Media Law in the News #4

http://time.com/5297032/sesame-street-lawsuit-happytime-murders/

Part I - Summary of Issue

The creators of Sesame Street are suing Melissa McCarthy over the release of her new movie trailer for the movie "The Happytime Murders." The film portrays puppet look a-likes engaging with drugs, sex, some violence, and other profane material. Melissa McCarthy plays a human detective posed to find all the grisly murders in the community along with her puppet friends. The movie goes against the 123 Sesame Street Big Bird, the Cookie Monster, Elmo, the Grouch themed scenes where puppets are engaging with education, to a "the kids are away," mantra. For context, Sesame Street is an educational television show for children that includes live action and puppetry. Jim Henson created the Muppets use to infuse humor into the film.

Sesame Workshop is suing STX Entertainment, the production company for McCarthy's movie, claiming the movie "dilutes and defiled" the Muppets' reputation from the childhood themed Sesame Street. They have also chosen to point out that the scenes in the trailer that use tag-lines like "No Sesame. All Street." The Workshop is asking STX to not use any intellectual property or trademarks either. The Sesame Workshop team believes that STX is feeding the public's confusion on what is the Muppets and what is "The Happytime Murders"; and who the creators are.

Furthermore, the creators are being called into question because along with Melissa McCarthy and her husband Ben Falcone, the pair worked closely with Brian Henson, son of Jim Henson the creator of Sesame Street. As a result, the suit is claiming that this movie could cause "irreparable injury to Sesame Street's mark."

Part II - Legal Questions Raised

1. Does the use of puppets in the Happytime Murders defame (damage the good reputation of) characters/appeals of Sesame Street?

2. Is the Sesame Street brand protected by trademarks, or the characters themselves?

3. What does copyright protect in this case?

4. Who does the copyright belong to? Jim Henson?

Part III - Relevant Doctrine/Precedent
The category of law which must be discussed here is copyright. Copyright protects original works of authorship fixed in a tangible medium. In order for Sesame Workshop to win the lawsuit, they must prove that they have valid copyright; that Jim Henson or other creators/producers had access to the film, and that there is substantial similarities between the two works.

It would be best to apply the fair use defense - a balancing test. To do this the Court must determine the purpose of "The Happytimes Murders," the nature of the copyrighted work, the amount of copyrighted work was used and the effect that STX production companies use of the work has on Sesame Street's ability to make money/sales on future products. In this case, the STX production of McCarthy's film was for a form of art - movie production. The nature of the copyrighted work, is unlikely to be considered either scholarly or scientific simply based on the fact that it is a humorous, and pretty profane piece of satire. The next important part to consider is the amount of the particular portion of work or idea was used in the making of the new creation or in this case the movie. This is difficult because although the puppets in "The Happytimes Murders" are not the well known colorful characters like Big Bird, Mr. Grouch, Elmo, Ms. Piggy, the Cookie Monster, etc. the puppets do look gravely similar and speak very similar to the Muppets characters. Using the puppets which are trademarked might make this a difficult case to prove fair use. Lastly, the court will need to analyze whether or not the making of Melissa McCarthy's movie will deplete the sales or ruin Sesame Street's ability to make money. Likely this will be immediately determined that it doesn't because they are separate entities and Sesame Street's longstanding run will not be influenced or their trademark stuffed animals or children's toys will not be affected by this adult film.

Taking all of these factors into consideration it is very unlikely that Sesame will win its case for fair use/copyright/intellectual copyright. 

Part IV - Conclusion
This case will surely get much more attention as it moves through the litigation process because it is so famous. Adults are the only permitted age who can see the movie in theaters; however, they are also the generation who allows their children to watch Sesame Street for educational purposes. Intellectual property lawsuits can be tricky, but it is an issue that many American's care deeply about because creativity and people's personal ideas and creations are meant to be protected. Cases like these are important because they remind people of copyright laws and set the parameters for people to give credit where credit is deserved, and to not copy, or have permission to use material.

I think people will learn a lot about the law, and copyright in this process. I also think people's morals and values will be called into question. Another consideration that will need to be taken into account is the work for hire aspect. Jim Henson's son Brian doesn't have permission to work or create material even if he was a part of the behind the scenes and creative work of his dad's.

I must also note that a New York Judge ruled last week that STX productions can continue to use the tagline, "No Sesame. All Street," in their trailer to promote the movie. The judge Vernon Broderick said that the "slogan is actually a 'humorous, pithy' to distinguish 'The Happytime Murders' and Sesame Streets larger brand."

Chapter 12 - Advertising: When Speech and Commerce Converge

Topic Overview:

This chapter outlines commercial speech and how it is defined by the Supreme Court. Commercial speech is speech that intends for people to engage in commerce and where the audience is commercial or potential consumers. Advertisements are a direct form of commercial speech, that fuels nearly all media organizations and businesses. However, the Supreme Court says that commercial speech is entitled to less protection under the First Amendment. Meaning, commercial speech is subject to content-based regulation and must withstand intermediate scrutiny.

This is important to understand because as people, we are subject to thousands of ads everyday as we walk through life. And, false ads are not subject to any protections and are not legal according to law and the Supreme Court.

Defining Key Terms:
standing: The position of a plaintiff who has been injured or has been threatened with injury. No person is entitled to challenge the constitutionality of an ordinance or statute unless he or she has the required standing - that is, unless he or she has been affected by the ordinance or the statute.

Lanham Act: A federal law that regulates the trademark registration process but also contains a section permitting business competitors to sue one another for false advertising.

Federal Trade Commission (FTC): A federal agency created in 1914. Its purpose is to promote free and fair competition in interstate commerce; this includes preventing false and misleading advertising.

puffery: Advertising that exaggerates the merits of products or services in such a way that no reasonable person would take the ad seriously. Usually, puffery is not illegal given that a reasonable person understands the claim is not to be taken literally.

opinion letter: An informal Federal Trade Commission communication providing general advice about advertising techniques.

advisory opinion: A Federal Trade Commission measure that offers formal guidance on whether a specific advertisement may be false or misleading and how to correct it.

industry guides: In advertising, a Federal Trade Commission measure that outlines the FTC's policies concerning a particular category of product or service.

trade regulation rule: A broadly worded statement by the Federal Trade Commission that outlines advertising requirements for a particular trade.

voluntary compliance: The general Federal Trade Commission practice to allow advertisers to follow FTC rules and correct violations before the commission takes action.

consent order: An agreement between the Federal Trade Commission and an advertiser stipulating the terms that must be followed to address problematic advertising; also called a consent agreement.

cease and desist order: An administrative agency order prohibiting a person or business from continuing a particular course of conduct.

litigated order: A Federal Trade Commission order filed in administrative courts whose violation can result in penalties, including fines of up to $10,000 per day.

substantiation: The authority of the Federal Trade Commission to demand that an advertiser prove its advertised claims.

corrective advertising: The Federal Trade Commission power to require an advertiser to advertise or otherwise distribute information to correct false or misleading advertisement claims.

Important Cases:

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980) - The Public Service Commission of New York (PSC), in the interest of conserving energy, enacted a regulation that prohibited electric utilities from promoting electricity use. The PSC's regulation distinguished promotional advertising from informational advertising - which was advertising that was permitted.

Question before the Court was did the PSC's ban on advertising violate the freedom of speech protected by the First and Fourteenth Amendments?

Yes, 8-1 opinion the Court overruled the Court of Appeals of New York and held that the New York's ban violated the right to commercial speech. The Court recognized New York's interest in promoting energy conservation and accepted that the PSC's regulation would directly further that interest. However, since the regulation restricted all promotional advertising regardless of its effect on electricity use, it violated the First and Fourteenth Amendment.

Sorrell v. IMS Health Inc. (2011) - In 2007, Vermont enacted the Prescription Confidentiality Law which banned the sale, transmission or use of prescriber-identifiable data for marketing or promoting. The law also prohibited the sale, license, or exchange for value of the data. Three companies, IMS Health, Verispan, and Source Healthcare Analytics, whom collect and and sell such data and by a trade group for pharmaceutical manufacturers challenged the law.

Question before the quart was does a Vermont state statute banning the sale, transmission or use of prescriber identifiable data, absent prescriber consent, unconstitutionally restrict the free speech rights of pharmaceutical research companies, manufacturers, and others to use that data?

Yes, the Supreme Court ruled that the Vermont statute places content-and speaker-based burdens on protected expression which should be heightened judicial scrutiny.

Relevant Doctrine:

1. The Commercial Speech Doctrine:

• The government may regulate advertising that is false, misleading, or deceptive. 
• The government may regulate advertising for unlawful goods and services. 

Even accurate advertising for legal goods and services may be regulated if the government demonstrates:

• A substantial state interest behind the regulation. 
• The regulation directly advances the state's interest. 
• A reasonable fit between the state's interest and the regulation. 

2. The Free Flow of Commercial Information: In Virginia State Board of Pharmacy  v. Virginia Citizens Consumer Council, the U.S. Supreme Court established that:

• "Freedom of speech" applies to both the speaker and the receiver of information.
• "Speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement."
• Speech that only proposes a commercial transaction is not so removed from "any exposition of ideas" that it lacks all protection. 
• The need to make intelligent, informed economic decisions in a free-enterprise economy drives the public interest in entirely commercial information. 
• Some forms of commercial speech, including deceptive or misleading ads, may be regulated. 

3. Lanham Act Standing: In 2014, the U.S Supreme Court established that a plaintiff has standing to bring suit under the Lanham Act when:

1. The defendant's actions occurred inside "the zone of interest" of the Lanham Act, and
2. The injury to the plaintiff is "proximately caused" by the defendant's actions. 

4. False and Misleading?: A Federal Trade Commission (FTC) policy statement establishes the three-part federal definition of false and misleading advertising:

• First, the ad must involve a "material" representation, omission, or practice. 
• Second, the material representation must be likely to affect the consumer's conduct or decision with regard to a product or service. 
• Third, the representation must be likely to mislead a reasonable consumer acting reasonably in the circumstances. 

5. FTC Mechanisms:

Preventative Measures: opinion letters, advisory opinions, industry guides, trade rules, voluntary compliance

Corrective Measures: cease and desist orders, consent orders, substantiation, litigated orders, corrective advertising, injunctions. 

My Questions/Concerns:

Chapter 11- Intellectual Property: Protecting and Using Intangible Creations

Topic Overview:

At the start of this chapter there is a quote from Barack Obama, former President of the United States, "We're going to aggressively protect our intellectual property. Our single greatest asset is the innovation and the ingenuity and creativity of the American people. It is essential to our prosperity, and it will only become more so in this century."

This quote really sums up the importance of protecting individuals' intellectual property. People's creativity and innovation helps expand and make the world a better place. We have evolved and become more efficient because of copyright law, and each day we are reminded that other people's art, words, expression are often "intangible property" yet property that deserves legal protection. Also, Barack Obama's last sentence regarding "this century" is necessary to emphasize. Will the digital age there needs to be constant awareness, and protection of people's ideas and permission must be granted.

Defining Key Terms:

intellectual property law: The legal category including copyright, trademark, and patent law.

copyright: An exclusive legal right used to protect intellectual creations from unauthorized use.

Statute of Anne: The first copyright law, adopted in England in 1710, protected authors; works if they registered them with the government.

plagiarism: Using another's work or ideas without attribution.

work made for hire: Work created when working for another person or company. The copyright in a work made for hire belongs to the employer, not the creator.

Transmit Clause: Part of the 1976 Copyright Act that says a broadcast network is performing when it transmits content; a local broadcaster is performing when it transmits the network broadcast; and a cable television system performs when it retransmits a broadcast to its subscribers.

moral rights: Under U.S. copyright law, the rights to certain artists - creators of paintings, drawings, prints, sculptures and art photographs - to require that their names be associated with their works, to forbid others from claiming to be creators of the works and to prevent intentional harm to or modification of a work that would harm the artist's reputation.

first-sale doctrine: Once a copyright owner sells a copy of a work, the new owner may possess, transfer or otherwise dispose of that copy without the copyright owner's permission.

infringement: The unauthorized manufacture, sale, or distribution of an item protected by copyright, patent or trademark law.

statutory damages: Damages specified in certain laws. Under these laws, copyright being an example, a judge may award statutory damages even if a plaintiff is unable to prove actual damages.

fair use: A test courts use to determine whether using another's copyrighted material without permission is legal or an infringement. Also used in trademark infringement cases.

safe harbor: The takedown notification provision of the Digital Millennium Copyright Act that protects Internet Service Providers and video sharing websites from claims of infringement when they do not know about the infringement, do not earn money from the infringement and promptly comply with a takedown notice.

trademark: A word, name, symbol or design used to identify a company's goods and distinguish them from similar products other companies make.

tacking: Allows a trademark owner to slightly alter a trademark without abandoning ownership of the original mark.

Important Cases:
Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. (2005) - Grokster and other companies distributed free software that allowed computer users to share electronic files through peer-to-peer networks. Meaning, users can share digital files between computers without the use of a central server. Users mostly used the software to download copyrighted files. The companies profited from advertising revenue, since they streamed ads to the software users. Movie studios and other copyright holders sued and alleged Grokster and others of violating the Copyright Act by intentionally distributing software that enable users to infringe copyrighted works.

The question before the Court was regarding whether companies that distributed file-sharing software, and encouraged and profited from direct copyright infringement using such software, liable for the infringement?

The Court found unanimously that, yes, companies that distributed software and promoted that software to infringe copyrights were liable for the resulting acts of infringement. Secondary liability doctrines must be applied here. So many people used the software and going after each individual infringer would be too difficult so the alternative was to go against the distributor.

American Broadcasting Companies Inc. v. Aereo Inc (2014) - Aereo Inc. provides a service that allows its subscribers to watch programs that are currently airing on network television or record programs that will air in the future over the Internet. Aereo allows subscribers to watch live television and record shows, as well as on mobile devices. Was only available to be people who subscribed in the New York City area and offered only New York City local channels but the problem was that Aereo did not have a license from the copyright holders of the programs to record or transmit their programs.

Two groups of plaintiffs filed separate copytight infringement suits against Aereo. The plaintiffs claimed that the transmission of the programs violated their right to "publicly perform" their copyrighted works. The district court held that Aereo's system was not substantially different from another that had been determined non-violative of the rights of copyright holders and that, while the injunction might prevent harm for the plaintiff's businesses, it would irreparably harm Aereo's.

The question before the Court was, does a company "publicly perform" a copyrighted televison program when it transmits the program to paid subscribers over the Internet? 

Court found that yes in a 6-3 majority. Aereo is functionally similar to community antenna television. Under Congress' definitions established in the Copyright Act, Aereo performs work because it shows images in sequence with the accompanying audio, and it does so publicly because those images and sounds are received beyond the place from where they were sent by a large number of unrelated people. Aereo is then a broadcaster.

Relevant Doctrine:

1. The U.S. Constitution: Copyrights and Patents - Congress shall have Power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. 

2. The 1976 Copyright Act - Copyright protection applies to "original works of authorship" that are "fixed in any tangible medium of expression." Works protected include: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. 

3. Infringing 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.

4. The Public Domain -  Material that no longer is under the copyright protection is in the public domain. 

5. Fair Use Defense - 

1. For what purpose was the copyrighted work used without permission?
2. What was the nature of the copyrighted work that was used without permission?
3. How much and what portion of the copyrighted work was used without permission?
4. What effect did the unauthorized use have on the copyrighted work's market value?

6. Transformative Use - Transformative use is 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?" 

7. Types of Marks - A trademark is only protected if it is distinctive. There is a spectrum of distinctiveness in trademark law. The more distinct a mark, the more likely it will be eligible for trademark registration. 

Fanciful marks - invented marks, including made-up words most likely to receive trademark protection (Lexus).

Arbitrary marks- words that have ordinary meanings unrelated to the product or service (Apple).

Suggestive marks - marks that suggest a product's source or manufacturer's business but do not describe what the product is (Playboy).

Descriptive marks - marks that describe the product or service and leave little to a consumer's imagination and that must attach a distinctive meaning to the product or service (called secondary meaning) to the be trademarked. 

My Questions/Concerns:

1. With the amount of media in the world, do copyright laws need to be made more clear? There seem to be so many complexities and rules so much so that it may be difficult to always distinguish between what is public domain or not.

Media Law in the News #2

https://apnews.com/amp/04326e9b1da647739fe35550e6edcc56?__twitter_impression=true
Part I - Summary of Issue

In 2016, the EU enacted a law called the General Data Protection Regulation which replaced the Data Protection Directive 95/46/ec. This new law was to be enacted in the Spring of 2018 as the primary law regulating the way media and other companies protect citizens' personal data. On May 25, 2018 media companies like Facebook, Twitter, Instagram, etc., must: 1) require the consent of subjects for data processing, 2) anonymizing collected data to protect privacy, 3) providing data breach notifications, 4) safely handling the transfer of data across borders, and 5) requiring certain companies to appoint a data protection officer to oversee the General Data Protection Regulation as it pertains to the individual company and its compliance.

This law has made worldwide news, because in the wake of the Cambridge Analytica breach of an immeasurable number of American's Facebook accounts, this law sets an important baseline for how citizens should be treated, and safeguarded from the processing and utilization of their personal data. In this case, the EU defines personal data as "information relating to an identified, or an identifiable person." As we are learning this controversy with Facebook was not a stand alone event. Many people worldwide have lost their personal data, confidentiality, etc., as a result of these data breaches and failure to value citizen's protection. The GDPR law is a necessary step to giving citizens back the control over their lives and information. The news surrounding this law has provided the US and other countries an example of the laws and regulations that should be enacted in their own prospective countries.

To regulate and maintain the core of this law, media, companies, and organizations that fail to adhere to these regulations will be fined "as much as 20 million euros or 4 percent of their annual global turnover (whichever is greater)." Secondly, consent must always be required. Third, the GDPR must show that each company has a assigned person who is monitoring "on a large scale." And, fourth, the GDPR assures and encourages companies that they create the proper mechanism to always maintain compliance with the law.

Part II - Legal Questions Raised
1. Who own's your 'personal data,' the company collecting or you as an individual?

2. What is the best way to protect an individual's privacy while not impeding future innovation?

3. What is the difference between privacy and confidentiality?

4. What is personal identifiable information?

Part III - Relevant Doctrine/Precedent
The category of law which must be discussed here is privacy. There are three distinct rights of privacy: access to personal information, personal autonomy, and the right of publicity. The right to privacy is alluded to in the US Constitution under the Fourth Amendment, which says, "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause..." however, the word privacy is not specifically used.

The Supreme Court first recognized a case for privacy during the Griswold v. Connecticut (1965), in which the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives, was questioned. The Court decided that even though the Constitution does not explicitly protect a general right to privacy, there is area to create rights to privacy.

The precedent that must be used is the Constitutional Right to Privacy. This protections comes from the Third, Fourth, and Fourteenth Amendments. The Constitution protects from governmental invasion of privacy. Harlan's "reasonable expectation of privacy" test from Katz establishes a Fourth Amendment right to privacy when: 1) a person exhibits an actual expectation of privacy, and 2) society is prepared to recognize this expectation as reasonable.

Privacy is the law that is the relevant doctrine that applies tot his case because now that the EU has enacted the GDPR, and that one of the basis' for the law states that their consumers and customers data cannot be given to other agencies, as well as those out of the country. Spotify and Facebook are already sending emails out about their new privacy guidelines. And, it will be necessary to follow along to see how other large companies attempt to follow in the steps of these privacy guidelines too, and how the Supreme Court will be handling cases, and how the precedent of law could change.

Part IV - Conclusion
As independent American's, we are constantly concerned with our privacy. Especially with Facebook's breach of privacy in the forefront of our minds, it is important to understand how the U.S Constitution protects us. Daily, people are accessing the internet and marketers, advertisers, and businesses have direct access to our information and data.

Meanwhile, the market for high functioning camera is growing and people, as well as public figures like celebrities are more vulnerable for experiencing breaches of their privacy. As a result, there have been substantial calls for the government to pass legislation that protects individuals and their information with the highest regard.This is a tricky process though because privacy must be maintained while simultaneously adhering to the First Amendment rights of the constitution. However, ultimately, a right to privacy is intrinsic to American's and all people's ability to live. A right to privacy keeps everyone in check and helps maintain the personal bubble everyone deserves.

Notification of misuse of data, enhancing privacy settings, and building stronger policies are all essential to working to fix this problem.

Chapter 10 - Obscenity, Indecency, and Violence

Topic Overview:

Sexual expression is a highly debated and controversial topic amongst the courts. There is a fine line between what each individual in society and the justices sitting on the court believe should be protected and what should be illegal; and this is completely based on people's line of morals. Currently, all federal and state laws have removed obscene material - meaning obscene material does not receive any First Amendment protection.

Important in this rule, was the distinctions made my the Court about obscenity, pornography, and indecency. The Miller v. California case helped develop the Miller Test which is now used to identify what is obscene for what is not. Included in all of this is the constitutional laws which establish the limits of government interference in obscenity. As well as administrative laws which are determined by the Federal Communications Commission and applied to media - broadcast, cable and the Internet.

Defining Key Terms:
pornography: A vague - not legally precise - term for sexually orientated material.

indecency: A narrow legal term referring to sexual expression and expletives inappropriate for children on broadcast radio and television.

obscenity: The dictionary defines it as relating to sex in an indecent, very offensive or shocking way. The legal definition of obscenity comes from Miller v. California - material is determined to be obscene if it passes the Miller Test.

Hicklin rule: A rule taken from a mid- 19th century English case and used in the United States until the mid-20th century that defines material as obscene if it tends to corrupt children.

prurient interest: Lustful thoughts or sexual desires.

patently offensive: Term describing material with hard-core sexual conduct.

serious social value: Material cannot be found obscene if it has serious literary, artistic, political or scientific value determined using national, not local, standards.

variable obscenity: The concept that sexually orientated material would not meet the definition of obscenity if distributed to adults but would be found obscene if distributed to minors.

child pornography: Any image showing children in sexual or sexually explicit situations.

safe harbor policy: A Federal Communications Commission (FCC) policy designating 10pm to 6am as a time when broadcast radio and television stations may air indecent material without violating federal law or FCC regulations.

Important Cases:

Miller v. California (1973) - Marvin Miller after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statue prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police which initiated the legal proceedings. The question before the quart was, is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

The Court held that obscene materials do not hold First Amendment protection. The guidelines for this would be a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest,  b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value.

Federal Communications Commission v. Fox Television Stations Inc. (2012)- In 2002 and 2003, Fox Television Stations broadcast the Billboard Music Awards. During the broadcasts, one musician used an expletive in his acceptance speech and a presenter used toe expletives. The Federal Communications Commission (FCC), although it had previously taken the position that such fleeting and isolated expletives did not violate its indecency regime, issued notices of liability to Fox for broadcasting the profane language.

The Second Circuit held that the FCC's liability order was "arbitrary and capricious" under the governing Administrative Procedure Act because the FCC had completely reversed its position on fleeting expletives without giving a proper justification. The Second Circuit also failed to find evidence that the expletives were harmful.

The question before the Court was is the FCC's order imposing liability on Fox Television Stations for fleeting expletives spoken during two nationally broadcast awards ceremonies "arbitrary and capricious" under the Administrative Procedure Act, based on the FCC's previous acceptance of similar expletives?

Relevant Doctrine: 

1. The SLAPS Test - To show a book, movie, magazine or other material is obscene, the government must prove all three parts of the Miller v. California test. The third part of the test says the material, taken as a whole, must lack any serious literary, artistic, political or scientific value. This is called the SLAPS Test.

2. The Miller Test -  Under the Miller Test to find material obscene, a court must consider whether:

1. "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to prurient interests;
2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
3. the work, taken as a whole, lack serious literary, artistic, political or scientific value. 

3. Censoring the Internet - The U.S. Supreme Court said: The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship. 

My Questions/Concerns:
1. Is it the individual who posts the material, or the website or broadcast medium that obscene content is shown on the one who gets in trouble?

Chapter 9 - The Media and the Courts - Preserving Public Trials and Preventing Prejudice

Topic Overview:

This chapter discusses the fine line that the media and reporters face, in abiding by their First Amendment right while also assuring that all people accused of a criminal or civil law case will be granted an impartial jury, free from outside influences. The courts face a constant challenge with the many forms of new media and creating a balance in court that eliminates all prejudice from jurors. 

This is very important to the defendant's and the plaintiffs because it has been seen how court cases have become media phenomenons and how the people involved can quickly become media celebrities and household names. Everyone deserves a degree of protection but a judge must reduce media's adverse impact on the outcome of a trial while maintaining the right of the public to view trials and the press' freedom of speech/First Amendment rights. The information in this chapter is especially important to those of us studying to be journalists and reporters in our future careers. 

Defining Key Terms:

continuance: Postponement of a trial to a later time. 

sequestration: The isolation of jurors to avoid prejudice from publicity in a sensational trial. 

gag orders: A nonlegal term used to describe court orders that prohibit publication or discussion of specific materials. 

admonitions: Judges' instructions to jurors warning them to avoid potential prejudicial communications. 

summons: A notice asking for an individual to appear at a court. Potential jurors receive such a notice. 

for-cause challenge: In the context of jury selection, the ability of attorneys to remove a potential juror for a reason the law finds sufficient, as opposed to a peremptory challenge. 

impanel: to select and seat a jury. 

experience and logic test: A doctrine that evaluates both the history and the role openness plays in ensuring the credibility process to determine whether it is presumptively open. 

experience and logic test: A doctrine that evaluates both the history and the role openness plays in ensuring the credibility of a process to determine whether it is presumptively open. 

restraining order: A court order forbidding an individual or group of individuals from doing a specified act until a hearing can be conducted. 

Important Cases:

Sheppard v. Maxwell (1966)- Samuel Sheppard suffered a trial court conviction of second-degree murder for the death of his pregnant wife. Sheppard challenged the verdict as the product of an unfair trial. He noted that the trial judge failed to protect him from the massive, widespread publicity that attended his prosecution. The Supreme Court granted certiorari. The question was what must be crossed before a trial is to be deemed prejudicial, due to context and publicity, to interfere with defendants's Fifth Amendment due process right to a fair trial?

The court concluded that freedom of expression must be granted but that it must adhere and not divert from a fair trial. 

Richmond Newspapers Inc. v. Virginia (1980)- After a series of mistrials in a murder case in Virginia, a trial judge closed the trial to the public and the media. But two reporters of Richmond Newspapers, Inc. challenged the judge's action. The question before the court was did the closure of the trial to the press and public violate the First Amendment or the Sixth Amendment? 

The Court concluded that the right to attend criminal trials was "implicit in the guarantees of the First Amendment." The Court held that the First Amendment encompassed not only the right to speak but also the freedom to listen and to receive information and ideas. The Court also added the First Amendment guaranteed the right of assembly in public places such as courthouses.

Relevant Doctrine:

1. Open Courts - According to the U.S. Supreme Court's rulings in the two Press-Enterprise cases, court proceedings are presumptively open to the public and the press if logic and experience dictate openness. Accordingly, court processes are presumed to be open if: 

• The proceeding in question has a largely uninterrupted history of openness, and
• Openness contributes to the proper functioning of the proceeding itself. 

2. The Press-Enterprise Test for Court Closure - Under the Supreme Court Test developed in Press-Enterprise (II) v. Superior Court, an individual seeking to close open-court records or proceedings, including pretrial hearings, must provide the following: 

• Specific, on the record findings that there is a "substantial probability" that the openness will jeopardize the defendant's right to a fair trial, and
• Convincing evidence that closure is "essential" to preserve the trial's fairness. 

3. Closing Media Mouths: The Nebraska Press Standard - The Nebraska Press Association v. Stuart established that a judge must justify orders that prevent media disclosure of information produced in court with convincing evidence that:

1. Disclosure of the protected information would present a substantial threat to a fair trial. 
2. There is no effective alternative to a gag on the press. 
3. The gag will effectively eliminate the danger to the fair trial, and
4. The gag is narrowly tailored to restrict only the information that must be kept secret. 

4. What is fair coverage of criminal trials? - Only an overwhelming justification should permit the media to report:

• The existence of a confession
• The content of a confession
• Statements or opinions of guilt or innocence
• The results of lab tests
• Statements or opinions on witness credibility
• Statements or opinions on the credibility of the person or the investigative process or personnel 
• Other information or statements reasonably likely to influence the trial verdict. 

My Questions/Concerns:

1. How does the current media coverage on the trials and court summoning of our current president and his confiding team, potentially affect the future outcome of future trials?

2. Are those who are serving jail time still granted the same rights of the constitution? 

Chapter 6- Protecting Privacy: Conflicts Between the Press, the Government and the Right to Privacy

Topic Overview: 

As independent American's, we are constantly concerned with our privacy. Especially with Facebook's breach of privacy in the forefront of our minds, it is important to understand how the U.S Constitution protects us. Daily, people are accessing the internet and marketers, advertisers, and businesses have direct access to our information and data. Meanwhile, the market for high functioning camera is growing and people, as well as public figures like celebrities are more vulnerable for experiencing breaches of their privacy. As a result, there have been substantial calls for the government to pass legislation that protects individuals and their information with the highest regard.

This is a tricky process though because privacy must be maintained while simultaneously adhering to the First Amendment rights of the constitution. However, ultimately, a right to privacy is intrinsic to American's and all people's ability to live. A right to privacy keeps everyone in check and helps maintain the personal bubble everyone deserves.
Defining Key Terms:

false light: A privacy tort that involves making a person seem in the public eye to be someone he or she is not.  Several states do not allow false light suits.

fact finder: In a trial, a judge or the jury determining which facts presented in evidence are accurate.

appropriation: Using a person's name, picture, likeness, voice, or identity for commercial trade purposes without permission.

commercialization: The appropriation tort used to protect people who want privacy.

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. To win a right of publicity case, an individual must prove that his or her name or likeness was used without permission and that the commercial or advertisement was widely distributed.

sound-alike: Someone whose voice sounds like another person's voice. Sound-alikes may not be used for commercial or trade purposes without permission or a disclaimer.

artistic relevance test: A test used to determine whether the use of a celebrity's name, picture, likeness, voice, or identity is relevant to a disputed work's artistic purpose.

transformative use test: A test used to determine whether a creator has transformed a person's name, picture, likeness, voice, or identity, for artistic purposes. If so, the person cannot win the 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 plaintiff's name or picture more for commercial purposes or protected expression.

intrusion upon seclusion: Physically or technologically disturbing another's reasonable expectation of privacy.

reasonable person: The law's version of an average person.

private facts: The tort under which media are sued for publishing highly embarrassing private information that is not newsworthy or lawfully obtained from a public record.

public record: A government record, particularly one that is publicly available.

Important Cases:

Cox Broadcasting Corp. v. Cohn (1975) - Cohn was the father of a seventeen-year old girl who was raped and killed in Georgia. Cox Broadcast Corporation obtained information from the public record, and named Cohn's daughter in connection with the incident. This violated a Georgia privacy statute which prevents members of the media from publicizing the names or identities of rape victims.

But, Supreme court held that this violated the First Amendment, and was dangerous to press freedom because it would invite self-censorship and timidness. The press should not be restricted because news media is an important resource for citizens. Also, in interests of privacy "fade" in cases where controversial information already appears on the public record.

Riley v. California (2014) - David Riley belonged to the Lincoln Park gang in San Diego, California. In August 2009, he and others opened fire on a rival gang member. He was then pulled over later in the month in a different car for driving under expired registration tags. The car had to be impounded, and upon routine search, police found two guns and arrested Riley for possession of firearms. Riley had his cell phone in his pocket when he was arrested, and a gang unit detective analyzed videos and photos to determine if Riley was Gang affiliated. Riley was then tied to the shooting and separate charges were filed for shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic firearm. Jury convicted Riley on all three counts and sentenced him to 15 years- life in prison.

The question raised was whether or not the search violated Riley's Fourth Amendment right, to be free from unreasonable searches. In a unanimous court decision, it was decided that yes, the search violated his constitutional right. Police searches are only allowed to prevent the substantial harm that can be presented to an officers safety. Created conversation about when, where, and how information should be allowed to be searched via cell phone during arrests, if at all.

Relevant Doctrine: 
1. Constitutional Right to Privacy
- Protection comes from the Third, Fourth, Fifth, and Fourteenth Amendments.
- The Constitution protects from governmental invasion of privacy.
- Harlan's "reasonable expectation of privacy" test from Katz establishes a Fourth Amendment right to privacy when:

1.  A person exhibits an actual expectation of privacy, and
2. Society is prepared to recognize this expectation as reasonable. 

2. The Four Privacy Torts

False Light: Intentionally or recklessly publicizing false information a reasonable person would find highly offensive.

Plaintiff's Case

- Publicizing 

- False facts 

- About someone who is idenitified

- That would be highly offensive to a reasonable person

- Acting intentionally or recklessly (according to the Supreme Court), or negligently if the plaintiff is a private person (according to some courts). 

Defense

- Libel defenses

Appropriation: Using another's name or likeness for advertising or other commercial purposes without permission (Appropriation includes two different torts, commercialization and right of publicity). 

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

Plaintiff's Case

- Using a person's name, picture, likeness (such as a drawing or avatar), voice or identity. 

- For advertising or other commercial uses

- Without permission 

Defenses

- News

- Public domain

- First Amendment

- Incidental use

- Advertising for a mass medium 

-Consent

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

3. Intrusion: Intentionally intruding on another's solitude or seclusion. 

Intrusion by Trespass 

Plaintiff's Case

- A reasonable expectation of privacy

- Intentional intrusion of privacy

- The intrusion would be highly offensive to a reasonable person. 

Defense

- Consent

4. Private facts: Publicizing private, embarrassing information. 

Private Facts 

Plaintiff's Case

- Publicizing 

- Private, intimate facts

- That would be highly embarrassing to a reasonable person.

- And are not of legitimate concern to the public. 

Defenses

- First Amendment: Truthful information lawfully obtained from public records. 

My Questions/Concerns: 

1. How do we balance security with privacy?
2. Do police often violate the law regarding cell phone data?