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?