Journalism notes for Law ect.

Natalie Bragg

Scoville vs. the school board

Forecast Rule:  Admin. Can’t forecast disruption prior restraint = censorship

Censorship by admin is not legal.

Fraiser vs. ________ 1986

Can’t write anything containing: libel, obscenity, invasion of privacy, copyright infringement.

Although his speech was not obscene, it was offensive and a disruption, not under appropriate behavior/discipline, captive audience: Fraiser loses case. 

Kuhlmeier vs. Hazelwood

1988 – Landmark

Open forum – forum of student opinion, closed forum – administrator’s approval – prior restraint.

Students file suit on prior restraint

Supreme court said if the admin thinks there is poor journalism, mechanics – called pedagogical concerns

California had student freedom of expression statuette

1992 – Kansas passed its won S.F.E.S.^

Content control – liability for content

Fairfax vs. Gambino

School with abstinence policy; paper printed article on safe sex

Libel- written defamation of character

Causes damage to:

1. Reputation
2. Relationship with family
3. Livelihood

 Defenses for libel:

1. Truth = absolute defense truth with good cause
2. qualified privilege

right to report statements made in judicial or legislative session full, fair, accurate report of entire hearing

3. Fair comment and criticism

·         Right to be publicly critical of public performance.  Tom Cruise, Trent Green, Oprah, anyone who holds public office: anyone who is elected or appointed to governmental position. Bush- elected, Condoleezza Rice – appointed

·         Must be presented (clearly labeled) as opinion, not fact.

·         Libel – Defamation

·         Liable- Responsibility (liability)

Sullivan vs. the New York Times

1964

• After saving president from gun, press discovers he’s homosexual
• Not libelous because it is true, although did cause damage (fam. Disowned him)

1960- Advertisement (partially) in accurately describes actions of Birmingham, Alabama police force

Commissioner LB Sullivan

For libel to occur

1. Defamation
2. Identification
3. Publication

Establish actual malice: Knowledge of falsehood or reckless regard for the truth

-if you are a public figure or official you must prove actual malice

Prior to 1969 students and teachers had no constitutional rights

In loci parentis – administrators act as parents teachers held to a higher standard

1969 – Tinker vs. The Otis Moines Community School District ( supreme court)

Mary Beth Tinker (8^th grade) protests Vietnam War by wearing black arm band to school, principal objects and students are suspended.

Student Press Rights

Public: government funded

Private: not protected by government, but school laws

Tinker Standard – unlawful speech, physically disruptive

Hazelwood vs. Kuhlmeier – Tinker was student speech, Hazelwood was school speech.

Hazelwood standard: biased, prejudiced, ungrammatical, unsuitable for immature audiences, opinion on political topics.

            -doesn’t apply to public forum (like Kansas)

Libel: printed false information that hurts.

Red Flag Statements:

• Accusations of illegal conduct with criminal justice system
• Sexual misconduct
• Association with “loathsome diseases”
• Lying
• Academic problems
• Unfit for business
• Radical/religious/ethic bigotry
• Financial instability; lack of credit worthiness

 Person suing media for libel must show they acted unreasonably

Acting reasonably:

• Use trustworthy sources
• Take accurate notes
• Documents
• Report – don’t “sell”
• Talk to all sides
• Be open-minded
• Do the work required
• Be rigorous in choice of language
• Never publish a story if you doubt its truth

Invasion of Privacy: the right to be left alone

1923 – U.S. first set up right of privacy, Federal Trade commission U.S. American Tobacco Co.

Invasion of Privacy – privacy not guaranteed by constitution privacy low has developed over the last 100 yrs.

Types of Invasion of Privacy:

1.)    Public disclosure of private and embarrassing facts

·         Info that is sufficiently private

·         Sufficiently intimate

·         Highly offensive to a reasonable person

The “newsworthiness” defense

• Defense =newsworthy
• Info about public figure/official = newsworthiness
• Recent involvement of criminal activity = newsworthy printing names of minors
•  1979 – Smith U.S. Daily mail – 1^st Amend givers right to publish names of minors in newsworthy.  Stories if into legally obtained & truthfully reported

Cohen vs. Cox Broadcasting Corp.

• If info is already published and therefore not private, couldn’t be punished for releasing public info.

2.)    False Light

• Makes incorrect claim that embarrasses
• Must be highly offensive
• Acted with knowledge or reckless disregard
• Same legal standards that apply to libel
• Damage to rep doesn’t have to be proved

3.) Intrusion upon Seclusion

·         Can be sued even if never published

·         Newsworthiness can be defense

Most common type of intrusion:

1.)    Trespass – going onto private property with out the owners consent

2.)    Secret surveillance – cannot record what an unaided eye or ear could not see or hear

3.)    Misrepresentation – invalid or exceeded consent: undercover reporting is not necessarily an invasion as long as the disguise isn’t used as means to trespass

4.)    Misappropriation of name or likeness – unauthorized use of a person’s name.

Consent as a defense

·         With all four forms of invasion of privacy, consent is a valid defense

·         Must receive consent from someone with legal right to do so

Can a minor give consent?

·         Should be effective if a minor is “capable of appreciating the nature” and consequences of the conduct

·         Most high school can give consent, elementary children cannot.

Obscenity:

• Courts have had trouble defining obscenity
• Hicklin Standard – 1865                                                                                        “affects of isolated passages upon the most susceptible mind.”  -Based on what’s obscene to a child
• 1^st legal definition Roth vs. the United States 1957
• Obscenity isn’t constitutionally protected
• To not be obscene – must have socially redeeming value
• 3 part test to determine obscenity Miller vs. California 1973
1. Applying contemporary community standards would find it appeals to a prurient (lustful) interest
2. Whether it depicts or describes in an offensive way, sexual conduct defined as obscene by state law
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value(laps)

• Profanity, nudity and offensive material aren’t obscene if they don’t arouse sexual feelings
• Ginsberg vs. State of new York (1968)
• Applied a three – part test similar to what later appeared in miller
• Define obscenity as to minors, any nudity or sexual conduct
1. appeals to the prudent, shameful, or morbid interest of minors
2. With out redeeming social value.

• Indecent speech in high school
• Beth vs. Fraser 1986
• Speech was not obscene by miller standards
• Materially disruptive under tinker standard
• It also suggested a duel standard for 1^st amendment
• Schools can restrict vulgar speech
• Captive audience and school sponsored

ugh, cant wait till springbreak...school is lame!