ALSO -- BE PREPARED FOR QUIZ BASED ON MULTIPLE CHOICE QUESTIONS FROM THE BOOK'S WEBSITE
Study Guide for Ch. 14: Copyright
1. Briefly describe the history and purposes of copyright law.
2. Compare and contrast copyrights from trademarks, patents, and plagiarism.
3.What can be copyright protected?
4. What are the exclusive rights of a copyright owner?
5. What are the four prongs of the fair use defense?
6. Briefly describe how copyright law applies to digital technology and peer-to-peer environments like the Internet.
7. Briefly describe the legal limits of online file sharing and what actions may constitute copyright infringement.
8. What are the steps necessary to demonstrate copyright infringement?
Study Guide for Ch. 15: Advertising
1. How and when does the First Amendment protects advertising?
2. What are the main legal components of the commercial speech doctrine?
3. What is the Lanham Act and how does it allow parties to seek damages for false advertising?
4. What are the three parts of the false advertising test?
5. What is the Federal Trade Commission (FTC) and how does it regulate advertising?
5. Describe the range of remedies the FTC will use to regulate false advertising.
6. What are some of the legal aspects of false advertising, including testimonials and bait-and-switch techniques?
Sunday, November 11, 2007
Wednesday, October 31, 2007
Study Guide for Ch. 13: Pornography (due 11/7)
Study Guide for Ch. 13: Obscenity
1. Give a brief description of the historical efforts and different measures used to combat obscenity.
2. Explain the three prongs of the Miller test and how they are applied to pornography.
3. Explain what is meant by variable obscenity statutes.
4. Briefly describe laws applying to the creation, possession, and distribution of child pornography.
5. How does the First Amendment protect the rights of adults to receive certain degrees of pornography and erotica?
6. What are the purposes and limitations of the local zoning ordinances used to combat pornography?
7. Briefly describe the challenges surrounding legal efforts to regulate sexually explicit material in cyberspace.
1. Give a brief description of the historical efforts and different measures used to combat obscenity.
2. Explain the three prongs of the Miller test and how they are applied to pornography.
3. Explain what is meant by variable obscenity statutes.
4. Briefly describe laws applying to the creation, possession, and distribution of child pornography.
5. How does the First Amendment protect the rights of adults to receive certain degrees of pornography and erotica?
6. What are the purposes and limitations of the local zoning ordinances used to combat pornography?
7. Briefly describe the challenges surrounding legal efforts to regulate sexually explicit material in cyberspace.
Wednesday, October 24, 2007
Be prepared for a Halloween quiz on Ch. 11
We will have a short quiz on the multiple choice questions for Ch. 11, which you can study on the mhhe Website: www.mhhe.com/pember
Halloween Tricks and Treats
Bring a Halloween treat to share next Wednesday (items other than candy and chips particularly welcome!)
Come in costume if you wish.
Come in costume if you wish.
Study Guide for 10/31: Free Press/Fair Trial: Trial Level Remedies and Restrictive Orders (ch. 11)
1. What judicial remedies are available that ensure an individual enjoys a right to a fair trial under the Sixth Amendment?
2. What are some of the First Amendment limits and restrictions that the press may experience in covering criminal trials?
3. How might pretrial publicity influence the decision-making of individual jurors and the outcome of a case?
4. Learn the different types of trial-level remedies a judge may take to minimize the effect of existing prejudice that results from pretrial publicity.
5. Compare and contrast cases that address restrictive orders aimed at the press versus those aimed at trial participants.
6. What are some of the constitutional burdens that courts must meet before imposing both trial-level remedies and restrictive orders?
2. What are some of the First Amendment limits and restrictions that the press may experience in covering criminal trials?
3. How might pretrial publicity influence the decision-making of individual jurors and the outcome of a case?
4. Learn the different types of trial-level remedies a judge may take to minimize the effect of existing prejudice that results from pretrial publicity.
5. Compare and contrast cases that address restrictive orders aimed at the press versus those aimed at trial participants.
6. What are some of the constitutional burdens that courts must meet before imposing both trial-level remedies and restrictive orders?
Wednesday, October 17, 2007
Study Guide for October 24
Study Guide for Communication Law: due October 24
Please cite the portion of FERPA or other laws that support your answer to YOUR ASSIGNED QUESTION. Your source cannot be just a Web address. That’s like giving me the street address for The New York Times instead of the name of the organization. Also please quote the actual part of the statute or law. You may want to look for pertinent case law to help you determine how this part of FERPA has been interpreted. You may also want to check out the relevant part of the Minnesota Data Practices Act.
In addition to your one question, please do the following: Answer one of the questions you wrote for this week's study guide. Use your book, the Internet, interviews, etc. whatever sources help you find the answer.
Please note: this FERPA assignment is in lieu of your FOIA assignment. You may still do that, but it will be extra credit. Hurray!
Another note: There will be no class meeting November 28. I will be in St. Paul all week. I will have a selection of relevant movies available for you in the library, along with a study guide. You may choose which movie to watch. I will provide you with the list in a couple of weeks.
1. Parent comes to business office to pay child’s tuition and wants to know the balance. (Rebecca Boe)
2. Parent asks whether child has been in class since last week. (Sam)
3. Parent calls supervisor or student worker and wants to know why she isn’t at work. (Jessica C.)
4. Media requests information about former student who just won election. What if the request is only for “personal opinions” – not grades? (Ryan S.)
5. Newspaper requests graduation rate of Hispanic students from St. Paul. (Mike M.)
6. Police officers demand student’s class schedule to serve arrest warrant. (Trenton S.)
7. For criminal investigation, law enforcement asks for list of stuents in Computer Language clss. Would it matter if she provided a subpoena? What if the request cam by campus security? (Monica R.)
8. Faculty passes around class list and asks students to provide e-mail address for class communication. Okay to share with other students? Okay for instructor to communicate with students by e-mail? (Tamara P.)
9. Instructor gives Registrar’s Office list of students in her “Advanced Programming” class and asks for their grades in “Beginning Programming.” (Rose G.)
10. Expanding computer company wants names and addresses of all female computer science majors for their affirmative action recruiting. (Josh C.)
11. Student requests copy of transcript of school from which he transferred last spring. (Brianna M.)
12. Student requests review of admissions file, including letters of reference. (Bryan B.)
13. Faculty adviser for Spanish Club asks Registrar for names of all students enrolled in Spanish I. Spanish majors? Hispanic students? (Rebecca R.)
14. High School counselor requests grades of PSEO students from his high school. (Mei Ling)
15. Parent requests grades of 17-year-old son attending as PSEO student. (Hui Ling)
16. Staff reports seeing students fighting in hallway. He was interviewed for Conduct Code proceedings and wants to know the outcome. What if complainant was student? (Beth K.)
17. May a department share class lists and point out troublesome students to each other? (Bryan L.)
18. Faculty requests information from financial aid on students who have defaulted on loans? (Zachary)
19. Faculty requests list from Registrar of students who are on academic probation? (Amber N.)
20. Credit card company asks for names of all business major students. List of all students enrolled in Accounting 202? List of all Computer Science majors with GPA of 3.7 or higher? (Heather S.)
21. You would like to begin to submit all your students’ essays to plagiarism detection program – others in your department question whether this violates FERPA? (Iris)
22. Employer calls to request grades of employee who is student – employer is paying tuition. (Natalie Ka)
23. Student asks instructor for employment reference – FERPA issues? Would it matter if it’s in writing? Naming faculty on application form? B’y phone? By Fax? By e-mail? Can you require waiver of ability to review? (Pei-Lin)
24. Student asks for her mid-term exam so she can see what she needs to focus on for the final. Instructor refuses because she re-uses exam questions and doesn’t want copies in circulation. Correct? What if student wants copies of instructor’s notes re: classroom participation?
25. Colleague asks you about performance of student last year in Calculus I – colleague says student is struggling in her Calculus II class. Luckily, you have saved your notes, and provide them. Student now demands to see them – you refuse.
26. Instructor asks counseling services to verify student attended appointment last week.
27. Football coach calls instructors to request mid-term grades of student athletes.
Please cite the portion of FERPA or other laws that support your answer to YOUR ASSIGNED QUESTION. Your source cannot be just a Web address. That’s like giving me the street address for The New York Times instead of the name of the organization. Also please quote the actual part of the statute or law. You may want to look for pertinent case law to help you determine how this part of FERPA has been interpreted. You may also want to check out the relevant part of the Minnesota Data Practices Act.
In addition to your one question, please do the following: Answer one of the questions you wrote for this week's study guide. Use your book, the Internet, interviews, etc. whatever sources help you find the answer.
Please note: this FERPA assignment is in lieu of your FOIA assignment. You may still do that, but it will be extra credit. Hurray!
Another note: There will be no class meeting November 28. I will be in St. Paul all week. I will have a selection of relevant movies available for you in the library, along with a study guide. You may choose which movie to watch. I will provide you with the list in a couple of weeks.
1. Parent comes to business office to pay child’s tuition and wants to know the balance. (Rebecca Boe)
2. Parent asks whether child has been in class since last week. (Sam)
3. Parent calls supervisor or student worker and wants to know why she isn’t at work. (Jessica C.)
4. Media requests information about former student who just won election. What if the request is only for “personal opinions” – not grades? (Ryan S.)
5. Newspaper requests graduation rate of Hispanic students from St. Paul. (Mike M.)
6. Police officers demand student’s class schedule to serve arrest warrant. (Trenton S.)
7. For criminal investigation, law enforcement asks for list of stuents in Computer Language clss. Would it matter if she provided a subpoena? What if the request cam by campus security? (Monica R.)
8. Faculty passes around class list and asks students to provide e-mail address for class communication. Okay to share with other students? Okay for instructor to communicate with students by e-mail? (Tamara P.)
9. Instructor gives Registrar’s Office list of students in her “Advanced Programming” class and asks for their grades in “Beginning Programming.” (Rose G.)
10. Expanding computer company wants names and addresses of all female computer science majors for their affirmative action recruiting. (Josh C.)
11. Student requests copy of transcript of school from which he transferred last spring. (Brianna M.)
12. Student requests review of admissions file, including letters of reference. (Bryan B.)
13. Faculty adviser for Spanish Club asks Registrar for names of all students enrolled in Spanish I. Spanish majors? Hispanic students? (Rebecca R.)
14. High School counselor requests grades of PSEO students from his high school. (Mei Ling)
15. Parent requests grades of 17-year-old son attending as PSEO student. (Hui Ling)
16. Staff reports seeing students fighting in hallway. He was interviewed for Conduct Code proceedings and wants to know the outcome. What if complainant was student? (Beth K.)
17. May a department share class lists and point out troublesome students to each other? (Bryan L.)
18. Faculty requests information from financial aid on students who have defaulted on loans? (Zachary)
19. Faculty requests list from Registrar of students who are on academic probation? (Amber N.)
20. Credit card company asks for names of all business major students. List of all students enrolled in Accounting 202? List of all Computer Science majors with GPA of 3.7 or higher? (Heather S.)
21. You would like to begin to submit all your students’ essays to plagiarism detection program – others in your department question whether this violates FERPA? (Iris)
22. Employer calls to request grades of employee who is student – employer is paying tuition. (Natalie Ka)
23. Student asks instructor for employment reference – FERPA issues? Would it matter if it’s in writing? Naming faculty on application form? B’y phone? By Fax? By e-mail? Can you require waiver of ability to review? (Pei-Lin)
24. Student asks for her mid-term exam so she can see what she needs to focus on for the final. Instructor refuses because she re-uses exam questions and doesn’t want copies in circulation. Correct? What if student wants copies of instructor’s notes re: classroom participation?
25. Colleague asks you about performance of student last year in Calculus I – colleague says student is struggling in her Calculus II class. Luckily, you have saved your notes, and provide them. Student now demands to see them – you refuse.
26. Instructor asks counseling services to verify student attended appointment last week.
27. Football coach calls instructors to request mid-term grades of student athletes.
Tuesday, October 09, 2007
Ch. 9: Gathering Info (Study Guide for October 17)
Read Chapter 9: Gathering Information -- Records and Meetings
Write down five (5) questions, with at least one question each being from the four main sections, i.e.,
1. News Gathering and the Law
2. The Freedom of Information Act
3. State Laws on Meetings and Records
4. Laws that Restrict Access to Information
These questions should be ones to which you truly would like an answer and don't yet know the answer. It may be that you would like something explained more fully, or you think something is wrong, etc.
In addition, you will be given a set of cards called "What to do until the lawyer comes." Please take these cards with you and request or find some public information that is by law available to citizens. Please provide a copy of the information and a paragraph explaining how you got the information.
Write down five (5) questions, with at least one question each being from the four main sections, i.e.,
1. News Gathering and the Law
2. The Freedom of Information Act
3. State Laws on Meetings and Records
4. Laws that Restrict Access to Information
These questions should be ones to which you truly would like an answer and don't yet know the answer. It may be that you would like something explained more fully, or you think something is wrong, etc.
In addition, you will be given a set of cards called "What to do until the lawyer comes." Please take these cards with you and request or find some public information that is by law available to citizens. Please provide a copy of the information and a paragraph explaining how you got the information.
Thursday, October 04, 2007
Study Guide for Comm. Law: Due October 10
Please read the following material carefully. Answer as many of the questions as you can. I don't expect you to be able to answer them all. If you would prefer to view this as the original PowerPoint presentation, e-mail me and I'll send it to you. Use your textbook and any other sources you like. Please cite your sources carefully, so we can all find them if we want to. You may do this assignment with a partner or on your own. If you do it with someone else, you both get the same grade. Have fun!
Student Records and Privacy – What Faculty and Staff Need to Know
Kris Kaplan
Assistant General Counsel
Minnesota State Colleges and Universities
Office of the Chancellor
Bemidji State University
January 2005
It’s the Law
The federal Family Educational Rights and Privacy Act (FERPA) and Minnesota Government Data Practices Act (MGDPA) govern how state universities handle data on individually identifiable students, i.e., “education data/records.”
All university employees are responsible to protect the privacy of education records in their possession.
Willful violations may result in institutional liability or individual sanctions.
It’s the Right Thing to Do
Respecting Student Privacy
Demonstrates integrity
Sensitivity to students as individuals and their rights
Instills confidence
What is an Education Record?
Broader than you may think –
All information created, collected, maintained or disseminated by university on individually identifiable student(s)
in any tangible form or media
wherever located.
Examples: enrollment records, (including internships, study abroad), grades, schedules, electronic document or e-mail, class list, financial aid information, application information, photos, notes taken during advising session, discipline, work study records and more . . .
What’s Not an Education Record?
Several exceptions in law:
Sole possession notes of instructor, so long as not shared with anyone other than a substitute instructor, and destroyed at end of term.
Medical treatment records of university health care professionals so long as not shared with others not providing treatment.
Solely personal information or observations not recorded or derived from education record.
Other laws may apply – and always: common sense(itivity).
Education Records are Presumed Private
Private generally means:
Access by student subject (10 days)
Access by “school officials” who have “legitimate educational interest”
Access by third parties if
Signed, written consent of student; or
Other legal authority
Who?
“School officials” include employees, agents of the university, student workers and others who need data to perform assigned university work, i.e., have a “legitimate educational interest.”
Third parties include: parents, union, media, spouses, potential employers, law enforcement, other schools, other students – and “others”.
Directory Data is Public
Directory Data is defined at BSU:
Name; address; e-mail address; phone #
Major and minor fields of study
FT, PT status
Student classification (sophomore, junior, etc.)
Dates of attendance and graduation
Participation in official activities, sports
Degrees, awards, academic recognition and licenses received; associated names of parents
Public data must be released upon request, but procedures are important.
Some Data is Always Private
Directory information NEVER includes:
SSN; Student ID Number
Race, ethnicity, nationality, religion
Gender
GPA
Remember default rule: if not public, is private.
Student Rights
Access to education records on self (unless previously waived)
To seek amendment of inaccurate, incomplete records
To control disclosure, as permitted by law
To file complaint with Department of Education
All university students have same rights regardless of age.
Student Rights to Control Disclosure
May suppress directory data (includes classroom).
Prior notice of compliance with subpoena (usually).
Most disclosures to third parties require signed release that specifies information to be released, to whom, and for what purpose.
Waiver of rights must be voluntary.
Third Party Disclosure Without Student’s Consent
Permitted examples:
Court order
Health, safety emergency (narrow exception)
Other schools where student intends to enroll or is enrolled
USCIS for certain international student information
Military recruiters for certain information
Other . . .
Faculty and Staff Responsibilities
Access/use education records only for legitimate educational purpose; i.e., “need-to-know.” Not curiosity.
Do not release any information from education records (including class schedules) unless
Directory data, not suppressed
Written consent of student
Other legal authority, as determined by designated college personnel
Faculty and Staff Responsibilities (“Tennessen Notice/Warning”)
When collecting private data, inform:
Why collecting – how used;
Who will have access;
Whether legally required to provide;
Consequences of providing or not.
Goal is informed consent – need not be written, but easiest on forms. Don’t forget electronic collection.
Tip: don’t ask for private data (especially SSNs) unless required.
Faculty and Staff Responsibilities
Know campus resources
DPCO: David Carlson
Directory data definition, how to check for suppression (see registrar)
Refer public requests to Communications/Public Affairs
Consult with and follow IT staff policies on privacy, security of electronic data.
www.ogc.mnscu.edu
Privacy Practices
Don’t
Use any portion of SSN or student ID to post grades or other information;
Allow access to graded materials by students other than subject;
Improperly disclose information derived from private education records (including oral disclosures);
Allow public view of student data on computer screen;
Allow family members to use college computer resources;
Disclose class lists or schedules unless authorized;
Download unauthorized software or circumvent other privacy or security measures for electronic resources.
But DO know who to call for help – or refer.
Test Your FERPA IQ
How would you handle the following situations?
Parent comes to business office to pay child’s tuition and wants to know the balance.
Parent asks whether child has been in class since last week.
Parent calls supervisor or student worker and wants to know why she isn’t at work.
Media requests information about former student who just won local election.
What if request is only for “personal opinions” – not grades?
Newspaper requests graduation rate of Hispanic students from St. Paul.
Police officers demand student’s class schedule to serve arrest warrant.
For criminal investigation, law enforcement asks for list of students in Computer Language class. Would it matter if she provided a subpoena?
What if the request came from campus security?
Faculty passes around class list and asks students to provide e-mail address for class communication.
Ok to share with other students?
Ok for instructor to communicate with students by e-mail?
Instructor gives Registrar’s Office list of students in her “Advanced Programming” course and asks for their grades in “Beginning Programming.”
Expanding computer company wants names and addresses of all female computer science majors for their affirmative action recruiting.
Student requests copy of transcript of school from which he transferred last spring.
Student requests review of admissions file, including letters of reference.
Faculty advisor for Spanish Club ask Registrar for names of all students enrolled in Spanish I.
Spanish majors?
Hispanic students?
HS counselor requests grades of PSEO students from his school.
Parent requests grades of 17 year-old son attending as PSEO student.
Staff reports seeing students fighting in hallway. He was interviewed for Conduct Code proceeding and wants to know outcome. What if complainant was student?
May a department share class lists and point out troublesome students to each other?
Faculty requests information from financial aid on students who have defaulted on loans?
Faculty requests list from Registrar of students who are on academic probation?
Credit card company asks for list of names of all business major students.
List of all students enrolled in Accounting 202?
List of all Computer Science majors with GPA of 3.7 or higher?
Student calls over semester break to request grades. E-mail?
Employer calls to request grades of employee who is student – employer is paying tuition.
Student asks instructor for employment reference – FERPA issues?
Would it matter if request is in writing?
Naming faculty on application form?
by phone? By FAX? By e-mail?
Can you require waiver of ability to review?
If your only knowledge about the student comes from extra-curricular activities, is FERPA a concern?
Student asks for her mid-term exam so she can see what she needs to focus on for the final. Instructor refuses because she re-uses exam questions and doesn’t want copies in circulation. Correct?
What if student wants copies of instructor’s notes re: classroom participation?
Colleague asks you about performance of student last year in Calculus I – colleague says student is struggling in her Calculus II class. Luckily, you have saved your notes and provide them to your colleague, since you no longer need them. Student now demands to see them – you refuse.
Instructor asks disability services for medical update on student who seems to be having more difficulty with speech.
Instructor asks counseling services to verify student attended appointment last week (missing mid-term).
Parent needs explanation of health service charge for insurance coverage.
Football coach calls instructors to request mid-term grades of student athletes.
Football coach holds press conference to announce disciplinary action against two well-known players and results of knee surgery on quarterback.
You would like to begin to submit all your students’ essays to a plagiarism detection program – others in your department question whether this violates FERPA?
Responding to Requests for Private Data
“I’m sorry but that information is private under the law. If you would like further information about how to access student information, or to obtain a release form, please contact <>.”
Advanced Issue If student not enrolled or has suppressed: “I have no information on that individual.” Use same response to avoid inadvertent disclosure of student status.
Student Records and Privacy – What Faculty and Staff Need to Know
Kris Kaplan
Assistant General Counsel
Minnesota State Colleges and Universities
Office of the Chancellor
Bemidji State University
January 2005
It’s the Law
The federal Family Educational Rights and Privacy Act (FERPA) and Minnesota Government Data Practices Act (MGDPA) govern how state universities handle data on individually identifiable students, i.e., “education data/records.”
All university employees are responsible to protect the privacy of education records in their possession.
Willful violations may result in institutional liability or individual sanctions.
It’s the Right Thing to Do
Respecting Student Privacy
Demonstrates integrity
Sensitivity to students as individuals and their rights
Instills confidence
What is an Education Record?
Broader than you may think –
All information created, collected, maintained or disseminated by university on individually identifiable student(s)
in any tangible form or media
wherever located.
Examples: enrollment records, (including internships, study abroad), grades, schedules, electronic document or e-mail, class list, financial aid information, application information, photos, notes taken during advising session, discipline, work study records and more . . .
What’s Not an Education Record?
Several exceptions in law:
Sole possession notes of instructor, so long as not shared with anyone other than a substitute instructor, and destroyed at end of term.
Medical treatment records of university health care professionals so long as not shared with others not providing treatment.
Solely personal information or observations not recorded or derived from education record.
Other laws may apply – and always: common sense(itivity).
Education Records are Presumed Private
Private generally means:
Access by student subject (10 days)
Access by “school officials” who have “legitimate educational interest”
Access by third parties if
Signed, written consent of student; or
Other legal authority
Who?
“School officials” include employees, agents of the university, student workers and others who need data to perform assigned university work, i.e., have a “legitimate educational interest.”
Third parties include: parents, union, media, spouses, potential employers, law enforcement, other schools, other students – and “others”.
Directory Data is Public
Directory Data is defined at BSU:
Name; address; e-mail address; phone #
Major and minor fields of study
FT, PT status
Student classification (sophomore, junior, etc.)
Dates of attendance and graduation
Participation in official activities, sports
Degrees, awards, academic recognition and licenses received; associated names of parents
Public data must be released upon request, but procedures are important.
Some Data is Always Private
Directory information NEVER includes:
SSN; Student ID Number
Race, ethnicity, nationality, religion
Gender
GPA
Remember default rule: if not public, is private.
Student Rights
Access to education records on self (unless previously waived)
To seek amendment of inaccurate, incomplete records
To control disclosure, as permitted by law
To file complaint with Department of Education
All university students have same rights regardless of age.
Student Rights to Control Disclosure
May suppress directory data (includes classroom).
Prior notice of compliance with subpoena (usually).
Most disclosures to third parties require signed release that specifies information to be released, to whom, and for what purpose.
Waiver of rights must be voluntary.
Third Party Disclosure Without Student’s Consent
Permitted examples:
Court order
Health, safety emergency (narrow exception)
Other schools where student intends to enroll or is enrolled
USCIS for certain international student information
Military recruiters for certain information
Other . . .
Faculty and Staff Responsibilities
Access/use education records only for legitimate educational purpose; i.e., “need-to-know.” Not curiosity.
Do not release any information from education records (including class schedules) unless
Directory data, not suppressed
Written consent of student
Other legal authority, as determined by designated college personnel
Faculty and Staff Responsibilities (“Tennessen Notice/Warning”)
When collecting private data, inform:
Why collecting – how used;
Who will have access;
Whether legally required to provide;
Consequences of providing or not.
Goal is informed consent – need not be written, but easiest on forms. Don’t forget electronic collection.
Tip: don’t ask for private data (especially SSNs) unless required.
Faculty and Staff Responsibilities
Know campus resources
DPCO: David Carlson
Directory data definition, how to check for suppression (see registrar)
Refer public requests to Communications/Public Affairs
Consult with and follow IT staff policies on privacy, security of electronic data.
www.ogc.mnscu.edu
Privacy Practices
Don’t
Use any portion of SSN or student ID to post grades or other information;
Allow access to graded materials by students other than subject;
Improperly disclose information derived from private education records (including oral disclosures);
Allow public view of student data on computer screen;
Allow family members to use college computer resources;
Disclose class lists or schedules unless authorized;
Download unauthorized software or circumvent other privacy or security measures for electronic resources.
But DO know who to call for help – or refer.
Test Your FERPA IQ
How would you handle the following situations?
Parent comes to business office to pay child’s tuition and wants to know the balance.
Parent asks whether child has been in class since last week.
Parent calls supervisor or student worker and wants to know why she isn’t at work.
Media requests information about former student who just won local election.
What if request is only for “personal opinions” – not grades?
Newspaper requests graduation rate of Hispanic students from St. Paul.
Police officers demand student’s class schedule to serve arrest warrant.
For criminal investigation, law enforcement asks for list of students in Computer Language class. Would it matter if she provided a subpoena?
What if the request came from campus security?
Faculty passes around class list and asks students to provide e-mail address for class communication.
Ok to share with other students?
Ok for instructor to communicate with students by e-mail?
Instructor gives Registrar’s Office list of students in her “Advanced Programming” course and asks for their grades in “Beginning Programming.”
Expanding computer company wants names and addresses of all female computer science majors for their affirmative action recruiting.
Student requests copy of transcript of school from which he transferred last spring.
Student requests review of admissions file, including letters of reference.
Faculty advisor for Spanish Club ask Registrar for names of all students enrolled in Spanish I.
Spanish majors?
Hispanic students?
HS counselor requests grades of PSEO students from his school.
Parent requests grades of 17 year-old son attending as PSEO student.
Staff reports seeing students fighting in hallway. He was interviewed for Conduct Code proceeding and wants to know outcome. What if complainant was student?
May a department share class lists and point out troublesome students to each other?
Faculty requests information from financial aid on students who have defaulted on loans?
Faculty requests list from Registrar of students who are on academic probation?
Credit card company asks for list of names of all business major students.
List of all students enrolled in Accounting 202?
List of all Computer Science majors with GPA of 3.7 or higher?
Student calls over semester break to request grades. E-mail?
Employer calls to request grades of employee who is student – employer is paying tuition.
Student asks instructor for employment reference – FERPA issues?
Would it matter if request is in writing?
Naming faculty on application form?
by phone? By FAX? By e-mail?
Can you require waiver of ability to review?
If your only knowledge about the student comes from extra-curricular activities, is FERPA a concern?
Student asks for her mid-term exam so she can see what she needs to focus on for the final. Instructor refuses because she re-uses exam questions and doesn’t want copies in circulation. Correct?
What if student wants copies of instructor’s notes re: classroom participation?
Colleague asks you about performance of student last year in Calculus I – colleague says student is struggling in her Calculus II class. Luckily, you have saved your notes and provide them to your colleague, since you no longer need them. Student now demands to see them – you refuse.
Instructor asks disability services for medical update on student who seems to be having more difficulty with speech.
Instructor asks counseling services to verify student attended appointment last week (missing mid-term).
Parent needs explanation of health service charge for insurance coverage.
Football coach calls instructors to request mid-term grades of student athletes.
Football coach holds press conference to announce disciplinary action against two well-known players and results of knee surgery on quarterback.
You would like to begin to submit all your students’ essays to a plagiarism detection program – others in your department question whether this violates FERPA?
Responding to Requests for Private Data
“I’m sorry but that information is private under the law. If you would like further information about how to access student information, or to obtain a release form, please contact <>.”
Advanced Issue If student not enrolled or has suppressed: “I have no information on that individual.” Use same response to avoid inadvertent disclosure of student status.
Thursday, September 27, 2007
QUIZ TOPICS FOR 10/3/07
Be prepared for a quiz on the case that will be dramatized next week from the Irons book: Employment Div. v. Smith (#6).
Also, be prepared for questions from the multiple choice quizzes on the textbook Website.
Also, be prepared for questions from the multiple choice quizzes on the textbook Website.
Wednesday, September 26, 2007
STUDY GUIDE FOR CH. 6 -- PRIVACY
DUE October 3 at 6 p.m.
1. What are the four areas of privacy law?
2. Choose one of the four areas and define it. Describe a relevant legal case mentioned in your book.
3. What are the defenses against this one area?
4. Name one significant case in this one area of privacy law. Please give the following information about the case: year, facts of case, disposition (ruling) and main points of the opinion.
5. Discuss briefly whether American courts consider it possible for a well-known person to pass his or her right of publicity on to an heir:
6. What are the circumstances in which written consent may not suffice as a defense in an appropriation case?
1. What are the four areas of privacy law?
2. Choose one of the four areas and define it. Describe a relevant legal case mentioned in your book.
3. What are the defenses against this one area?
4. Name one significant case in this one area of privacy law. Please give the following information about the case: year, facts of case, disposition (ruling) and main points of the opinion.
5. Discuss briefly whether American courts consider it possible for a well-known person to pass his or her right of publicity on to an heir:
6. What are the circumstances in which written consent may not suffice as a defense in an appropriation case?
Wednesday, September 19, 2007
STUDY GUIDE FOR LIBEL CH. 4-6: Due Sept. 24
Study Guide for Libel: Chapters 4-6
Due September 24, 2007 at 6 p.m.
Please type; please cite your source (p. #s); if you use direct quote, put in quote marks; otherwise, I’ll assume it’s your own words; please make sure that’s true!
Write the correct terminology for the definitions below.
1. Someone who has thrust him or herself to the forefront of particular public controversies.
2. Can a statement be proven true or false? What is the common or ordinary meaning of the words? What is the journalistic context of the remark? What is the social context of the remark?
3. A plaintiff who needs to prove only negligence to win a libel suit.
4. The publication or broadcast of a statement that injures someone’s reputation.
5. A case that’s very difficult to win, especially if it involves many people.
6. A person elected to a government position and some government employees.
7. Abolished the crime of seditious libel and established the standard of “actual malice.”
8. Protect speech in legislative, judicial forums and in administrative and executive branches of government.
9. Protects reporters in the accurate and disinterested reporting of serious charges made in situations of privileged communication.
10. Includes a number of defenses, including one for rhetorical hyperbole and one for fair comment and criticism.
11. Both an apology and an attempt to set the record straight.
12. Criticism of the government.
13. Hears complaints against the media and issues decisions, but has no legal power.
14. Someone who has general notoriety within the area in which a libel is circulated.
15. Publication, identification, defamation, falsity and fault.
16. Proof of knowledge of falsity or proof of reckless disregard for the truth.
17. Failure to exercise reasonable care in preparing and publishing defamatory material.
18. Between actual malice and simple negligence.
19. A common-law defense that protects the publication of statements of opinion.
20. Oral defamation.
21. Grants the right to report what happens at an official governmental proceeding or transmit the substance of an official governmental report and be immune from libel.
22. Any communication that hold a person up to contempt, hatred, ridicule or scorn.
23. Speech protected from libel suits in order to promote “robust debate” in public discourse.
Due September 24, 2007 at 6 p.m.
Please type; please cite your source (p. #s); if you use direct quote, put in quote marks; otherwise, I’ll assume it’s your own words; please make sure that’s true!
Write the correct terminology for the definitions below.
1. Someone who has thrust him or herself to the forefront of particular public controversies.
2. Can a statement be proven true or false? What is the common or ordinary meaning of the words? What is the journalistic context of the remark? What is the social context of the remark?
3. A plaintiff who needs to prove only negligence to win a libel suit.
4. The publication or broadcast of a statement that injures someone’s reputation.
5. A case that’s very difficult to win, especially if it involves many people.
6. A person elected to a government position and some government employees.
7. Abolished the crime of seditious libel and established the standard of “actual malice.”
8. Protect speech in legislative, judicial forums and in administrative and executive branches of government.
9. Protects reporters in the accurate and disinterested reporting of serious charges made in situations of privileged communication.
10. Includes a number of defenses, including one for rhetorical hyperbole and one for fair comment and criticism.
11. Both an apology and an attempt to set the record straight.
12. Criticism of the government.
13. Hears complaints against the media and issues decisions, but has no legal power.
14. Someone who has general notoriety within the area in which a libel is circulated.
15. Publication, identification, defamation, falsity and fault.
16. Proof of knowledge of falsity or proof of reckless disregard for the truth.
17. Failure to exercise reasonable care in preparing and publishing defamatory material.
18. Between actual malice and simple negligence.
19. A common-law defense that protects the publication of statements of opinion.
20. Oral defamation.
21. Grants the right to report what happens at an official governmental proceeding or transmit the substance of an official governmental report and be immune from libel.
22. Any communication that hold a person up to contempt, hatred, ridicule or scorn.
23. Speech protected from libel suits in order to promote “robust debate” in public discourse.
Sunday, September 16, 2007
Study Guide for Chapter 4
There is no study guide for Chapter 4. BE PREPARED FOR A SHORT QUIZ ON THAT CHAPTER IN CLASS. One way to prepare for it is to review the study guide and quiz questions on the textbook Website.
Wednesday, September 12, 2007
STUDY GUIDE FOR CH. 5: Due at 6 p.m., Sept. 19
STUDY GUIDE FOR CH. 5: Communication Law Fall ‘07
Due 9/19/07
1. Explain the difference between a public and a private person for purposes of libel law.
2. Describe the differences between the following:
a. Public Official
b. Limited-Purpose Public Figure
c. All-Purpose Public Figure
3. Explain the difference between negligence and actual malice in libel law. Give at least one example from cases described in your textbook.
4. What was the New York Times vs. Sullivan case and why is it considered one of the most important First Amendment cases in American history?
Due 9/19/07
1. Explain the difference between a public and a private person for purposes of libel law.
2. Describe the differences between the following:
a. Public Official
b. Limited-Purpose Public Figure
c. All-Purpose Public Figure
3. Explain the difference between negligence and actual malice in libel law. Give at least one example from cases described in your textbook.
4. What was the New York Times vs. Sullivan case and why is it considered one of the most important First Amendment cases in American history?
Wednesday, September 05, 2007
Chapter 3 Study Guide: Due Wed., Sept. 12, 6 p.m.
STUDY GUIDE FOR COMMUNICATION LAW Fall 07, Ch. 3
“Contemporary Problems”
NOTE: PLEASE TYPE -- DO NOT HANDWRITE. Thank you.
The following is a list of some of the contemporary free speech issues discussed in your book.
1. Student free speech rights: k-12 schools and colleges, including student media and book banning
2. Time, place and manner restrictions for demonstrations, soliciting, etc.
3. The war on terrorism
4. Election campaigns
5. Prior restraint
6. Hate speech and fighting words
Choose any two from the list and write 400-500 words on each issue, addressing the following:
What, exactly, are the special, specific and, possibly, new contemporary First Amendment concerns about this topic? What kinds of decisions have the courts had to make about this issue recently? Have First Amendment rights in this area expanded in recent years or been more curtailed? Please explain your answer. Which of the cases mentioned do you find the most interesting? Why?
If you copy any portion of your answer directly from the book, please use quote marks and clearly note which page(s) you are quoting from. I expect most of this to be in your own words, not the book’s. You are welcome to consult other sources, including people.
“Contemporary Problems”
NOTE: PLEASE TYPE -- DO NOT HANDWRITE. Thank you.
The following is a list of some of the contemporary free speech issues discussed in your book.
1. Student free speech rights: k-12 schools and colleges, including student media and book banning
2. Time, place and manner restrictions for demonstrations, soliciting, etc.
3. The war on terrorism
4. Election campaigns
5. Prior restraint
6. Hate speech and fighting words
Choose any two from the list and write 400-500 words on each issue, addressing the following:
What, exactly, are the special, specific and, possibly, new contemporary First Amendment concerns about this topic? What kinds of decisions have the courts had to make about this issue recently? Have First Amendment rights in this area expanded in recent years or been more curtailed? Please explain your answer. Which of the cases mentioned do you find the most interesting? Why?
If you copy any portion of your answer directly from the book, please use quote marks and clearly note which page(s) you are quoting from. I expect most of this to be in your own words, not the book’s. You are welcome to consult other sources, including people.
Thursday, August 30, 2007
STUDY GUIDE FOR CH. 1-2: DUE WEDNESDAY, SEPT. 5
Communication Law Fall 2007 Study Guide: Ch. 1 & 2
Define the following terms:
1. Common Law 4. Administrative Rules 7. Prior Restraint
2. Statutory Law 5. Appellate Court 8. Seditious Libel
3. Constitutional Law 6.Supreme Court 9. Pentagon Papers
10. What are the five First Amendment theories mentioned in your book? Briefly define each one? Which one is considered the best at this point in time? Why?
11. When did seditious libel first become a major issue for the courts? Why? Why was the Pentagon Papers case NOT seen as a major victory in the battle to put an end to the crime of seditious libel?
12. See the Brandenburg Test (page 61): “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.” How does the use of this test by the courts protect media from wrongful death, negligence and product liability lawsuits? Do you think this is a good test? Why or why not?
13. What is the 14th Amendment? How is it tied to the First Amendment?
Define the following terms:
1. Common Law 4. Administrative Rules 7. Prior Restraint
2. Statutory Law 5. Appellate Court 8. Seditious Libel
3. Constitutional Law 6.Supreme Court 9. Pentagon Papers
10. What are the five First Amendment theories mentioned in your book? Briefly define each one? Which one is considered the best at this point in time? Why?
11. When did seditious libel first become a major issue for the courts? Why? Why was the Pentagon Papers case NOT seen as a major victory in the battle to put an end to the crime of seditious libel?
12. See the Brandenburg Test (page 61): “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.” How does the use of this test by the courts protect media from wrongful death, negligence and product liability lawsuits? Do you think this is a good test? Why or why not?
13. What is the 14th Amendment? How is it tied to the First Amendment?
Wednesday, August 29, 2007
SYLLABUS for MASC 3880: Communication Law F '07
Syllabus for MASC 3880: Communication Law
Fall 2007, W 6:00-8:50, Bg 119
Instructor: Louise Mengelkoch
LMengelkoch@bemidjistate.edu
Phone: 755-3358
Office: Bg 214
Office hours: Wednesdays 10-2 (and by appointment)
“Freedom of expression’s importance in self-development, in human interactions, and in relationships between governments and their citizens makes free speech not just an interesting topic, but one that is crucial to people’s lives.”
Robert Trager and Donna L. Dickerson
Freedom of Expression in the 21st Century
Only journalists and other communicators possessing some knowledge of mass communication law can thoughtfully assert their rights and avoid needless infractions of the law. This course is designed to make journalists and other mass communicators expert in recognizing their legal rights to gather, prepare and disseminate news and public information, and to suggest guidelines for avoiding legal problems. It is also important that as a reporter, advertising executive, or public relations practitioner, you know how to retrieve state and federal cases and statutes.
Required textbooks:
*Mass Media Law 2007-2008 ed., by Don R. Pember, McGraw-Hill, 2007.
*May it Please the Court: The First Amendment, edited by Peter Irons, The New Press, 1997.
*Minnesota Rag: Corruption, Yellow Journalism and the Case That Saved Freedom of the Press, by Fred W. Friendly, University of Minnesota Press, 2003.
Assignments:
*Each week you will complete a study guide for the assigned chapter in our textbook. That is due at the beginning of class. You may also be given a quiz on the same materials in class.
*You will make a 10-minute dramatization of a Supreme Court transcript from the Irons book. This will be a group project (2-4 people). You will sign up for a case and a date during week 1.
*You will complete a study guide on the Friendly book. You may also be given a quiz on the book in class.
Grading:
Study Guides: 70 points
Irons book dramatization: 10 points
Friendly book study guide: 10 points
Final: 10 points
Note: There may be opportunities for extra credit, which I will announce in class as they become available. You may receive no more than 5 point of extra credit for the semester.
90-100 points = A
80-89 points = B
70-79 points = C
60-69 points = D
Fewer than 60 points = F
Topics to be covered and readings:
Week 1 (8/29) Introduction and Ch. 1: The American Legal System
Week 2 (9/5) Ch. 2-3: The First Amendment
Case 1: Abington School Distr. v. Schempp
Case 15: Tinker v. Des Moines
Week 3 (9/12) Ch. 4: Libel (Establishing a case)
Case 11: NY Times v. Sullivan
Week 4 (9/19) Ch. 5: Libel (Fault)
Case 2: County of Allegheny v. ACLU
Week 5 (9/26) Ch. 6: Libel (Defenses & damages)
Case 5: Cohen v. California
Week 6 (10/3) Ch. 7: Invasion of Privacy: Appropriation & Intrusion
Case 6: Employment Division v. Smith
Week 7 (10/10) Ch. 8: Invasion of Privacy: Private info and false light
Case 7: Hazelwood School District v. Kuhlmeier
Week 8 (10/17) Ch. 9: Gathering Information
Case 12: NY Times v. U.S.
Week 9 (10/24) Ch. 10: Protection of Sources
Case 4: Branzburg v. Hayes
Week 10 (10/31) Ch. 11 & 12: Free Press/Fair Trial
Case 9: Hurley v. Irish American Gay, Lesbian. . .etc.
Week 11 (11/7) Ch. 13: Obscenity
Cases 3 and/or 10
Week 12 (11/14) Ch. 14: Copyright
Case 8: Hustler Magazine v. Falwell
Week 13 (11/21) Ch. 15: Advertising
Case 13: R.A.V. v. City of St. Paul, Minnesota
Week 14 (11/28) Ch. 16: Telecommunications
Case 14: Texas v. Johnson
Week 15 (12/5) Minnesota Rag study guide due
Final exam: Tuesday, December 18 at 6:00 p.m. Please mark this date on your calendar. You MUST attend and take the final exam. In making your travel plans for semester break, please schedule around this commitment. I reserve the right to assign a failing grade for the course if you do not take the final exam.
Fall 2007, W 6:00-8:50, Bg 119
Instructor: Louise Mengelkoch
LMengelkoch@bemidjistate.edu
Phone: 755-3358
Office: Bg 214
Office hours: Wednesdays 10-2 (and by appointment)
“Freedom of expression’s importance in self-development, in human interactions, and in relationships between governments and their citizens makes free speech not just an interesting topic, but one that is crucial to people’s lives.”
Robert Trager and Donna L. Dickerson
Freedom of Expression in the 21st Century
Only journalists and other communicators possessing some knowledge of mass communication law can thoughtfully assert their rights and avoid needless infractions of the law. This course is designed to make journalists and other mass communicators expert in recognizing their legal rights to gather, prepare and disseminate news and public information, and to suggest guidelines for avoiding legal problems. It is also important that as a reporter, advertising executive, or public relations practitioner, you know how to retrieve state and federal cases and statutes.
Required textbooks:
*Mass Media Law 2007-2008 ed., by Don R. Pember, McGraw-Hill, 2007.
*May it Please the Court: The First Amendment, edited by Peter Irons, The New Press, 1997.
*Minnesota Rag: Corruption, Yellow Journalism and the Case That Saved Freedom of the Press, by Fred W. Friendly, University of Minnesota Press, 2003.
Assignments:
*Each week you will complete a study guide for the assigned chapter in our textbook. That is due at the beginning of class. You may also be given a quiz on the same materials in class.
*You will make a 10-minute dramatization of a Supreme Court transcript from the Irons book. This will be a group project (2-4 people). You will sign up for a case and a date during week 1.
*You will complete a study guide on the Friendly book. You may also be given a quiz on the book in class.
Grading:
Study Guides: 70 points
Irons book dramatization: 10 points
Friendly book study guide: 10 points
Final: 10 points
Note: There may be opportunities for extra credit, which I will announce in class as they become available. You may receive no more than 5 point of extra credit for the semester.
90-100 points = A
80-89 points = B
70-79 points = C
60-69 points = D
Fewer than 60 points = F
Topics to be covered and readings:
Week 1 (8/29) Introduction and Ch. 1: The American Legal System
Week 2 (9/5) Ch. 2-3: The First Amendment
Case 1: Abington School Distr. v. Schempp
Case 15: Tinker v. Des Moines
Week 3 (9/12) Ch. 4: Libel (Establishing a case)
Case 11: NY Times v. Sullivan
Week 4 (9/19) Ch. 5: Libel (Fault)
Case 2: County of Allegheny v. ACLU
Week 5 (9/26) Ch. 6: Libel (Defenses & damages)
Case 5: Cohen v. California
Week 6 (10/3) Ch. 7: Invasion of Privacy: Appropriation & Intrusion
Case 6: Employment Division v. Smith
Week 7 (10/10) Ch. 8: Invasion of Privacy: Private info and false light
Case 7: Hazelwood School District v. Kuhlmeier
Week 8 (10/17) Ch. 9: Gathering Information
Case 12: NY Times v. U.S.
Week 9 (10/24) Ch. 10: Protection of Sources
Case 4: Branzburg v. Hayes
Week 10 (10/31) Ch. 11 & 12: Free Press/Fair Trial
Case 9: Hurley v. Irish American Gay, Lesbian. . .etc.
Week 11 (11/7) Ch. 13: Obscenity
Cases 3 and/or 10
Week 12 (11/14) Ch. 14: Copyright
Case 8: Hustler Magazine v. Falwell
Week 13 (11/21) Ch. 15: Advertising
Case 13: R.A.V. v. City of St. Paul, Minnesota
Week 14 (11/28) Ch. 16: Telecommunications
Case 14: Texas v. Johnson
Week 15 (12/5) Minnesota Rag study guide due
Final exam: Tuesday, December 18 at 6:00 p.m. Please mark this date on your calendar. You MUST attend and take the final exam. In making your travel plans for semester break, please schedule around this commitment. I reserve the right to assign a failing grade for the course if you do not take the final exam.
Tuesday, November 28, 2006
Study Guide for Ch. 13-16
Study Guide for Ch. 13: Obscenity
1. Give a brief description of the historical efforts and different measures used to combat obscenity.
2. Explain the three prongs of the Miller test and how they are applied to pornography.
3. Explain what is meant by variable obscenity statutes.
4. Briefly describe laws applying to the creation, possession, and distribution of child pornography.
5. How does the First Amendment protect the rights of adults to receive certain degrees of pornography and erotica?
6. What are the purposes and limitations of the local zoning ordinances used to combat pornography?
7. Briefly describe the challenges surrounding legal efforts to regulate sexually explicit material in cyberspace.
Study Guide for Ch. 14: Copyright
1. Briefly descibe the history and purposes of copyright law.
2. Compare and contrast copyrights from trademarks, patents, and plagiarism.
3. What can be copyright protected?
4. What are the exclusive rights of a copyright owner?
5. What are the four prongs of the fair use defense?
6. Briefly describe how copyright law applies to digital technology and peer-to-peer environments like the Internet.
7. Briefly describe the legal limits of online file sharing and what actions may constitute copyright infringement.
8. What are the steps necessary to demonstrate copyright infringement?
Study Guide for Ch. 15: Advertising
1. How and when does the First Amendment protects advertising?
2. What are the main legal components of the commercial speech doctrine?
3. What is the Lanham Act and how does it allow parties to seek damages for false advertising?
4. What are the three parts of the false advertising test?
5. What is the Federal Trade Commission (FTC) and how does it regulate advertising?
5. Describe the range of remedies the FTC will use to regulate false advertising.
6. What are some of the legal aspects of false advertising, including testimonials and bait-and-switch techniques?
Study Guide for Ch. 16: Telecommunications
1. Describe the foundations of broadcast regulations, including public interest, convenience, and necessity requirements.
2. Describe the deregulatory trend within broadcast and cable television, including the revised media ownership rules.
3.What is the role of the Federal Communications Commission and how does it regulate broadcasting and cable television?
4. What are some of the content regulations that apply to both broadcasters and cable television operators?
5. Describe the FCC's regulation and definition of indecent material.
6. What is the role of the First Amendment as applied to both broadcast and cable television?
1. Give a brief description of the historical efforts and different measures used to combat obscenity.
2. Explain the three prongs of the Miller test and how they are applied to pornography.
3. Explain what is meant by variable obscenity statutes.
4. Briefly describe laws applying to the creation, possession, and distribution of child pornography.
5. How does the First Amendment protect the rights of adults to receive certain degrees of pornography and erotica?
6. What are the purposes and limitations of the local zoning ordinances used to combat pornography?
7. Briefly describe the challenges surrounding legal efforts to regulate sexually explicit material in cyberspace.
Study Guide for Ch. 14: Copyright
1. Briefly descibe the history and purposes of copyright law.
2. Compare and contrast copyrights from trademarks, patents, and plagiarism.
3. What can be copyright protected?
4. What are the exclusive rights of a copyright owner?
5. What are the four prongs of the fair use defense?
6. Briefly describe how copyright law applies to digital technology and peer-to-peer environments like the Internet.
7. Briefly describe the legal limits of online file sharing and what actions may constitute copyright infringement.
8. What are the steps necessary to demonstrate copyright infringement?
Study Guide for Ch. 15: Advertising
1. How and when does the First Amendment protects advertising?
2. What are the main legal components of the commercial speech doctrine?
3. What is the Lanham Act and how does it allow parties to seek damages for false advertising?
4. What are the three parts of the false advertising test?
5. What is the Federal Trade Commission (FTC) and how does it regulate advertising?
5. Describe the range of remedies the FTC will use to regulate false advertising.
6. What are some of the legal aspects of false advertising, including testimonials and bait-and-switch techniques?
Study Guide for Ch. 16: Telecommunications
1. Describe the foundations of broadcast regulations, including public interest, convenience, and necessity requirements.
2. Describe the deregulatory trend within broadcast and cable television, including the revised media ownership rules.
3.What is the role of the Federal Communications Commission and how does it regulate broadcasting and cable television?
4. What are some of the content regulations that apply to both broadcasters and cable television operators?
5. Describe the FCC's regulation and definition of indecent material.
6. What is the role of the First Amendment as applied to both broadcast and cable television?
Saturday, September 02, 2006
Comm. Law: Day One
Communication Law
A few contemporary problems
Who’s right? You decide!
Mass Media Law, ‘05/’06 By Don Pember,Preface
A lot has changed since 1st edition in 1978
Major issues then:
Development of libel law
Newsgathering rights, protecting sources
Major Issues Now
Laws targeting video games and minors
Infotainment industry (paparazzi, privacy, etc.)
Access to government information
Reporters and confidential sources
Music file-sharing
Celebrities protecting their images
Election campaign funding
Press coverage of war
Military tribunals and deportation hearings
Questions relating to the Internet
Other, non-governmental censorship
New York Times Reporter Jailed for Contempt 7/7/05
WASHINGTON -- Judith Miller, a reporter for The New York Times, was sent to jail yesterday for refusing to reveal the name of a confidential source to a grand jury probing the Bush administration's leak of an undercover CIA operative's name.
Elk Grove School District v. Newdow (2004)
An atheist doctor/lawyer/reverend in California sues his second-grade daughter’s school district for what is sometimes called “forced speech” for mandatory pledge of allegiance recitations in all classes.
FEC v. Beaumont (2003)
2002: Congress passed the most comprehensive campaign reform legislation since the mid-1970s, the Bipartisan Campaign Finance Reform Act. (p. 124)
So-called “soft money” cannot be accepted by political parties
interest groups cannot use soft money for electioneering communications
contribution limits to candidates from individuals was raised.
Are these unacceptable limits on free speech? Can speech be bought and sold?
Cohen v. California (1971)
A young man wears a jacket inside the courthouse. On the back of the jacket are the words “Fuck the Draft.” He is arrested for disturbing the peace and offensive conduct.
Alexander v. Minneapolis (1991)
A Minneapolis ordinance was designed to force adult bookstores and theaters into the city’s central business district. It was a small area with high real estate value. Ferris Alexander sued the city, claiming that having so few options for his businesses deprived him of his First Amendment rights.
Tinker v. Des Moines School District (1969)
Mary Beth Tinker, age 13, and her friend wear black armbands with peace signs to school. The next day, Mary Beth’s brother wears a similar armband to school. They are suspended. Mary Beth sues the school district, saying her free speech rights were abridged.
Studelska v. Bemidji State University (1991)
The editor of BSU’s Northern Student requests crime reports from campus security. All the reports she receives have been heavily edited. The reason given is for student privacy. Such information is “educational data,” say administrators. The editor sues the university for denying her First Amendment right to have access to public data.
Steele v. City of Bemidji (1998) (The Northern Herald)
An alternative newspaper publisher is told he cannot distribute his newspaper near the Paul Bunyan Mall because he is standing on MnDOT property. He also cannot distribute near the Post Office because he’s obstructing traffic. He sues the City of Bemidji for $600,000,000,000 (that’s billion!).
Abington School Distr. v. Schempp (1963)
The PA legislature voted in 1959 that “ten verses from the Holy Bible shall be read” every day in each public school. Students could be excused on a written request from their parents. In Abington Sr. High, the Bible reading was followed by the Lord’s Prayer. Roger and Donna Schempp (students) were Unitarians, a church which rejected the Trinity. They sued the school district for the establishment of a religious belief.
Barnes v. Glen Theatre, Inc. (1991)
Darlene Miller was a “go-go” dancer at the Kitty Kat Lounge in South Bend, Indiana, and Gayle Sutro danced in a coin-operated booth at the nearby Chippewa Bookstore. Both women were forced by Indiana’s “public indecency” law to wear “pasties” and “G-strings.” They felt that shedding their skimpy costumes and dancing nude would encourage patrons to spend more on drinks and tips. They sued, saying Indiana law infringed on their freedom to express an erotic message.
Hazelwood School Distr. v. Kuhlmeier (1988)
The editors of the Spectrum, the newspaper of Hazelwood High School in St. Louis, submitted two articles to their journalism teacher. They were about divorce and teen pregnancy. The principal ordered the teacher to pull the articles. The editors sued for infringing on their First Amendment rights.
New York Times Co. v. Sullivan (1964)
In 1960, the New York Times published a full-page ad soliciting funds to pay legal expenses of civil rights protesters in the South. The police commissioner of Montgomery Alabama, sued for libel because of minor factual errors in the ad about actions of his and other law enforcement officials.
R.A.V. v. City of St. Paul (1992)
Russell and Laura Jones awoke early one morning to find a cross burning in their front yard. The Jones family was black and had moved into a mostly white neighborhood. The perpetrators were arrested and charged under St. Paul’s “hate crimes” ordinance. One of them sued, challenging the law as a content-based violation of the First Amendment.
A few contemporary problems
Who’s right? You decide!
Mass Media Law, ‘05/’06 By Don Pember,Preface
A lot has changed since 1st edition in 1978
Major issues then:
Development of libel law
Newsgathering rights, protecting sources
Major Issues Now
Laws targeting video games and minors
Infotainment industry (paparazzi, privacy, etc.)
Access to government information
Reporters and confidential sources
Music file-sharing
Celebrities protecting their images
Election campaign funding
Press coverage of war
Military tribunals and deportation hearings
Questions relating to the Internet
Other, non-governmental censorship
New York Times Reporter Jailed for Contempt 7/7/05
WASHINGTON -- Judith Miller, a reporter for The New York Times, was sent to jail yesterday for refusing to reveal the name of a confidential source to a grand jury probing the Bush administration's leak of an undercover CIA operative's name.
Elk Grove School District v. Newdow (2004)
An atheist doctor/lawyer/reverend in California sues his second-grade daughter’s school district for what is sometimes called “forced speech” for mandatory pledge of allegiance recitations in all classes.
FEC v. Beaumont (2003)
2002: Congress passed the most comprehensive campaign reform legislation since the mid-1970s, the Bipartisan Campaign Finance Reform Act. (p. 124)
So-called “soft money” cannot be accepted by political parties
interest groups cannot use soft money for electioneering communications
contribution limits to candidates from individuals was raised.
Are these unacceptable limits on free speech? Can speech be bought and sold?
Cohen v. California (1971)
A young man wears a jacket inside the courthouse. On the back of the jacket are the words “Fuck the Draft.” He is arrested for disturbing the peace and offensive conduct.
Alexander v. Minneapolis (1991)
A Minneapolis ordinance was designed to force adult bookstores and theaters into the city’s central business district. It was a small area with high real estate value. Ferris Alexander sued the city, claiming that having so few options for his businesses deprived him of his First Amendment rights.
Tinker v. Des Moines School District (1969)
Mary Beth Tinker, age 13, and her friend wear black armbands with peace signs to school. The next day, Mary Beth’s brother wears a similar armband to school. They are suspended. Mary Beth sues the school district, saying her free speech rights were abridged.
Studelska v. Bemidji State University (1991)
The editor of BSU’s Northern Student requests crime reports from campus security. All the reports she receives have been heavily edited. The reason given is for student privacy. Such information is “educational data,” say administrators. The editor sues the university for denying her First Amendment right to have access to public data.
Steele v. City of Bemidji (1998) (The Northern Herald)
An alternative newspaper publisher is told he cannot distribute his newspaper near the Paul Bunyan Mall because he is standing on MnDOT property. He also cannot distribute near the Post Office because he’s obstructing traffic. He sues the City of Bemidji for $600,000,000,000 (that’s billion!).
Abington School Distr. v. Schempp (1963)
The PA legislature voted in 1959 that “ten verses from the Holy Bible shall be read” every day in each public school. Students could be excused on a written request from their parents. In Abington Sr. High, the Bible reading was followed by the Lord’s Prayer. Roger and Donna Schempp (students) were Unitarians, a church which rejected the Trinity. They sued the school district for the establishment of a religious belief.
Barnes v. Glen Theatre, Inc. (1991)
Darlene Miller was a “go-go” dancer at the Kitty Kat Lounge in South Bend, Indiana, and Gayle Sutro danced in a coin-operated booth at the nearby Chippewa Bookstore. Both women were forced by Indiana’s “public indecency” law to wear “pasties” and “G-strings.” They felt that shedding their skimpy costumes and dancing nude would encourage patrons to spend more on drinks and tips. They sued, saying Indiana law infringed on their freedom to express an erotic message.
Hazelwood School Distr. v. Kuhlmeier (1988)
The editors of the Spectrum, the newspaper of Hazelwood High School in St. Louis, submitted two articles to their journalism teacher. They were about divorce and teen pregnancy. The principal ordered the teacher to pull the articles. The editors sued for infringing on their First Amendment rights.
New York Times Co. v. Sullivan (1964)
In 1960, the New York Times published a full-page ad soliciting funds to pay legal expenses of civil rights protesters in the South. The police commissioner of Montgomery Alabama, sued for libel because of minor factual errors in the ad about actions of his and other law enforcement officials.
R.A.V. v. City of St. Paul (1992)
Russell and Laura Jones awoke early one morning to find a cross burning in their front yard. The Jones family was black and had moved into a mostly white neighborhood. The perpetrators were arrested and charged under St. Paul’s “hate crimes” ordinance. One of them sued, challenging the law as a content-based violation of the First Amendment.
Textbook Ch. 2-3
Media Law: Framework for discussion
Historical Developments: Ch. 2
Contemporary Problems: Ch. 3
History Pre- WWI: Not much!
Licensing, prior restraint, bonds & seditious libel
1735: John Peter Zenger acquitted -- hurray!
But not much tolerance for Patriots and no precedent
1791: First Amendment part of Bill of Rights
1798: Alien & Sedition Acts
Ink barely dry before Free Speech attacked
Expires gracefully in 1801 but idea lives on
Patriot Act?
Censorship rears its ugly head during 19th c.
Abolitionist period, Civil War
Labor unionists, birth control advocates, anarchists
Post-WWI : Mostly Gains
1917: Espionage Act (aimed at war dissenters)
1918: Sedition Act (don’t obstruct draft)
1919: “Clear & Present Danger” Test (Schenck)
Justice Oliver Wendell Holmes
1927: Sedition Test (Whitney v. California)
1940: Smith Act adopted
1951: Smith Act ruled unconstitutional
Dennis v. U.S.
1957: Scope of Smith Act narrowed
1969: Brandenburg v. Ohio (tough sedition test)
Significant Sedition Cases
1925: Gitlow v. N.Y. (due process)
1936: Grosjean v. American Press Co.
No discriminatory taxes on press by Huey Long
Also Mpls Star v. MN Comm. Of Revenue (1983)
1931: Near v. Minn. (prior restraint)
1971: NYT v. U.S. and U.S. v. Wash. Post
Medium blow to prior restraint (heavy burden)
1979: U.S. v. Progressive (how to make a bomb)
1996: Rice v. Paladin Enterprises, Inc.
Mass Media not responsible for violence (59)
2002: Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (p. 60)
Contemporary problems: War
Vietnam War free press: Aberration
Grenada, Panama, Balkans very controlled
Press Pools: Gulf War Ghetto
1991: Nation Magazine v. U.S. DOD
(Most censorship EVER during wartime)
1993: JB Pictures, Inc. v. Defense Dept.
What never went to court?
Shortly after 9/11 attacks, U.S. Government requested that TV broadcasters not show tapes of Osama bin Laden making certain statements. Broadcasters complied.
Case Study: Kobe Bryant (p. 80-84)
Criminal sexual assault case against Bryant in 2004:
What was significant about it in regard to First Amendment law? What was the final outcome? What was the legal reasoning?
Kobe Kwiz
What is prior restraint?
What does it have to do with the Kobe Bryant sexual assault case?
What decision(s) did the courts make in the matter?
What two conflicting constitutional rights are involved in this case?
Do the news media think these were good decisions? Why or why not?
Contemporary Problems: Ch. 3
Schools and censorship
War
Time, place and manner restrictions
Hate Speech and heckler’s veto (p. 40)
Immigrants and resident aliens
Internet
Wartime reporting: Mixed record
Censorship accepted until Vietnam War
War “snuck up” on us so restrictions not in place from the beginning; cat out of the bag
Government used propaganda to undermine what reporters said; lies were told
Grenada (1983): pool reporters only
Panama (1989): “We missed the war”
Gulf War (1990): 800 reporters, but short leash
Also, the news media did not complain
Dover AFB off-limits (1993)
The war on terror: litmus tests
2003: Flynt v. Rumsfeld (Why Larry Flynt?!)
No right of access to U.S. ground troops
DOD announces that gov’t employees who leak classified info to the press can be prosecuted
Bodies cannot be viewed at Dover AFB
Embedded journalists ok but “blackballing” existed; sanitized; narrow; 16 Non-embedded died; Heavy “spin” put on press releases
See p. 87 for more on embedding problems
Reasons given for gov’t censorship during wartime
1. To deny the enemy information that might be helpful in prosecuting the war;
2. To try to protect the security of the nations’ fighting forces; and
3. To sustain the morale of the people.
PROBLEM: Censorship is too often used to shield serious military blunders or questionable policies.
Do students have free speech rights?
High schools are different from universities
1969: Tinker v. Des Moines School District
Anti-war armbands
1988: Hazelwood Sch. Distr. v. Kuhlmeier
Frank discussions in HS newspapers
1967: Dickey v. AL State Board of Education
College newspapers’ right to autonomy
1997: Kincaid v. Gibson
College yearbooks can be confiscated
Interesting new student rights case in your new edition
2003: Barber v. Dearborn Public Schools (p. 102)
You CAN wear a t-shirt proclaiming Pres. Bush to be an “international terrorist” to school
Censorship guidelines for high school media
Public or private school? Few rights at private schools or universities
School sponsored?
Unsupervised extra-curricular activity?
Produced and distributed off-campus with no campus assistance?
What about Internet? (see p. 111)
Reasons given for censoring college & university media
1. Disruption of the school, including anything that interferes with the image the school wishes to project
2. Protection of students from offensive speech, especially racist speech or that insensitive to ethnic minorities
3. Ensuring that the ideas or views in publications are not attributed to the school itself
Creative ways administrators punish student media
Reduce or eliminate financial support
1983: Stanley v. McGrath
Pull publications from racks
Fire newspaper staff
Close files, especially police reports
1991: Student Press Law Center v. Alexander
Acceptable criteria: p. 94
Acceptable criteria to use when censoring HS media
Stories or photos that substantially interfere with the requirements of appropriate school discipline
Material that interferes with the rights of students
Material that fails to meet standards of academic propriety
Material that generates health and welfare concerns
Matters that are obscene, indecent or vulgar
Creative logic used when controlling student media
To “protect” students from racist or any other “offensive” language
To protect university’s image
Crime statistics are educational data
To protect students from alcoholism & sex
To minimize “disruption” of education
To distance school from ideas or beliefs
What about university media?
Hosty v. Carter (2003)
The Innovator (campus newspaper in Illinois) needed to be approved by administrators
Why? Maybe because they had previously published articles critical of faculty members?
Opinion: “Hazelwood’s rationale for limiting the First Amendment rights of high school journalism students is not a good fit for students at colleges or universities.”
Guidelines for college media
The more involved administrators are in publication, the more liable they are
Pulling funding is identical to censorship
There is no such thing as an “independent” college newspaper
Media boards should NOT be run by administrators
Adviser should advise, not dictate
Book banning in schools Most common reasons given
1. Sexual content
2. Offensive language
3. Unsuited to age group
4. Occult/satanism
5. Violence
6. Homosexuality
7. Promoting religion
8. Nudity
9. Racism
10. Sex education
11. Anti-family
A few commonly banned books
Several Judy Blume books
Oliver Twist
The Grapes of Wrath
The Harry Potter series
Catching Alice
Goosebumps series
Roll of Thunder, Hear My Cry
Julie of the Wolves
The Chocolate War
The Diary of Anne Frank
Catch-22
Where the Sidewalk Ends
Only one S. Ct. Ruling on Book Banning -- Local rule rules
Pico v. Island Trees (1979) (5-4 ruling)
Books can be banned for being “persuasively vulgar” or “educationally unsuitable” but not because the school board disapproves of the political ideas or philosophies expressed in the books.
Court failed to provide clear guidance
A local attempt at book banning
Plainsong, by Kent Haruf, 1999
National Book Award Finalist
“So foursquare, so delicate and lovely. . .it has the power to exalt the reader.”
NY Times Book Review
See Louise’s op-ed piece
Parents of students in Bemidji public schools argued before school board that it should be banned
Beyond Content: Restrictions of Time, Place and Manner
Content neutral
Must apply equally to all messages, although not necessarily to all categories, AND
No complete ban (polling places)
Must be alternative means for message, AND
Substantial state interest at stake
Aesthetics & nuisance concerns not enough, AND
Narrowly tailored rules must apply
Must not ban more than is necessary
Not free speech, but pizza box ban is instructive (ask me)
Public Forums & Free Speech
Traditional Public Forum (most protected)
Street corners, parks, public plazas, etc.
Designated Public Forum (Changing!)
Fairgrounds, community meeting hall, etc.
Public Property but not Public Forum
Prisons, military bases, airport boarding areas
Private Property (least protected)
Shopping malls, residences
What about signs,vendors, air?
1988: Lakewood v. Plain Dealer Pub. Co.
Mayor can’t reject some permit requests
1981: Metromedia v. San Diego
Billboard ordinances must be content-neutral
1981: Muir v. Alabama Ed. Commission
Can’t tell public TV what to show
1997: Loving v. Boren
Univ. computer system NOT a public forum
Nonpublic or private forums
1943: Martin v. City of Struthers
Can’t prohibit Jehovah’s Witnesses from ringing your doorbell
1976: Hudgens v. NLRB
Mall is not a public forum unless it takes on all the attributes of a traditional public forum, such as a town square
BUT. . .states can expand civil liberties beyond what the U.S. Constitution requires as minimal
Significant public forum cases
1939: Schneider v. New Jersey
Free speech more important than clean streets
1978: Intl’ Soc. For Krishna Consciousness v. Wolke
Is an airport terminal a public forum? Concourse?
1981: Heffron v. International Soc.
Hare Krishnas can mingle but not confront
New prior restraint issues
Simon & Schuster, Inc. v. New York Crime Victims Board (1991)
And other Son of Sam laws
Aimed at convicted criminals to prevent them from profiting from books or other media about their crimes
Unconstitutional -- content-based
Served a compelling state interest but not narrowly tailored
Prior restraint and protests
City of Ladue v. Gilleo (1994)
You may post signs on your own property (hurray!)
A 30-ft. buffer zone around abortion clinics and homes of staff is constitutional, but not a 300-ft. zone (banning protesters)
McIntyre v. Ohio Elections Commission (1995)
Anonymous campaign literature is okay
Hate Speech/Fighting Words
Chaplinsky v. New Hampshire (1942)
“fighting words” doctrine
Those that have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed -- but not protected speech, and must be carefully drawn.
Village of Skokie v. National Socialist Party (1978)
Must compel a confrontation
St. Paul cross-burning ordinance
Intimidation is the key
Speech codes on campuses and public schools
Rude or discourteous speech cannot be made illegal
First Amendment and election campaigns
Buckley v. Valeo (1976)
Limiting what can be spent on campaigns is unconstitutional
But limits on contributions may be okay
Bipartisan Campaign Finance Reform Act (2002)
Political parties cannot accept “soft money”
Corporations, unions and other interest groups cannot use soft money to pay for “electioneering communications” at certain times
Limits on “hard money” are increased
Most provisions upheld in McConnell v. FEC (2003)
The Info Superhighway
Print media have the most “freedom”
Over-the-air broadcasters have the least
Cable TV is somewhere in the middle
Few limits on telephones
Why? Capacity, tradition, pervasiveness or invasiveness of medium, accessibility of medium
Reno v. American Civil Liberties Union (1997)
Internet deserves the highest form of protection, the same as newspapers, books, other print media
No tradition of censorship in cyberspace
Subtle shift in emphasis
“In the late 18th c. freedom of expression was designed to protect the rights of the speaker. . .Scholars argue that it is the protection of the public’s right to know or society’s right to be informed that today is the central value in the First Amendment. . . When society’s interests are put ahead of those of the speaker or publisher, substantially more censorship will be tolerated. . .”
Historical Developments: Ch. 2
Contemporary Problems: Ch. 3
History Pre- WWI: Not much!
Licensing, prior restraint, bonds & seditious libel
1735: John Peter Zenger acquitted -- hurray!
But not much tolerance for Patriots and no precedent
1791: First Amendment part of Bill of Rights
1798: Alien & Sedition Acts
Ink barely dry before Free Speech attacked
Expires gracefully in 1801 but idea lives on
Patriot Act?
Censorship rears its ugly head during 19th c.
Abolitionist period, Civil War
Labor unionists, birth control advocates, anarchists
Post-WWI : Mostly Gains
1917: Espionage Act (aimed at war dissenters)
1918: Sedition Act (don’t obstruct draft)
1919: “Clear & Present Danger” Test (Schenck)
Justice Oliver Wendell Holmes
1927: Sedition Test (Whitney v. California)
1940: Smith Act adopted
1951: Smith Act ruled unconstitutional
Dennis v. U.S.
1957: Scope of Smith Act narrowed
1969: Brandenburg v. Ohio (tough sedition test)
Significant Sedition Cases
1925: Gitlow v. N.Y. (due process)
1936: Grosjean v. American Press Co.
No discriminatory taxes on press by Huey Long
Also Mpls Star v. MN Comm. Of Revenue (1983)
1931: Near v. Minn. (prior restraint)
1971: NYT v. U.S. and U.S. v. Wash. Post
Medium blow to prior restraint (heavy burden)
1979: U.S. v. Progressive (how to make a bomb)
1996: Rice v. Paladin Enterprises, Inc.
Mass Media not responsible for violence (59)
2002: Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (p. 60)
Contemporary problems: War
Vietnam War free press: Aberration
Grenada, Panama, Balkans very controlled
Press Pools: Gulf War Ghetto
1991: Nation Magazine v. U.S. DOD
(Most censorship EVER during wartime)
1993: JB Pictures, Inc. v. Defense Dept.
What never went to court?
Shortly after 9/11 attacks, U.S. Government requested that TV broadcasters not show tapes of Osama bin Laden making certain statements. Broadcasters complied.
Case Study: Kobe Bryant (p. 80-84)
Criminal sexual assault case against Bryant in 2004:
What was significant about it in regard to First Amendment law? What was the final outcome? What was the legal reasoning?
Kobe Kwiz
What is prior restraint?
What does it have to do with the Kobe Bryant sexual assault case?
What decision(s) did the courts make in the matter?
What two conflicting constitutional rights are involved in this case?
Do the news media think these were good decisions? Why or why not?
Contemporary Problems: Ch. 3
Schools and censorship
War
Time, place and manner restrictions
Hate Speech and heckler’s veto (p. 40)
Immigrants and resident aliens
Internet
Wartime reporting: Mixed record
Censorship accepted until Vietnam War
War “snuck up” on us so restrictions not in place from the beginning; cat out of the bag
Government used propaganda to undermine what reporters said; lies were told
Grenada (1983): pool reporters only
Panama (1989): “We missed the war”
Gulf War (1990): 800 reporters, but short leash
Also, the news media did not complain
Dover AFB off-limits (1993)
The war on terror: litmus tests
2003: Flynt v. Rumsfeld (Why Larry Flynt?!)
No right of access to U.S. ground troops
DOD announces that gov’t employees who leak classified info to the press can be prosecuted
Bodies cannot be viewed at Dover AFB
Embedded journalists ok but “blackballing” existed; sanitized; narrow; 16 Non-embedded died; Heavy “spin” put on press releases
See p. 87 for more on embedding problems
Reasons given for gov’t censorship during wartime
1. To deny the enemy information that might be helpful in prosecuting the war;
2. To try to protect the security of the nations’ fighting forces; and
3. To sustain the morale of the people.
PROBLEM: Censorship is too often used to shield serious military blunders or questionable policies.
Do students have free speech rights?
High schools are different from universities
1969: Tinker v. Des Moines School District
Anti-war armbands
1988: Hazelwood Sch. Distr. v. Kuhlmeier
Frank discussions in HS newspapers
1967: Dickey v. AL State Board of Education
College newspapers’ right to autonomy
1997: Kincaid v. Gibson
College yearbooks can be confiscated
Interesting new student rights case in your new edition
2003: Barber v. Dearborn Public Schools (p. 102)
You CAN wear a t-shirt proclaiming Pres. Bush to be an “international terrorist” to school
Censorship guidelines for high school media
Public or private school? Few rights at private schools or universities
School sponsored?
Unsupervised extra-curricular activity?
Produced and distributed off-campus with no campus assistance?
What about Internet? (see p. 111)
Reasons given for censoring college & university media
1. Disruption of the school, including anything that interferes with the image the school wishes to project
2. Protection of students from offensive speech, especially racist speech or that insensitive to ethnic minorities
3. Ensuring that the ideas or views in publications are not attributed to the school itself
Creative ways administrators punish student media
Reduce or eliminate financial support
1983: Stanley v. McGrath
Pull publications from racks
Fire newspaper staff
Close files, especially police reports
1991: Student Press Law Center v. Alexander
Acceptable criteria: p. 94
Acceptable criteria to use when censoring HS media
Stories or photos that substantially interfere with the requirements of appropriate school discipline
Material that interferes with the rights of students
Material that fails to meet standards of academic propriety
Material that generates health and welfare concerns
Matters that are obscene, indecent or vulgar
Creative logic used when controlling student media
To “protect” students from racist or any other “offensive” language
To protect university’s image
Crime statistics are educational data
To protect students from alcoholism & sex
To minimize “disruption” of education
To distance school from ideas or beliefs
What about university media?
Hosty v. Carter (2003)
The Innovator (campus newspaper in Illinois) needed to be approved by administrators
Why? Maybe because they had previously published articles critical of faculty members?
Opinion: “Hazelwood’s rationale for limiting the First Amendment rights of high school journalism students is not a good fit for students at colleges or universities.”
Guidelines for college media
The more involved administrators are in publication, the more liable they are
Pulling funding is identical to censorship
There is no such thing as an “independent” college newspaper
Media boards should NOT be run by administrators
Adviser should advise, not dictate
Book banning in schools Most common reasons given
1. Sexual content
2. Offensive language
3. Unsuited to age group
4. Occult/satanism
5. Violence
6. Homosexuality
7. Promoting religion
8. Nudity
9. Racism
10. Sex education
11. Anti-family
A few commonly banned books
Several Judy Blume books
Oliver Twist
The Grapes of Wrath
The Harry Potter series
Catching Alice
Goosebumps series
Roll of Thunder, Hear My Cry
Julie of the Wolves
The Chocolate War
The Diary of Anne Frank
Catch-22
Where the Sidewalk Ends
Only one S. Ct. Ruling on Book Banning -- Local rule rules
Pico v. Island Trees (1979) (5-4 ruling)
Books can be banned for being “persuasively vulgar” or “educationally unsuitable” but not because the school board disapproves of the political ideas or philosophies expressed in the books.
Court failed to provide clear guidance
A local attempt at book banning
Plainsong, by Kent Haruf, 1999
National Book Award Finalist
“So foursquare, so delicate and lovely. . .it has the power to exalt the reader.”
NY Times Book Review
See Louise’s op-ed piece
Parents of students in Bemidji public schools argued before school board that it should be banned
Beyond Content: Restrictions of Time, Place and Manner
Content neutral
Must apply equally to all messages, although not necessarily to all categories, AND
No complete ban (polling places)
Must be alternative means for message, AND
Substantial state interest at stake
Aesthetics & nuisance concerns not enough, AND
Narrowly tailored rules must apply
Must not ban more than is necessary
Not free speech, but pizza box ban is instructive (ask me)
Public Forums & Free Speech
Traditional Public Forum (most protected)
Street corners, parks, public plazas, etc.
Designated Public Forum (Changing!)
Fairgrounds, community meeting hall, etc.
Public Property but not Public Forum
Prisons, military bases, airport boarding areas
Private Property (least protected)
Shopping malls, residences
What about signs,vendors, air?
1988: Lakewood v. Plain Dealer Pub. Co.
Mayor can’t reject some permit requests
1981: Metromedia v. San Diego
Billboard ordinances must be content-neutral
1981: Muir v. Alabama Ed. Commission
Can’t tell public TV what to show
1997: Loving v. Boren
Univ. computer system NOT a public forum
Nonpublic or private forums
1943: Martin v. City of Struthers
Can’t prohibit Jehovah’s Witnesses from ringing your doorbell
1976: Hudgens v. NLRB
Mall is not a public forum unless it takes on all the attributes of a traditional public forum, such as a town square
BUT. . .states can expand civil liberties beyond what the U.S. Constitution requires as minimal
Significant public forum cases
1939: Schneider v. New Jersey
Free speech more important than clean streets
1978: Intl’ Soc. For Krishna Consciousness v. Wolke
Is an airport terminal a public forum? Concourse?
1981: Heffron v. International Soc.
Hare Krishnas can mingle but not confront
New prior restraint issues
Simon & Schuster, Inc. v. New York Crime Victims Board (1991)
And other Son of Sam laws
Aimed at convicted criminals to prevent them from profiting from books or other media about their crimes
Unconstitutional -- content-based
Served a compelling state interest but not narrowly tailored
Prior restraint and protests
City of Ladue v. Gilleo (1994)
You may post signs on your own property (hurray!)
A 30-ft. buffer zone around abortion clinics and homes of staff is constitutional, but not a 300-ft. zone (banning protesters)
McIntyre v. Ohio Elections Commission (1995)
Anonymous campaign literature is okay
Hate Speech/Fighting Words
Chaplinsky v. New Hampshire (1942)
“fighting words” doctrine
Those that have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed -- but not protected speech, and must be carefully drawn.
Village of Skokie v. National Socialist Party (1978)
Must compel a confrontation
St. Paul cross-burning ordinance
Intimidation is the key
Speech codes on campuses and public schools
Rude or discourteous speech cannot be made illegal
First Amendment and election campaigns
Buckley v. Valeo (1976)
Limiting what can be spent on campaigns is unconstitutional
But limits on contributions may be okay
Bipartisan Campaign Finance Reform Act (2002)
Political parties cannot accept “soft money”
Corporations, unions and other interest groups cannot use soft money to pay for “electioneering communications” at certain times
Limits on “hard money” are increased
Most provisions upheld in McConnell v. FEC (2003)
The Info Superhighway
Print media have the most “freedom”
Over-the-air broadcasters have the least
Cable TV is somewhere in the middle
Few limits on telephones
Why? Capacity, tradition, pervasiveness or invasiveness of medium, accessibility of medium
Reno v. American Civil Liberties Union (1997)
Internet deserves the highest form of protection, the same as newspapers, books, other print media
No tradition of censorship in cyberspace
Subtle shift in emphasis
“In the late 18th c. freedom of expression was designed to protect the rights of the speaker. . .Scholars argue that it is the protection of the public’s right to know or society’s right to be informed that today is the central value in the First Amendment. . . When society’s interests are put ahead of those of the speaker or publisher, substantially more censorship will be tolerated. . .”
Textbook Ch. 1
Mass Media Law 2003/04 By Don R. Pember
Chapter 1
The American Legal System
Sources of Law
U.S. and State Constitutions
A sort of outline or plan, fixed, hard to change
Common Law
“discovered,” custom of court, precedent
Law of Equity
Begins where common law leaves off
Statutory Law
Passed by arms of the state, anticipates problems
Rulings
Administrative agencies, seldom reviewed by courts
U. S. Court System
Trial Courts
Fact-finding
Appellate Courts
Law-reviewing
Cases in Federal Court System
Arising from U.S. Constitution, U.S. law and U.S. Treaties
Involving ambassadors/ministers of foreign countries
Involving admiralty and maritime law
Between a state and a citizen of another state
Between citizens of different states
Between two states
When U.S. is a party to a suit
Federal Courts
94 District Courts: 650 judges
13 Circuits in U.S. Court of Appeals
Minnesota is in 8th Circuit
(See map on page 25)
(Judges usually appointed)
State Court Systems
Trial Courts
Courts of limited jurisdiction (traffic, etc.)
County or State Courts
Sometimes appeals courts, sometimes trial courts of general jurisdiction
(Judges usually elected)
State Supreme Court
Terms to Know
Plaintiff
Defendant
Jury
Appellant
Appellee (respondent)
Grand Jury
Indictment
Per Curiam Opinion
Civil Suit
Criminal action
Impeachment
Court’s Opinion
Concurring Opinion
Dissenting Opinion
Writ of Certiorari
Oral Arguments
First Amendment Theories
Absolutist (There can be no compromise)
Marketplace (The best ideas prevail)
Liberty or Individual Autonomy
Ad Hoc Balancing (a narrow strategy)
Preferred Position Balancing
All other rights depend upon free speech
Meiklejohn Theory (Democracy the goal)
Access Theory (Fairness Doctrine)
Prof. Don Gillmor 1st Amendment Scholar
“It’s been a paradigm change from speech vs. stability to speech vs. equality.”
Chapter 1
The American Legal System
Sources of Law
U.S. and State Constitutions
A sort of outline or plan, fixed, hard to change
Common Law
“discovered,” custom of court, precedent
Law of Equity
Begins where common law leaves off
Statutory Law
Passed by arms of the state, anticipates problems
Rulings
Administrative agencies, seldom reviewed by courts
U. S. Court System
Trial Courts
Fact-finding
Appellate Courts
Law-reviewing
Cases in Federal Court System
Arising from U.S. Constitution, U.S. law and U.S. Treaties
Involving ambassadors/ministers of foreign countries
Involving admiralty and maritime law
Between a state and a citizen of another state
Between citizens of different states
Between two states
When U.S. is a party to a suit
Federal Courts
94 District Courts: 650 judges
13 Circuits in U.S. Court of Appeals
Minnesota is in 8th Circuit
(See map on page 25)
(Judges usually appointed)
State Court Systems
Trial Courts
Courts of limited jurisdiction (traffic, etc.)
County or State Courts
Sometimes appeals courts, sometimes trial courts of general jurisdiction
(Judges usually elected)
State Supreme Court
Terms to Know
Plaintiff
Defendant
Jury
Appellant
Appellee (respondent)
Grand Jury
Indictment
Per Curiam Opinion
Civil Suit
Criminal action
Impeachment
Court’s Opinion
Concurring Opinion
Dissenting Opinion
Writ of Certiorari
Oral Arguments
First Amendment Theories
Absolutist (There can be no compromise)
Marketplace (The best ideas prevail)
Liberty or Individual Autonomy
Ad Hoc Balancing (a narrow strategy)
Preferred Position Balancing
All other rights depend upon free speech
Meiklejohn Theory (Democracy the goal)
Access Theory (Fairness Doctrine)
Prof. Don Gillmor 1st Amendment Scholar
“It’s been a paradigm change from speech vs. stability to speech vs. equality.”
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