I apologize for this not being up sooner. I wrote it all out and thought I'd posted it right after class last Wednesday, but apparently I did something wrong because it didn't show up. Sorry. Because of that, you can have extra time to complete it.
Choose one chapter from our textbook that you find especially interesting or meaningful to you. Pick a case you think is important. Look up the court decision. (You may be able to Google it or else try the library. They can help you.) Read it. Read whatever media coverage of the case you can find. Write a paper of 800-1000 words on the significance of the case and why you chose it. What First Amendment theory did the court follow in its decision? On what do you base that? What can you learn from the case? Please use APA style. I expect at least three sources besides the court opinion, which should also be cited and quoted from extensively. Your paper should have a title and subtitle. No need to double-space.
DUE: No later than 6 p.m. Sunday, Dec. 16. Please e-mail to me as an attachment.
8 comments:
Tamara Price
Comm. Law Final
12/12/07
Lacoff v. Buena Vista Publishing Inc.
“Don’t Buy Into Everything You Read”
Lacoff v. Buena Vista Publishing Inc. is a significant case, because people are often seduced by a book’s cover and its claims believing them to be true, when in this case they were not. The book, “The Beardstown Ladies’ Common-Sense Investment Guide” was alleged violating the law through deceptive practices and false advertising, through its print on the front cover that claimed “23.4% annual return” (Supreme Court of the State of New York, 2000) of the Beardstown Business and Professional Women’s Investment Club. “Plaintiffs allege that they were induced to buy the Book on the basis of such claims, and on the suggestion that the Book would impart “secrets” unknown to the Beardstown Ladies which enabled them to achieve the claimed remarkable earnings” (Supreme Court of the State of New York, 2000). The Complaint contain four causes of action which are: One, deceptive trade practices, two, false advertising, three, fraud (based on the plaintiff purchasing the Book), and lastly four, that the plaintiffs have been unjustly enriched from the sales of the Book based on “fraudulent claims, misrepresentations, and omissions” (Supreme Court of the State of New York, 2000). The Book, “The Beardstown Ladies’ Common-Sense Investment Guide” is based on sixteen women who formed an investment club in the town Beardstown, in the state of Illinois in the early 1980s. The complaint asserted that the Book contains no secrets and that the investment advice given is general and available from other sources for free. “The complaint further alleges that in early 1998, after the claimed annual return of 23.4% was challenged, a audit of the Beardstown Ladies’ investment portfolio for the period from 1984 through 19933, by Price Waterhouse, revealed that the annual return for that period was actually 9.1%” (Supreme Court of the State of New York, 2000). The plaintiff counteracted by saying that “discovery will demonstrate that the motivation for the content of the “advertising material” was to maximize defendants’ profit, and thus, that thus “advertising material” constitutes commercial speech” (Supreme Court of the State of New York, 2000).
The defendants went on to protect themselves saying that not only the content of the Book, but the cover and flyleaf are all protected under the First Amendment. According to our book “Mass Media Law” the FTC cannot legally regulate all advertising. Basically what the FTC says “is considered to be an advertisement for purposes of regulation” (Pember R, Don and Calvert, Clay 2007/2008, pg 644). The court acknowledged that “the First Amendment safeguards are relaxed with respect to commercial speech” (Steven G. Brody, Bruce E. H. Johnson, 2004). Commercial speech is done for a company or individual solely in order to make a profit and this is exactly what the defendants were doing. Looking at the First Amendment, the court concluded that “{T} he First Amendment protects even erroneous statements in the content of [the book in question], and on its cover, flyleaf, and introduction, and to create a duty on defendants’ part to investigate or verify the factual statements made therin would run counter to that protection” (Steven G. Brody, Bruce E. H. Johnson, 2004).
The plaintiffs fired back at this claim that the defendants made by saying that “their claims are based on the words used to advertise, market and sell the Book and not the content of the Book itself. They contend that they need discovery to determine the role of the defendants in the creation of the Book and the false performance claims. They also assert that discovery will demonstrate that the motivation for the content of the advertising material was to maximize defendants’ profit and, thus, that such material constitutes commercial speech” (Rudell, Micheal I, 2000). The court went on to reveal that the Book itself was not commercial speech. That in fact it was published not for its help methods, but for its content of the story and therefore the content is protected under the First Amendment.
I find this case extremely interesting, because normally you do believe everything you read on a cover, because you believe in the publisher and the author. My first instinct when reading a cover or flyleaf is to get a feel for what the book is about. It makes a person realize that they cannot take everything the read literally and that many things are marketed to catch your eye in order to get you to purchase their product. Although it may be misleading they feel that the content of the book is the overall catch and that is all that matters in the end. I learned that advertisers and publishers take advantage of the uninformed person by making misleading and false claims on their covers in order to reel the consumer in. Overall I feel that the First Amendment although great is really quite complicated and only an educated person can fully benefit from it and all its content.
Works Cited
Pember R, Don and Calvert, Clay 2007/2008, pg 644. “Mass Media Law” pg. 644.
Rudell, Micheal I, 2000. False Advertising Complaint. Complaint Against Publisher for
False Advertising. Retrieved on December 12th 2007 from online database:
http://www.fwrv.com/news/article.cfm?id=100717
Steven G. Brody, Bruce E. H. Johnson, 2004. Advertising and Commercial Speech: A
First Amendment Guide. Retrieved on December 11th 2007 from online database
http://books.google.com/books?
Supreme Court of the State of New York, 2000. Retrived on December 11th 2007 from
Online database: http://www.nycourts.gov/comdiv/Law%20Report%20Files/March%202000/lacoff.html.
Regulation of Obscene and Other Erotic Material:
John Cleland’s Memoirs of a Woman of Pleasure
I chose Chapter 13 from the book, Regulation of Obscene and Other Erotic Material because it is very important in our society today. Since the 1980’s, sexually explicit material has been a major problem. Some communities have established zoning ordinances to control this material, and these rules are Constitutional if they do not exclude the number of businesses and they limit only the narrowest of speech. Currently, there are an increasing number of efforts to censor the Internet. In 1998, the Child Online Protection Act was established which prohibits Web sites from transmitting material to minors that is specifically created to prurient interests and lacks literary, artistic or scientific value. Installation of software filters in libraries has been a current issue for libraries and is still being tested today. All of these things have sprouted from the Supreme Court case Memoirs v. Massachusetts.
John Cleland is famous for being the author of Fanny Hill or the Memoirs of a Woman of Pleasure which he wrote in prison. It is famous for being the first erotic novel. It is referred to in the current erotica battles of our time. In 1749, he was arrested for the material and he wished he never would have published the material. The book was not published for a hundred years. There were pirated copies that continued to make money, and Cleland printed a new edition of the book which excluded sodomy and this edition was sold legally. (Wikipidia)
On March 21 1966, The Supreme Court ruled that the book was not obscene, and the First and Fourteenth Amendments did protect the book from having its publication prohibited. The justices could not conclude why the book constituted free speech, and there was no majority opinion delivered. This left the laws of obscenity vague. Justice Brennan used the Roth v. United States (1957) case applying the obscenity test concluding that the book was not obscene under those rules. Which include: the book must appeal to the prurient interest, be patently offensive, and without social value. Justice Black and Justice Stewart referred to Ginzburg v. United States (1966) and Mishkin v. New York (1966) in which these works were found obscene. Black stated that he believed that the court had no power to censor speech. Stewart concluded that the material was not obscene. In later years, the difficulty of obscenity cases remained hard to judge. (Pember)
This case is important because it added to the definitions of obscenity as well as judgment of materials that are printed as “works without value.” During the late 1950s and early 1960s, the courts created a new definition for obscenity. The Roth-Memoirs test has three parts:
1. The dominate theme of the material appeals to an average person’s prurient interest in sex.
2. The material is offensive because of contemporary community standards relating to sex.
3. The material is without redeeming social value, or has none at all.
The Roth-Memoirs test has helped define the standards used today to define obscenity. Today, the Miller test is used, with very similar criteria:
1. an average person finds the material appealing to prurient interest
2. the work is patently offensive in sexual conduct
3. the work lacks literary artistic, political, or scientific value
The court used the preferred position balancing theory. This is the theory in which the Supreme Court has upheld numerous freedoms especially those of the First Amendment. These laws are the most important to a free society and are entitled to more protection then other values. These laws must be upheld to ensure a political process and allow people to fight for their rights when government tries to infringe on them. Freedom of expression has precedence over privacy rights. Government action that limits speech is unconstitutional. I concluded this because this case is about First Amendment rights, and how the courts cannot rule a work offensive unless it falls under certain circumstances outlined in the Miller test. (Pember)
I think this case is important because without the Memoirs v. Massachusetts case we would not have the new definition of obscenity. The Miller test is based from the Roth-Memoirs rulings founded a few years earlier to the Miller v. California case which established the new obscenity rules. Obscenity rules are so important to us today because with the technology of the Internet and easy access to Web sites, pornography continues to be a problem in our society. I believe this case will be important in the future. I learned that laws are always changing and adapting to previous rulings. Hopefully, in the future laws will be stricter regarding pornographic material and there could be more regulation of this material and the ease of access to minors on the Internet, and stricter punishments for those who produce the material and release it, in the future.
(2007). Memoirs v. Massachusetts. Wikipedia, the Free Encyclopedia. Retrieved Dec. 11, 2007, from http://en.wikipedia.org/wiki/Memoirs_v._Massachusetts
(2007). Supreme Court Collection. Cornell University Law School. Retrieved Dec 11, 2007, from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0383_0413_ZS.html
Memoirs v. Massachusetts. (2007). American Law and Legal Information. Retrieved Dec. 11, 2007, from http://law.jrank.org/pages/12764/Memoirs-v-Massachusetts.html
Pember, Don (2007). Mass Media Law: Regulation of Obscene and Other Erotic Material. Boston: McGraw Hill.
Liew Pei-Lin
MASC 3880 Communication Law
Ms. Louise Mengelkoch
Final
Due Dec 16, 2007
The Nature of Corporate Social Responsibility Messages and Public Relations: Commercial or Political?
I chose to write about the case of Nike v. Kasky from 2003. In 1998, “anti-sweatshop activist” Marc Kasky (Twist, 2003, para. 3) sued multinational sports shoes, apparel and equipments manufacturer Nike for publishing false and misleading statements in a report. He brought it to the California state court arguing that those statements were deceptive and dishonest as they did not reveal the unsafe labor practice and subpar wage issues at the company’s Southeast Asian factories. In response, the “sweatshop giant” defended itself through press releases, letters to newspapers, letters to university presidents and athletic directors, and full-page newspaper ads (Pember & Calvert, 2007).
“This case presents novel First Amendment questions because the speech at issue represents a blending of commercial speech, noncommercial speech and debate on an issue of public importance” (Stevens, 2003, p. 9). In May 2002, the state court ruled in favor of Kasky. It contended that the statements Nike made were commercial speech, hence, limited First Amendment protection. It wrote in its opinion that “when a corporation, to maintain and increase its sales and profits, makes public statements defending labor practices and working conditions at factories where its products are made, those public statements public statements are commercial speech that may be regulated to prevent consumer deception” (as cited in Pember & Calvert, 2007, p. 621). Another thing from the opinion that bears great implication to the case stated that “for purpose of categorizing Nike’s speech as commercial or noncommercial , it does not matter that Nike was responding to charges publicly raised by others and was thereby participating in public debate” (as cited in Pember & Calvert, 2007, p. 621).
Nike appealed to the U.S. Supreme Court for writ of certiorari. Nonetheless, the case was dismissed improvidently granted —i.e. the nation’s highest court decided not to decide by instead letting the California state court resolve the case based on three reasons (Stevens, 2003, pp. 3-10):
1. The decision by the California state court was not intended to be the final judgment
2. Neither party had the authority to appeal the decision to the federal courts because the state proceedings did not result in changing the tangible legal rights of the defendant, i.e. Nike
3. The inherent difficulties and uncertainties of the First Amendment issues in the case
The case was subsequently settled with the company submitting $1.5 million to the Fair Labor Association for factory monitoring. This outcome signifies a victory for Kasky (Pember & Calvert, 2007).
Since who exactly was telling the truth was and is not known, I could think of the implication going toward either one of these two directions, provided that:
1. Nike was lying. This means that public relations (PR) activities by corporations are commercial speech, and thus, subject to limited First Amendment protection. PR activities are allowed, but they must be truthful. Or;
2. Nike never lied about the issue concerned, and Kasky simply made allegations with malice against corporation. This implies consumers’ rights are utmost important. This allows citizens’ rights activists like Kasky “make full use” of the “opportunity” by riding on the bandwagon — alleging corporations for perceived unlawful practice. This can be unfair to corporations.
The decision has massive impact on the PR profession and its people. With the existing stereotype, it worsens people’s perception of the industry and defeated Nike’s purposes for having PR. I agree with Harris Diamond that free speech right applies to individuals and corporations alike; ruling in favor of Nike affirms and recognizes corporate stand on public concerns (as cited in Council of Public Relations Firm, 2003, para. 4). Twist (2003) aptly reflects the concerns in PR professionals’ minds through the following:
Public relations people and firms believe the case will set precedence on what a corporation will be allowed to say and advertise. Corporations could become leery of influential public campaigns. PR practitioners also fear a decline in their importance and that it “will effect on what organizations are willing to say in a public arena,” says Paul Vetter, public affairs for Kaiser Permanente and president of the California Capital Chapter of the Public Relations Society of America (para. 6).
Again, this outcome serves to remind and warn companies that consumers’ rights always come first.
I chose the case is because I am taking PR classes. It was interesting and relevant to the course. It presented flaws in the law. It also raises issues that got me into wondering the nature and ethics of PR. As I intend to pursue my career in advertising, PR uses advertising to convey their message constantly, hence, my interest in the case.
The state court decision was based on two First Amendment theories. It used the ad hoc balancing theory, in which the courts erect scales anew on case-by-case basis for decision-making. In this case, the court favors consumers’ rights over corporate First Amendment right — the freedom of speech is not necessarily the rule of thumb although people’s rights to express are guaranteed. It also used the Meiklejohnian theory. The situation resembles what went on in New York Times v. Sullivan. In a democratic society, self-governing is crucial in preventing any individuals from abusing power, especially the government and corporations. The citizens become their own watchdogs supervising what the authorities do; therefore, public debates are inevitable and should be free, robust and open. The decision’s implication adheres with this theory that Kasky might have made these allegations with or without malice, but that does not matter because criticism is crucial to democracy.
I learned that although public relations has long been recognized, it does not mean that it is not subject to scrutiny. Ironically, while it maintains and saves organizations’ goodwill, it has to save its own as well. Most disturbing of all, there has not been a distinction in what constitutes commercial and political speech.
Diamond, H. (2003). Top of mind: Court’s decision a blow to free speech. Brandweek. Retrieved December 11, 2007, from http://www.prfirms.org/resources/nike/nike071403.asp.
Pember, D. R., & Calvert, C. (2007). Mass media law (2007-2008 ed.). Boston: McGraw-Hill.
Stevens, J. P. (2003). Nike, Inc., et al., petitioners v. Marc Kasky on writ of certiorari to the Supreme Court of California. Nike, Inc. v. Kasky, 539 U.S. 654 (2003). Retrieved December 11, 2007, from www.supremecourtus.gov/opinions/02pdf/02-575.pdf.
Twist, J. (2003). The law and the media. Retrieved December 11, 2007, from http://www.webster.edu/~badenl/kaskyvnike.html.
Libel: Proof of Fault
Hustler v. Falwell
The case that I decided to pick is Hustler v. Falwell. This case is significant as it is about how Jerry Falwell filed a lawsuit against Hustler magazine for publishing a parody of a series of widely circulated ads for Campari liquor. The Campari ads featured interviews with celebrities who discussed the first time they had tasted Campari. The advertisement had strong sexual overtones as the subjects talked about their first sexual encounter. The Hustler parody was a made up interview with Jerry Falwell who was an evangelical preacher who led a conservative political group called The Moral Majority back in the 1980’s. In the parody ad, it contained about how Falwell described his first sexual experience as an incestuous encounter with his mother. Falwell was also characterized as a drunkard. The ad did contain a small disclaimer below which listed the ad as fiction. (Wikipedia, 2007)
Falwell sued the magazine for libel, invasion of privacy and intentional infliction of emotional distress. The invasion of privacy claim was dismissed by the trial judge, but libel and intentional infliction of emotional distress was sent to the jury. The jury rejected the libel claim on the grounds that the parody was so unbelievable that no one could possibly believe that those were actual facts about Falwell. The jury did award Falwell $250 000 in damages for emotional distress. Hustler tried to appeal the ruling, but the U.S Court of Appeals for the 4th Circuit upheld the damage award, stating that all the proof that was needed in such a case was that the item was sufficiently outrageous as to cause emotional harm that it was published intentionally. (Pember, 2007)
The reason why I chose this case was because it shows how far sometimes people will go to use the freedom of expression and the freedom of speech. It feels as if some people tend to take advantages of the freedom that they are given both in the right way and in the wrong way as well. Although many journalists did not overlook the Hustler style of parody, they nevertheless viewed the decision as a serious threat to the freedom of expression. The First Amendment theory that the court followed on for this case was based on the fact that a public figure or a public official was under emotional distress because of a parody or a false statement. (Tedford, 2005) The court ruled based that in order for a public figure or a public official to win an emotional distress claim, it would be necessary to prove that the parody or satire amounted to the statement of fact, not an opinion, that it was a false statement of fact and that the person who drew the cartoon or wrote the article knew it was false, or exhibited reckless disregard for the truth or falsity of the material. That means that proof of actual malice is a must. (Tedford, 2005)
I based that decision on the fact that according to the Pember’s Mass Media Law, it stated that the ruling in the Hustler case that added a First Amendment element to the defense against emotional distress cases has proved to be a valuable protection for the press. The press now cannot just simple publish false statement of facts about public figures or officials. They will need to be careful of what they have to publish, although they are still given the freedom of speech and freedom of expression. The specific intention to inflict emotional harm enjoys no protection. But if it is concerning public figures, penalizing the intent to inflict emotional harm, without requiring that the speech that inflicts to be false, would grant public officials and public figures large damage awards. (Tedford, 2005)
Lessons that we all can learn from this case would be that we need to be careful about what we say or publish about public figures. We need to be sensitive to the emotional feelings of others. We should also never take the freedom that we are given for granted. Religious beliefs of others should also be respected. How far are we willing to take the freedom of speech and the freedom of expression? Although the freedom is given yet there are still boundaries or limits that we must submit to and some people find that this is unfair and some people agree to it. But in conclusion, the intentional infliction of emotional distress is a new tort and punishes a wide range of conduct, including the publication of broadcast material that is outrageous and causes severe emotional distress. (Pember, 2007) Courts have made it extremely difficult for plaintiffs to win such suits by placing a substantial burden of proof on the party that is affected by it. The Supreme Court added to this burden in 1988 when it ruled that public-person plaintiffs would have to show actual malice as well to win their lawsuits. (Pember, 2007)
Thomas L. Tedford and Dale A. Herbeck Freedom of Speech in the United States, 5th ed.
State College, PA: Strata Publishing, Inc., 2005. Retrieved December 14 2007, www.bc.edu/free_speech
Pember, D. R., & Calvert, C. (2007). Mass media law (2007-2008 ed.). Boston: McGraw-Hill.
Hustler Magazine v. Falwell (2007) Wikipedia, the Free Encyclopedia. Retrieved December. 14, 2007, from: http://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell
The Oyez Project, Hustler Magazine v. Falwell, 485 U.S. 46 (2007), Retrieved December 15, 2007 from: http://www.oyez.org/cases/1980-1989/1987/1987_86_1278/
Carrie Azan
December 16, 2007
Comm. Law Final
Kobe Bryant Case
Prior Restraint
Kobe Bryant, a 24 year old NBA superstar and role model, faced sexual assault charges in 2004. He was charged with rape of a 20 year old woman in a Colorado hotel. Bryant apologized to his accuser, however, denied the rape charges; pleading it was consensual.
In Colorado, when reporting a rape the victim is protected by rape shield laws. The rape shield laws protect the privacy of the victim; their sexual history. The 20 year old woman had asked to keep her identity protected as she had already been the subject of death threats and public humiliation. Bryant’s attorney were not sympathetic to her request because it would cause favoring and the plaintiff and defendant should appear as equals, and that shielding her identity would lead to prejudgment in the favor of the defendant.
Going back to the rape shield laws the Judge can consider information found in the in camera (private) proceedings. In camera proceedings allow the judge to view the past sexual history of the defendant out of the public eye. During this time the judge must decided if the past sexual history is relevant to the case. If he/she decides that in is in fact relevant, the rape shield law may be dropped and information found on past sexual history can be brought into the case.
A controversy came about when a court reporter accidentally sent the private, in camera proceedings to the media. As many questions had arisen on the past sexual history of the plaintiff, the media outlets who received the in camera information were eager to report on it. In obtaining and the act of reporting the information on the in case proceedings was entirely legal. Because the documentation of the in camera proceedings had accidentally been sent to media outlets, the news organizations had broken no laws; they had not been stolen nor taken without permission.
In this case, although information was legally attained by the media, information may be reported on unless the judge writes an order explaining that the case is in government interest and this outweighs the rights of the reporter to report on said issues. The Colorado judge immediately issued an order to stop the media publishing; prior restraint. “Anyone who has received these transcripts is ordered to delete and destroy any copies and not reveal any contents thereof, or be subject to contempt of court” (Pember & Calvert p. 82). The media immediately fought back saying that it went against their First Amendment right to free press. The Colorado Supreme Court then designed a test to determine if prior restraint was constitutional. In order for the prior restraint to be constitutional it: a) serves a government interest of the highest ordered b)is the narrowest possible order available to protect that interest and; c)is “necessary to protect against an evil that is great and certain” (Pember & Calvert p. 83) to result from the reportage and cannot be mitigated by less intrusive measures. When the Colorado Supreme Court Applied these measures to the Bryant case thee majority decided that there was a conflict between reporting the truth and state protected privacy interest. In this case the court ruled that it was constitutional to keep the issue presented in the in camera proceedings as private.
The charges against Bryant were eventually dropped by the 20 year old accuser as she declined to testify, and the matter was settled out of court.
In this case the outcome is not particularly relevant because it was settled out of court. What is relevant is Colorado Supreme Court decision of the legality of prior restraint. Because the private history of the alleged victim was compromised the judge was able to submit prior restraint on the issue. When the media responded by testifying that their First Amendment rights of free press were being violated it was brought to the Colorado Supreme Court. The court designed a three part test to determine legality of prior restraint; the important part of the Kobe Bryant Case.
This case used the Ad hoc balancing theory. Although there is freedom of the press, in this case the right was not protected by the First Amendment, as the Ad hoc balancing theory goes by case to case basis. I have learned from case that although the First Amendment protects the rights of the people, in this case freedom of the press there may still be exceptions. In this case the media was correct to want to publish the information that was received, and it is their First Amendment right to do so. Because it was received, although by accident was not illegal. I sympathize with the judge’s decision to enable prior restraint, however, that where it should have ended. After the case went to the Colorado Supreme Court they upheld the ruling 4-3 and prevented the media from covering the events that took place in the in camera proceeding saying, “Revealing the rape shield law evidence will [demonstrate to other sexual assault victims that they cannot rely on the rape shield statute]”. I expected them to overturn the ruling and allow the media to report on the information they received.
I chose a case out of chapter two; The First Amendment, the meaning of freedom. I find this chapter most interesting because it talks a lot about prior restraint and the limitations the government puts on media coverage. After reading this case, on thing that I have learned is how much restraint there is in the media world by the government. When I thing about people in court I think of them putting there complaint out in the open. However, clearly that isn’t the case because in this case the judges went to great lengths to keep information private. On one hand I see protecting the victim’s history; it will certainly help people reporting rapes. However, I also feel like if you are going to ruin the reputation of someone, you better be ready to answer the question, who are you to say that? What is your history? Before I read this case I assumed he was guilty. However, after reading the case I feel he is innocent. If he wasn’t, why would the woman be so secretive about her identity and history?
Bibliography
Pember, Don R., Calvert, Clay (2007-2008). Mass Media Law. McGraw Hill.
Judge: Accuser's name must appear in civil suit against Bryant.
October 7, 2004
Retrieved December 11, 2007 from:
http://www.courttv.com/trials/bryant/100704_name_ap.html
Criminal charge dropped against Bryant. May 10, 2004.
Retrieved December 14, 2007 from:
http://www.cnn.com/SPECIALS/2003/kobe.bryant/
Joshua Christensen
Comm. Law Final
12-16-07
Youngstown Publishing Co. v. McKelvey
"Gathering Information: The right to interview?"
The one chapter that I found meaningful to me was the Chapter 9 on gathering information because I want to go into journalism/broadcasting and I feel that the government withholds too much information from the public. Especially, with this administration almost every scandal that comes out the words “executive privilege” always get in the way. However, there are other important issues when it comes to the gathering of information. For example, can the government restrict whom the media can interview? I chose the case Youngstown Publishing Co. v. McKelvey because the outline of the case struck me.
In Youngstown, Ohio, the mayor, George M. McKelvey alleged that the reporters of The Business Journal were “failing to report objectively (Kerr, 2006, August 8).” The mayor had criticized the newspaper because the newspaper had criticized the mayor in 2003 about a proposed deal to purchase land to build a convention center (Gorman p. 16). The mayor released a statement that said that city employees were not allowed to talk to any reporters from the newspaper, but would still be able to give public records. The Business Journal ended up suing mayor McKinley for violating their First Amendment rights.
However, a district court judge ruled in favor of the mayor. District Judge Peter C. Economous wrote that the newspaper was denied access to “individual comments and off-the record statements (Gorman, p. 16)” which the judge claimed were privileged rights and not guaranteed. “A reporter may achieve privileged access to government information,” Economous wrote, “but a reporter does not have a constitutional right to maintain privileged information (Suit Alleging, 2005, May 24).” The judge found that the mayor’s actions on denying city employees to speak to the newspaper did not violate the paper’s ability to report on the city’s policies. Economous concluded, “The Court concludes that the right of access sought y The Business Journal is to information not otherwise available to the public, and, therefore, is a privileged right of access above that of the general public to which no constitutional right of access applies (Gorman, p. 16).” The judge had found no wrongdoing in the mayor’s action of denying city employees to speak with the newspaper.
The newspaper would appeal to the Sixth Circuit Court. The attorneys for the newspaper argued that Judge Economous had “steered off course (Gorman, p. 16).” The attorneys also argued that the district judge had averted from the real issue, which was whether the mayor had stripped the paper of its constitutional right to criticize him. The attorneys for the paper also argued that McKelvey’s actions to deny city employees to talk to the paper “was an adverse act sufficient to chill an ordinary journalist from criticizing the mayor for fear of similar banishment (Gorman, p. 16).” This claim was the reason why the journalists of the newspaper felt their First Amendment rights were violated. The circuit court did decide to hear the appeal.
Suddenly, something happened, when oral arguments were about to be heard in a couple of weeks, mayor McKelvey had left office. On January 1, 2006, Mayor Jay Williams had taken over as mayor and rescinded the order denying city employees to talk to the newspaper. This was a major blow to the case because the new mayor had rescinded the order, but the paper was suing the previous mayor for the order. However, on June 27, 2006, the court declared that the newspaper’s claims could not be heard because of the change in policy. The court had quoted from the case Church of Scientology of California v. United States which stated that if “an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must be dismissed” as moot (Gorman, p. 18). The newspaper argued that mayor Williams only rescinded the order so it could not be heard and claimed that the order could be re-implemented. However, the court disagreed, “In this case there is simply no indication that the new mayor of Youngstown, Mayor Williams, will return to the ‘old ways’ of Mayor McKelvey and issue a similar edict,” wrote Circuit Judge Cornelia G. Kennedy (Gorman, p. 18). The circuit court was never able to hear the case because the new mayor had revoked the edict. “Had Mayor McKelvey- rather than Mayor Williams- revoked the edict during this litigation, then we would be more inclined to find that such an act was done to defeat judicial review,” wrote Kennedy (Gorman, p. 18).
I think the court followed the First Amendment theory of: preferred position balancing theory. I think the court followed this theory because the district judge ruled that the press was seeking for privileged information in wanting to interview city employees. The judge claimed that the public does not have access to the same information so it is privileged. The mayor according to the judge had the right to deny that city employees not talk to The Business Journal. The paper failed to convince the court that the mayor had denied the access because the mayor did not appreciate what the paper wrote about him. With that they failed to show that the mayor had stripped them of their First Amendment rights.
What I learned from this case and from other cases was if journalists want access to information, especially from politicians and the federal government, they have to play nice. If a journalist is critical of the government or a certain politician, he or she may not get access to certain information because they are not polite. From reading this case and seeing what happens on television, many journalists are not being critical enough of the government. Especially before the invasion of Iraq, all news organizations allowed the president to give his reasons for war and not challenging them. If someone in the media did challenge the president’s claims, he or she was considered unpatriotic for not standing behind the president. This case on gathering information demonstrated that information is not guaranteed, it is privileged and journalists need to be careful in what they do and say if they want to keep receiving information.
Sources
1. Gorman, C. (2006, September 22). Government Restrictions on Information.
Bulletin Summer, pp. 16, 18.
2. Kerr, R. (2006, August 8). New Mayor’s Rescission of Retaliatory Gag Order
Moots Journalists’ Challenge. Holland and Knight, volume 5.
Retrieved Dec. 15, 2007 from
http://www.hklaw.com/id24660/PublicationId2147/ReturnId34/
contentid49178/
3. Suit Alleging Unconstitutional Gag by Mayor Dismissed (2005, May 24).
News Media Update, Retrieved Dec. 15. 2007 from
http://www.rcfp.org/news/2005/0524-new-suital.html
The Case of Hazelwood School District v. Kuhlmeier
How Much Free Speech Will A School District Allow?
I chose to take a closer look into the case of the Hazelwood School District vs. Kulmeier. A case found in chapter 8, the invasion of privacy: publication of information and false light. I chose this chapter because in today’s society, people are always debating over what information should be legal public knowledge and what should be able to be kept private.
The case of Hazelwood v. Kulmeier first started out with three student journalists, led by Cathy Kuhlmeier, suing the Hazelwood School District for violating their First Amendment rights, when the substitute teacher, Howard Emerson, in charge of overseeing the school newspaper, the Spectrum, took his concerns about two article that were written. These articles talked about high school pregnancy and the effects of divorce on high school kids. The articles highlighted certain students within the students body of the Hazelwood school. At first a federal district court ruled against the students, then an appellate court reversed the decision on the basis of the case of Tinker vs. School District of De Moines. Then in 1987 the U.S. Supreme court granted the student’s petition to take a look at the case (Irons, 1997, p. 102).
The argument that the school made was that the articles violated the privacy of the students and descriptions were clear enough that the students discussed in the article, even without the names published, could be identified. Howard Emerson, the substitute teacher took the articles to Hazelwood principal, Robert Reynolds. The two men decided that the articles were inappropriate for a school newspaper and did not run the two pages of that issue of the Spectrum (Taylor, 1988, p. n/a).
In 1988 with a five to three decision the United States Supreme court decided that school districts does have the power of censorship on what is distributed in schools, whether it is in newspapers, plays, and other school sponsored activities (Taylor, 1988, p. n/a). According to the New York Times, this was the third decision in two years that limited the freedoms of students in public schools. The decision was based on that fact that school papers are not the same public forum as other public newspapers and the reasons the principal had for not printing the articles were legitimate (Martin, 2006, p. n/a). After this court case, there was so much media attention that the St. Louis Post Dispatch went ahead and printed the said censored articles which only drew a bigger audience and more attention on the school (Wikipedia).
I think that we can learn a lot from this case, one big lesson that the student journalists of Hazelwood learned was that, yes we do have a freedom of speech, but there is such thing as censorship. While it was made clear in the Tinker v. Des Moines case that ‘students do not shed their First Amendment rights when they enter the schoolhouse door, (Exploring)’ but at the same time schools do have to protect the rights of their students. I think that we can also learn that just because we do have that the First Amendment and the freedoms that it gives us, there are still limitations to the Amendment. With this case we can learn that yes we do have a right to the freedom of press, but we have to respect the rights of other’s privacy.
I think that the Supreme Court used the Ad Hoc balancing theory in this case. The reason that I think it was this theory is because they did mention the Tinker case within this case, and it also dealt with student freedoms although the students won in that case while in this case the students did not. I think that it would interesting to take a look at this case with today’s standards and new laws to see how it would turn out.
Refrences
Exploring Constitutional Conflicts. Free Speech Rights.
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/studentspeech.htm
Irons, P. (1997). May it please the court: the first amendment.
Martin, R. (2006. November 5). Hazelwood school district: The censorship
of high school newspapers. Retrieved December 16, 2007 from http://www.associatedcontent.com/article/80817/hazelwood_school_district_v_kuhlmeier.html
Taylor Jr., S. (1988. January, 14). Court 5-3 widens power schools to act as
censors. New York Times. Retrieved December 15, 2007 from The New York Times from: http://query.nytimes.com/gst/fullpage.html?res=940DE3DB123DF937A25752C0A96E948260
Wikipedia. (2007. December 14) Hazelwood vs. kuhlmeier. Retrieved 13,
2007 from http://en.wikipedia.org/wiki/Hazelwood_v._Kuhlmeier.
Libel Defamatory of Public Persons
Gertz v. Robert Welch, Inc
In 1968 a case was presented that was for a police officer that had shot and killed a young man. The lawyer that was hired to represent the family of the victim in this civil suit was Elmer Gertz. After the trial was over, one year, American Opinion, a publication of the John Birch Society, ran series of stories about Gertz and how he was the ring leader for the shooting. The stories (tell a tale of Gertz framing Nuccio, the police officer, and then making strong allegations about Gertz. (As cited in Wikipedia, 2007)
Gertz then decided to file a defamation libel suit in Federal Court. John Birch Society claimed that he was a public official and that they were not libel because of his position as a public official. This goes back to the New York Times v. Sullivan standard. A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground that the defamatory statements concern an issue of public or general interest. (Gertz v. Robert Welch, Inc. (1974)The court ruled that he was simply acting as an attorney- which was his profession- in representing the family of the youth in a civil action. He was acting as a private individual. (Pember & Calvert, 2007/2008)
Justice Powell: It is preferable to reduce the public figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in a particular controversy giving the rise to the defamation. (Gertz v. Robert Welch, Inc., 418 U.S 323 (1974) At the end of the trial the courts decision was to drop the libel and did give him the defamation because of the reputation that he had to endure because of the articles, he was rewarded $50,000. All four Justices filed their own opinions about the case. (Gertz v. Robert Welch, Inc. (1974)
The reason this case is very important is because it is quite often you will hear people telling each other that they will sue for defamation of character. The truth is defamation is used in libel and slander but in that case there has to be something published or broadcasted to file suit for. Word of mouth is not enough unless documented in one way or another. Also with that is an ordinary person can not file suit because of defamation of character because they have no public character to uphold. The reason Elmer Gertz could not file libel was because he was not a public official but he could file defamation because he did have a high profile job and that the articles written about him could damage his reputation as a lawyer. Chief Justice Burger referred to Chicago lawyer Gertz as “an advocate in the highest tradition of the law.” (American Bar Association Journal, (Jan. 1975)
This is huge milestone in litigation history because since The New York Times v. Sullivan and Curtis Publishing v. Butts, this adds a whole new out look on how to file suit against libel and defamation. Where as Justice Douglas states that: This of course leaves the simple negligence standard as an n option with the jury free to impose damages upon a finding that the publisher failed to act as “a reasonable man”. With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking. (Gertz v. Robert Welch, Inc. (1974)
The Ad Hoc Balancing Theory may be applied to this case in the case that each case is different and must be examined as so. This theory is more of a strategy to deliberating a case. The fact that the First Amendment can be taken into many different contexts in different cases it must be applied to the case in it’s self. By saying this the theory was applied to determine what was fact and how it applied to the case directly and not to outside sources and what is the First Amendment and how it is directed toward this particular case.
o (Calvert & Pember, 2007/2008) Mass Media Law. Mc Graw Hill Higher Education.
o Goldberg, Stephanie (1992, October) Getting the Name Out. ABA Journal, 102
o (Tedford & Herbeck, 2005) Freedom of Speech in the United States, 5th ed. Strata Publishing, Inc., 2005
o Wikipedia, Gertz v. Robert Welch, Inc. Retrieved, Dec. 2007
o Fink, Eli, E. (1975, Jan) American Bar Association Journal, Vol. 61 Issue 1.
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