Media Law in the News 3

Ariana Mafi

3/12/20

Media Law in the News 3

Professor Carlson

Copyright Infringement: Amazon

Part I – Summary of Issue
I recently had an informational interview with an ex-Amazon employee, and she shared with me that in her line of work she developed a technology that helped weed out fake and counterfeit products and brands on the Amazon Marketplace. After further research, I learned that this is a common issue that is presenting itself on Amazon all the time. I chose not to find a specific case, but rather tackle the issue and see what I can learn from these kinds of scenarios and how to handle the issue if it ever happens to me. One specific scenario that I want to examine would be when a third-party seller uses my (also a third-party seller) product images to sell their counterfeit products. Since my last media law in the news examined the plaintiff’s case for copyright, I want to explore the Fair Use defense in this application.

Link: https://www.digitalcommerce360.com/2020/02/10/how-to-identify-and-eliminate-counterfeits-on-amazon/

Part II – RULE – Legal Questions Raised & Applicable Rule
There are a few questions that come to mind when I look at this issue.

1)      Is this a violation of Intellectual property rights (copyright, trademark, patent)?

2)      For what purpose was the copyrighted work used without permission?

3)      What was the nature of the copyrighted work that was used without permission?

4)      How much and what portion of the copyrighted work was used without permission?

5)      What effect did the unauthorized use have on the copyrighted works market value?

Part III – APPLICATION – Applying the Relevant Doctrine / Precedent
This is a violation of intellectual property rights, specifically copyright laws. Rogue and counterfeit sellers commit copyright piracy by using an official sellers’ images to sell fake products. In the article, it discusses how counterfeit sellers are getting better at manipulating images just enough so that the detection software can’t detect that they are copyrighted images. However, for our intents and purposes, let’s say that the image was not manipulated and was an identical copy (just like many counterfeiters do on Amazon). Moving on, the images was not used for criticism, comment, news reporting, teaching, research, scholarship, or parody. Therefore, it is likely copyright infringement and the counterfeiters would not have a fair use defense. The Fair Use defense is a balancing test, so we must examine the rest of the questions to determine whether the counterfeiters could use a FU defense. Addressing question 3, the plaintiffs work was not scholarly or scientific, but was rather used to make money, therefore is likely more CI. Also, the entirety of the plaintiff’s work was used and copied exactly, therefore is CI. Finally, stealing the image and selling counterfeit products under a different brand takes business away from the plaintiff’s brand, could influence their reputation, and overall is hurtful and diminishing to what they sell. Considering all these parts, I would confidently say that the defendant does not have a fair use defense and did in fact infringe upon the plaintiff’s intellectual property.

Part IV – CONCLUSION
Overall, I found this issue very interesting because it came directly from someone I spoke to. This problem is not just some article but has a lot to do with people’s jobs. The person I chatted with said she had to work extra hard to maintain the integrity of Amazon’s platform by trying to find these copyright infringing brands, however people are getting much better at scamming the system. She also said that often Amazon takes down the accounts, therefore making it difficult for a plaintiff to make a case against anyone who infringes on their IP rights. I just hope that in the future, Amazon can continue to develop their technology to stop these brands from hurting the original content creators.

Media Post #10 Chapter 12

Topic Overview:
-Commercialization speech has evolved due to decades of supreme court decisions
-The Courts ruling in the Central Hudson case established that "government may constitutionally regulate non-deceptive advertising only with regulations that use the least speech-restrictive means to directly advance a substantial government interest".
- False/deceptive ads and ads for illegal products can be banned under the FTCA and the Lanham Act
- When cases involve alcohol and tobacco, the SC does not allow absolute bans on advertising for legal products/services, but does allow strict ad regulations when it comes to minors
-Many supreme court rulings have demonstrated the difference between political speech of corporations and commercial speech.
-The FTC doesn't allow spam, and requires truthful labeling of unsolicited texts and emails in bulk.

Key Terms:
Puffery- advertising that exaggerates the merits of products or services in such a way that no reasonable person would take the claim seriously, from deception
Litigated order- A FTC order filled in admin court and enforceable by the courts whose violation can result in penalties, including fines of up to $10,000 per day.

Important Cases:
Central Hudson Gas & Electric Corp v Public Service Commission of New York
The case that enacted the four-part test (Central Hudson test, see below), which determines when and which restrictions on commercial speech violated the FA.
Sorrell v IMS Health Inc.
A case that proved that several doctors and their prescription practices violated the FA, due to the restriction of the sale and use of medical records

Relevant Doctrine:

Central Hudson Test (After Sorrell)
After Sorrell, courts asked to rule on the constitutionality of a regulation on commercial speech must determine:
1. Is the commercial speech false or related to an illegal activity?
a. If yes, the speech may be banned or strictly regulated
b. If no, proceed with the test
2. Is the regulation of commercial speech based on its content?
a. If  yes, the court must apply strict scrutiny and presume the rule unconstitutional

b. If no, proceed with the test
3. Is the regulation of commercial speech content neutral?
a. If yes, the court must apply the Central Hudson test and strike down the regulation unless the answer to all of the following is yes
i. does the rule relate to a significant government interest?
ii. Does the rule directly advance that government interest?
iii. Is the regulation unrelated to the suppression of speech?
iv. Does the regulation "fit" the government interest without unduly infringing on speech?

Current Issues:
Reading this chapter reminds me of the false and deceptive advertising that we see in politics. The book discusses the false advertising in the 2016 election, and how 70% of the most aired ads were attack ads. I consider our current election, and how many candidates spent millions on campaigns that were likely not even representative of the candidate, but were just overly funded. Spending millions on campaigning rather than actual change seems like deceptive ads to me, but maybe i am just looking at things from an ethical standpoint rather than a legal one. Regardless, deceptive political ads will significantly impact voters in some mannor, and I find that really dangerous considering the political state we are in.
Questions:

Media Law in the News 2

Ariana Mafi

3/06/20

Media Law in the News 2

Professor Carlson

Copyright issues in the Media: Fortnite Dances

Part I – Summary of Issue
In class we discussed the issue of using copyrighted dances, and why a plaintiff can potentially bring a lawsuit forward against someone using said copyrighted dance. I wanted to further examine a lawsuit that was brought against one Fortnite dance, the Carlton, and why this lawsuit was taken down. This case comes under Intellectual Property law (the legal category including copyright, trademark, and patent law), and I would like to examine the plaintiff’s case for Copyright. This case is very complex; therefore, I am not going to look at any of the defenses. Copyright is an exclusive legal right used to protect intellectual creations from unauthorized use. Protected works include literary, musical, dramatic, motion picture, and many others. Ideas, history, and facts may not be copyrighted. When looking at this case, I am going to examine why Alfonso Ribeiro, the “original” creator of the Carlton dance, does not have a strong enough lawsuit to bring against Fortnite’s parent company, Epic Games.

Link: https://techcrunch.com/2019/03/25/fortnite-copyright-and-the-legal-precedent-that-could-still-mean-trouble-for-epic-games/

Part II – RULE – Legal Questions Raised & Applicable Rule
There are a few questions that come to mind when I look at this case.

1)      We need to determine what kind of Intellectual Property law this is: copyright (an exclusive legal right used to protect intellectual creations from unauthorized use), patent (exclude others from making, using, selling and importing an invention for a limited period of years), or trademark (a word, name, design, or symbol used to identify a companies goods and distinguish them from similar products other companies make)

2)      We also need to determine if the Carlton dance would be a protected work (see section above).

3)      Is the dance “novel and distinctive”

4)      Is this Fortnite dance a “choreographic work” or a “social dance step and simple routine”

5)      We need to examine the Plaintiffs case for copyright; - A copyright plaintiff must prove the following: 1) The work used is protected by a valid copyright- meaning it is an original work fixed in a tangible medium, 2) The plaintiff owns the copyright, 3) The valid copyright is registered with the copyright office, 4) And either: a. There is evidence the defendant directly copied the copyrighted work, or b. The infringer had access to the copyrighted work, and the two works are substantially similar (extrinsic and intrinsic)

Part III – APPLICATION – Applying the Relevant Doctrine / Precedent
To answer our first question, this is a copyright case since the dance is an intellectual creation. Additionally, the Carlton dance is a protected work, as a dance is not an idea, history or fact. When looking at dance moves, they come under a grey are of copyright law, as we discussed in class. The dance is novel and distinctive; however, the issue comes when examining if the Carlton is a choreographic work or a simple dance. According to the Copyright Office of California (where this case was brought), choreography commonly involves “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and “a story, theme, or abstract composition conveyed through movement.” Dances that meet that standard cannot be copyrighted, even if they are novel or distinctive. I want to examine the plaintiff’s case before answering this question. Alfonso Roberto’s dance was an original work fixed in a tangible medium (The T.V. show he debuted his dance on), however how original is it? Roberto has said in many interviews that his dance moves for the Carlton were inspired by several different actors. Moving forward to ownership, most would say that Roberto does own the dance, however some courts could disagree and suggest that the employer, aka the T.V. show producers own the dance, as a character on their show did the dance. Additionally, for a copyright to be registered, it needs to meet the standards of which works are protected. The Carlton is three simple dance steps, composed of swaying back and forth and step-touching together. These would most likely be considered a simple dance, therefore is not a protected copyright, no matter how novel or distinctive it is. Therefore, the copyright would likely be rejected from being registered. When looking at the final point of the plaintiff’s case, Fortnite directly copied the work, had access to the work (since it was on T.V.) and that they are both substantially similar.

Part IV – CONCLUSION
Through this analysis, I have determined that it is clear Roberto does not have a case. His work may not be original enough and he may not even have ownership of the dance. Those two points are subjective; however, you need to have a registered copyright to bring a lawsuit, and the dance is not protected due to its simplicity. Therefore, regardless of how frustrating it may be, Roberto dies not have a case for copyright against Epic Games. Overall, I believe the lesson learned is to always ask permission. This is one plaintiff and one dance that does not have a case, but I can imagine that there are many other scenarios like this one where a case would stand. Regardless, these types of cases go beyond legalities and move towards an ethical dilemma; in order to avoid any legal or ethical implications, it is simply better to ask for permission before using someone else’s work.

Media Post #9 Chapter 11

Topic Overview:
- Intellectual property law includes copyrights, trademarks, and patents
-The 1976 copyright act defines copyright as an original work fixed in a tangible medium
-Protected works include literary, musical, dramatic, motion picture, and many others. Ideas, history, and facts may not be copyrighted
-An original work is copyrighted from the moment it is fixed in a tangible medium
-Copyright protects the creators right to reproduce the work, make derivative works and distribute, perform or display a work
-Four categories: 1) Out of copyright ("in Public Domain") when current law took effect. The work still is in the public domain
2) Copyrighted under previous (1909) law, still in copyright when new law took effect. CR lasts 95 years
3) Copyrights on works created on Jan 1st 1978 and after, last for the creators life plus 70 years (what we need to know)
4) Works made for hire- CR lasts 95 years from publication or 120 years from creation (whichever is shorter


Key Terms:

Important Cases:
Matal v Tam
A case where the Supreme Court ruled that a federal law prohibiting disparaging trademark names was unconstitutional under the First Amendment.
American Broadcasting Companies Inc v Aereo Inc
A case where The Court ruled that the service provided by Aereo, allowing subscribers to view live and time-shifted streams of over-the-air television on Internet-connected devices, violated copyright laws.

Relevant Doctrine:

Plaintiff’s Case for Copyright- A copyright plaintiff must prove the following

1) The work used is protected by a valid copyright- meaning it is an original work fixed in a tangible medium

2) The plaintiff owns the copyright

3) The valid copyright is registered with the copyright office

4) And either:

a. There is evidence the defendant directly copied the copyrighted work, or

b. The infringer had access to the copyrighted work, and the two works are substantially similar (extrinsic and intrinsic)

Fair Use Defense- balancing test

1) For what purpose was the copyrighted work used without permission?- more likely a fair use if used for criticism, comment, news reporting, teaching. research, scholarship, parody

2) What was the nature of the copyrighted work that was used without permission?- more likely fair use if the plaintiffs work is scholarly or scientific vs entertainment money (CI)

3) How much and what portion of the copyrighted work was used without permission?- based on percentage of work used rather than number of words. Was the part used particularly interesting r important?

4) What effect did the unauthorized use have on the copyrighted works market value?- Probably the most important factor, did this impact the creators ability to make money?

Transformative Use Defense- one of the primary defenses used today when arguing fair use. Transformative use is generally fair use if the answer to two questions is "yes":

1) Has the material you have taken from the original work been transformed by adding new expression or meaning?

2) Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

Current Issues:

Questions:

Media Law in the News 1

Companies are Stealing Influencers Faces

Part I – Summary of Issue
It is very typical for celebrities to be used in media, as influencers and in marketing. The issue today, however, can be found in whether their faces were used with permission, or not. This is an area of privacy tort law called appropriation, which is the use of a person’s name, picture, likeness, voice, or identity for commercial or trade purposes without permission. More specifically, we are looking at commercialization (the appropriation tort used to protect people who want privacy) and right of publicity (the appropriation tort protecting a celebrity’s right to have his or her name, picture, likeness, voice, and identity used for commercial or trade purposes only with permission).

The specific story I am addressing involves Bernadette Banners, a YouTuber famous for her historical sewing videos. She recently found out that a fast fashion company was advertising one of her dresses, with her headless image, for $40, which is not even half of the materials cost of her original dress. I want to examine the plaintiff’s case for right of privacy and see if Bernadette could have a strong enough case against the fast fashion company.

Link: https://www.wired.com/story/youtube-instagram-influencers-stolen-faces/

Part II – RULE – Legal Questions Raised & Applicable Rule
There are a few questions that come to mind when I look at this case.

1)      We need to determine what kind of appropriation tort it is, commercialization or right of publicity. Therefore, we need to determine whether Bernadette wants to remain private and unknown except to family and friends, or if she wants to be known and to be a celebrity.

2)      We also need to determine if Bernadette’s name or likeness was used

3)      We need to determine whether that name or likeness was used for commercial purposes

4)      We need to examine if Bernadette ever gave permission for her name or likeness to be used

5)      We need to determine whether the commercial use was of and concerning her

6)      We need to determine if it was widely distributed

There are also a few defenses we may want to look at to determine whether this case is strong enough to take to court.

1)      The first amendment may be a defense taken against this case, therefore we would want to determine whether the fast fashion company passes the artistic relevance test (whether the picture is relevant to a disputed work’s artistic purpose), transformative use test (whether the creator transformed the picture for artistic purposes), and predominant use test (whether the defendant used the picture as protected expression).

Part III – APPLICATION – Applying the Relevant Doctrine / Precedent
To answer our first question, this is a right of publicity tort case. Bernadette is a famous Youtuber and celebrity of sorts. In order to win a right of publicity case, our plaintiff must prove whether her likeness was used for advertising or other commercial purposes without permission, whether the commercial use was of and concerning her, and whether it was widely distributed. Bernadette’s likeness was certainly used, since the fast fashion company used a picture of her in the dress in their advertisements. Although it was a headless picture, because the market is so niche in historical sewing pieces, it is clear that this was Bernadette’s photo. Additionally, the photo was used for commercial purposes- the fast fashion company used the photo as an advertisement to sell their own knock off versions of Bernadette’s dress. Additionally, based on the article I read, Bernadette did not give the fast fashion company any permission or consent to use her photo. The commercial use of the headless photo was of and concerning Bernadette, as she spent a lot of time, money, and effort on her pieces and the fast fashion company was trying to display their cheap versions as if they were hers. Finally, it can be assumed that since this is a popular fast fashion company (unnamed in the article), the photo was widely distributed enough.

When looking at a First Amendment defense against the plaintiff’s case, the fast fashion company does not pass any of the tests discussed above in the prior section.

Part IV – CONCLUSION
Through this analysis, I have determined that Bernadette would have a strong plaintiff’s case against the fast fashion company, and that they would not have a strong enough defense against her. Learning about protecting privacy has been interesting, as a lot of cases are far more subjective than other areas of media law. Additionally, the defendant has several opportunities to bring appropriate defenses that could take down a plaintiff’s case. Overall, the most valuable takeaway from examining this case for me was to really pay attentive care in getting permission/consent if I ever must use someone’s photo in any advertising or commercial purposes. As a marketing major, I believe this will be very applicable to me in any future media job I may have.

Reading Summary #8 Chapter 10

Topic Overview:
-If the government is unable to prove that material has any parts of the Miller Test (see below), the material cannot be found as obscene
- whether material lacks serious literary, artistic, political, or scientific value is determined by using national criteria based on expert testimony
- It is illegal to provide minors with sexually explicit content that would not be obscene if given to an adult
-The FA protects indecent material, EXCEPT in broadcast television and radio
- The supreme court has rejected several attempts to prevent children from seeing sexually explicit material on the internet

Key Terms:

Important Cases:
Federal Communications Commission v Fox Television Stations Inc.
A decision by the Supreme Court that upheld regulations of the Federal Communications Commission that ban "fleeting expletives" on television broadcasts, finding they were not arbitrary under the Administrative Procedure Act.

Federal Communications Commission v Pacifica Foundation
A Supreme Court decision that defined the power of the Federal Communications Commission over indecent material as applied to broadcasting. The decision reaffirmed the notion that the government has a freer hand to regulate the broadcast medium than other forms of media.

Relevant Doctrine:

Miller Test for Obscenity- The Miller test for obscenity includes the following criteria: (1) whether the average person, applying contemporary community standards would find that the work appeals to prurient interest (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work lacks serious literary, artistic, political, or scientific value.

Current Issues:
The main issue I think of when reflecting upon this chapter is just the fact that the government really cant protect children from seeing explicit material. It is unfortunate, because as a coach and past babysitter, I have seen many children get into the wrong kinds of material online. These explicit materials can be harmless, but are often times negatively impact kids' lives. I understand that restricting certain types f explicit material is suppressing ones freedom of speech and does not abide with FA law, i just wish there was some way we could better monitor the kind of material children have access to. I suppose for now, it is simply the job of the parents.
Questions:

Media Post Chapter 9 #7

Topic Overview:
-Federal law first regulated electronic media (radio) in 1912
-Today the Federal Communications Commission uses its powers to adopt regulations affecting large segments of the electronic media, as well as licensed spectrum users and enforcing the commissions regulations
-The FA rights of broadcasters are not equal to those of the print media
-Spectrum scarcity limits broadcasting to a select few who obtain FCC licences
-Every broadcast station must have an FCC license
-Section 315 of the communications act of 1934 requires broadcasters and cable systems to give equal opportunity to use the airwaves to legally qualified candidates running for the same office
-Federal Law and Fcc rules require broadcast television stations to show at least three hours per week of programming that meets children's intellectual/cognitive and social/emotional needs and to limit adjacent advertising 
-The FCC initially declined to regulate cable television, but today the FCC defines both cable and DBS services as multi channel video programming distributors
Key Terms:
Zapple Rule- A political broadcasting rule that allows a candidates supporters equal opportunity to use broadcast stations if the candidates opponents supporters use the station Important Cases:
Turner Broadcasting System Inc. V. Federal Communications Commission
the first of two United States Supreme Court cases dealing with the must-carry rules imposed on cable television companies. Federal legislation requires cable television companies to devote a portion of their channels to local programming.
Red Lion Broadcasting Co. Inc. v. Federal Communications Commission
Supreme Court case that upheld the equal time provisions of the Fairness Doctrine, ruling that it was "the right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences".
Relevant Doctrine:

N/A

Current Issues:
In the book, there is a real world case that discusses the importance of broadcasting advertisement in the political elections. During this whole chapter i realized how important media broadcasting laws is to politics, whereas prior to this class i never really realized any implications or importance regarding broadcasting regulations. The case in the book remarked that had Clinton gotten a headstart on broadcasting ads for her campaign, she would have had a stronger chance of beating Trump. Its a good thing that broadcasting laws allow for the public to access ads and campaigns, therefore allowing them their own personal voice
Questions:

Reading Summary Chapter 6 #6

Topic Overview:
-The US Constitution, State, and federal laws and courts decisions offer some limited privacy protection
-Not all states allow false light suits; most that do require a plaintiff to prove publicity, identification, the published material was false or created a false impression, the statements or pictures put the plaintiff in a false light that would be highly offensive to a reasonable person, and the fdefendant knew the material was false or recklessly disregarded its falsity
-Courts recognize most libel defenses as defenses in false light cases, including conditional privelage, fair reporting, and truth
-A successful appropriation plaintiff must prove his or her name, picture, likeness, voice, or identity was used for commercial or trade purposes without his or her permission.
-See below for further explanation of Topic Overview in Relevant Doctrines
- Intrusion occurs if a person intentionally interferes with anothers solitude or private concerns through physical or technological means
-Generally, people on public property have no reasonable expectation of privacy, but particularly aggressive news gathering even on public property can be considered intrusion
-Journalists may use visible equipment to photograph or record on public property
A private facts plaintiff must show the widely disseminated facts were private, dealt with intimate or highly personal matters and were not of legitimate public concern
-The topic of a news story, rather than the individual people discussed in the story, determines whether the story is of public significance
Key Terms:
intrusion upon seclusion- Physically or technologically distrubing anothers reasonable expectation of privacy
Important Cases:
Cox Broadcasting Corp. v Cohn
A case involving freedom of the press publishing public information. The Court held that both a Georgia Statute prohibiting the release of a rape victim's name and its common-law privacy action counterpart were unconstitutional.
Riley v California
A case in which the Court unanimously held that the warrant less search and seizure of digital contents of a cell phone during an arrest is unconstitutional.
Relevant Doctrine:

Plaintiff’s Case for Intrusion & Defenses

Plaintiffs case:

1) A reasonable expectation of privacy

2) Intentional intrusion of privacy

3) The intrusion would be highly offensive to a reasonable person

Defenses:

Consent- A person cannot claim a reasonable expectation of privacy if he or she gave consent for someone to be on his or her property

Plaintiff’s Case for Appropriation/ Right of Publicity & Defenses

The appropriation tort may be divided into two torts:

1) Commercialization: Applying to someone who wants to remain private and unknown except to family and friends. Using this persons name, picture, likeness, or voice for advertising or other commercial purposes without permission is commercialization. It is invading this persons privacy, causing emotional distress

2) Right of Publicity: Applying to someone who wants to be known far and wide, to be a celebrity- a musician, athlete, movie start, or television personality. Using the persons name, picture, likeness, voice or identity- or a look-alike or sound-alike- for advertising or other commercial purposes without permission invades this persons right of publicity. It diminishes the persons economic value.

Plaintiffs Case:

1) Using a persons name, picture, likeness, voice, or identity

2) For advertising or other commercial uses

3) Without permission

Defenses:

Newsworthiness- The most common defense; If the content is not on the commercial/trade-use side of the bright line, it will be found newsworthy

Public Domain- Names and associated information may be widely available to the public and therefore cannot be protected by right of publicity

First Amendment- The artistic relevance test; a test to determine whether the use of a celebrity's name, picture, likeness, voice, or identity is relevant to a disputed works artistic purpose. It is used in cases regarding the infringement of a celebrity's right of publicity

the trans-formative test; a test to determine whether a creator has transformed a persons name, picture, likeness, voice, or identity for artistic purposes. If so, the person cannot win a right of publicity suit against the creator.

Predominant use test; In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiffs name or picture more for commercial purposes or protected expression.

Ads for the Media- mass media may run advertisements for themselves without consent when using the names and likenesses of public figures if those figures were part of their original content.

Consent- The best appropriation defense; may be explicit, or implied, minors/those not mentally or emotionally capable cannot give consent, and consent is limited to the agreements terms.

Incidental Use- A court could rule that a persons name or likeness was used so briefly that the purpose was not to make a profit or gain commercial benefit

Current Issues:
Based on the Doxxing case in the book, as well as the rest of the material in this chapter, an issue that I believe is relevant to this topic is data security and breaching. Today we hear jokes about how we will talk about how much we need a new backpack, and then the next day we will get ads all over our social media for buying a new backpack. It is hard to tell just how much of our private information is truly private, which makes me decidedly more considerate and aware of websites that claim to protect your privacy versus those that have a weak privacy policy. It seems like anything can be hacked today, and it is important to recognize when your information is safe, and, if it is compromised, what steps you can take legally.
Questions:

Reading Summary Chapter 5 #5

Topic Overview:
Libel: Defenses and Privileges
-Those sued for libel have may different defense options, as outlined in the relevant doctrines
-Journalists are able to report on certain events without fear of libel as long as their reporting is fair and accurate
- Expressing an opinion is regarded as a First Amendment right
-However, for material to qualify as protected opinion, it must satisfy the Ollman test, as outlined below
-Section 230 of the Communications Decency Act offers immunity to websites and internet service providers in libel claims, although the protection is not absolute
-Some libel defenses allow for republication, including neutral reportage and wire service defense
-Sometimes false, defamatory material is published about someone whose reputation cannot be lowered beyond its current level
Key Terms:
Retraction Statutes- In Libel law, state laws that limit the damages a plaintiff may receive if the defendant had issued a retraction of the material at issue.

Important Cases:
Ollman v Evans
Ollman was offered a job at University of Maryland. Rowland Evans and Robert Novak wrote a column in the newspaper entitled the "Marxist professor's intentions". Ollman claimed the column lead to his eventual withdrawal of the job offer, so he sued Evans for $6 million. Justice Kenneth Starr read the majority ruling favoring Evans, and created the Ollman test. The Ollman test has four parts that looks at 1.Verifiability 2.Common Meaning 3.Journalistic Context 4.Social Context
Milkovich v Lorain Journal Co.
A case that rejected the argument that a separate opinion privilege existed against libel. the Supreme Court ruled that opinions can be defamatory and that no broad constitutional shield for the expression of defamatory opinions is appropriate. It was the first time the Court addressed whether libel laws were applicable to expressions of opinion.

Relevant Doctrine:

Libel Defenses:

Truth-

A libel defendant may be able to demonstrate that there is no liability for publishing the statement at issue if it is 1. Not Defamatory, 2. It was not published or the plaintiff was not identified, or 3. does not meet the elements of a libel case

Anti-SLAPP-

A strategic lawsuit against public participation is a lawsuit whose purpose is to harass critics into silence, often to suppress those critics first amendment rights. Anti-SLAPP laws are meant to provide a remedy to SLAPP suits. Anti-SLAPP laws are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights.

Fair Report Privilege-

1. Information must be obtained from a record or proceeding recognized as "official"

2. The News Report must fairly and accurately reflect what is in the public record or what was said during the official proceeding

3. The source of the statement should be clearly noted in the news report

4. Not all States recognize the fair report privilege

Neutral Reportage-

The first amendment is a defense in a libel case if the following apply:

-the story is newsworthy and related to public controversy

-the accusation is made by a responsible person or group

-the charge is about a public official, public figure or public organization

-the story is accurate, containing denials or other views

-the reporting is natural

Wire Service-

The wire service defense may be applied as long as the following are present:

1. The defendant received material containing the defamatory statements from a reputable news-gathering agency

2. The defendant did not know the story was false

3. Nothing on the face of the story reasonably could have alerted the defendant that it may have been incorrect

4. The original wire service story was republished without substantial change

False Fact/Opinion-

1. Do the words have a commonly accepted meaning. Yes? FF. No? Opinion.

2. Can the Statement be proven to be true or false? Yes? More likely fact than opinion.

3. In what specific context do the words appear? Opinion Column? Opinion. A Block of news? FF.

4. In what broader context do the words appear? Is this a place where expression of opinions is common?

Ollman Test for Opinion:

1. Verifiability

2. Common Meaning

3. Journalistic Context

4. Social Context

Current Issues:
I connect this weeks material with some of the hate speech conversations we are having in class, and in the issues happening in the real world. Often times the sort of things we talk about online are taken as False Fact when they are simply opinion, and that is why I enjoyed learning about the Ollman Test. Next time I read something online that I think may be "fake news", or just seems a little bit off, I can apply this test to understand the content better. Furthermore, I would understand why some people are sued for defamation, and lose, because it is an opinion.
Questions:

Reading Summary Chapter 4

Topic Overview:
Libel and Emotional Distress:
-The libel plaintiffs case has many elements, as outlined under relevant doctrine. The first five elements are examined in the preceding sections
-No matter where libel occurs or in what communicative medium, the plaintiff must prove the same elements
-Libel plaintiffs must show that the defendant is at fault for publishing the defamatory material
-The level of fault that must be proved varies according to the plaintiffs status; public official s and figures must show the defendant acted with actual malice, private figures must prove negligence on the part of the defendant
-Sometimes questions about fault involve an evaluation of whether the statements in question effect public concern
- Outrageous actions may lead to successful intentional infliction of emotional distress suits
-Public officials and figures must show the defendant acted with actual malice to win an intentional infliction of emotional distress case
- A plaintiff suing for negligent infliction of emotional distress must prove the defendant had duty of due care and breached that duty, causing the plaintiffs severe emotional distress, and that there is proximate cause to find the defendant liable for the harm
Key Terms:
Libel per se- a statement whose injurious nature is apparent and requires no further proof
Libel per quod- A statement whose injurious nature requires proof

Important Cases:
New York Times Co. v Sullivan:
A case in which the Court ruled that the freedom of speech protections in the First Amendment to the U.S. Constitution restrict the ability of American public officials to sue for defamation; the Supreme Court ruled in favor of the New York Times. In order to prove libel, a “public official” must show that the newspaper acted “with 'actual malice'–that is, with knowledge that it was false or with reckless disregard” for truth.
Hustler Magazine Inc v Falwell:
A case in which the Court held that the First and Fourteenth Amendments prohibit public figures from recovering damages; Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages.

Relevant Doctrine:

Plaintiff’s Case fore Libel:

1) A statement of fact

2) That is published

3) That is of and concerning the plaintiff

4) That is defamatory

5) That is false

6) That causes damage or harm and

7) For which the defendant is at fault

Intentional Infliction of Emotional Distress:

Extreme and outrageous intentional or reckless conduct causing plaintiffs severe emotional harm; public official and public figure plaintiff must show actual malice on defendants part

The Plaintiffs case- Defendants intentional or reckless conduct 1) Was extreme and outrageous beyond the bounds of decency tolerated in civilized society, 2) Involved actual malice, if plaintiff is a public official or public figure, and 3) Caused plaintiffs severe emotional distress. There is no defense if plaintiff proves his or her case

Current Issues:
The issue discussed briefly in the book regarding President Trump's ability to change US libel laws; Trump (obviously) doesn't like the negative things that are written about him, "false" articles, and anything that may hurt his character. In a statement in 2016, he suggested that he wanted to open up our libel laws in order to gain significant amounts of money from lawsuits. Libel law is state law, therefore the President cant make any changes. In order for Trump to change any Libel Laws, he has to get Supreme Courts to overturn the Sullivan decision. It was mentioned how changing libel law would likely be used to harm Trump, and he would become a libel defendant rather than plaintiff. This was an interesting take on the issue, and I definitely agree considering all pf the negative things that come from Trumps mouth. At this point, i believe maintaining the current libel laws would be helpful in protecting our First Amendment rights, and does not need to be changed.
Questions:

Chapter 3 Overview Communication and Media Law

Topic Overview:
-The US Supreme court struggled to develop appropriate tests that would clearly delineate between dangerous incitement to violence and the legitimate right of people to express themselves vehemently and angrily
-The courts loose "clear and present danger" test frequently upheld the constitutionality of laws that punished unpopular political speech
-The test evolved and eventually became the Bradenburg/Hess incitement test, that limits government punishment to speech  that is intended to and likely to produce imminent legal action
-If plaintiffs claim the media acted negligently, leading to injury or death, they must prove the media had a duty of care that they breached and that the breach was the proximate cause of the injury
-Courts rarely find media liable because a reasonable person is unlikely to have foreseen the harm
-The Supreme Court has established that offensive expression, and even what many view as hate speech, is protected by the constitution because freedom of expression includes both the cognitive and emotional elements of expression
-When speech becomes an overt act of threat or intimidation, it may be regulated and punished
-Contract law and laws against unfair competition, or interference with economic gain, do not affect the first amendment even though they affect the media, professional communication and communication businesses

Key Terms:
proximate cause- the legal determination of whether it is reasonable to conclude the defendants actions led to the plaintiffs injury

Important Cases:
Tinker v Des Moines Independent Community
A landmark decision by the United States Supreme Court that defined First Amendment rights of students in U.S. public schools.One important aspect of the Tinker case was that the students' protest did not take the form of written or spoken expression, but instead used a symbol: black armbands. 
Elonis v United States
A case concerning whether conviction of threatening another person over interstate lines requires proof of subjective intent to threaten or whether it is enough to show that a "reasonable person" would regard the statement as threatening


Relevant Doctrine:

Fighting Words: Words not protected by the first amendment because they cause immediate harm or legal acts; Defined in Chaplinsky v New Hampshire as "by there very utterance inflict injury or tend to incite immediate breach of peace".

The First Amendment does not protect words that 1) Are directed at an individual and 2) automatically inflict emotional harm or trigger violence
Incitement (Brandenberg Test): Limits government punishment to speech  that is intended to and likely to produce imminent legal action; In evaluating laws that limit speech, courts tend to balance the interests at stake, usually categorically; The speech is both 1) directed to inciting or producing imminent lawless action, ad 2)  is likely to incite or produce such action

True Threats: Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety; The Supreme Court defined it as an "utterance in a context of violence that can lose its significance as an appeal to reason and become part of an instrument of force", and examined both 1) speaker intent and 2) a reasonable persons objective response in determining true threats because of their historic power to terrorize 

Media Negligence: Generally, the failure to exercise reasonable or ordinary care; When suits are based on Negligence, the plaintiff must show the media that the defendant had 1) duty of care, 2) the defendant breached that duty, and 3) the breach caused the plaintiffs injury.

To win a lawsuit for injury caused by media negligence, the plaintiff must prove breach of medias duty of care because the content posed a 1) reasonable foreseeable of harm or 2) Proximate cause of the harm

Current Issues:

Tech companies, as private businesses, have the right to choose what speech exists on their sites, much as a newspaper can pick which letters to the editor to publish. Their online sites do already pull some content for breaking their rules. Facebook and Google have tens of thousands of content moderators to root out hate speech and false information on their sites, for example. The companies also use artificial intelligence and machine learning technology to identify content that violates their terms of service. But many recent events, like the mosque shootings in New Zealand, show the limits of those resources and tools, and have led to more demands for regulation. A live video by a gunman in the New Zealand massacre was viewed 4,000 times before Facebook was notified. By then, copies of the video had been uploaded on several sites like 8Chan, and Facebook struggled to take down slightly altered versions. Getting consensus on basic definitions of what constitutes harmful content, though, has been difficult. And American lawmakers have been little help. Some civil rights groups also raised concerns. “It is extremely difficult to define ‘harmful content,’ much less implement standards consistently and fairly for billions of users, across the entire spectrum of contemporary thought and belief,” wrote Corynne McSherry and Gennie Gebhart of the Electronic Frontier Foundation, a nonprofit group that advocates open and free expression online. Their article was headlined “Mark Zuckerberg Does Not Speak for the Internet.” So far, Facebook has stood alone in its call for regulations of harmful speech. Google, Amazon, Twitter and Apple did not comment for this article but have been stalwart in their support of free speech online. With a limited appetite for the government to step in and ban certain content online, regulators and some lawmakers have increasingly warned they will crack down on the internet companies for doing a poor job of policing their own policies. To do that, the government would most likely need to take away a legal immunity for internet companies, established in 1996, that shields them from liability for content posted by users.

https://www.nytimes.com/2019/04/21/technology/facebook-zuckerberg-harmful-speech.html

Questions:

Chapter 2 Reading Summary- Media and Communication Law

Topic Overview:
The First Amendment
-The first amendment does not prevent government from all regulations of speech and press
-The court has not established a clear, fixed definition of the freedom of speech and press
-With new media reshaping both speech and press, the court provides different degrees of protection to different speakers and to different types of speech
- When a government action falls within the power delegated to government, the court uses minimum scrutiny (rational review) and assumes the law is constitutional
-If a law affects constitutionally protected rights the court uses a heightened form of review
-The first amendment does not infringe on the right of the government to speak, establish policies, and control the work related speech of its employees
-The supreme court has said that the first amendment also protects an individuals right to speak anonymously and to refrain from speaking

Key Terms:
Ad hoc balancing- Making decisions according to the specific facts of the case under review rather than more general principles
Seditious Libel- Communication meant to incite people to change the government; criticism of the government

Important Cases:
New York Times Co. v United States-
A landmark decision by the United States Supreme Court on the First Amendment. The ruling made it possible for the New York Times and the Washington Post newspapers to publish the then-classified Pentagon Papers without the rick of government censorship or punishment.

Reed v Town of Gilbert-
A case in which the Supreme Court clarified when municipalities may impose content-based restriction on signage. The case also clarified the level of constitutional scrutiny that should be applied to content-based restrictions on speech.


Relevant Doctrine:

Strict Scrutiny

A court test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to directly advance its compelling interest. When the court applies strict scrutiny, its most rigorous review, the court finds most laws unconstitutional.
laws must 1) serve a compelling government interest and 2) be narrowly drawn to be constitutional

Intermediate Scrutiny (O’Brien Test)- also called heightened review

Three substantive parts hold that a law is content neutral and will be constitutional if it 1) is not related to the suppression of speech, 2) advances an important government interest, and 3) is narrowly tailored to achieve that interest with only an incidental restriction of free expression. Most laws reviewed under intermediate scrutiny are upheld.

Under the O'Brien Test, a law must also serve an important government interest.

It also requires a law to "fit" its purpose.

Prior Restraint (Near Test)

Action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication

Current Issues:

Adjunct professor who jokingly said Iran should list 52 U.S. cultural sites to bomb has been fired.

Amid recent tensions between Washington and Tehran, during which President Trump threatened to target 52 sites “important to Iran & the Iranian culture,” Professor Phansey suggested that Iran’s supreme leader might want to do the same. Ayatollah Ali Khamenei “should tweet a list of 52 sites of cultural American heritage that he would bomb,” Phansey, an adjunct professor and administrator at Babson College in Wellesley, Mass., wrote on Facebook earlier this week. While decades of First Amendment case law prevents officials at public universities from restricting what their employees can say, or punishing them for expressing their views, private schools like Babson have much greater leeway. So when academics have made controversial posts on social media about any number of news items — mass shootings, the death of former first lady Barbara Bush or North Korea’s imprisonment of Otto Warmbier — their posts have resulted in a range of disciplinary outcomes.

(https://www.washingtonpost.com/nation/2020/01/10/babson-professor-iran/?arc404=true)

Questions:

Chapter 1 Reading Summary- Media and Communication Law

Topic Overview:
The Rule of Law- Law in a Changing Communication Environment
-Provides a relatively clear, neutral, and stable mechanism for resolving conflicts
-Laws come from 6 sources: constitutions (at state and federal levels), congress, legislatures, equity, and common law.
-Executives issue orders that have the force of law
-Through judicial review, courts have the power to to interpret constitutions and to determine when government violates the constitution
-trial courts review the facts and are the entry level for most legal disputes
-Appeals courts review the legal reasoning and process of the lower courts
-Majority opinions of a court of appeals establish binding precedent within the courts jurisdiction
- Criminal vs Civil lawsuits; In Criminal cases the government brings an action against an individual for violating a criminal statute. In Civil lawsuits, a private party initiates the process by filing a complaint. Court decisions may be appealed.

Key Terms:
Overbroad Law- A principle that directs courts to find laws unconstitutional if they restrict more legal activity than necessary
Equity Law- Law created by judges to decide cases based on fairness and ethics and also to determine the proper remedy
Facial Challenge- A legal argument that the challenged law or policy is unconstitutional in every application; there are no situations in which the law can be interpreted to be constitutional
En Banc- Literally "on the bench" but now meaning "in full court". The judges of a circuit of appeals will sit en banc to decide important or controversial cases
Moot- Term used to describe a case in which the issues presented are no longer "live" or in which the matter in dispute has already been resolved; a case is not moot if it is not susceptible to repetition but evades review
Per Curiam Opinion- An unsigned opinion by the court as a whole
Voire Dire- literally to "speak the truth"; the questioning of prospective jurors to assess their sustainability

Important Cases:
Marbury V Madison- Determined whether the Supreme Court has the power to review acts of congress and declare them void if they violate the constitution; held the provision of the judiciary act unconstitutional and declared the writ of mandamus void.

Relevant Doctrine:
N/A

Current Issues:

Today we face a situation with many echoes from that earlier time. Trump, like Clinton before him, has sought to erect executive privilege and other claims of immunity from inquiry as a barrier to oversight of his own conduct. Trump’s actions do not occur in a vacuum, nor is the public required to ignore the context in which they arise. The president has publicly declared his intent to resist all congressional inquiries through a variety of means. By one count, he is currently defying as many as 20 different efforts to examine his conduct. Not all of these involve executive privilege. And perhaps some of these invocations of privilege and refusals to assist congressional investigation are well justified. But the pattern of resistance is such that we should evaluate the president’s actions against that background and, rightly, conclude that much of the president’s resistance is undertaken in bad faith in an attempt to avoid, or at a minimum delay, scrutiny of his conduct.

(https://www.theatlantic.com/ideas/archive/2019/06/trumps-unique-assault-rule-law/590875/)

Questions:
How often do conflicts of interest between congress and the constitution occur?