The First Amendment Rocks!

Hustler Magazine, Inc. v. Falwell

February 24, 1988

1. Facts of Case

Hustler Magazine, Inc. v. Falwell

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0485_0046_ZS.html

February 24, 1988

A famous commentator and minister was parodied in hustler magazine having incestuous relations with his mother in an outhouse. He sued for libel and intentional emotional distress. He appealed the ruling and once again the judges upheld the previous courts decision.

2. Legal Issue

The question before us at hand is whether Hustler Magazine was libelous in its parody. The second part that the case asks us to answer is whether there was actual malice in their parody and did it cause emotional stress. Was there parody unconstitutional or was it protected under out first amendment rights?

3. Decision

The decision of the court was that thy found against his libel claim but did uphold his claim of emotional distress. The court also ruled that it did not meet the standard of actual malice set forth by New York Times vs. Sullivan. The courts did however give him money for punitive damages.

4. Analysis

The courts said it was not libelous because it could not be described as stating actual facts or events. They believed that the ad was protected under out first amendment rights.

5. Questions

·      What is factors could you use to determine if there was actual malice? When I read this I thought about the type or magazine it was in which is known for provocative writing.

·      How does this case differ from Sullivan vs. New York?

·      How would you rule on this case would you agree with the judges decision?

Situation:

Imagine you are a reporter for a television broadcasting station and in need of a story. You find out at a local fair an entertainer is going to perform an outstanding act that last only 15 seconds. You decide to attend the fair with a small video camera. As your walking around the fair a petitioner noticed the camera and ask you not to record the performance. What do you do when the instructions of the producer of the daily newscast is to record the act? You decide to return to the fair the following day and videotape the entire act. Later that night the videotape clipping airs on the nightly news program. Now the petitioner is taking you to court for commercializing the film of  the act without  consent.

Legal Background:

Zacchini v. Scripps Howard Broadcasting Co. (1977) is a situation similar to this when a  reporter videotape a “human cannonball” act without consent. The entertainer, Zacchini  is suing for damages explaining that the act was invented by his father and performed only by his family, which was commercialized by Scripps without his consent. The complaint stated a cause of action for conversion and for infringement of a common-law copyright. The court favored with Zacchini. All three judges agreed that the First Amendment did not privilege the press to show the entire performance on a news program without compensating petitioner for any financial injury he could prove at trial.

Questions:

What would you do if someone video camera your performance without your consent?

Are there any other cases in which a video aired on the news without consent? If so, what happened?

Did Scripps Howard Broadcasting diminish Zacchini economic value?

Title

For Your Eyes Only

1. Situation

You’ve been into magic and entertaining all your life in fact you enoy it so muchh that you want to make a career of it. You find out ther is going to be a major convention where professional magicians from all over the world will be coming to Bowling Green searching for the “Next Magician.” The winner will get their own reality show and $1, 000. You realize this is going to be highly competitive so you work for months perfecting. You want to practice in front of a small group in Olscamp, and everthing goes as planned. Until you turn on the 11 o’clock news and see futage of your entire show playing.

You think to yourself is this legal?

2. Legal Background

In the case of plaintiff Hugo Zacchini who was an entertainer known for performing the “human cannonball”  act where he was shot from a cannon into a net about 200ft away. The plaintiff would perform this act at a carnival on several dates, one in which the defendant a reporter from Scripps-Howard Broadcasting Co. attended one of the fairs and began tapping with a small camera. The plaintiff asked the defendent to stop recording, the defendent under the instructions of his producer instead tapped the entire show. The show was shown in full on the 11 o’clock news with commentary included.

Plaintiff took defendent to court stating that the video was not inteded to be shown to the masses and that it was a family act and had been commericalized once shown on the news.

The supreme court ruled in favor of Zacchini, stating that  the TV station is protected when reporting news that is legitimate to the public’s interest. Reporting news for publicity to benefit the TV station and or to injure the individual is however not protected.

For more information on this case visit http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=433&invol=562

3. Questions

1. Is this case an example of freedom of press? If so if you were the judge delivering the dissenting opinion what would have been your arguement?

2. Give an example when taping someone and then putting it on the news would have been acceptable.

3. In this case what are the apparent amendment rights and explain how they are protected.

Cox Broadcasting vs. Cohn

http://scholar.google.com/scholar_case?case=7693360934058091897&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Facts of Case:

In August 1971, the 17 year old daughter of Martin Cohn was the victim of rape. She did not survive the incident and six
young men were indicted for murder and rape. Since this was such an unfortunate event, there are a substantial amount of press coverage surrounding the crime and trial. Although there was a large amount of press coverage, the name of the
victim was not disclosed due to the Georgia statute that says it is a crime to publish or broadcast the name of a rape victim. Eight months after the actual crime was committed, the six young men appeared in court.  Since the charge for murder was dropped, five of the six pleaded guilty to rape or attempted rape. The pleas were accepted by
the court and the trial of the other young man pleading not guilty was set for another time.

During the time of the trial, a
reporter who worked for WSB-TV, a television station owned by Cox Broadcasting,
was given access to indictments for the case which had the victim’s name in
them. Since the indictments were considered public record, the reporter aired
the victim’s identity in a broadcast news report later that day. The report
containing the name was also aired several times after the initial
broadcasting.

In May 1972, Martin Cohn, the father of the rape victim, sued Cox Broadcasting for damages for his right to
privacy being violated due to the announcement of his daughter’s identity. Cox Broadcasting admitted to airing the name, but said they had to that privilege under state laws and the First and Fourteenth Amendments.

The case was appealed to the Georgia Supreme Court were they rejected Cox Broadcasting’s claim of the victim’s identity being of public interest and therefore could be published.

2. Legal Issue:

The legal issue in the case in whether a State may have laws that allow individuals to sue for damages for invasion of
privacy caused by the publication of the name of a deceased rape victim which was
revealed during the time of prosecution for the crime.

3. Decision:

The Supreme Court voted 8-1 in favor of Cox Broadcasting, reversing the judgment of the Georgia Supreme Court.

4. Analysis:

The reasoning behind the Supreme Court’s decision is that once information is published in public court documents and
open to public inspection, the press cannot be punished for publishing it. They said that it is the media’s job to report of the activities of the government, which includes court cases. By publishing the victim’s name the media was doing
its job as acting as a watchdog for the public.

Questions:

1. In your opinion, do you think that Cox Broadcasting was ethically correct in publishing the rape victim’s identity?
2. If this case happened today, do you think the outcome would be the same?
3. Do you agree with the Supreme Court when it said that the media was doing its job by disclosing the victim’s name? Could the media have made the public aware and done its job without disclosing the name of the victim?

Zacchini vs. Scripps Howard Broadcasting Company June 28 1977

http://scholar.google.com/scholar_case?case=16238771870259020023&q=zacchini+v.+scripps-howard+broadcasting&hl=en&as_sdt=2,36&as_vis=1

Facts of Case: The plaintiff, Hugo Zacchini, is an entertainer that performs a human cannonball act where he is shot from a cannon and into a net about 200 feet away.  Each performance is about fifteen seconds long.  In August and September of 1972, Zacchini was scheduled to perform at the Geauga County Fair in Burton, Ohio.  People that attended the fair were not charged a fee to see the act.   On August 30 a freelance reporter from Scripps Howard Broadcasting attended the fair.  He was carrying a camera and was asked not to film the performance.  He did not film it that day, but was asked by his producer to film it.  The next day he filmed the entire performance.  The act was about fifteen seconds long and was aired on 11 o’clock news program that night, along with complimenting commentary. Zacchini then wanted to sue for damages explaining that the act was invented by his father and performed only by his family and that Scripps Howard showed and commercialized his act without his consent.  He furthered that the conduct was “unlawful appropriation of plaintiff’s professional property.”   The plaintiff wanted a summary judgement which was granted by the trial court.  The Court of Appeals of Ohio reversed it.  The majority said that the petitioner’s complaint stated a cause of action for conversion and for infringement of a common-law copyright.  All three of the judges agreed that the First Amendment did not give the Scripps Howard Broadcasting the right to show the entire performance on a news program without compensating Zacchini for any financial injury he could prove at trial.

Legal Issue:
Do the First Amendment and Fourteenth Amendment privilege defendant to broadcast  the plaintiff’s entire stunt without compensation?

Decision:
The court overturned a lower court decision.  Scripps Howard Broadcasting’s First Amendment rights were not more important that protecting Hugo Zacchini’s financial interest in his performance.

Analysis:
Because the Ohio Supreme Court based its decision on the scope of protection offered to the press by the Federal constitution no acceptale and independent state ground existed for the Ohio Supreme Court’s decision, and the U.S. Supreme Court therefore had jurisdiction. Justice White also wrote that while a state government may pass a law concealing the press from liability for broadcasting performers’ acts, the first amendment and Fourteenth Amendment do not require states to do so.

Questions:

1. What is the significance of this case?

2.  How does this case compare to Time Inc vs. Hill ?

3.  How would a similar case be ruled today?

DISCUSSION CASE

Title: LEVESQUE VS.DOOCY

1.THE SITUATION: As we know freedom of the press is given to us in the first amendment, but we follow a code of ethics so that we uphold certain values. Say a reporter writes a story and include legitimate quotations from you and then  a third party comes along and changes what you said and post it on a website. A show producer at a huge station researches the article and finds out that the people and the story is real and assumes that this third parties article is real. The show picks up the “fake” article and starts accusing you of being a insensitive bastard and tells everyone and America you are a horrible person.

Imagine if that happened a BGSU and all of your classmates turned on you for something you didn’t say…what would you do would you sue for libel?

2. Assistant Principal at Lewiston Middle School Leon Levesque suspended a child from school for placing a piece of ham on a group of Ethiopian Muslim children’s lunch table. The event reminded the children of an earlier event where a pigs head was rolled in their mosque during prayer. The following week Bonnie Washuk, a reporter contacted Levesque for an interview in the Lewiston Sun Journal. She included quotes from both Levesque and Stephen Wessler, the director of the Center for Prevention of Hate Violence.  Nicholas Plagman uploaded the article on a website that allows people to post their own news. He drastically changed that quotes in the article that made Levesque seem insensitive and evil. The distorted article was picked up by FOX and Friends and aired over and over saying the distorted quotes. These defamatory comments harmed Levesque’s character. He sued the host of the show Steve Doocy, and Brian Kilmeade because he claims they defamed him during a show on the Fox News Channel. Levesque sued for 4 counts of libel/ defamation and the courts only granted him two because there was no proof of actual malice.

Example:

Washuk quoted Levesque as describing the offending student’s conduct as “a hate incident” and acknowledging, “We’ve got some work to do to turn this around and bring the school community back together . . . All our students should feel welcome and safe in our schools.”

Jacked version:

“HAM IS NOT A TOY.

Wouldn’t you sue Plagman for recreating the article not the FOX

who ran the story without knowing it was fake?

Do you think that there was any actual malice in this case?

Do you think the judges were  fair in only granting him two of his cases?

Food Lion, Inc. v. Capital Cities/ABC

Facts of Case:
Producers at ABC were tipped off about possible unsanitary meat packing practices taking place at Food Lion. The producers decided to go under cover to investigate the claims. Two reporters applied for jobs with false identities, resumes, and addresses. They left out that they worked for ABC. They worked for a combined three weeks, getting 45 hours of footage. Some of the footage was used in a 1992 broadcast of Primetime Live.

Food Lion sued ABC not over defamation but over the ways in which ABC gathered the information. They sued for fraud, breach of duty of loyalty, trespass, and unfair trade practices.

Legal Issue:
The issues here was whether the two ABC reporters did commit fraud, breach of duty of loyalty, trespass, and unfair trade practices. They used false identities and mislead Food Lion when hired. They knowingly committed acts that they knew would harm Food Lion, their secondary employer. Since they got hired under false information, they trespassed to get information.

Decision:
When the case came to the supreme court they reversed the decision that the reporters committed fraud and unfair trade practices. They affirmed that they breached their duty of loyalty and committed a trespass. They also affirmed the district court’s refusal to allow Food Lion to prove publication damages, on First Amendment Grounds.

Analysis:
Since Food Lion sued for how ABC gathered their information and not defamation, the courts looked at the fine print in North and South Carolina’s rules about business and trade. Basically what it came down to time and again was filling out false information on their applications and resumes, as well as their intent to do harm to Food Lion.

Questions:
What is the significance of this case?
Who do you think was more in the wrong? Food Lion or ABC?
Do you agree with the ruling that they committed breach of duty of loyalty and committed a trespass?

1. Facts of Case:

A national magazine publication, American Opinion, published a story concerning the 1968 shooting of a Chicago youth by a Chicago police officer. The officer was found guilty of second-degree murder by the Illinois state court and a civil suit was later brought on the officer by the victim’s family. Hired as attorney for the civil suit’s plaintiff was a man named Elmer Gertz.

As part of the magazine’s greater claims of a national conspiracy to devalue local police and put in their place a national police force suited to maintain a communist dicatatorship, the magazine’s article specifically targeted Gertz’s character for his involvement in the civil suit, despite the fact he had no arguable affiliation with the criminal case. The article accused Gertz of being member to communist organizations, having an extensive criminal record and of being an anti-American communist generally. Most to all of these allegations were wholly unfactual. Gertz sued for libel.

2. Legal Issue

The central legal issue in this case is the question of whether a news publication/broadcast can cite constitutional privelege protection as a defense against libel charges brought by a private party, according to the precedent laid down in New York Times v. Sullivan, which insulated media entities to some degree from libel liability for inaccurate information published without proof of actual malice.

3. Decision

The U.S. Supreme Court reversed the lower courts’ rulings in favor of the magazine. The precedent established for public figures in Times v. Sullivan, the Supreme Court said, cannot be applied to private parties. The Court also dismissed the defendant’s assertion that Gertz could be considered a public figure because of his affiliation with the case. This case was sent back down to lower courts for a retrial under the newly established precedent.

4. Analysis

The Court said that private citizens have a diminished access to mass communication channels that could enable them to adjust their public esteem by countering the defamatory falsehoods published by the libeling party, which affords private citizens a greater level of protection. Private citizens do not invite themselves to the higher degree of public scrutiny, the Court said, that is inextricably tied to one who voluntarily assumes a postion of public prominence.

As for the magazine’s contention that Gertz was a public entity due to his affiliation with the case, the court ruled that nothing he had done justified an interpretation of him as a public figure.

5. Questions

• Courts have determined that celebrities can be considered public figures due to their ability to influence the opinions of a great many people, as well as the public’s heightened interest in them. Where should this line be drawn? At what point does a person achieve a sufficient celebrity status to deem them a public figure?
• Should individuals who have through their accomplishments and affiliations achieved a degree of fame in the public be subject to the same scrutiny as standing government officials?
• Another issue in this case was criticism of the unpredictability of jurys’ punitive damage awards in libel cases. How should appropriate compensation for these damages be measured?

1. Situation

Imagine you are a reporter for a little time paper and are in need of a story.  You have a tip that a local business is participating in some shady business.  As a reporter looking to report the truth you decide to turn in a resume with enhanced information.  This allows you to get first hand knowledge on what truly happens inside the business.  Turns out that you are right, the company illegally dumping their waste.  You report this story in your paper and the company reiceves negative media attention resulting from the story.  The company is suing you.

2. Legal Background

 Food Lion Inc. vs Capital Cities/ABC Inc. had a sitituation very similar to this when two reporters went undercover to expose the mishandling of food.  Food Lion sued on the basis of unfair trade practices, fraud, and breach of contract. The district court ruled in favor of Food Lion and ruled the two reporters had committed fraud by using false resumes.  The circiut court overturned that decision saying that the reporters had not committed fraud by saying the contract signed upon employment stated either party could terminate employment at anytime for any reason.  The resumes that were false were ruled to be irrelevant.

3 Questions

 Is is ethical as a reporter to gain information under false precidences?

Should the first amendment protect aquiring information after falsifying information?

Do you believe the company in the sitiuation has a legal case against you as a reporter?

Time, Inc. v. Firestone (1976)

Facts of Case:

Mary Firestone was married to Russel Firestone, heir to the Firestone tire company fortune. Mary filed for divorce, with her husband filing a counterclaim against for for “extreme cruelty and adultery.” Time published the results of the case in it’s magazine as well as a statement from the judge that said both were said to have had “extramarital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud’s hair curl.” Mary Firestone asked that Time retract what was published, Time refused, and she filed a libel suit against the magazine seeking $100,000 in damages. The Florida Supreme Court ruled in favor of Firestone. Time appealed on the basis that it’s first and fourteenth amendment rights were violated.

Legal Issue:

The issue was whether Time’s first and fourteenth amdendment rights were violated.

Time used a former supreme court case, The New York Times v. Sullivan, which protects media liability from defamation of a public figure as long as there is not knowledge of falsity or reckless disregard for truth.

Decision:

The court upheld the ruling. According to another case, Gertz v. Robert Weltch, Inc,  “Respondent was not a “public figure,” since she did not occupy “[a role] of especial prominence in the affairs of society,” and had not been “thrust . . . to the forefront of particular public controversies in order to influence the resolution of the issues involved.”

Analysis:

The court upheld the decision based on what status Mary Firestone held in society. They looked at at what made someone a public figure from another previous supreme court case. She did not meet the requirements to be a public figure according to the case, thus making the other case that protects media from defamatory suits not applicable.

Questions:

Who is a public figure?

Should public interest in something determine status as a public figure?

Do you think this has affected news coverage and its accuracy since the time of the ruling?