before organizations are allowed collect data about them through ads or analytical scripts. This requirement has the greatest effect on technology companies and advertising networks that directly monetize user data, which in turn impacts American media companies that often depend on those organizations for both reach and revenue.

7) Right to be Forgotten. What is it?

A right afforded to citizens of the European Union that allows an individual to ask Internet companies, such as Google, to remove links to stories or data that name the individual and are “inadequate, irrelevant, or no longer relevant.” In 2016, Google challenged a French order requiring Google to remove links from all of its websites worldwide, rather than limiting the reach of the order to websites in the country from which the request to be forgotten originated. In 2019, the European Court of Justices limited the right to be forgotten to the European Union, meaning the right cannot be enforced in non-EU countries that do not recognize the right.

IV. Essay Ace is a reporter for WGET-TV, preparing a series of reports on professors at Go University.

Ace hears that art professor Michael Montage is suspected of selling drugs to students. While searching police and court files to see if Montage has a criminal record, Ace runs across an unsealed, two-year-old divorce file. In the file, Ace learns that Montage was divorced two years ago. Ace also learns in the divorce file that Montage was sexually molested by a neighbor when he was a child.

By coincidence, police with a search warrant raid Professor Montage's house in the evening, just as Ace is walking to his nearby apartment. When Ace shows police his reporter's credentials,

ScholarFriends.com

police invite him on the raid. As the raid begins, Montage stands at the door to his house, shielding his eyes from the lights of Ace's camera, and yells: "Keep Out." Nevertheless, Ace follows police through the house. No drugs are found, but police seize several videos that appear to be pornographic.

Later that night, WGET runs several promos: "A Drug Raid at Professor's House; Details at 11," says one promo. A two-second clip of the raid is included in the promo. At 11 p.m., WGET runs a two-minute story about the raid, including ACE's footage from inside the house. Ace reports that police found no drugs, but police think they confiscated obscene material. With great solemnity, Ace adds, "Sadly, Montage himself was sexually molested when he was a boy, court records reveal."

Montage sues Ace and WGET for several torts and a violation of his Fourth Amendment rights.

Explain whether you think Montage might recover damages for any of the following claims. Cite cases where appropriate. l. Disclosure of private facts for revelation of the childhood molestation.

2. Trespass and intrusion for entry with police during the raid.

3. Violation of the Fourth Amendment for participating in an illegal search and seizure.

4. Commercial appropriation of Montage's identity in the news program and the broadcast promotion before the 11 p.m. news.

1) Private facts. Montage would have a weak claim for tortious revelation of private facts. The Supreme Court ruled in Florida Star v. B.J.F. that the press has First Amendment protection to publish lawfully acquired, truthful information about an issue of public importance. Ace acquired the information about Montage's molestation lawfully from an open court document. A student might argue convincingly that disclosure of the molestation is not a matter of public importance, indeed that disclosure of the molestation is gratuitous. Nevertheless, the information has been lawfully acquired from a public office and, arguably, has at least minimal news value in connection with the drug raid at a professor's house where pornography may have been found.

The search of a professor's house is a matter of public importance. Even though the record of the molestation is two years old, it would still be newsworthy or of public interest. A federal court in Briscoe v. Readers Digest ruled that a man could not sue for invasion of privacy because information in several-year-old court records were still newsworthy.

2) Trespass and intrusion. Montage may have a successful trespass and intrusion claim. The Supreme Court has ruled that officials do not have the authority to invite journalists and others into private property during a lawful search (Wilson v. Layne, Hanlon v. Berger). Montage denied permission for Ace to enter when he shouted from his doorway to "Keep Out." Montage might also have an intrusion case, as Ms. Schulman did, for entry of cameras into a private place—the home—where a person has a legitimate expectation of privacy.

3) Fourth Amendment. Ace did not violate the Fourth Amendment because he did not act under color of law. The Supreme Court has ruled that officials violate a householder's Fourth Amendment protections against unreasonable searches and seizures when officials invite private citizens—including journalists—onto private property when the officials are not authorized to do so. In rare circumstances journalists, too, might violate the Fourth Amendment if their activity on

ScholarFriends.com

private property is so tightly integrated with officials that the journalists become arms of the law.

The Ninth Circuit Court of Appeals found CNN reporters to be acting under color of law when CNN signed an agreement with a government agency detailing CNN's role in a raid and use of resulting tapes and secret recordings. There would not appear to be sufficient planning or "collusion" for Ace to be acting under color of law. Ace found out about the raid by chance.

4) Appropriation. Ace and WGET did not appropriate Montage's identity for commercial purposes. News media do not engage in commercial appropriation when they air or publish a news story. The media also have a privilege to employ photos and news clips to promote their own programs and news offerings.

ScholarFriends.com

Test Bank Chapter 6 Updated 2022 I. True/False 1) The main purpose of copyright is to encourage creative expression benefiting society by allowing authors of copyrighted works exclusive rights for a limited time to exploit—or not exploit—their work. (True) 2) For human (not corporate) authors, copyright in a work created today will last for 50 years. (False) 3) Works published without copyright notice pass into the public domain immediately.

(False) 4) A news story cannot be copyrighted because it contains newsworthy facts. (False) 5) To be copyrighted, a work must be at least of "moderate quality." (False) 6) Radio stations and websites may use a story from a newspaper or a web site as a tip from which a news story can be developed through independent effort. (True) 7) To avoid lawsuits over copyright infringement, radio stations negotiate performing rights licenses from organizations such as ASCAP and BMI. (True) 8) If an over-the-air broadcast station plays Adele’s “Take It All,” the station must pay royalties for the composition but not for Adele’s recording. (True) 9) Internet service providers must "take down" posted works if someone claims the posting infringes a copyright. (True) 10) A student who downloads a copyrighted film without paying and without permission is a direct infringer. (True) 11) The Supreme Court has ruled it illegal for a company to operate servers or provide peerto-peer software that allows people to share copyrighted music without permission.

(True) 12) An Internet Service Provider has a legal duty to search carefully and remove postings containing unauthorized copyrighted content. (False) 13) Cable operators have a compulsory license to carry some distant broadcast signals as long as the cable operators pay royalties. (True)

ScholarFriends.com

14) Fair use is a privilege in copyright law to allow society to learn about, and comment upon, original copyrighted expression. (True) 15) In the Acuff-Rose case, the U.S. Supreme Court ruled that a musical parody that copies the "heart" of the original work's lyrics can be a fair use. (True).

16) The Nation magazine lost its fair use copyright case to Harper & Row for several reasons, including the fact that the Nation “scooped” Harper & Rows’ right to first publish excerpts of the Ford memoirs in Time magazine, thus diminishing the value of the original work. (True) 17) The effect of copying on the copyright owner’s commercial market is a very important factor in determining fair use. (True) 18) The unauthorized posting of a copyrighted sound recording, in its entirety, on a noncommercial Web site is a fair use as long as users are not charged to access the recording. (False) 19) When a crew of KBMX-TV tapes fire footage for the 6 p.m. news, copyright in the tape belongs to the news crew. (False) 20) Under the fair use doctrine, commentators and critics can discuss and criticize copyrighted works as long as the commentators get permission to copy excerpts or clips.

(False) 21) Fair use permits journalists to copy unlimited amounts of copyrighted work as long as the journalists assign proper credit to identify the source of the copied work. (False) 22) When determining fair use, courts often look to see if the copier "transformed" the copied excerpts into a new and original creation. (True) 23) A court concluded Shepard Fairey’s famous Hope poster was a transformative fair use of an Associated Press news photo. (False) 24) It is a fair use for a company to print copies of online magazine articles for employees of a department. (False) 25) The legal lesson for samplers and mashup makers from the Diddie Combs and Biz Markie cases: Get permission to copy or perform even brief copyrighted samples of music. (True) 26) A trademark infringes another mark if it confuses consumers about the origin of the product. (True) 27) Trademarks are protected for a period of 15 years. (False)

ScholarFriends.com

28) Exxon is a “coined” trademark. (True) 29) The Coca Cola Company objected to "Enjoy Cocaine" posters employing Coca Cola typefaces and colors because Coca Cola feared consumers would think the company treated the use of cocaine humorously. (True) 30) The Supreme Court ruled the federal Patent and Trademark Office did NOT violate the First Amendment when it refused to register the offensive trademark for “The Slants” musical group. (False) 31) The Lanham Act’s prohibition against the registration of “immoral or scandalous” trademarks has been found to violate the First Amendment. (True) 32) In Iancu v. Brunetti, the Supreme Court upheld the PTO’s refusal to register the trademark FUCT because it was highly offensive and vulgar and had decidedly negative connotations. (False) 33) In 2020, the Supreme Court ruled that a state may not copyright its entire official code, which includes both the laws and annotations interpreting them. (True) II. Multiple Choice 1) Original expression is copyrighted as soon as: A. it is registered B. notice is "affixed" C. it is fixed in a tangible medium D. only when all of the above conditions are met E. none of the above Answer C 2) To sue successfully for copyright infringement, the plaintiff must establish that: A. the copied work is substantially similar to the original B. the copier copied with actual malice C. the copier had access to the original work D. all of the above E. A and C above Answer: E 3) Copyright notice for an individual author consists of the following, EXCEPT: A. year of publication B. name of the "author" C. the copyright symbol, ©, the word "copyright," or the abbreviation "copr" D. the name of the publisher E. none of the above

ScholarFriends.com

Answer: D 4) If freelancers sign a “work for hire” contract, they give the publisher: A. all publication rights B. first publication rights only C. publication rights for one year D. no publication rights E. none of the above Answer: A 5) Fair use is: A. a privilege in copyright law gained by newspaper lobbyists specifically for reviewers B. a privilege in copyright law to allow society to learn about, and comment upon, copyrighted works C. designed to limit the profits an author may gain from his "exclusive" copyright D. A and C E. all of the above Answer: B 6) Courts may consider which of the following when determining fair use: A. if the copying is for comment and criticism or other “transformative” purposes B. if the copying will diminish the potential market for the copyrighted work C. if the copier copies a substantial amount of the original D. all of the above might be considered in fair use determinations E. A and B only Answer: D 7) The Nation magazine lost its fair use copyright case to Harper & Row for several reasons, including the fact that The Nation: A. scooped Harper & Rows' right to first publish the Ford memoirs B. published the most interesting revelations in the Ford manuscript C. cost Time magazine money promised by contract D. all of the above E. A and B Answer: D 8) In AFP v. Morel, Agence France Presse and Getty Images disseminated photos taken by Daniel Morel of the Haiti earthquake, photos that were tweeted from the island. A federal court ruled: A. AFP, Getty and others could distribute Morel’s photos without copyright violation because the photos were extremely newsworthy shots of the tragic earthquake B. Morel’s photos passed into the public domain when they were tweeted shortly after the Earthquake C. AFP, Getty and others had a “fair use” defense because they gave Morel credit for the photos D. Morel was entitled to $1.2 million for infringement of his copyrighted photos

ScholarFriends.com

E. None of the above.

Answer: D 9) Companies that provide the servers and software that allow people to illegally trade and download copyrighted works have been ruled to be: A. fair users B. free riders C. contributory infringers D. common exploiters E. all of the above Answer: C 10) The following statements about trademark law are true EXCEPT: A. trademark is defined as any word, name, or symbol used by a business to identify and distinguish its product B. trademark protection can last as long as the trademark is used in commerce C. a descriptive phrase is an inherently distinctive mark D. a trademark infringes another mark if it confuses consumers E. trademarks used as a generic may pass into the public domain Answer: C 11) Which of the following sentences, if any, violate a trademark when published online?

A. he spent the evening at the Coin-Operated Laundry B. he wrapped the sandwich in cellophane C. he ordered a coke at the bar D. none of the above infringes a trademark E. A and C only Answer: C 12) Filmmakers and videographers wishing to include a recording of Adele singing “Take It All” need: A. permission to copy and perform the sound recording B. permission to copy and perform the composition C. no permission if the films and videos will be broadcast D. A and B only E. none of the above Answer: D III. Key Terms/Short Answers 1) Work made for hire. Explain why it is important for freelancers to be aware if they sign a contract containing the phrase "work made for hire."

Freelancers who sign "work made for hire" contracts give up all rights in their work. The company buying the work owns all rights in the work, just as if the company employed the freelancer fulltime.

ScholarFriends.com

2) Performing rights societies. Why are performing rights societies, such as the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc (BMI), important to radio stations, webcasters and copyright owners?

Performing rights societies are important because they permit radio stations and webcasters to air copyrighted music without negotiating royalties with each copyright owner, a process that would be impractically expensive and cumbersome. Performing rights societies representing copyright holders negotiate performance licenses and collect royalties, allowing more copyrighted works to be played and royalties collected.

3) Sony Corporation of America v. Universal City Studios (the Betamax case). Explain the significance of the Betamax case. Is it precedent for students to claim fair use when downloading copyrighted music and video?

The Betamax case allows householders to copy broadcast television programs in their entirety for personal, noncommercial use. It is a decision allowing viewers to shift the time at which they view a program. Betamax is limited to the recording of free broadcasts for personal use. Such uses do not adversely affect the market for television programs, the Court said. Betamax is not a precedent authorizing students to download and share copyrighted music and DVDs from the Internet without paying royalties.

4) Sampling. Some courts have ruled that the copying of musical phrases and cropped pictures in new works is fair use. Other courts rule that sampling infringes copyright. Briefly argue that sampling is or is not fair use.

Is fair use. Sampling is fair use—or should be—because the copier takes only brief excerpts from the original to create a new, original work. The market value of the original work is not damaged by such minimal borrowing.

Is not fair use. Sampling is not a fair use—and shouldn't be—because the "new" work is not original; it is a borrowing of the original work of others, often to the commercial detriment to the market of the original. That is because the copier often copies the most original musical phrase or visual frame. Copyright owners have a right to control how essential parts of their original work will be reused in derivative works.

Copyright Claims Board: What is it?

In 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act of 2020 (CASE Act), which directed the Copyright Office to establish the Copyright Claims Board (CCB). It will begin operating in 2022 as a three-member tribunal within the Office, and it will provide an efficient option to resolve certain copyright disputes that involve claims of less than $30,000. CCB proceedings will be streamlined, generally without formal motions, and they will require fewer resources, in money and time, than federal lawsuits. Subject-matter experts in the Office will render the decisions. They will not be precedential, meaning the CCB will not be

ScholarFriends.com

required to follow them in later cases, and they will have no impact on unrelated federal court proceedings.

IV. Essay Students sometimes proclaim, "Let information be free." The argument goes something like this: It is so easy and inexpensive to acquire and trade information on the Internet that the information ought to be free. Music and video, too. Those gargantuan music and film companies have ripped people off long enough, making consumers buy a 15-song CD for $18 in order for buyers to acquire the one song they want. Yet the Recording Industry of America sues some of its own customers—even high school students—who illegally download copyrighted music and videos. Regardless of your view, argue on behalf of RIAA, Disney, SONY and other copyright owners. Make the case for (l) why widespread free downloading of music and video is not a fair use to the corporate owners and songwriters, and (2) why copyright owners say society will benefit, serving the purpose of the copyright law, if free downloading is stopped.

The corporate copyright owners have the copyright law on their side because downloading copyrighted music and videos for free without permission is illegal. There is no fair use in copying whole copyrighted works without permission and without commenting, criticizing or transforming the copyrighted work into a new, original work. Unauthorized copying hurts the present and future market of the copyright owners.

The corporate owners argue they need copyright protection to protect their artists and to provide an incentive for new creative works, works that will benefit society, thus serving the central purpose of copyright law. Large-scale producers and distributors depend on royalties to provide the high-quality artistic expression consumers demand. Creative artists who want to distribute their works for free are at liberty to do so.

ScholarFriends.com

Test Bank Chapter 7 Updated 2022 I. True/False 1) The First Amendment rights of non-media corporations were first developed in cases involving ballot propositions and public issues. (True) 2) Contributions to candidates are thought to present a much greater danger of corrupting the political process than expenditures. (True) 3) In the Citizens United case, the majority displayed much less fear of corporationfunded candidate speech than previous courts and legislatures. (True) 4) In Buckley v. Valeo, the U.S. Supreme Court held that Congress could not limit campaign contributions by individuals and PACs. (False) 5) In the Buckley case, the U.S. Supreme Court concluded that limits on expenditures would curb corruption. (False) 6) The Citizens United ruling places a new emphasis on disclosure of campaign expenditures. (True) 7) Profit-making corporations, such as Microsoft, are allowed to make federal campaign donations directly from corporate funds. (False) 8) In the Citizens United case, the U.S. Supreme Court by an 8-1 vote reaffirmed BCRA’s disclosure requirements as constitutional, rejecting claims that disclosure requirements chill donations to a group by exposing donors to retaliation. (True) 9) 501(c) groups may not have political activities as their primary purpose. (True) 10) PACs may spend unlimited amounts on behalf of a federal candidate as long as those expenditures are not coordinated with the candidate. (True) 11) A legally qualified candidate’s campaign advertisement may be edited by a broadcaster to eliminate offensive material, such as images of aborted fetuses. (False) 12) The reasonable access law was found to be constitutional by the U.S. Supreme Court in the case CBS v. FCC. The central rationale of this decision is that the First Amendment rights of the candidate and the public outweigh those of broadcasters. (True) 13) Website operators are subject to the “equal opportunities” and “reasonable access” rules relating to political candidates. (False)

ScholarFriends.com

14) The political broadcasting rules eliminate financial disparities among candidates.

(False) 15) All PACs must be sponsored by a corporation or union. (False) 16) Grassroots lobbying is not covered by the Lobbying Disclosure Act of 1995. (True) 17) Registered lobbyists are required to file semiannual statements identifying their clients and detailing the general areas and specific issues on which they have lobbied.

Registered lobbyists need not, however, report the names of legislators or executive branch officials they have lobbied. (True) 18) The Honest Leadership and Open Government Act of 2007 severely restricts lobbyist gifts to lawmakers. (True) 19) In the case Randall v. Sorrell, the U.S. Supreme Court found Vermont’s low contribution limits to be constitutional. (False) 20) The Citizens United ruling did not affect the ban on corporate and union contributions to federal candidates. (True) 21) In the case Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the U.S. Supreme Court upheld a law providing public funds to candidates in response to the privately financed campaign speech of opponents. (False) 22) As a result of the Citizens United case, unions may use treasury funds to sponsor candidate-related ads directed at non-union households. (True) 23) The SpeechNow ruling does not apply to PACs that make contributions to candidates.

(True) 24) The majority of Super PAC expenditures are for “attack” messages opposing candidates. (True) 25) Corporations that market products directly to consumers have generally not contributed to Super PACs. (True) 26) Broadcasters are responsible for libel conveyed in ads by non-candidates, such as Super PACs. (True) 27) During the 2016 elections, Super PACs that were allowed to purchase broadcast time paid far more for that time than did candidates. (True) 28) Lobbyists who work for foreign “principals” are required to register and disclose their activities. (True)

ScholarFriends.com

29) Although petitioning the government is a right guaranteed by the First Amendment, Congress requires disclosure of lobbying to prevent corruption of democratic processes.

(True) 30) Wealthy individuals may contribute unlimited amounts to Super PACs. (True) 31) Judges are elected for limited terms in the majority of states. (True) 32) In the 2016 presidential election, Hillary Clinton and her supporters spent more than double the amount spent by Donald Trump and his supporters on advertisements.

(True) 33) In 2016, television’s share of political advertising rapidly eroded as candidates shifted to digital media. (True) 34) The U.S. Supreme Court ruled 5-4 in Caperton v. Massey Coal Co. that due process requires a judge’s recusal from a case involving a significant campaign supporter.

(True) 35) Although the U.S. Supreme Court has upheld laws requiring the disclosure of campaign contributions and expenditures, requiring individual advocates to identify themselves may be unconstitutional. (True) 36) Social media platforms are free to determine whether or not ads will be sold through their platforms for political purposes. (True) 37) Social media platforms may ban all political advertising; however, if a social media platform accepts political ads, it is legally obligated to fact-check those ads. (False) 38) Special Counsel Robert Mueller, investigating Russian meddling in the 2016 election, used the Foreign Agents Registration Act (FARA) as a prosecutorial tool, and DOJ officials emphasized in late 2019 that increased enforcement of FARA remains a top priority. (True) II. Multiple Choice 1) During campaign periods, a corporation: A. may fund advertisements advocating the election or defeat of a federal candidate B. may not donate corporate funds to a candidate C. may create and sponsor a PAC D. must disclose to the FEC expenditures of $10,000 or more for broadcast advertisements pertaining to federal candidates E. all of the above Answer: E 2) The BCRA restriction on “electioneering communication”:

ScholarFriends.com

A. was found to be unconstitutional in the Citizens United case B. applied to newspapers C. applied at all times D. applied to speech by individuals E. all of the above Answer: A 3) The 1978 case in which the U.S. Supreme Court ruled that states may not prohibit corporate expenditures relating to referenda: A. Pacific Gas & Electric Co. v. PUC of California B. First National Bank of Boston v. Bellotti C. Johanns v. Livestock Marketing Association D. Buckley v. Valeo E. CBS v. FCC Answer: B 4) Corporations may be compelled to carry consumer news in company newsletters and mailings even if the news is critical of the corporation: A. if the corporation is a monopoly B. if the corporation is a public utility C. if the stock of the corporation is publicly traded D. all of the above E. none of the above Answer: E 5) The Supreme Court has created a constitutional distinction between campaign contributions and expenditures because: A. contributions are believed to present a greater danger of corrupting elections than expenditures B. expenditures are believed to present a greater danger of corrupting elections than contributions C. contributions are “pure speech” D. expenditures have nothing to do with speech E. None of the above Answer: A 6) The 2010 case in which the U.S. Supreme Court ruled corporations and unions may make expenditures advocating the election or defeat of federal candidates: A. Austin v. Michigan Chamber of Commerce B. Johanns v. Livestock Marketing Association C. McConnell v. FEC D. Buckley v. Valeo E. Citizens United v. FEC Answer: E 7) In the Citizens United case, Justice Kennedy’s opinion for the Court:

ScholarFriends.com

A. found that independent expenditures did not create the problem of quid pro quo corruption B. found that disclosure of campaign expenditures would help the public understand who is funding campaign messages C. held that corporations and unions may give unlimited amounts to federal candidates D. A & B E. none of the above Answer: D 8) The 1981 case in which the U.S. Supreme Court upheld the requirement that broadcasters provide reasonable amounts of time to federal candidates: A. CBS v. FCC B. Red Lion Broadcasting v. FCC C. Turner Broadcasting v. FCC D. National Citizens Committee for Broadcasting v. FCC E. none of the above Answer: A 9) The equal opportunities requirements of the Communications Act apply to candidatesponsored advertisements communicated to the public by: A. newspapers B. websites C. broadcast stations D. cable program services such as CNN E. all of the above Answer: C 10) The equal opportunities requirements of the Communications Act do not apply to candidate appearances in: A. bona fide newscasts B. bona fide news interviews C. on the spot coverage of news events D. all of the above E. none of the above Answer: D 11) Super PACs: A. must disclose contributions and expenditures to the FEC B. are prohibited from making contributions to federal candidates C. may receive unlimited contributions from individuals, corporations, unions, and PACs D. all of the above E. none of the above Answer: D 12) Broadcasters: A. are liable for libel conveyed during Super PAC broadcast ads

ScholarFriends.com

B. must sell time to Super PACs at the lowest unit rate C. must sell time to Super PACs in response to appearances by legally qualified candidates D. all of the above E. none of the above Answer: A 13) As a result of the Citizens United case: A. business corporations have sponsored massive ad campaigns concerning federal candidates B. unions are now able to use general treasury funds to communicate candidate-related messages to non-union households C. corporations spending treasury money on candidate ads must disclose these expenditures to the FEC D. all of the above E. B & C Answer: E 14) Why did a federal judge vacate an FEC regulation regarding the identification of donors who fund independent expenditures by 501(c)(4) nonprofit social welfare groups?

A. the regulation enabled these groups to evade significantly the disclosure requirements established by Congress B. “dark money” donations are unconstitutional C. the regulation suppressed important benefits that stem from disclosure, such as informing the electorate and deterring corruption D. the judge did not vacate the FEC regulation because Congress tasked the IRS, not the FEC, with enforcement of campaign finance laws E. A & C Answer: E 15) The Foreign Agents Registration Act (FARA): A. relies on disclosure of agents’ activities, not on suppression of their speech B. historically was rarely enforced C. saw a 50 percent increase in registrations after President Trump’s former campaign manager pleaded guilty to FARA violations for failing to disclose lobbying for Ukraine D. all of the above E. none of the above Answer: D 16) In the 2021 case Americans for Prosperity Foundation v. Bonta, the Supreme Court held: A. California may not require charities soliciting contributions in the state to disclose the identity of their major donors.

B. The disclosure requirement unconstitutionally burdened donors’ First Amendment rights and was not narrowly tailored.

C. Although it was convenient for the state to have donor information “close at hand,” mere administrative convenience did not justify the burden on donors’ rights.

ScholarFriends.com

D. Measures such as a subpoena offered a more tailored approach to investigating fraud.

E. All of the above.

Answer: E III. Key Terms 1) Ballot propositions. Twenty-four states allow citizens to collect signatures and place on the ballot proposed laws or the repeal of existing laws. All states except Delaware require that citizens vote on changes to the state constitution. Ballot propositions were initiated early in the twentieth century to neutralize the power of well-financed lobbyists over the legislatures. The reform was supposed to provide citizens a direct voice in governmental policy. To prevent corporations from dominating political debate over ballot propositions, some states passed statutes prohibiting corporate expenditures relating to such measures. In the case First National Bank of Boston v. Bellotti (1978) the U.S. Supreme Court held that corporate speech on public issues is constitutionally protected because it furthers the free flow of information to the public.

2) Political Action Committee. Federal election law prohibits profit-making corporations and unions from making contributions to federal candidates. However, federal law permits these entities to form separate segregated funds (PACs) that can raise and spend large amounts of campaign money. The PAC is a legal entity which is distinct from its sponsor. A corporate PAC may solicit voluntary contributions from management, shareholders, and their families; a union PAC may solicit funds from its members and their families. These funds may be contributed to candidates ($5,000 per candidate). These funds may also be used by PACs to make unlimited independent expenditures concerning the election or defeat of a federal candidate.

3) Equal opportunities. Section 315 of the Communications Act requires broadcasters and cable systems provide a legally qualified candidate access to station/system facilities on the same terms as provided the candidate’s opponent. Thus, if candidate A purchased 30 seconds of morning drive time on a radio station, all of A’s opponents would be entitled to purchase 30 seconds of morning drive time at the same rate A paid. There are four exceptions to the equal opportunities requirement; candidate appearances do not trigger equal opportunities when the appearance is during a bona fide newscast, news interview, on-the-spot coverage of a news event, or is incidental to the presentation of a documentary. The rules are designed to prevent broadcasters from favoring particular candidates. The rules, in effect, favor the well-financed candidates of the major parties.

4) Reasonable access. Section 315 is triggered only when a broadcast station allows a candidate to use its facilities; a station could avoid equal opportunity requirements by refusing to run any candidate advertisements. To ensure that broadcasters accept ads from legally qualified candidates running for federal office, Congress adopted Section 312(a)(7), known as the reasonable access provision. This section requires that broadcasters provide federal candidates with reasonable access to the station’s facilities. Unlike equal opportunities, this obligation is not contingent upon the station providing prior access to a candidate’s opponents. Stations may satisfy this obligation by selling time to candidates.

Where the candidate lacks the funds to purchase time, a station is not obligated to provide free time. The reasonable access provision was found to be constitutional in the case CBS v. FCC (1981).

ScholarFriends.com

5) Lobbying Disclosure Act of 1995. The Lobbying Disclosure Act requires registration by anyone whose total income for lobbying “contacts” with government is expected to exceed $2,500 per quarter.

The Act also requires organizations with in-house lobbyists to register if the organization’s lobbying expenses will be more than $20,000 during a quarter. Lobbying “contacts” are defined as any oral or written communication, including electronic communication, with legislative and executive branch officials, designed to influence federal policy. Excluded from the registration and disclosure requirements are public officials acting in an official capacity, news media, and persons who testify before Congress. Registered lobbyists file semiannual statements listing their clients and detailing the general areas and specific issues on which they have lobbied. They are not, however, required to report the names of legislators or executive branch officials they have lobbied.

6) Dark money. Political spending and donations by groups that do not disclose their donors, “dark money” groups, is an increasingly important part of elections. The most controversial sponsors of political ads are nonprofit tax-exempt groups organized under section 501(c) of the tax code. 501(c) groups may receive unlimited contributions, and their donors are no longer reported to the IRS as a result of a policy adopted in 2018. 501(c) groups may also avoid reporting their activities to the FEC by airing issue ads 30 days before a primary or 60 days before a general election. Further, pursuant to a regulation adopted by the FEC in 1980, 501(c) groups are not required to disclose a donor unless the donor earmarked money for a specific independent expenditure. A suit challenging the FEC’s decision to dismiss a complaint against Crossroads GPS, a 501(c)(4) social welfare group that did not identify its donors who funded $6.3 million of independent expenditures in the 2012 U.S. Senate election in Ohio, is on appeal after a federal judge vacated the FEC’s regulation in August 2018.

IV. Essays 1) Discuss the distinction between contributions and expenditures in federal election law.

Contributions are gifts of money or services given directly to a federal candidate or a candidate’s campaign committee. Expenditures are monies spent independently of federal candidates to advocate their election. In the case Buckley v. Valeo, the U.S. Supreme Court upheld a statute limiting the amount that can be contributed to a candidate, describing contributions as a form of “indirect expression.” The Court in the Buckley case struck down limits on expenditures, referring to expenditures as “direct speech.”

The Court in the Buckley case accepted the legislative purpose of contribution limits, which is to discourage political favoritism for large contributors. The Court said that contribution limits impose only a “marginal” restriction upon the contributor’s ability to engage in political communication because the contributions are indirect, often amounting to simply writing a check. Despite the limitation on the amount of contributions, contributors were still free to make independent purchases of campaign advertising.

Expenditures, which must not be coordinated with a candidate’s campaign, are more like pure speech than campaign contributions. Thus, the Court in the Buckley case regarded limits on expenditures as a “direct and substantial” limitation on political speech. A limit on expenditures “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” The Court also argued that expenditures do not cause quid pro quo

ScholarFriends.com

corruption. Most importantly, the Court in the Buckley case rejected the idea that expenditure limits are necessary to equalize the relative power of the rich and poor in an election. The Court stated that “the concept that government may restrict the speech of some elements of society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

In the Citizens United case, Justice Kennedy’s opinion for the Court drew upon Buckley’s conclusion that expenditures do not create the problem of quid pro quo corruption. The Citizen’s United case did not address the validity of restrictions on campaign contributions by corporations and unions. However, corporations and unions may form and sponsor political action committees. Corporate PACs derive their funds from management and shareholder contributions; union PACs receive funds from members.

PACs may contribute directly to candidates and may make unlimited expenditures.

2) Management of the Acme Corporation, a Texas-based producer of consumer products, wants to publicly express its opposition to legislative proposals to restrict immigration in the United States. In particular, the company wants to criticize a proposal sponsored by Senator Whiteman, a U.S. Senator who is a candidate for reelection in Arizona. The company also wants to urge the defeat of Senator Whiteman. Explain what steps the company may take to express its views publicly, with particular attention to the changes brought about by the Citizens United ruling of 2010.

Prior to the Citizens United ruling, under FECA, corporations could use corporate funds to express their views on public issues provided that they do not urge the election or defeat of a candidate. Because Congress found that many issue ads were thinly-veiled endorsements or criticisms of candidates, Congress created the “electioneering communication” restriction in the 2002 Bipartisan Campaign Reform Act (BCRA). Congress prohibited corporations from referring to federal candidates in broadcast, cable, or satellite ads reaching the “relevant” electorate during the sixty days before a general election or the thirty days before the primary. In essence, under BCRA, Acme was prohibited from funding broadcast, cable, or satellite advertisements reaching Arizona voters in the period immediately before an election if those ads mentioned Whiteman, even in the context of a discussion of immigration reform. That restriction was found to be unconstitutional in the Citizens United case, along with the broader FECA restriction that prohibited corporations from using any medium of communication to advocate the election or defeat of a candidate.

As a result of the Citizens United case, Acme may spend its corporate funds at any time in the election cycle to sponsor candidate-related messages in any medium of communication. Hence, Acme may purchase broadcast advertising reaching Arizona voters in the period before an election; moreover, this advertising may include an explicit criticism of Whiteman during a discussion of an issue such as immigration reform. Acme’s advertising may also focus solely on convincing Arizona voters that Whiteman should be defeated.

Acme as a consumer products company, however, may not wish to alienate Whiteman’s supporters, so it may prefer to channel its election activities through a PAC. Corporate PACs receive contributions from management, shareholders and their families. The Citizens United case did not eliminate the ban on corporate contributions to candidates, so if Acme management wants to give money to Whiteman’s opponents, it must do so through its PAC. PACs may give $5,000 a year to a candidate. However, they may spend unlimited amounts in favor or a candidate or in opposition to a candidate. Thus, Acme’s management may direct its PAC to both contribute to Whiteman’s opponents and purchase advertising

ScholarFriends.com

that opposes Senator Whiteman’s reelection. The design and placement of these ads must not be coordinated with Whiteman’s opponents.

Acme may also give treasury funds to a SuperPAC that spends money opposing Whiteman or supports his opponent. However, these contributions must be publicly disclosed by the SuperPAC and this disclosure may create public relations problems for Acme.

3) Explain the distinction between PACs and Super PACs. In doing so, identify the sources of funding, the permissible activities, and the disclosure obligations of each type of committee.

Federal election law permits corporations and unions to form and support political action committees (PACs) that can raise and spend large amounts of money. A PAC is the political arm organized by a corporation, labor union, or trade association to support candidates for elective office. PACs raise funds for their activities by seeking voluntary contributions from a restricted donor class and pooling them into larger, more meaningful amounts that are contributed to favored candidates and party committees or used to fund independent expenditures. A corporate PAC can solicit contributions from management, stockholders and their families; union PACs can solicit contributions from members and their families.

Trade association PACs can solicit funds from individual members of the association and management and stockholders of member corporations and their families. Contributions to PACs are limited to $5,000 per year. Contributions from PACs to candidates are also limited to $5,000 per year. However, PACs may give to as many candidates as they like. Contribution limits, designed to prevent quid pro quo corruption, were sustained by the Supreme Court in Buckley v. Valeo. PACs were created because federal law prohibits corporations and unions from contributing treasury funds directly to candidates.

PACs must register with the FEC and file regular reports listing donors and amounts, amounts contributed to candidates, and independent expenditures.

In 2016, there were 1,773 corporate PACs, 289 labor PACs, and 726 trade association PACs. PACs may also be independent of corporations, unions and trade associations. These independent or non-connected PACs are established by independent organizations, partnerships, or unincorporated associations. In 2016, there were 1,820 non-connected PACs. Super PACs, technically known as independent expenditure only committees, are prohibited from contributing to candidates. Because Super PACs engage only in independent expenditures, they may receive contributions of unlimited amounts from individuals, corporations, unions, and other PACs. Super PACs must register with the FEC and file regular reports listing donors and amounts, and the amounts spent on independent expenditures. Super PACs were the result of SpeechNow.org v. FEC, which relied upon the Citizens United ruling that independent expenditures do not result in quid pro quo corruption. Eighty four Super PACs raised nearly $85 million for the 2010 elections. In the 2016 elections, 2,421 Super PACs raised more than $1.8 billion and spent $1.1 billion on independent expenditures.

The majority of Super PAC ads are for “attack” messages opposing candidates. Super PAC spending has not proven to be effective as many voters are skeptical of ads by groups unconnected to a candidate. In the 2016 election, the top donors to Super PACs were supporters of Democratic candidates and issues.

ScholarFriends.com

Test Bank Chapter 8 Updated 2022 I. True/False 1) The government has greater latitude under the First Amendment to regulate commercial speech than political speech. (True) 2) In the Virginia Pharmacy case, the U.S. Supreme Court ruled that commercial speech is protected under the First Amendment because of the consumer's interest in receiving commercial information. (True) 3) Although considerable falsehood is permitted in the political arena, the U.S. Supreme Court stated in the Virginia Pharmacy case that the government may ban commercial promotions that are false or misleading or that promote illegal goods and services. (True) 4) The U.S. Supreme Court's commercial speech decisions have been inconsistent. (True) 5) The government can ban advertisements for certain "personal" products, such as contraceptives, to prevent audience members from being offended. (False) 6) Commercial speech is deceptive if an average consumer, acting reasonably, would be deceived. (True) 7) Puffery must be substantiated with factual proof. (False) 8) At the heart of FTC advertising regulations is its power to require that advertisers substantiate the accuracy of advertising claims. (True) 9) The FTC is more concerned with deception than unfairness. (True) 10) A material statement in advertising, like a material statement in corporate securities transactions, is one that is likely to affect a purchasing decision. (True) 11) A Volvo television advertisement emphasizing the strength and safety of Volvos shows a Volvo and several other brands of cars being run over by a giant truck. The audience is not informed that the ad production crew reinforced the roof of the Volvo but cut the roof supports of the other cars so that they would collapse easily. The primary message of the ad is that Volvos are safer than other cars in the advertisements, a conclusion that is true, whether or not the roof supports are cut. This is an example of a non-deceptive mock-up.

(False) 12) More than 90 percent of FTC cases are settled by consent decrees in which a party admits guilt and pays a heavy fine. (False)

ScholarFriends.com

13) The FTC has considered power over advertising a power that the government does not enjoy in regulating political speech. Not only can the FTC halt deceptive advertising and punish the advertiser, the FTC may also order alterations in advertisements to make them truthful and non-misleading. (True) 14) A broadcaster, located in a state where lotteries are illegal, may carry advertisements for an adjoining state's lawful lotteries. (False) 15) Although advertising can be limited during children's television programs, the amount of commercial time in other broadcast programming is not restricted. (True) 16) Federal law prohibits the broadcast of advertising for hard liquor. (False) 17) In Lowe v. SEC, the U.S. Supreme Court ruled that financial newsletters that do not offer individualized advice to investors are exempt from SEC registration requirements. (True) 18) Public relations counsel who have access to nonpublic material information that is intended only for corporate use are subject to insider trading rules, just like corporate executives. (True) 19) A California court ruled that Nike engaged in false advertising—not protected political speech—when it defended its labor practices in Southeast Asia. (True) 20) Even though the government may have a "legitimate" interest in regulating advertising for tobacco, alcohol and many other products, it is more difficult for the government to demonstrate that the government regulation will advance the government's interest.

(True) 21) A ban on billboards advertising smokeless tobacco within 1,000 feet of a school is unconstitutionally overbroad. (True) 22) Bloggers are forbidden from endorsing products. (False) 23) Congress has banned cigarette advertising after determining smoking is a leading cause of preventable deaths. (False) 24) Commercial speech is deceptive if a stupid, ignorant, and unreasonable person would be deceived. (False) 25) The Supreme Court ruled in Sorrell v. IMS Health Inc. that drug prescription data is protected commercial speech that pharmaceutical companies may use to market drugs to doctors. (True) 26) One of the main goals of the Family Smoking Prevention and Tobacco Control Act Smoking Act of 2009 was to reduce smoking by youth. (True)

ScholarFriends.com

27) The Family Smoking Prevention and Tobacco Control Act authorized the Food and Drug Administration—not the Federal Trade Commission—to control the manufacturing, marketing, advertising, and labeling of tobacco products because the FDA has the scientific expertise to regulate addictive drugs, such as nicotine, and other cancer-causing ingredients. (True) 28) Lax FTC regulations under the Children's Online Privacy Protection Act allow web sites to collect names, addresses, and phone numbers from children as young as 12 without parental permission. (False) 29) Under FTC regulations, advertisers can track and record a consumer's web browsing and purchases only if the consumer "opts in" to the tracking. (False) 30) The FTC requires sponsors of “native advertisements” to make its sponsorship of content clear and obvious to the audience, recommending that the word “advertisement” be featured prominently. (True) 31) After a 2012 settlement with the FTC over allegations that Facebook was unfair and deceptive in its privacy practices, Facebook continuously violated the order, resulting in a $5 billion civil penalty in 2019, the largest ever issued by the FTC. (True) 32) In response to spikes in e-cigarette use among high school-age children, the FTC ordered vaping companies, such as Juul, to turn over information about how they market their ecigarettes. (True) 33) Endorsement disclosures made by social media influencers on live streams should be repeated regularly so they are not missed by people who do not watch the whole thing.

(True) 34) The FTC can halt—through the use of consent decrees—deceptive ads that violate native advertising and sponsorship guidelines. (True) 35) It does not violate the Consumer Review Fairness Act for companies to include provisions in their contracts that bar customers from posting negative online reviews.

(False) 36) The FTC has the authority to order businesses to remove provisions in their contracts that bar customers from posting negative online reviews and that require businesses to notify current customers that the provisions are not enforceable. (True) II. Multiple Choice 1) The 1976 case in which the U.S. Supreme Court ruled that pharmacy advertisements conveyed constitutionally protected information of value to consumers: A. Bolger v. Youngs Drug Products Co. B. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

ScholarFriends.com

C. Bigelow v. Virginia D. Carey v. Population Services E. none of the above Answer: B 2) Although commercial advertising now has constitutional status, the U.S. Supreme Court has ruled that advertising may be subject to: A. prior restraints B. prohibitions on false or misleading advertising C. requirements that clarifying messages be included in ads D. all of the above E. none of the above.

Answer: D 3) A presumption against the constitutionality of prior restraints is fundamental to First Amendment law. Yet prior restraints are acceptable to the courts where: A. the government can show that publication would endanger national security B. a film is obscene C. advertising is misleading D. all of the above E. none of the above Answer: D 4) In commercial speech cases, the U.S. Supreme Court employs: A. the clear and present danger test B. the bad tendency test C. the totality of circumstances test D. the four-part Central Hudson test E. none of the above Answer: D 5) The 1986 case in which the U.S. Supreme Court upheld a ban on non-misleading casino advertising: A. Greater New Orleans Broadcasting v. United States B. United States v. Edge Broadcasting C. Posadas de Puerto Rico Associates v. Tourism Board D. Cincinnati v. Discovery Network E. none of the above Answer: C 6) Comparative advertisements are: A. discouraged by the FTC B. encouraged by the FTC, if accurate, as a way of helping consumers make better choices C. inherently misleading D. must not identify a competitor's product, but must use terms such as "Brand X"

ScholarFriends.com

E. none of the above Answer: B 7) In FTC v. Colgate-Palmolive Co., the Rapid Shave case, the U.S. Supreme Court ruled that the Plexiglas mock-up was: A. not deceptive B. not material C. materially deceptive because it was a fake demonstration that was used as proof of an advertising claim D. a permissible alteration to compensate for the technical distortions of television E. none of the above Answer: C 8) Advertising substantiation rules require that: A. the basis for advertising claims be included in an ad B. the advertiser has a reasonable basis for claims in an ad C. the basis for an advertising claim be available but not necessarily included in the ad D. B and C E. none of the above Answer: D 9) The FTC requires corrective advertising: A. frequently B. infrequently C. to counteract wrong impressions built up during a long campaign of deceptive advertisements D. B and C E. none of the above.

Answer: D 10) In a long-running racketeering case, U.S. District Judge Gladys Kessler ordered Philip Morris, R.J. Reynolds, and other cigarette manufacturers to publish corrective statements about: A. the adverse health effects of smoking B. the addictiveness of smoking and nicotine C. the adverse effects of exposure to secondhand smoke D. all of the above E. none of the above; a court cannot compel a company to run corrective ads Answer: D 11) In 2013, the federal government abandoned its attempts to require color graphics on cigarette packages depicting the ravages of smoking after a federal appeals court ruled the gruesome images: A. presented unconstitutional emotional appeals to discourage smoking B. failed to present uncontested factual statements to counter earlier misleading and deceptive cigarette advertising

ScholarFriends.com

C. were backed by not a "shred" of evidence that the graphic images would reduce smoking D. all of the above E. A and B Answer: D 12) In a settlement with the FTC in 2012, Facebook tried to end long-running complaints about its privacy policy by agreeing to all of the following EXCEPT: A. Establish a comprehensive privacy program that the company would not misrepresent B. Obtain consumer consent before changing consumers' privacy preferences C. No longer use Facebook members' "Likes" in advertising and endorsements to friends D. Prohibit access to user information shortly after a user deletes an account E. Facebook agreed to all of the above Answer: C 13) Facebook’s $5 billion settlement with the FTC for unfair and deceptive privacy practices: A. was the largest civil penalty ever issued by the FTC B. required Facebook to establish an external monitor approved by the FTC to provide additional oversight of privacy practices C. resulted in Facebook’s stock value increasing significantly the same day D. A & B only E. all of the above Answer: E 14) In 2019, the FTC ordered vaping companies to turn over marketing materials related to which of the following?

A. e-cigarette giveaway programs B. promotions on college campuses C. use of online influencers D. A & C only E. all of the above Answer: E 15) The FTC’s disclosure requirements for social media influencers: A. make influencers, not companies, responsible for making the disclosures B. include any financial, employment, personal, or family relationship with a brand C. specify that disclosures should be placed so that they are hard to miss D. all of the above E. none of the above Answer: D

ScholarFriends.com

16) Advocates for consensual adult sex workers argue that the Fight Online Sex Trafficking Act (FOSTA): A. violates the First Amendment by unconstitutionally restricting commercial speech B. should not apply to their ads because the average consumer, acting reasonably, would not be deceived C. puts them in danger by removing the possibility of any safe platforms for them to offer their services D. all of the above E. none of the above Answer: C 17) The FTC has been very active in investigation and enforcement efforts involving online advertisement and marketing. Which one of these statements is NOT true?

A. When social media companies have violated the privacy promises they made in their terms of service, the FTC has brought enforcement actions against them, including Facebook, Google, and Snapchat.

B. Cryptocurrency scams have been the target of FTC enforcement actions in recent years, with $80 million in losses reported by consumers in a six-month period in 2020.

C. In 2021, the FTC reported consumers were defrauded out of $2 million on scams involving Elon Musk impersonators alone.

D. All of the above E. None of the above Answer: D

III. Key Terms 1) Deceptive advertising. Deceptive advertisements are those that either contain express falsehoods or create false impressions that tend to mislead. Courts and the FTC have long held that ads do not have to deceive someone to be deceptive; rather, ads must possess a "tendency" or "capacity" or be "likely" to mislead a reasonable consumer. It does not matter whether an advertiser intends to mislead; an advertisement may have a tendency to deceive regardless of the advertiser's intent. Deceptiveness is determined by the overall impression of an advertisement, not by isolated statements within it.

2) Proof implication. When an advertisement falsely creates the impression that evidence presented proves a claim, it is deceptive. A false implication of proof is created if an advertiser misrepresents the evidence presented to substantiate an advertising claim. Ads are deceptive if they misuse test data, create a phony aura of scientific support, or otherwise imply proof that does not exist. For example, Firestone claimed its tires "stop 25 percent quicker" without tests comparing the ability of Firestone and other tires to stop a car under normal driving conditions.

3) Puffery. Advertisers may exaggerate or "puff' their products on such subjective matters as taste, feel, appearance, and smell. The FTC assumes that ordinary consumers do not take puffery seriously and are not deceived by such subjective claims. Thus, BMW may refer to its

ScholarFriends.com

cars as "The Ultimate Driving Machine," Bayer may claim that its pain reliever "works wonders," and Nestle may describe its chocolate as "the very best." Puffery becomes deception when exaggerated claims falsely imply material assertions of superiority. If BMW claims that its 5series cars are faster over a quarter-mile than comparable Lexus and Acura models, it needs substantiation of this factual claim. BMW, however, does not need substantiation for its slogan "The Ultimate Driving Machine."

4) Lottery. A lottery is a contest involving three elements: (l) prize, (2) chance), and (3) consideration. The prize is the reward, money, trip, merchandise or other remuneration given to the winner. Chance means that luck, not skill, will determine the winner. Consideration, which is often more difficult to recognize than chance or prize, is the effort or expense required of the participant. Consideration is the time one spends to play a game or the money paid to enter a contest. All three elements must be present for a promotion to be considered a lottery. Congress prohibits the advertising of lotteries except in states where lotteries are legal. In United States v.

Edge Broadcasting (1993), the U.S. Supreme Court upheld the ban on advertising of lotteries by broadcast stations licensed in states where lotteries are illegal.

5) Insider trading. A corporation's "insiders" have a duty to disclose material information when they plan to base purchases or sales of company stock on nonpublic information. The Supreme Court and the SEC define an "insider" as one who, by virtue of his or her position with the issuer of the stock, has access to nonpublic corporation information that is supposed to be used only for corporate purposes, not for personal benefit. This definition covers corporate offices, directors, controlling stockholders, and corporate public relations executives. Certain outsiders may acquire the duties of insiders if they are given access to nonpublic information.

These include accountants, lawyers, and public relations counsel. "Market insiders," such as financial journalists also violate securities laws if they misappropriate confidential information for their own gain.

6) Fight Online Sex Trafficking Act (FOSTA). In 2018, Congress passed the Fight Online Sex Trafficking Act (FOSTA), which amended Section 230 to remove protections for websites believed (by FOSTA supporters, at least) to promote prostitution and sex trafficking. The revisions added penalties, including up to ten years in prison, for a website hosting content “with the intent to promote or facilitate the prostitution of another person.” The law led to the immediate shutdown of Craigslist’s “personals” section, and the FBI seized Backpage in an enforcement action. Advocates for consensual adult sex workers said FOSTA put them in danger by removing the possibility of any safe platforms for them to offer their services, and challenges to FOSTA on grounds that it violates the First Amendment are ongoing.

IV. Essay The town of Intolerance decides to ban the outdoor advertising of alcohol in media such as billboards. Establishments selling or serving alcohol may have on-site outdoor signs identifying the business, and may include alcohol-related terms in their name, such as "The Liquor Store," but may not have outdoor displays identifying the brands of alcohol or the price of alcohol sold. The city claims that these measures will reduce alcohol consumption and thereby reduce alcohol-related problems, such as drunk driving. A brewery and a bar

ScholarFriends.com

challenge this law as a violation of the First Amendment. The brewery wants to advertise the "fresh, natural taste" of its beer. The bar wants to advertise the brands and prices of beer it sells. Is this ordinance constitutional? In your answer, apply the Central Hudson test, and relevant precedents, to this ordinance.

The Central Hudson test is a four-part test designed to balance the legitimate regulatory interests of the state against the First Amendment interest in the free flow of commercial information. The first prong asks if the speech in question is non-misleading and refers to a lawful product or service. The outdoor displays at issue pass the first prong of this test. Since alcohol sales are legal in Intolerance, alcohol advertisements refer to a lawful transaction. Also, because Intolerance is seeking to reduce alcohol consumption, rather than regulate consumer deception, the ordinance is not aimed at deceptive messages. Thus, a bar's advertisement, "X beer sold here at Y price" is entitled to constitutional protection as a non-misleading statement about a lawful product. Similarly, a brewery's ad stating that its beer has a "fresh, natural taste" is a nonmisleading statement about a lawful product.

The second prong of Central Hudson asks if the state has a substantial interest in regulating the expression. Intolerance's ordinance is within the government's legitimate authority to promote public health. The government easily meets the second prong of Central Hudson if it is preserving health, safety, or aesthetic interests. The only time the state fails this prong is when it seeks to prevent consumers from becoming offended by advertisements. In the 44 Liquormart case and the Lorillard Tobacco case, the Court found that laws designed to reduce alcohol and tobacco consumption served the substantial state interest in protecting public health.

The third and fourth prongs are where the critical analysis takes place under Central Hudson.

The third prong asks if the regulation materially and directly advances the government's interest. Intolerance's law most likely will fail this prong unless the city can prove that the law actually reduces alcohol consumption. Although there are cases such as Posadas where the Court assumed that a regulation would advance the government interest, the trend in recent cases, especially those concerning alcohol, is more rigorous. For example, in the 44 Liquormart case, the Court found that a Rhode Island alcohol advertising law was not supported by empirical proof that the law actually reduced alcohol consumption. The evidentiary standard of 44 Liquormart is demanding and most likely will be fatal to the ordinance.

Even if Intolerance is able to show that its law reduces alcohol consumption, it is likely to fail the fourth prong of Central Hudson which asks if the law is narrowly drawn. In the 44 Liquormart case, the Court emphasized the importance of speech about lawful products and rejected as "paternalistic" the claim that the government could manipulate consumer behavior by banning expression. 44 Liquormart also emphasized that governments need to try direct regulation, such as increasing taxes on alcohol, raising prices, or reducing the hours of operation of alcohol-selling establishments, rather than indirect regulation of messages. Since Intolerance has an array of direct measures it may employ, its law is likely to be regarded as inappropriate under the fourth prong of Central Hudson. The law is also subject to challenge under the doctrine of Lorillard Tobacco where the Court found that a Massachusetts restriction on outdoor tobacco advertising failed the fourth prong. The Massachusetts restriction was a

ScholarFriends.com

nearly total ban that adversely affected the interest of adults in receiving information about tobacco products. Intolerance has enacted a nearly total ban on outdoor advertising of alcohol products. A less restrictive measure is necessary to accommodate the state's interest and the interest of interested consumers.

ScholarFriends.com

Test Bank Chapter 9 Updated 2022 I. True/False 1) Nudity is synonymous with obscenity. (False) 2) A person who “panders” may be convicted for commercial exploitation of sexual material even though the materials are not obscene. (True) 3) Adult-oriented pay-cable services such as the Playboy Channel are prohibited from operating between 6 a.m. and 10 p.m. (False) 4) Lower courts have interpreted the U.S. Supreme Court case Lawrence v. Texas decision as barring prosecutions for the distribution of obscene materials. (False) 5) The governmental interest in protecting minors justifies laws which prohibit the sale of sexually-oriented magazines to minors, even when those magazines may be legally sold to adults. (True) 6) A reporter investigating child pornography on the Internet has a First Amendment right to download images of children engaged in sexual acts. (False) 7) In Reno v. ACLU and Sable Communications v. FCC, the U.S. Supreme Court said that users of the Internet and dial-it telephone services are unlikely to accidentally confront indecent sexual expression. (True) 8) In Reno v. ACLU, the U.S. Supreme Court found Congress’ definition of Internet indecency was unconstitutionally vague. (True) 9) In 2006, Congress increased the maximum penalty the FCC can impose per indecency violation from $32,500 to $325,000. (True) 10) The Stanley v. Georgia ruling does not protect the private possession of materials depicting children engaged in sexual activities. (True) 11) A community may use its zoning authority to control the location of sexually-oriented businesses. (True) 12) Until 2003, FCC fines for indecent broadcasts were rare and only a small amount. (True) 13) The U.S. Supreme Court’s Pacifica Foundation case is precedent for local laws prohibiting the sale or rental to adults of indecent DVDs. (False)

ScholarFriends.com

14) The V-Chip requirement has reduced the FCC’s interest in enforcing indecency rules for television. (False) 15) The Family Movie Act allows the sale and use of software permitting users to render “imperceptible” objectionable portions of films. Viewers are not allowed to make fixed copies of the altered versions of films. (True) 16) A website with information about preventing breast cancer, including photographs showing how a breast self-examination should be conducted, is subject to the FCC’s indecency rules.

(False) 17) Members of a church may picket on the public sidewalk adjacent to an adult video store as long as they do not trespass or block the entrances. This picketing is legal even if the church members seek to deter potential customers from entering the store. (True) 18) The FCC does not regard the words “pissed” and “crap” to be presumptively indecent and profane when uttered in entertainment programming airing at 9 p.m. (True) 19) The producers and distributors of materials depicting “actual sexually explicit conduct” are required to maintain records of their models’ ages and identities. (True) 20) According to the U.S. Supreme Court, public libraries receiving federal funds may be required to install filters on computers connected to the Internet. (True) 21) The availability of sexual materials via the Internet is evidence that they are acceptable under community standards. (False) 22) At the federal level, enforcement of obscenity varies from administration to administration.

(True) 23) The Bush administration sought to punish distributors of adult materials; under the Obama administration, the Department of Justice focused on the exploitation of children. (True) 24) By 2015, twenty states had enacted laws separating teen sexting from child pornography.

(True) 25) Enforcement of broadcast indecency is a highly politicized process. (True) 26) The FCC has yet to assess an indecency fine at the new level authorized by Congress in 2006. (False) 27) The Supreme Court in the Fox II case found the FCC’s indecency policy to violate the First Amendment. (False) 28) California’s ban on the sale or rental of violent video games to minors was found constitutional in Brown v. Entertainment Merchants Association. (False)

ScholarFriends.com

29) In Brown v. Entertainment Merchants Association, the Court applied strict scrutiny and found California’s evidence in support of the video game law not compelling. (True) 30) There is a longstanding tradition of restricting children’s access to depictions of violence.

(False) 31) The majority of states have enacted revenge porn statutes. (True) 32) Images do not have to be obscene, as defined by the Miller test, to be punishable under state revenge porn statutes. (True) 33) State revenge porn laws generally focus on the following elements: 1) nonconsensual disclosure of images; 2) depicting nudity or sexually explicit conduct; and 3) causing harm, such as financial loss or mental anguish. (True) 34) The posting of revenge porn on websites such as Facebook and Instagram violates the terms of service of those companies and victims may ask those companies to remove such images.

(True) 35) Filing takedown notices under the Digital Millennium Copyright Act has proven to be an effective remedy for victims of revenge porn. (False) 36) When control of the House and Senate was split between Democrats and Republicans after the 2018 elections, only extreme cases of broadcast indecency were likely to be pursued by the FCC. (True) 37) The FCC did not find a single broadcast to be indecent between 2009 and 2013. (True) II. Multiple Choice 1) After wrestling with the problem of obscenity for many years, Justice Brennan wrote in his dissenting opinion in the Paris Adult Theatre case that: A. all definitions of obscenity are vague B. the government should severely restrict all sexual content C. the government should restrict only sexual content appealing to “deviants” D. the government should focus on media violence, not portrayals of sexuality E. none of the above Answer: A 2) The 1957 case in which the U.S. Supreme Court first held that obscenity was unprotected expression: A. Chaplinsky v. New Hampshire B. Roth v. United States C. Miller v. California D. Regina v. Hicklin E. none of the above

ScholarFriends.com

Answer: B 3) Prior restraints are: A. prohibited in obscenity cases B. permitted in the case of sexually oriented films if the procedures specified in Freedman v.

Maryland are followed C. permitted if police officials believe materials are probably obscene D. B and C E. none of the above Answer: B 4) In an obscenity prosecution against the current issue of Hustler Magazine, the jury: A. would be able to focus on the nudity and disregard the articles, essays, and interviews B. would be required to address the literary and artistic merit of the magazine as a whole C. would be allowed to apply the standards of the least tolerant people in the community D. A and C E. none of the above Answer: B 5) After a particularly contentious and close NASCAR race, the winning driver exults in a cable television interview that his rival drivers “can all kiss my ass.” This interview is cablecast live at 7 p.m.

This cablecast is: A. obscene B. indecent C. profane D. all of the above E. none of the above Answer: E 6) The case in which the U.S. Supreme Court ruled that the First Amendment allows the government to seize a defendant’s entire entertainment business, including constitutionally protected books and films, after a racketeering conviction: A. Alexander v. United States B. Playboy Entertainment v. United States C. Miller v. California D. Jacobson v. United States E. none of the above Answer: A 7) A video store that rents or sells sexually-explicit DVDs only to willing adults: A. has a First Amendment right to distribute even obscene materials B. may be prosecuted under the theory of Paris Adult Theatre v. Slaton if the DVDs are obscene C. would be required to prove that its DVDs are not obscene before receiving a business license D. B and C E. none of the above Answer: B

ScholarFriends.com

8) The case in which the U.S. Supreme Court ruled that Congress could ban obscene sexual messages provided by commercial telephone services, but could not ban indecent telephone services: A. FCC v. Pacifica Foundation B. New York v. Ferber C. Sable Communications v. FCC D. Reno v. ACLU E. none of the above Answer: C 9) The V-Chip: A. is required on computers B. eliminated the need for indecency rules for television C. works only on broadcast programming, not cable or satellite programming D. has been found to be unconstitutional E. none of the above Answer: E 10) Parents who are concerned about their children’s access to sexually-explicit cable television programs may: A. purchase a V-chip equipped TV receiver and block reception of all programs rated TV-MA B. ask their cable company to block their home from receiving channels featuring sexuallyexplicit material C. ask their cable company for a lockbox D. all of the above E. none of the above Answer: D 11) In the Fox Broadcasting II case, the U.S. Supreme Court: A. found the FCC’s indecency policy violated the First Amendment B. found the FCC failed to give Fox and ABC fair notice that fleeting expletives and momentary nudity could be found indecent C. broadcasting is no longer subject to reduced First Amendment protection D. A and C E) none of the above Answer: B 11) Enforcement of broadcast indecency: A. varies according to the political party affiliation of the FCC chair B. was vigorously pursued by the Obama administration C. is generally supported by Republicans D. A and C E. none of the above Answer: D

ScholarFriends.com

11) The Illinois nonconsensual/revenge porn law: A. is considered to be the strongest such law yet enacted B. was viewed by the Illinois Supreme Court as a privacy regulation similar to laws regulating the unauthorized disclosure of private information, such as medical records C. provides for criminal liability regardless of whether the private sexual content is obtained and distributed with consent D. all of the above E. A & B only Answer E III. Key Terms 1) Obscenity. A class of constitutionally unprotected expression. The Supreme Court first ruled obscenity to be unprotected in Roth v. United States (1957), but the Justices spent the next 16 years disagreeing over the definition of obscenity. In Miller v. California (1973), the Court settled on a threepart test for obscenity. First, it must be established that the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest. Second, the materials must depict or describe sexual conduct, specified by state or federal law, in a patently offensive manner. Finally, the work, taken as a whole, must lack serious artistic, political, or scientific value. The test is conjunctive; all three parts must be met if a work is to be ruled obscene.

2) Broadcast indecency. Indecent material is sexually oriented but does not meet the Miller definition of obscenity. It is punishable if broadcast during the hours of 6 a.m. to 10 p.m. Indecency, much like obscenity, depicts or describes sexual or excretory activities or organs in a patently offensive manner.

Indecency, in contrast to obscenity, need not arouse a prurient interest in sex. In addition, an indecent broadcast program can have serious value and still violate the law. The FCC has said that the serious merit of a program will be considered as a factor, but not necessarily the deciding factor in determining whether a broadcast is indecent. The context of news programming, however, provides qualified protection for isolated expletives. Unlike obscenity, indecency receives some First Amendment protection, which explains why indecency may not be totally banned from the broadcast medium.

3) Safe harbor. The time period from 10 p.m. to 6 a.m. when broadcast stations may air indecent material without incurring FCC sanctions. To balance the government’s need to protect children with the interest of willing adults in receiving indecent broadcasts, the FCC has focused its indecency regulation on the period when children are likely to be in the audience—6 a.m. to 10 p.m. Thus indecency regulation is designed to channel sexually explicit material to certain times of day, rather than ban it completely. A total ban would reduce the adult population to viewing or hearing only that material suitable for children.

4) V-Chip. In 1996, Congress adopted legislation requiring the ratings of television programs and the installation of computer chips in television sets that would allow parents to block sexual and/or violent programs. The V-Chip law requires that televisions with thirteen-inch or larger screens sold in the U.S. contain a chip that parents may activate to control what their children watch. Major industry groups, such as the National Association of Broadcasters “voluntarily” devised a system of program ratings, ranging from TV-Y to TV-MA. The ratings are transmitted as part of the television signal; parents who

ScholarFriends.com

do not want their children to view material rated TV-MA, which may include explicit sex and graphic violence, may set the V-Chip to block all TV-MA rated programs. The ratings are assigned to all television programs except news, sports, and unedited MPAA-rated movies on premium cable channels.

5) CIPA. The Children’s Internet Protection Act, enacted in 2001, requires libraries receiving federal funds to install software filters to block adults from accessing obscenity or child pornography and children from accessing material harmful to minors. Patrons engaged in bona fide research may ask librarians to disable filters. The U.S. Supreme Court found CIPA to be constitutional in United States v.

American Library Association (2003). The Court ruled that CIPA does not seriously burden library patrons’ access to constitutionally-protected Internet content.

6) Nonconsensual/revenge porn. The distribution of sexually explicit images/videos of individuals without their consent. Ninety percent of victims are female, and the harm can include diminished employment prospects, emotional distress, and a loss of a sense of personal safety. Currently, 46 states and the District of Columbia have criminal statutes punishing those who post nonconsensual/revenge porn. Some states also provide for civil damages. State laws generally focus on the following elements: 1) nonconsensual disclosure, 2) depiction of nudity or sexually explicit conduct, and 3) harm. Images do not have to be obscene under the Miller test to be punishable under these laws, and considerations such as artistic merit are irrelevant.

IV. Essays 1) Explain why the FCC is allowed to impose sanctions on indecent broadcasts after such programs are broadcast, but the agency is not allowed to review material prior to its broadcast.

Section 326 of the Communications Act prohibits the FCC from censoring broadcast programming. This has been interpreted by courts, including the U.S. Supreme Court, as prohibiting prior review of broadcast programs. However, the Communications Act allows the FCC to punish broadcasters, either through fines or revocation of a license, if broadcasters air unprotected programs.

The provisions of the Communication Act track longstanding First Amendment doctrine. The Blackstonian view of press freedom provided that there could be no prior restraint of the press, but postpublication punishments were permissible. The contemporary Supreme Court largely adheres to the Blackstonian view; post-publication penalties are preferable to prior restraints. Because of our society’s historic animosity toward content-based review of content prior to its dissemination, the Court prefers that legal sanctions be imposed after material is published.

Indecency is unprotected expression if broadcast during the hours of 6 a.m. to 10 p.m. As stated in the Pacifica Foundation case, material that is indecent is not as constitutionally significant as political expression. The Court regarded George Carlin’s 7 Dirty Words Monologue as having minimal social value. Thus, the Court in Pacifica believed that indecency actions are unlikely to deter broadcasting of “valuable” expression.

2) Discuss the rationale for the FCC’s F-word ruling and the problems this ruling created for broadcasters.

ScholarFriends.com

In its Bono ruling, the FCC announced that “vulgar and coarse language” was profane and indecent when broadcast in live entertainment programming airing during the hours of 6 a.m. to 10 p.m. This case arose when U-2’s Bono exclaimed “This is really, really fucking brilliant” during a live awards program.

The FCC’s enforcement bureau found that in this context, the word fucking did not describe sexual activities. Moreover, drawing upon FCC guidelines, the bureau concluded that fleeting and isolated remarks did not warrant FCC sanctions.

In overturning the enforcement bureau’s decision, the FCC announced that its precedents allowing isolated or fleeting use of the F-word in similar contexts were no longer good law. Any use of the Fword inherently has a sexual connotation, the FCC said. Furthermore, use of the F-word was patently offensive because it is “one of the most vulgar, graphic, and explicit depictions of sexual activity in the English language.” The FCC described Bono’s use of the F-word as gratuitous, and indicated that political, scientific, or other uses of the F-word might mitigate its offensiveness. The FCC left the status of words other than fuck unsettled; broadcasters were warned that the agency would analyze other words on a case-by-case basis.

The Bono ruling left broadcasters uncertain as to when use of the F-word is permissible. In the aftermath of the Bono ruling, 66 ABC television network affiliates refused to air “Saving Private Ryan” out of fear that the program’s use of the F-word would violate FCC policy. The FCC eventually ruled that the film’s use of the F-word was not gratuitous, but in a case involving expletives in a Martin Scorsese documentary, the FCC found the language to be gratuitous. Broadcasters claim this uncertainty chills the presentation of serious programming. In the context of news programming, the FCC ruled that isolated expletives are generally permissible; the status of isolated expletives in other types of live programming, such as sporting events, is uncertain.

The Bono ruling also left broadcasters uncertain as to what other words will be defined by the FCC as “vulgar and coarse.” In a series of decisions issued after the Bono ruling, the FCC ruled that words such as “pissed” and “crap” were not sufficiently graphic to be patently offensive. Yet, the FCC ruled in 2006 that “shit” was inherently vulgar. Why the agency regards the word “shit” to be unacceptable for broadcasting, but tolerates the word “pissed” is unclear and shows the arbitrariness of FCC decisionmaking in this area.

One response to the Bono ruling has been the use of tape delays on live programming. Given the uncertainty about words other than fuck and shit that the FCC may regard as vulgar, a prudent broadcaster will excise any questionable language from broadcasts airing outside of the safe harbor.

The FCC sought to apply its new policy on fleeting expletives to broadcasts that aired when FCC policy held that repetition was necessary for a finding of indecency. Broadcasters challenged this on a variety of grounds and the U.S. Supreme Court in the Fox Broadcasting II case (2012) held that the FCC’s action violated due process because it failed to give broadcasters fair notice that fleeting expletives could be found indecent. Sanctioning earlier broadcasts under new rules was the equivalent to changing the rules in the middle of the game; the FCC’s action was impermissible under the due process clause of the Fifth Amendment.

ScholarFriends.com

Following the Fox Broadcasting II ruling, the FCC announced that it had dismissed a backlog of one million indecency complaints and was seeking public comment on whether it should make changes to its indecency policies. The FCC has yet to announce changes to its policies.

Since the Fox Broadcasting II case, the FCC has largely been inactive on the indecency front, with the exception of a Virginia case that resulted in the maximum fine of $325,000. This indicates the FCC is focused on the most egregious cases. The FCC under the Trump administration has shown little interest in indecency. Broadcasters in 2018 aired news stories quoting President Trump as describing Haiti and African countries as “shitholes.” Given the news value of Trump’s language, it would be difficult for the FCC to sanction such broadcasts 3. The city council of Virtue, concerned with the proliferation of sexual material on cable, prohibits the cablecasting of “indecent” programming at any time. The ordinance defines indecency as the “patently offensive depiction or description of sexual or excretory activities and organs.” Further, the ordinance specifies that the city council, in response to citizen complaints, will assess whether particular programs are indecent. Is this ordinance constitutional? In your answer, discuss the ordinance’s complete ban on cable indecency, the definition of indecency, and whether it is permissible for a city council to determine whether cable programs are unprotected speech.

There are three problems with this ordinance. First, it is a complete prohibition of indecent material that is constitutionally protected on cable. Second, the definition of indecency is unconstitutionally vague.

Third, assessment of the status of expression by a city council is unconstitutional.

In cases like the Playboy Entertainment one, the Supreme Court has emphasized the distinctions between cable and broadcast technology. In particular, cable systems may block, on a household by household basis, the reception of channels subscribers find to be offensive. Moreover, courts and the FCC have treated cable, a subscription medium, as an invited guest into the home, rather than an intruder like broadcasting. Thus, the cable medium is entitled to greater First Amendment protection than broadcasting. Also, indecent material is not completely banned on broadcasting. Rather, it is channeled to those times of day when children are unlikely to be in the audience. Virtue’s ordinance is a total ban and as such represents a serious burden on the First Amendment right of adults to view nonobscene sexual material.

The ordinance’s definition of indecency is unconstitutionally vague. Outside of the broadcasting context, the Supreme Court has been hostile to vague definitions of non-obscene sexual material. For example, in Reno v. ACLU, the Court found the Congressional definition of Internet indecency to be vague because terms such as “patently offensive” were not properly defined. Without clear definitions, the Court said, communicators would censor themselves. The vague law in the Reno case created an unconstitutional chilling effect. The Virtue ordinance does not define patently offensive, nor does it explain what role context would play in indecency determinations. In addition to the unconstitutional chilling effect, the vagueness in the ordinance enables the city council to engage in arbitrary decision making.

Finally, the Supreme Court has warned of the dangers of local government officials assessing the constitutional status of expression. In cases involving film licensing, such as Freedman v. Maryland, the Court has stated that only courts have the necessary sensitivity to freedom of expression to assess the status of expression. City council members cannot be trusted to define the unprotected status of

ScholarFriends.com

expression because they will likely be subject to political pressure. Even if Virtue’s ordinance guaranteed prompt judicial review of the city council’s decisions, this does not cure the problem of vagueness.

ScholarFriends.com

Test Bank Chapter 10 Updated 2022 I. True/False 1) Cameras are not currently allowed at the oral arguments heard by the U.S. Supreme Court, but some federal appeals courts have permitted cameras in appellate arguments.

(True) 2) As part of a recent trend to abbreviate the jury selection process, courts in high-profile cases have engage in a two-step voir dire process. Questionnaires are sent to potential jurors; their answers are then used to reduce the number of potential jurors questioned in person. (True) 3) A criminal defendant’s Sixth Amendment rights create a presumption against open court proceedings. (False) 4) Under their contempt power, judges have virtually unlimited authority to punish those who criticize judicial performance in newspapers. (False) 5) Social scientists have been able to prove that prejudicial publicity causes biased juries.

(False) 6) Although the text of the First Amendment does not explicitly mention a public right to attend trials, Chief Justice Burger’s opinion in Richmond Newspapers v. Virginia held that such a right is implied. (True) 7) Under the collateral bar rule, gag orders are presumptively valid and must be obeyed until set aside either by the court issuing the order or by an appellate court. CNN was punished for violating a gag order, even though the order was later ruled to be invalid. (True) 8) The judge in the trial of Wall Street figure Frank Quattrone barred the publication of the names of potential jurors. The Court of Appeals for the Second Circuit ruled this prior restraint to be unconstitutional. (True) 9) The U.S. Supreme Court has upheld post-publication penalties imposed on the media for publishing truthful information that lowers the public’s opinion of the judiciary. (False) 10) Under the theory of the Richmond Newspapers case and the Press-Enterprise I & II cases, public scrutiny of the criminal justice process benefits the public and is unlikely to harm the defendant’s right to a fair trial. Consequently, judges rarely close criminal proceedings. (True)

ScholarFriends.com

11) In high profile cases, judges may prohibit attorneys, court personnel, and law enforcement personnel from making public comments, such as discussing a defendant’s prior criminal record. (True) 12) In Nebraska Press Association v. Stuart, the U.S. Supreme Court ruled that judges may impose gag orders on press coverage criminal cases without examining the effectiveness of techniques such as change of venue. (False) 13) Civil contempt is meant to coerce someone to do something. (True) 14) A state trial judge bans camera coverage of a trial. Nonetheless, a journalist uses a hidden camera to surreptitiously take a photograph of the proceedings. The journalist has a First Amendment right to disregard the judge’s order. (False) 15) Publishing the contents of an inadmissible confession is thought to be the most prejudicial pretrial publication. (True) 16) The U.S. Supreme Court has ruled that a “pattern of prejudice” in jurors may be assumed if jurors have been exposed to any information about a trial before it begins. (False) 17) Based on the Richmond Newspapers case, journalists have a First Amendment right to listen to conversations between attorneys and the judge held in the judge’s chambers.

(False) 18) In Sheppard v. Maxwell, the U.S. Supreme Court said the trial judge should have guaranteed Dr. Sheppard a fair trial by enjoining the press from publishing prejudicial reports. (False) 19) The U.S. Supreme Court in 2010 prevented the broadcasting of the Proposition 8 trial because the trial court adopted a local rule permitting broadcasting without following appropriate procedures. (True) 20) In Gentile v. State Bar of Nevada, the U.S. Supreme Court ruled that restrictions of attorneys’ comments during trials are subject to less First Amendment scrutiny than constraints on the expression of the press or the public. (True) 21) In Skilling v. United States, the U.S. Supreme court emphasized that pretrial publicity only rarely deprives a defendant of a fair trial. (True) 22) Federal judges can move a trial to a different state to reduce the impact of pretrial publicity. (True) 23) Increasingly, judges are instructing jurors not to seek information about the case on the Internet, nor to post Twitter or Facebook updates about their reaction to testimony or the progress of jury deliberations. (True)

ScholarFriends.com

24) The majority of states allow tv coverage of trials and appellate court proceedings. (True) 25) Whether journalists may use laptop computers and cell phones in state courtrooms depends upon local rules or the discretion of the judge. (True) 26) The Nebraska Press Association ruling has largely meant that prior restraints on court coverage have not been allowed by lower courts. (True) 27) The U.S. Supreme Court again emphasized the importance of public jury selection by holding that a defendant’s Sixth Amendment right to a public trial was violated when a Georgia trial court closed jury selection proceedings without considering alternatives to closure. (True) 28) Whether juror names must be publicly available has not been addressed by the U.S. Supreme Court and lower courts are split on this issue. (True) 29) In the trial of Boston Marathon bomber Dzhokhar Tsarnaev, the trial judge denied a motion for a change of venue because Boston’s large population weighed against a finding of presumed prejudice. (True) 30) In 2022, the U.S. Supreme Court declined to overturn the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev, following claims that the trial judge did not properly screen jurors for bias due to pretrial publicity. (True) 31) Cameras are not allowed in federal criminal trials. (True) 32) Judges are permitted to issue a blanket ban on a trial participant’s use of social media during the pendency of the case. (True) 33) A judge may not consider a defendant’s repeated and willful violation of a gag order as a factor at sentencing. (False) 34) During the COVID-19 pandemic, numerous federal courts, including the Supreme Court, livestreamed audio of their oral arguments. (True) II. Multiple Choice 1) The 1966 case in which the U.S. Supreme Court overturned a murder conviction because the prejudicial publicity and carnival-like atmosphere in the courtroom deprived the defendant of a fair trial.

A. Estes v. Texas B. Chandler v. Florida C. Sheppard v. Maxwell D. Patton v. Yount E. none of the above Answer: C

ScholarFriends.com

2) The cases in which convictions have been overturned because of pretrial publicity illustrate that: A. courts find that large headlines are the most prejudicial publicity B. a “pattern of prejudice” in jurors may be assumed if jurors have been exposed to any information about the trial before it begins C. the responsibility to preserve a fair trial rests primarily with the press D. B & C E. none of the above Answer: E 3) In Irvin v. Dowd, the U.S. Supreme Court said that a criminal conviction might be overturned when: A. there is a “pattern of deep and bitter prejudice” throughout the community B. ninety percent of the prospective jurors suspected the defendant was guilty C. the majority of the local media editorialize against the conduct of the trial judge D. A & B E. none of the above Answer: D 4) The First Amendment “right of access” in the Richmond Newspapers case provides that the press and public: A. may use cameras in federal courts B. may attend federal legislative proceedings C. may access federal records D. may access criminal trials E. none of the above Answer: D 5) In Sheppard v. Maxwell, the U.S. Supreme Court ruled the trial judge should have guaranteed Dr. Sheppard a fair trial by: A. controlling the press in the courtroom B. changing the venue of the trial if necessary C. imposing restraining orders preventing the press from publishing information about the case D. A & B E. all of the above Answer: D 6) The U.S. Supreme Court: A. requires state courts to allow the presence of cameras during criminal trials B. permits state courts to allow the presence of cameras during criminal trials C. requires federal courts to allow the presence of cameras during trials D. requires Congress to allow cameras in legislative proceedings E. none of the above

ScholarFriends.com

Answer: B 7) Cameras are generally permitted: A. in all federal courts B. in trial courts of most states C. only in state appellate courts D. A & C E. none of the above Answer: B 8) The 1976 case in which the U.S. Supreme Court ruled that prior restraints on the news media are a presumptively unconstitutional means of protecting a fair trial: A. Nebraska Press Association v. Stuart B. Cox Broadcasting v. Cohn C. Seattle Times v. Rhinehart D. Landmark Communications v. Virginia E. none of the above Answer: A 9) The U.S. Supreme Court rulings in Bridges, Pennekamp, and Harney: A. virtually eliminate the use of contempt citations to punish publications or broadcasts criticizing court proceedings B. permit judges to prohibit the use of cameras in courtrooms C. allow judges to hold proceedings in secret D. A & B E. none of the above Answer: A 10) In a sensational case attracting great attention, the presiding judge decides to gag the attorneys, court personnel, and law enforcement officials. A defense attorney violates this gag by disclosing information to a journalist; the journalist publishes this information without identifying the attorney.

A. Under Landmark Communications, the judge may not sanction the reporter for publishing truthful information obtained from a source subject to a gag order B. If the judge discovers the identity of the attorney who violated the gag order, a contempt citation may be issued against the attorney C. The judge may retaliate against the reporter by closing the remaining court proceedings D. The judge may use the reporter’s action as the basis for a prior restraint against press coverage of the trial E. A & B Answer: E 11) The U.S. Supreme Court: A. allows tv coverage of its proceedings

ScholarFriends.com

B. records oral arguments and ordinarily releases the recordings at the end of the week in which the arguments were held C. streams video of its proceedings on the Internet D. allows still photography of its proceedings E. all of the above Answer: B 12) In Skilling v. United States, the U.S. Supreme Court: A. found that prejudicial publicity deprived Skilling of a fair trial B. stated that it would be hard to find impartial jurors in a large city C. emphasized that pretrial publicity only rarely deprives a defendant of a fair trial D. A & B E. none of the above Answer: C 13) The majority of states: A. allow tv coverage of trials and appellate court proceedings B. prohibit tv coverage of trials but allow tv coverage of appellate court proceedings C. ban tv coverage of trials and appellate court proceedings D. ban tv coverage of criminal trials, but allow tv coverage of civil trials E. None of the above Answer: A 14) Which of the following statements are true about the gag order on Roger Stone, who was charged (and later pardoned) for lying, obstruction of justice, and witness tampering stemming from Robert Mueller’s investigation of Russian interference in the 2016 election?

A. Stone was ordered to cease all public speech about the investigation, the case, and the participants B. Stone’s social media posts, designed to stir up controversy about the investigation’s legitimacy, were deemed to pose a substantial risk to the administration of justice C. preventing Stone from making incendiary and threatening comments was the least restrictive means possible to assure the safety of the people associated with the case D. A & B only E. all of the above Answer: E III. Terms 1) Gag order. A judicial restraining order designed to protect the fairness of a criminal trial. Gag orders can restrain trial participants (attorneys, law enforcement personnel, court personnel) or the press. Gag orders aimed at participants are presumptively constitutional; in Gentile v. State Bar of Nevada, the U.S. Supreme Court stated that the speech of lawyers may be restricted more than that of the press and public because lawyers have special access to information about judicial proceedings. The same rationale would apply to law enforcement officials. In contrast, gag orders against the press are presumptively unconstitutional. In Nebraska Press Association v.

ScholarFriends.com

Stuart, the U.S. Supreme Court ruled that gag orders against the press would rarely be found to be constitutional. Before issuing a gag order to the press, a judge would have to consider the following: 1) the nature and extent of pretrial news coverage, 2) whether other measures would likely mitigate the effects of unrestrained pretrial publicity, and 3) the effectiveness of a gag order in diminishing the effect of prejudicial publicity. In light of the Nebraska Press Association case, judges are likely to conclude that one of the best methods of stemming prejudicial publicity is a gag on the participants, the source of the most prejudicial information.

2) Contempt. American judges inherited from England the power to punish anyone who disobeys a judicial order or acts in a way to interfere with the judicial process. A single judge decides what kind of conduct justifies a contempt citation, accuses the person, determines that person’s guilt, and assesses the punishment. The judicial power to summarily cite for contempt of court is an unusual concentration of authority in our system of government. The contempt power ensures judicial authority and order in the court. It gives judges the enforcement power necessary to protect the constitutional rights of persons under the jurisdiction of the courts.

Anyone who disobeys a judge, including a journalist, may be faced with a contempt citation.

Even if an appeals court later decides that a contempt order was unconstitutional, it may well uphold the fine or jail term imposed by the trial judge. The appellate courts do not want to encourage doubts about judicial authority in the courtroom. There are two types of contempt, civil and criminal. A civil contempt is coercive; it is applied to get someone to do something, such as forcing a reporter to reveal a confidential source. Criminal contempt punishes disrespect for the court, such as an obstruction of court proceedings or verbal abuse of the judge.

3) Change of venue. Moving a trial from one geographical location to another to counter the effects of prejudicial publicity. The success of changing venue depends on the nature and extent of the news coverage about a case. Frequently, if the crime is notorious enough to trigger extensive publicity, it may be difficult to move the trial far enough away to find unaffected jurors. Nonetheless, national coverage of an event may differ from local coverage where the event takes place, suggesting that a change of venue may result in greater impartiality among potential jurors. For example, in the trial of Timothy McVeigh, the trial was moved from Oklahoma City, site of the bombing of a federal building, to Denver. The judge noted the national coverage focused on factual matters, while the local coverage focused on potentially more prejudicial personal matters, such as individual stories of grief and recovery. Even though no area of the country was unfamiliar with the bombing, the judge believed that a more impartial jury would be found outside Oklahoma City.

4) Voir Dire. The examination of prospective jurors to determine if they are qualified to sit on a jury. Potential jurors are asked questions designed to detect bias. They might be asked whether they know the defendant, any of the witnesses, or the attorneys. In cases involving prejudicial publicity, they usually will be asked about their exposure to prejudicial information and its impact on their attitude toward the defendant’s guilt or innocence. In theory, the purpose of voir dire is to find persons able to judge a defendant only on the basis of information presented in the courtroom. In practice, each lawyer looks for jurors who might lean toward his or her client. In federal courts, the judge asks the questions. In state courts, the opposing attorneys usually ask the questions during voir dire. In Mu’Min v. Virginia, the U.S. Supreme Court ruled that it was constitutionally sufficient for a judge to ask prospective jurors whether they could decide guilt on

ScholarFriends.com

the basis of courtroom testimony, without asking them specifically what they knew about the case. Judges may ask more precise questions if they choose, but the Sixth Amendment does not require them to.

5) Sequestration. Physically isolating the jurors during a trial. A judge can order that the jurors be isolated under guard. They usually are housed together at a hotel at government expense and are generally not allowed to see friends or family or to see news stories about the case.

Sequestration prevents jurors from hearing others, such as television commentators, evaluate the evidence or predict the outcome of the trial. Although sequestration cannot be used until a jury is chosen, it effectively keeps jurors from obtaining information from outside the courtroom during a trial. Sequestration is very expensive and it seriously disrupts the lives of jurors, particularly during long trials.

IV. Essay Lil’ Willie, a world famous rapper, is arrested for the murder of his girlfriend, Florescent. The arrest generates massive pretrial publicity, including comments from the police that the gun used to shoot Florescent was found in the trunk of Lil’ Willie’s Bentley. The press also reports that Lil’ Willie confessed to the police. Lil’ Willie’s lawyer, however, moves to suppress the confession and the gun, claiming that the confession is inadmissible because the police did not properly advise Lil’ Willie of his Miranda rights and the gun is inadmissible because the police did not have a warrant to search Ll’ Willie’s car. Also, Lil’ Willie’s lawyer asks the judge to issue a gag order restraining the press from further reporting about the case. Apply the relevant test to determine if the request for the restraining order should be granted. Discuss alternatives to the gag order.

In Nebraska Press Association v. Stuart (1976), the U.S. Supreme Court reiterated its hostility towards prior restraints aimed at the press. The Court stated that anyone wishing to restrain the media would have the “heavy burden” of demonstrating that a fair trial would not be possible without a prior restraint. The Court articulated a three-part test requiring that a judge analyze the following factors: 1) the nature and extent of pretrial publicity; 2) whether other measures would likely mitigate the effects of the pretrial publicity; and 3) the effectiveness of a restrictive order in diminishing the effect of prejudicial publicity. Applying this test in the Nebraska Press Association case, the Court indicated that it was exceedingly difficult to prove that prejudicial publicity would lead to a prejudiced jury, alternative measures were more likely to abate the effects of publicity, and prior restraints are unlikely to be successful.

Applying the Nebraska Press Association test to Lil’ Willie’s case, there is no question that reports of incriminating evidence and a confession are among the most prejudicial types of pretrial information. However, the Court in Nebraska Press Association stated that the possibility of prejudice was not sufficient to meet the clear and present danger standard. The Court indicated that it would be almost impossible to prove that pretrial publicity would inevitably lead to a prejudiced jury. Even where prejudicial publicity is extensive, the availability of alternative measures to counteract this publicity undercuts the need for a prior restraint.

ScholarFriends.com

Judges may employ a variety of measures to counteract the effects of prejudicial publicity. First, and perhaps most important for this case, the judge may gag the police and attorneys from making out-of-court statements about the case. Such gags are constitutional, as shown in Gentile v. Nevada State Bar. Since the police have been releasing information about Lil’ Willie, a gag order directed at them is an effective means of cutting off additional prejudicial publicity.

Secondly, the judge may employ a change of venue. Although Lil’ Willie is world famous, the publicity is likely to be most intensive in the community where the crime was committed. As shown in the case of Timothy McVeigh, national coverage may differ from local coverage and a change of venue is an effective means of ensuring a fair jury. Third, potential jurors may be subjected to an intensive voir dire to examine their awareness of the case and the impact of the publicity on their attitude toward Lil’ Willie. Once the jury has been selected, the judge can insulate the jurors by instructing them to avoid press coverage of the trial, or in an extreme case the jury may be sequestered. The fact that a case attracts great attention does not mean that a fair and impartial jury cannot be empanelled.

Finally, the Nebraska Press Association test requires that judges examine the effectiveness of a prior restraint. The request for a prior restraint comes after the press has reported Lil’ Willie’s confession and the presence of the murder weapon in his car. In essence, the most damaging information has already been disclosed publicly. A restraint will not lessen the damage that has already occurred; future disclosures may not be as damaging as the revelations about the gun and confession.

In summary, prior restraints against the press are presumptively unconstitutional. In this case, the availability of alternatives and the ineffectiveness of a prior restraint mandate that the judge deny this request.

ScholarFriends.com

Test Bank Chapter 11 Updated 2022 I. True/False 1) The First Amendment explicitly says that journalists have a constitutional right to withhold the names of confidential sources. (False) 2) The Supreme Court has recognized in the First Amendment an “implied” right for journalists to withhold the names of confidential sources. (False) 3) A subpoena duces tecum demands that the recipient produce notes, tapes, or documents.

A subpoena ad testificandum demands that the recipient testify in court. (True) 4) The Supreme Court has never recognized a First Amendment right for journalists to withhold the names of confidential sources. (True) 5) Courts and legislatures sometimes require that journalists promise confidentiality to sources if journalists wish to claim a privilege to withhold the names of sources. (True) 6) Even when judges reject First Amendment and common law privilege claims, journalists may assert the Fifth Amendment privilege against self-incrimination if they are able to convince a judge there is a reasonable fear their testimony will probably lead to a criminal prosecution. (True) 7) Former New York Times reporter Judith Miller was released from prison when the Supreme Court overturned lower court rulings that misinterpreted Branzburg v. Hayes.

(False) 8) The law of journalist’s privilege is complex. In some cases where a court does not recognize a First Amendment-based privilege, a journalist may nonetheless be protected under a state statute. (True) 9) Prosecutors are more likely to have a “compelling” need for a journalists’ information in a criminal case—when a defendant’s life or freedom may be at stake—than in a civil case. (True) 10) A federal shield law allows “anyone who disseminates information to the public” to shield confidential sources from courts and grand juries. (False) 11) Courts are most likely to follow the precedent of Justice White’s majority opinion in the Branzburg case when journalists are subpoenaed by grand juries, when they are asked to testify about something they have witnessed, and when they are being asked to produce non-confidential information. (True)

ScholarFriends.com

12) Recent cases show federal courts are finding support for a journalist’s privilege in the federal common law. (False) 13) Although Justice Stewart dissented in Branzburg v. Hayes, his opinion has been widely incorporated into state shield laws. (True) 14) Journalists sometimes lose a statutory privilege to withhold confidential sources if the journalists observe—are witnesses to—criminal activity. (True) 15) The recent trend of appellate courts reading the Branzburg case narrowly was reflected in the Fourth Circuit’s 2013 decision in United States v. Sterling. (True) 16) Prosecutors sometimes seek journalists’ sources and notes when the information could be easily acquired from other sources. (True) 17) Journalists fear the public may be denied valuable reports because sources may “dry up” if journalists cannot promise confidentiality. (True) 18) Confidential sources promised confidentiality may sue for the tort of promissory estoppel if they are hurt by a journalist’s disclosure of their identity. (True) 19) California’s shield law protects journalists whose work is published on websites. (True) 20) Courts recognizing a First Amendment-based journalist’s privilege have limited the privilege to the traditional news media. (False) 21) Courts are more reluctant to protect journalists’ confidential sources in civil defamation suits involving media defendants than in suits in which the media are not parties. (True) 22) State courts increasingly are grappling with the issue of whether those who post information on newspaper websites are “sources” covered by state shield laws. (True) 23) No federal statute explicitly protects reporters from being ordered to testify in court.

(True) 24) In 2010, support for a proposed federal shield law evaporated as Wikileaks began posting a trove of classified U.S. government documents. (True) 25) The FBI’s use of National Security Letters (NSLs) has grown dramatically since 2001.

(True) 26) The fear of cases similar to Cohen v. Cowles Media has proven unfounded as journalists rarely break a promise of confidentiality. (True)

ScholarFriends.com

27) Although Congress has the authority to charge those who refuse to comply with a congressional subpoena, such actions are rare. Thus, the contempt of Congress charges against the CEO of Backpage.com are unusual. (True) 28) Section 215 orders have rarely been used by the FBI. (True) 29) As a result of the USA Freedom Act of 2015, tech companies now regularly publish reports of the number of NSLs received each year along with data on other types of government requests. (True) 30) After backlash from the revelation that the Trump administration in 2020 subpoenaed the email and phone records of eight journalists, Attorney General Merrick Garland, who was appointed by President Biden, announced that the Department of Justice was revising its policy regarding the use of subpoenas and search warrants directed at journalists. He also expressed support for a federal shield law. (True) II. Multiple Choice 1) In some states, journalists may withhold sources unless the courts or law enforcement officials demonstrate three things, including: A. compelling need for the information B. the relevance of the information to the case C. an implication of the journalist in criminal wrongdoing D. all of the above E. A and B Answer: E 2) Justice White, who wrote the opinion for the Court in Branzburg v. Hayes, and Justice Stewart, who dissented, disagreed because: A. Justice White did not believe that sources would dry up if journalists had no right to promise confidentiality, but Justice Stewart thought sources would dry up B. Justice White saw the press as strong and hearty while Justice Stewart viewed the press as more vulnerable C. Justice White thought it would be difficult to define who would get a privilege of confidentiality if one were created, but Justice Stewart disagreed D. all of the above E. none of the above Answer: D 3) In Branzburg v. Hayes, the Supreme Court: A. did not establish a privilege permitting journalists to refuse to testify before a grand jury B. supported an absolute privilege for journalists to withhold names C. supported a qualified privilege for journalists to withhold names but not documentary sources D. rules that grand juries had to prove the necessity of a journalist’s testimony before a subpoena could be enforced

ScholarFriends.com

E. none of the above Answer: A 4) Justice White, author of the Court's opinion in Branzburg v. Hayes, demonstrated: A. a deference to the authority of duly authorized grand juries to carry out their tasks of gathering and weighing information B. a fundamental disagreement with Justice Stewart, the dissenter, over the ability of the press to report news if the names of sources must be disclosed to grand jurors C. a dislike for journalists and journalism D. none of the above E. A and B Answer: E 5) Legislators creating shield laws often have difficulty defining the journalists and information workers who should have the privilege to withhold names of confidential sources. Shield laws usually extend the privilege of confidentiality A. to anyone who disseminates information to the public B. only to journalists employed more than half-time at a newspaper C. to reporters and editors for established news organizations or media D. none of the above definitions resemble how journalists are defined in shield laws E. all of the above definitions are used about equally Answer: C 6) In most states with shield laws, to overcome a journalist's qualified privilege to withhold notes or the names of sources, the government usually has to show that: A. the information sought is clearly relevant to a criminal investigation B. there are no other sources for the information C. there is a compelling need for the information D. all of the above E. A and B Answer: D 7) Even if journalists have a qualified privilege to withhold information under a shield law, journalists are likely to be required to provide confidential information when: A. a grand jury demands the information B. a defendant facing serious criminal charges seeks the information C. a lawyer in any case seeks helpful information from a journalist D. all of the above about equally E. A and B Answer: E 8) Journalists welcome neither subpoenas nor search warrants, but they prefer subpoenas for information because: A. subpoenas can be more easily challenged legally B. there is time to prepare a response to a subpoena C. searches are more intrusive

ScholarFriends.com

D. all of the above E. A and B Answer: D 9) Zurcher v. The Stanford Daily established that: A. officials with a search warrant can search a newsroom B. officials with a warrant can search the offices of citizens not suspected of a crime C. the First Amendment provides no protection from searches conducted with a valid search warrant D. all of the above E. A and B Answer: D 10) A journalist who claims a constitutional right not to reveal sources to a grand jury has: A. a full First Amendment privilege, per the Supreme Court in Branzburg v. Hayes B. a qualified First Amendment privilege, per the Supreme Court in Branzburg v. Hayes C. no constitutional privilege, per the Supreme Court in Branzburg v. Hayes D. no constitutional privilege but a federal statutory privilege, per the Federal Journalists Protection Act of 2017 E. none of the above Answer: C 11) State shield laws: A. are applicable in federal proceedings B. rarely specifically include web-based journalists C. usually offer absolute protection to journalists D. usually offer qualified protection to journalists E. B & D Answer: E 12) A journalist’s claim of a First Amendment-based privilege: A. is unlikely to be successful when a grand jury demands sources or information B. is unlikely to be successful if the journalist is asked to testify about criminal activity the journalist witnessed C. is unlikely to be successful when asked to produce information not covered by a promise of confidentiality D. all of the above E. none of the above Answer: D 13) As part of a 2021 federal investigation into whether there was a criminal conspiracy to steal and publish the contents of a diary kept by President Biden’s daughter as she underwent treatment for addiction, the FBI searched the residences of James O’Keefe, founder of Project Veritas, and two former employees. Which of these statements is NOT true about this case?

A. During the search, the FBI seized O’Keefe’s cell phones.

B. Project Veritas claimed it was the target of an overzealous Justice Department

ScholarFriends.com

C. The presiding judge appointed a special master to ensure the government did not gain access to attorney-client–protected materials or materials covered by the First Amendment.

D. The U.S. Supreme Court ruled that the warrant complied with all Justice Department policies regarding searches of members of the news media.

E. None of the above Answer: D III. Short Answers and Key Terms 1) Stewart’s Branzburg dissent. The seminal case in the debate over a journalist’s privilege is Branzburg v. Hayes decided in 1972. While the majority of the Court ruled that journalists must testify before grand juries, Justice Stewart’s dissenting opinion has had considerable influence on later law. Justice Stewart argued that journalists should have a qualified First Amendment privilege to withhold confidential information. He argued journalists should be excused from testifying before a grand jury unless the government could establish a compelling need for relevant information that could be acquired from no other source. Stewart’s argument for a qualified First Amendment privilege for journalists has been adopted in various formulations by several federal and state courts and by state legislatures.

2) Search warrants. Officials can lawfully seek evidence in criminal cases from journalists by subpoenaing information or by executing a search warrant. Journalists oppose both, but more vigorously oppose newsroom searches because they are disruptive, occur unannounced--allowing journalists no opportunity to oppose them in court—and can permit authorities to look for information beyond that specified in a search warrant. Journalists also resent newsroom searches when the journalists are not implicated in any crime or suspected of destroying evidence.

Newsroom searches are outlawed in most instances by the Privacy Protection Act of 1980.

3) Defining bloggers as journalists. Some argue that including bloggers in a shield law will so broaden the definition of journalists that virtually anyone can claim the privilege to withhold confidential sources. If everyone has a privilege, criminal defendants might have considerably more difficulty compelling testimony to which they are entitled under the Sixth Amendment. In addition, “sham” journalists and criminals could claim the bloggers’ privilege to shield their activities from law enforcement.

4) Cohen v. Cowles Media Company. Journalists who breach a promise of confidentiality may be sued by sources harmed by the revelation of their identities. The press has no First Amendment right to violate generally applicable laws, such as the requirement to honor freely entered commitments.

Although many media lawyers initially feared an outbreak of litigation against the press after the Cohen case, there have been few Cohen-type cases because the press rarely breaks a promise of confidentiality.

IV. Essays 1) Ron Reporter writes a series of stories about university officials selling illegal drugs to dorm residents. Reporter does not observe any drug sales. On the basis of the articles, the district attorney charges the director of student housing with drug trafficking. As she begins preparation

ScholarFriends.com

for trial, the district attorney asks the judge to order Reporter to reveal the names of sources and notes acquired for the articles. The district attorney (DA) tells the judge the names and sources “might help her a lot” as she tries to clear the campus of the scourge of drugs. Reporter refuses to reveal his sources and notes, citing the state shield law which is much like the three-part test Justice Stewart proposed in Branzburg v. Hayes. From the facts available, should Reporter be able to withhold notes and sources under the state shield law? Yes or no? Explain Yes, Reporter should be able to retain his sources, at least temporarily, under the state shield law.

The DA has not sought the names and sources from any sources other than Reporter as she would be required to under the Stewart qualified privilege. The DA’s office should seek names and information through its own investigation. Also, the DA has not demonstrated a compelling need for the information as the Stewart test would require. The DA has sought the information because it “might help her a lot,” a vague statement of need. However, the judge might decide, as many judges have, that a DA has a compelling need for information if the information is relevant to a serious crime, such as drug dealing. The DA probably does meet the third part of the Stewart test; she will be able to establish that Reporter possesses evidence relevant to the criminal case, that is names and information of campus criminals.

2) The campus Paper publishes a three-part series, written by Ron Reporter, about the sale on campus of illegal CDs imported from factories in Southeast Asia. The stories report that illegal sales are part of a national market in illicit sale of cheap but high-quality CDs. Ron Reporter (RR) promised confidentiality to his unnamed sources. He wrote a number of notes, drafts and opinions in the course of preparing his series. Paula Prosecutor (PP), a federal district attorney, is contemplating running for governor. She has always portrayed herself as “Tough on Crime.”

She concludes that fighting illegal CD sales on campus will serve the public interest as well as serve her political ambitions. She decides to get RR’s unpublished notes, story drafts, and opinions to help her prosecute the illegal sellers and buyers. At first she considers getting a subpoena, demanding RR to turn over the notes and drafts. Then PP realizes she might get more favorable publicity in her fight against crime and her run for the governor’s mansion if she “raids” the newsroom. Besides, she rationalizes, if she tries to get the notes and drafts through a subpoena, those “kids” at the Paper “will probably destroy the notes because they are probably friends of the sellers and buyers.” She concludes that her efforts to stop illegal CD sales will even help reduce the U.S. trade deficit by reducing illegal imports. PP gets a search warrant from her friend Judge Pliable. When PP shows up at the Paper to conduct the search, Edward Editor (EE) protests that PP is about to conduct an illegal search. EE proclaims, first, that the First Amendment prohibits newsroom searches and, second, that a law enforcement official violates the Privacy Protection Act of 1980 by searching for journalists’ “work product materials” in a newsroom without adequate justification. The search proceeds.

A) Did PP violate the First Amendment when she conducted the search of a newsroom where journalists were not themselves criminal suspects?

B) Did PP violate the Privacy Protection Act? A) PP did not violate the First Amendment. The Supreme Court ruled in Zurcher v. Stanford Daily that the First Amendment does not prohibit newsroom searches when officials have a

ScholarFriends.com

search warrant. It does not matter that the journalists are not criminal suspects. Search warrants are valid if investigators seek evidence of crime possessed by people who are or are not suspects themselves.

B) PP has violated the Privacy Protection Act. The Act says that federal or state officials should be allowed to search newsrooms for work product materials only when there is probable cause to believe a reporter has committed a crime, evidence might help save a life or prevent injury, or there is reason to believe materials contain information valuable to national security or the prevention of espionage. Work product materials include notes, drafts and opinions. There is no evidence that EE or the Paper committed a crime. Merely conjecturing that students might destroy evidence about fellow students is not evidence of crime. There is no evidence that the search would produce information necessary to save a life or prevent injury or that the information related to national defense, national security or terrorism.

ScholarFriends.com

Test Bank Chapter 12 Updated 2022 I. True/False 1) The press and public have a First Amendment right of access to records and meetings of the executive branch of government, the Supreme Court has ruled. (False) 2) Before releasing public records, custodians are usually authorized to require a requester to prove the records will be used for a "public purpose." (False) 3) Disclosure of government computer compilations of records poses a greater threat of invading privacy than disclosure of individual records from many locations, the Supreme Court ruled in Department of Justice v. Reporters Committee for Freedom of the Press. (True) 4) The press and public have access to government records because of citizens' constitutional right to receive information essential to democratic governance. (False) 5) It's unconstitutional for the mayor to deny access to a public press conference to a reporter for the Republican newspaper but allow access to the reporter for the Democratic newspaper.

(True) 6) Journalists are the most frequent users of FOI laws (True) 7) "Reverse" FOIA suits, such as Chrysler Corporation v. Brown, establish that companies can require federal administrators to withhold company records from the public. (False) 8) Federal law provides strong protections for the privacy of student educational records. (True) 9) Criminal records compiled on a student at a campus police station at a state university are public records. (True) 10) Open records laws usually provide citizens access to court records. (False) 11) Open records laws usually provide citizens access to legislative records. (False) 12) Open records laws usually provide citizens access to electronic records. (True) 13) Open records laws usually allow custodians to withhold records that would embarrass the government. (False) 14) Reporters embedded with American troops are generally permitted to report the date, time, location and results of completed military missions. (True)

ScholarFriends.com

15) More conservative presidents, who campaign for strong national security and smaller government, tend to withhold more government records than more liberal presidents. (True) 16) Open meetings acts usually require government agencies to provide advance notice of public meetings. (True) 17) While journalists have no constitutional right of access to military engagements, the federal law requires the Department of Defense to alert the press before any military engagement.

(False) 18) The federal government may waive fees for record requesters who plan to disseminate the records publicly. (True) 19) Journalists have a constitutional right of access to accident scenes. (False) 20) Government officials may review dispatches by journalists embedded with U.S. troops. (True) 21) Congress and the Obama administration jointly concluded democratic governance requires disclosure of photos of Americans abusing war-time prisoners. (False) 22) The press has a constitutional right to inspect prisons and interview prisoners. (False) 23) Federal agencies have 20 days to determine whether they can fulfill a Freedom of Information Request. (True).

24) In McBurney v, Young, the Supreme Court ruled a state can deny access to public records to citizens of other states. (True) 25) In 2009, Congress amended the Homeland Security Act to permit the Secretary of Defense to withhold photographs, films or video of detainees abused by American forces if disclosure would endanger U.S. citizens, military or employees of the U.S. (True) 26) Federal law requires colleges and universities to "immediately notify" the campus community of "a significant emergency or dangerous situation" threatening the health or safety of students or staff. (True) 27) Many universities have lost federal funding because they revealed student records that should have been withheld under the Family Educational Rights and Privacy Act. (False) 28) A showing of competitive harm is required to exempt data from disclosure under the federal FOIA’s fourth exemption. (False) 29) In Food Marketing Institute v. Argus Leader, the Supreme Court established an explicit legal right for a company to stop an agency from releasing information under the federal FOIA. (False)

ScholarFriends.com

30) Lawsuits against federal agencies under the FOIA reached record highs during the Trump administration, in 2017 and 2018. (True) II. Multiple Choice 1) Two cases in which the U.S. Supreme Court ruled that the press and public have no First Amendment right of access to prisons: A. Pell v. Procunier and Saxbe v. Washington Post B. Richmond Newspaper v. Virginia and Department of Justice v. Reporters Committee for Freedom of the Press C. Chrysler Corporation v. Brown and Department of the Air Force v. Rose D. Sheppard v. Maxwell and Saxbe v. Washington Post E. none of the above Answer: A 2) For citizens to acquire government records under state and federal open records laws, they usually must: A. provide the document number and date of publication of the requested records B. pay reasonable copying fees C. promise not to sell the records D. all of the above E. A and B Answer: B 3) Judges who review confidential records in camera: A. take pictures of the records for further study B. review in their chambers the legitimacy of confidential or secrecy designations on the records C. inspect the records to see if they are "camera ready" for printing D. all of the above E. none of the above Answer: B 4) "Strong" open records laws are likely to contain all the following provisions EXCEPT: A. state policy favoring openness B. narrow exceptions to openness C. brief time limits within which the government must produce records D. criminal penalties for officials who accidently release confidential records E. all of the above Answer: D 5) _____________ authorizes reporters to be "embedded" with American troops in combat: A. First Amendment B. Federal Freedom of Information Act

ScholarFriends.com

C. Reporters in Combat Authorization Act D. Defense Department policy E. none of the above Answer: D 6) Open records laws usually provide citizens access to: A. judicial records B. legislative records C. executive branch records D. all of the above E. A and C Answer: C 7) The Obama administration claimed to be more open than the second Bush administration in each of the following ways EXCEPT: A. Permitting faster declassification of older records B. Prohibiting administrators from classifying records if they have significant doubt" that classification is necessary C. Removing from federal agencies the Bush-created Chief Information Officers installed to improve speed and efficiency D. Decreasing the number of classified documents E. Reducing agencies' authority to withhold "sensitive" but unclassified national security information Answer: C 8) It is recommended that letters requesting public records contain all of the following clauses EXCEPT: A. a clear description of requested records B. a request that custodians withholding records cite the statutory provisions authorizing the withholding C. a request that the government state the projected costs in advance D. a demand that the records request be completed within three months E. a request for a fee waiver if records will be disseminated to the public Answer: D 9) The U.S. Supreme Court has ruled that the exemptions protecting privacy in the Federal Freedom of Information Act allow the government to withhold: A. suicide pictures of a federal official to protect the privacy of surviving family members B. centralized computer rap sheets, even though the same records could be found with considerable effort in police departments around the country C. names of American soldiers killed in action D. all of the above E. A and B Answer: E

ScholarFriends.com

10) "Educational records" that a state university must withhold under The Family Educational Rights and Privacy Act do NOT include the following: A. charges lodged against a student at the campus police station B. aggregate data—without names—about the number and locations of violent crimes on and near campus C. directory information, including a student athlete's name, weight and hometown D. all of the above may be disclosed E. none of the above may be disclosed Answer: D 11) The Supreme Court has ruled citizens and the press have a constitutional right of access to: A. accident scenes along interstate highways B. federal prisons C. war theaters where Americans are fighting D. courtrooms E. all of the above Answer: D 12) The Family Educational and Privacy Protection Act requires high schools and colleges to withhold the following "educational records," EXCEPT: A. grades B. student health records C. most student disciplinary records D. charges filed at a police department E. all of the above can be withheld under FERPA Answer: D 13) Each of the following statements addresses a claim made by open-government organizations about FOIA compliance under the Trump administration, EXCEPT: A. although the Obama administration’s promises of more transparency were largely left unfulfilled, transparency got worse under the Trump administration B. federal officials made it more difficult to obtain records like calendars of executive branch officials and logs of White House visitors C. agencies implemented rules to frustrate the timely fulfillment of FOIA requests D. FOIA lawsuits against federal agencies rose to nearly 10 times what they were a decade before E. all of the above Answer: D 14) Generally, under state open records laws: A. public officials who fail to comply can be punished with civil or criminal penalties, but stiff penalties are seldom imposed B. civil or criminal penalties for failing to comply are not on the books

ScholarFriends.com

C. courts are not permitted to award attorney fees for successful lawsuits challenging improper denials of access D. A & B only E. all of the above Answer: A 15) In the 2019 criminal prosecution of a former press secretary to Atlanta’s mayor for violating the Georgia Open Records Act: A. the former press secretary was convicted by a jury and ordered to pay a $1,500 fine B. the penalty was seen as rare by many public records advocates C. in response to a public records request, the former press secretary told another official to “drag this out as long as possible” and to “provide information in the most confusing format available" D. all of the above E. none of the above Answer: D III. Key Terms 1) Records. Describe how the Society of Professional Journalists would evaluate the following definition of public records in an open records act: "A public record is a written memorial of a final action." What would be an alternative definition the society might prefer?

SPJ would find the definition much too narrow, limited only to written records and not including reports, memos and documents during the policy-making stages leading up to the final action.

SPJ would prefer a definition that includes all records, paper, electronic, photographic, that are acquired and maintained by an agency.

2) Embedded journalists. Hundreds of journalists were embedded with American troops during Operation Iraqi Freedom. Under what legal authority did the journalists accompany American troops? The first amendment? A federal statute? Other? Did journalists have complete freedom to publish and broadcast whatever they chose to report?

Journalists were embedded with American troops because of Pentagon policy, not a statute or the first amendment. The Pentagon authorized journalists to accompany troops. The Pentagon retained the authority to hold information "at the source;" that is, the military would not disclose sensitive information. Journalists were instructed not to disclose future operations, tactics or specific numbers of troops.

3) Pell v. Procunier and Saxbe v. Washington Post. What is the significance of Pell and Saxbe?

In Pell and Saxbe, the Supreme Court established that journalists and the public have no first amendment right of access to federal (Saxbe) or state (Pell) prisons. The cases reinforce the longtime holding that the press and public have no constitutional right of access to

ScholarFriends.com

governmentcontrolled property, except to courtrooms. The government sets the terms for disclosure of information about government operations. The government can allow journalists and the public access to prisons if it wishes, or the government can provide reports about operations.

4) Electronic Freedom of Information Act. Why is EFOIA important?

EFOIA requires the federal government to make electronic records available to the public just as it makes paper documents available. EFOIA is important recognition of the digital age in government. The law also encourages the government to provide records in an electronic format and provides for government reading rooms where electronic information is made available.

5) National Archives and Records Administration v. Favish. How did the Supreme Court expand the already broad privacy exemption in the Federal Freedom of Information Act in its decision in National Archives and Records Administration v. Favish?

In Favish, the Court extended the privacy exemption to the relatives of a dead government official, ruling the government could withhold photos of a government official's suicide to protect the privacy of the official's family. The Court imposed a significant new burden on the records requester to demonstrate that dissemination of the requested records would advance an important public interest, the disclosure of government misconduct. It was not sufficient, the Court said, and that the requester simply ask for records or demonstrate that disclosure might reveal "what the government is up to."

IV. Essay Public access to government records depends on several provisions of open records laws, including the (l) stated purpose of the law, (2) how government agencies and records are defined, (3) the time allowed for government responses to requests, (4) the fees charged, and the (5) penalties imposed if governments illegally withhold records. Briefly outline how any four of the above five provisions should be framed in an open records statute designed to provide maximum access to public records. Briefly describe how these four provisions in the federal Freedom of Information Act serve or fail to serve public access to government information.

1) Strong open records laws contain statements of purpose or policy statements committing the state to open government for democratic purposes. The federal Electronic Freedom of Information Act is supposed to "foster democracy" and declares that records are open for any public or private use. The federal open records law declares that records are presumptively open, and that exemptions should be narrowly interpreted. Disclosure is the main goal, the Supreme Court has said, even though exemptions provide for withholding records the disclosure of which would invade privacy or interfere with national security. Stated policies of openness direct record custodians and the courts to err on the side of openness in close cases.

2) Strong open records acts define records broadly, including virtually all records and information acquired and maintained by a government agency. "Records" in strong laws are not defined as "written memorials of final actions" or only as paper documents, but include

ScholarFriends.com

documents, photographs and electronic information. The software necessary to download and read electronic records should also be a public record. The FOIA does not define records, but EFOIA defines records as all nonexempt information maintained by an agency in any format.

3) Strong open records laws provide a limited time for agencies to respond and fulfill requests.

Open records laws are ineffective if custodians can postpone responses indefinitely. Under federal law, custodians have 20 days within which to respond to a records request. Federal law provides for expedited review and disclosure when the requester can demonstrate a compelling need, such as an urgent need for public dissemination.

4) Charges for searches and copying should generally be limited to the actual costs of finding and copying records. To encourage disclosure, fees can be waived for requesters who are seeking records to serve the democratic goals of open records acts. The federal law allows agencies to charge the actual costs of searching and copying, the hourly cost of search personal and a reasonable cost per page for copying. However, the federal law provides for no charge for the first 100 copies and the first two hours of search time when records are requested for public dissemination. Indeed, all search and copy fees may be waived if a requester is seeking records for public dissemination and not for a commercial purpose.

5) Successful open records laws impose penalties for agencies that withhold information they should disclose. The federal law allows requesters who are denied records the ability to sue in federal court to acquire the records. Federal courts can review the records in chambers.

Requesters who are successful on appeal have the incentive of recouping attorneys' fees and other litigation costs. In rare cases, a federal custodian might be held in contempt for refusing an order to disclose records.

ScholarFriends.com