Media Law

Shield Laws:
California Constitution: A publisher, editor, reporter, or other person connected with or
employed upon a newspaper, magazine, or other periodical publication ... shall not be
adjudged in contempt ... for refusing to disclose the source of any information procured
while so connected or employed for publication in a newspaper, magazine or other
periodical publication, or for refusing to disclose any unpublished information obtained
or prepared in gathering, receiving or processing of information for communication to the
public. vidence Code section !"#", subdivision $a%, is to substantially the same effect.
&'(rady:
a% Are plaintiffs performing legitimate journalism) *e decline the implicit
invitation to embroil ourselves in +uestions of what constitutes legitimate
journalis,m-. .he shield law is intended to protect the gathering and
dissemination of news, and that is what petitioners did here. *e can thin/
of no wor/able test or principle that would distinguish legitimate from
illegitimate news. Any attempt by courts to draw such a distinction
would imperil a fundamental purpose of the 0irst Amendment, which is to
identify the best, most important, and most valuable ideas not by any
sociological or economic formula, rule of law, or process of government,
but through the rough and tumble competition of the memetic mar/etplace.
&1(rady v. 2uperior Court, !34 Cal. App. 5th !563, !57#, 55 Cal. 8ptr. 3d
#6, 4# $Cal. Ct. App. 6""9%
b% Does the shield cover the defendants) Are poster websites protected) .he
:egislature was aware that the inclusion of this language could e;tend the
statute1s protections to something as occasional as a legislator1s newsletter.
<f the :egislature was prepared to sweep that broadly, it must have intended
that the statute protect publications li/e petitioners1, which differ from
traditional periodicals only in their tendency, which flows directly from the
advanced technology they employ, to continuously update their content.
&1(rady v. 2uperior Court, !34 Cal. App. 5th !563, !599, 55 Cal. 8ptr. 3d
#6, !"5="7 $Cal. Ct. App. 6""9%
Intrusions into Sources:
Three part test to pierce:
substantial evidence,:-,!- that the challenged statement was published and is both
factually untrue and defamatory> ,6- that reasonable efforts to discover the information
from alternative sources have been made and that no other reasonable source is available>
and ,3- that /nowledge of the identity of the informant is necessary to proper preparation
and presentation of the case. ?rice v. .ime, <nc., 5!9 0.3d !36#, !353 as modified on
denial of reh1g, 567 0.3d !646 $!!th Cir. 6""7%.
====<f confidential source perjures his or himself about their identity, the reporter does not
have to disclose.
Lawyer Counseling:
@uestions:
!
a) *as the prepublication review a sham) (Harte Hanks)
b) *ere the defendant's communication with counsel conducted with the e;press
purpose of promoting or continuing criminal or fraudulent activity)
I. Defamation
<s damage an element) $element according to statute and CA 2C%
Aamages may be presumed if clear and convincing evidence of actual malice
CA says tendency to cause damage
Bnprivileged: another element or a defense)
.his is an affirmative defense
Affirmative defense=even if every element of cause of action is met we still win because
of defense
<s libel of the government possible)
Co, a government or government agency doesn't have agency to sue
<t's reputation will not be diminished
?olicy: we don't want to have the government or government agency to be
involved
Air Dimbawbe case: since majority of airline owned by country government then
libel laws don't apply
A% <s it defamation per se

$so basic to prove% $falsely impute criminal activity, impute an

offensive disease, would tend to injure a party1s trade, occupation or business, or impute
unchastity or homose;uality% or per !uod $a statement whose defamatory import can only
be ascertained by reference to facts not set forth in the publication. <f a defamatory
statement is not per se actionable, but is, per !uod, then plaintiff must plead special
damages in order to sustain the defamation action%)
E% <s it libel $includes the more permanent forms of defamatory matter> in California, it
consists of a writing, printing, picture, effigy, or other fi;ed representation to the eye.
$C.C. 57, infra, F734.% or slander $more transitory form, generally restricted to oral
statements and gestures. $2ee C.C. 59, infra, F77!%)
"lements:
1. A statement of fact
!
.o determine whether a statement is per se actionable, courts loo/ at whether the
character of the language used, in the conte;t of the entire publication as well as the
circumstances of its issuance, would naturally import one of the above mentioned charges
in the mind of an average person. ;trinsic facts may be considered in determining
whether a writing is libelous per se if the e;trinsic facts are presumably /nown to the
readers of the statement.
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0ederal .est $4th Cir%: a% language used> b% conte;t $tenor of statement%> c%
susceptibility of being proven true or false
California .otality of Circumstances .est: California courts had employed a
totality of the circumstances test to differentiate between fact and opinion:
0irst, the language of the statement is e;amined. 0or words to be defamatory,
they must be understood in a defamatory sense .... Ce;t, the conte;t in which the
statement was made must be considered. ... .his conte;tual analysis demands that
the courts loo/ at the nature and full content of the communication and to the
/nowledge and understanding of the audience to whom the publication was
directed.Goyer v. Amador Halley I. Bnion Jigh 2ch. Aist., 667 Cal. App. 3d #6",
#65, 6#7 Cal. 8ptr. 545 $Cal. Ct. App. !44"%
a% &pinion is not a statement of fact unlessKven if the spea/er states
the facts upon which he bases his opinion, if those facts are either
incorrect or incomplete, or if his assessment of them is erroneous, the
statement may still imply a false assertion of fact. 2imply couching such
statements in terms of opinion does not dispel these implications> and the
statement $#ilkovich v$ %orain &ournal 'o$%
b% (upportable )nterpretation Test: .his supportable interpretation
standard provides that a critic1s interpretation must be rationall*
supportable by reference to the actual te;t he or she is evaluating, and thus
would not immunize situations analogous to that presented in #ilkovich,
in which a writer launches a personal attac/, rather than interpreting a
boo/. .his standard also establishes boundaries even for te;tual
interpretation. A critic1s statement must be a rational assessment or account
of something the reviewer can point to in the te+t, or omitted from the te+t,
being criti+ued. Goldea v. Cew Lor/ .imes Co., 66 0.3d 3!", 3!7 $A.C.
Cir. !445%
c% 8hetorical hyperbole=yes of a reasonable person
d% ?arody and 2atire=taste is not to be considered, *ould a reasonable
person believe that this is a statement of fact)
e% ?resentation of alternative events
f% @ueries= titles can be defamatory
2. That is u!lished
a% Jas the speech been communicated to a third person)
b% 2ingle publication rule= reissues of the same publication doesn't
lead to same publication> but new editions can $unclear e;actly
why%
c% 8epublication= very publisher in a chain can be held liable, if a
media source states something li/e :A .imes says M they can
still be held liable, not a defense to say < just heard it from
someone reputable
d% 8espondeat superior= employer can be held liable for employee
$AA8 v. 8olling 2tone= magazine can't be held liable for
independent author%
e% ?ublishers vs. distributors and vendors=a distributor can be liable
if they /now or should /now its defamatory
3
f% Compulsory self=defamation=comes up typically in the
employment conte;t, $e;ample: you have to repeat a defamatory
statement let's say if you are accused of stealing and didn't and
then you are applying for a new job%
,as it posted b* an )(- (internet service provider).Also websites
<mmunity
6
: lawsuits see/ing to hold a service provider liable for its
e;ercise of a publisher1s traditional editorial functions=such as
deciding whether to publish, withdraw, postpone or alter content=are
barred. Deran v. Am. &nline, <nc., !64 0.3d 36#, 33" $5th Cir. !44#%.
"+ception: immunity is lost when internet provider or user
materially contributes to defamatory nature of the
underlying communication
". That is #of and concerning$ the laintiff
Test: <s the statement certainly about the plaintiff)
According to Auvil: it re+uired a showing that the offending language
pertains directly to a particular individual or product whose
identity can be ascertained from the te;t $and conte;t% of the publication.
2tatements about a religious, ethnic, or political group could invite thousands of lawsuits
from disgruntled members of these groups claiming that the portrayal was inaccurate and
thus libelous. 2uch suits would be especially damaging to the media, and could result in
the public receiving less information about topics of general concern
*ho can't sue) i% government> ii% dead people> iii% people neither identified nor
named> $Elatty%
According to /indrim a fictional plaintiff may be able to sue
0roup of people: .he real test in weighing identification is whether some
ne;us e;ists between plaintiff and the allegedly defamatory language.
(ales. Also loo/ to how small or large the group is. Ceed
specificity of reference.
%. That is defamatory
"
6
2ection 63" $c%$!%= Co provider or user of an interactive computer service shall be treated as the publisher
or spea/er of any information provided by another information content provider.
3
Consider the following cast of characters:
Communist N Iohn Eirchers
=at a certain time it was defamatory
=maybe now more rhetorical hyperbole
=Gac:eod v. .ribune=
Iohn Eircher $*ashburn case%= that's not defamatory
*hat about homose;ual)
Bnethical attorneys
$Albertini case=yes%>$Iames=no%
Call girls $Gontandon=yes%, bitches, $Gartin% and s/an/s $2eelig%
2ons of bitches $not actually defamatory%
:ier=$Gil/ovich%
*hat about alterior motives)
;hibiting socipathic tendencies
Cot actually accusing people
*ea/ling or coward=
B0C fighter suggesting to settle claims defamation=
5
Test: Aoes the false statement of fact injure ,or tend to injure- the
plaintiff's reputation ,in a substantial and respectable segment of
the community-)

Defamation /* )mplication: Test
1
!. <s the alleged defamatory inference reasonably drawn by the
language and tenor of the publication)
i.e. in *hite: letters that said police officer initially failed
drug and test and then was given high position
might suggest bribery,
6. Aid the publisher do something to suggest that heOshe intended
or endorsed the alleged inference)
=in Chapin raising +uestions about something is not enough
for a cause of action, same with .homas
3. Aoes it matter whether the publisher actually intended the
inference)
a. Cot an aspect considered at least by the 5th circuit
b. 4th circuit says yes in .homas v. :A .imes $!"!3
Aodds%
a% Jeadlines can be defamatory
b% .rade :ibel= intentional disparagement of the +uality of property,
leading to pecuniary damage
&. That is false=<s it substantially true) $Gasson%
.o ensure that true speech on matters of public concern is not deterred,
we hold that the common=law presumption that defamatory speech is false
cannot stand when a plaintiff see/s damages against a media defendant for
speech of public concern. ?hiladelphia Cewspapers, <nc. v. Jepps, 5#7
B.2. #9#, ##9=##$!4P9%. Eecause such a chilling effect would be
antithetical to the 0irst Amendment1s protection of true speech on matters
of public concern, we believe that a private=figure plaintiff must bear the
burden of showing that the speech at issue is false before recovering
damages for defamation from a media defendant.
?hiladelphia Cewspapers, <nc. v. Jepps, 5#7 B.2. #9# $!4P9%.
a$ )s the substance, gist, and sting of the libel justified.
b$ ,ere !uotes altered. )f so2
*e conclude that a deliberate alteration of the words uttered by a
plaintiff does not e+uate with /nowledge of falsity for purposes of
2ocializing with &I 2impson=not defamatory
CA8C2 and snitches Qnever found to be defamatory. 6 reasons: !% <nforming police is a good thing, it is socially
constructive behavior in a good segment of society
5
<n California: 0irst, we loo/ at the statement in its broad conte;t, which includes the general tenor of the
entire wor/, the subject of the statements, the setting, and the format of the wor/ $li/e is it a review or not
where things are less factual%. Ce;t we turn to the specific conte;t and content of the statements, analyzing
the e;tent of figurative or hyperbolic language used and the reasonable e;pectations of the audience in that
particular situation $more hyperbole ma/es it less factual%. 0inally, we in+uire whether the statement itself
is sufficiently factual to be susceptible of being proved true or false. .homas v. :os Angeles .imes
Communications, ::C, !P4 0. 2upp. 6d !""7, !"!7.
7
3ew 4ork Times 'o$ v$ (ullivan, 3#9 B.2., at 6#4=6P", P5 2.Ct., at
#67=#69 and 0ert5 v$ 6obert ,elch, )nc$, supra, 5!P B.2., at 356,
45 2.Ct., at 3""P, unless the alteration results in a material change
in the meaning conveyed by the statement. .he use of +uotations
to attribute words not in fact spo/en bears in a most important
way on that in+uiry, but it is not dispositive in every case. Gasson
v. Cew Lor/er Gagazine, <nc., 7"! B.2. 549, 7!#, $!44!%
'. (or which the defendant is at fault
2teps in the fault elements:
!. *hat type of defamation plaintiff)
6. *hat is the appropriate level of fault)
3. Jas the plaintiff satisfied the burden of proof)
) ,hat t*pe of defamation plaintiff.
a% -ublic 7fficials: (overnment employees who have or appear to
have K substantial responsibility for or control over the conduct of
governmental affairs. 8osenblatt v. Eaer
a position in government ,who- has such apparent importance that
the public has an independent interest in the +ualifications and
performance of the person who holds it, beyond the general
public interest in the +ualifications and performance of all
government employees <d.
b% -ublic 8igures:
i% 0eneral -urpose -ublic 8igures: ?eople who have
general fame or notoriety in the community, and
pervasive involvement in the affairs of society (ertz
?eople who occupy such pervasive power and influence
that they are deemed public figures for all
purposes. 8osenblatt
ii% %imited -urpose: ?eople who have thrust themselves to
the forefront of a particular ,e;isting- controversy in order
to influence the resolution of the issues involved.
(ertz
iii% )nvoluntar*: ?eople who are drawn into pre=e;isting
controversies. (ertz
c% -rivate 8igures: .he rest of the world.
d% <s the speech a matter of public concern)
9) ,hat is the appropriate level of fault.
a% -ublic officials and general purpose public figures:
=Actual Galice by clear and convincing evidence $i.e.,
strong, positive and free from doubt%
b% %imited purpose and involuntar* public figures:
=Actual malice, by clear and convincing evidence, on the
statements pertaining to controversy
c% -rivate figures on matters of private concern:
9
=Co liability without fault Q i.e., no strict liability for
defamation
= .ypically, negligence by a preponderance of evidence
=Can recover punitive and presumed damages without
showing actual malice
d% Do private figures ever need to prove actual malice)
=Gatters of public concern
=?unitive or presumed damages $re statements that are
matter of public concern%
?olicy: .he first remedy of any defamation victim is self=help Q using available
opportunities to contradict the lie or correct the error and thereby to minimize its adverse
impact on reputation. ?ublic officials and public officials usually enjoy significantly
greater access to the channels of effective communication and hence have a more realistic
opportunity to counteract false statements than private individuals K ?rivate individuals
are therefore more vulnerable to injury, and the state interest in protecting them is
correspondingly greater. (ertz v. 8obert *elch, <nc.
==?ublic people have power and influence and invite attention and comment.
:) Has the plaintiff satisfied the burden of proof.
Actual #alice: Rnowledge of falsity of rec/less disregard of the
truth. Jigh degree of awareness of falsity $Harte Hanks%
or entertaining serious doubts about the truth $(t$ Amant%
8actors to be considered:
=urgency of story
=trustworthiness of source
=believability of the story
====loo/s to state of mind $subjective% of defendant
===measures attitude toward truth and not of plaintiff
"valuating Actual malice:
=Auty to consult with plaintiff or spea/ to sources favorable of
plaintiff)
=Bnfairness or bias in story
=<ll willOspite=common law malice
=8eliance in hostile source
valuating Actual Galice
Co duty to investigate truthfulness $even when a reasonably
prudent person would have% where:
=the source is trustworthy and
=the story is credible
8eliance on single source or confidential source $2t. Amant%
8eliance on reliable, previously published material
=6eaders Digest: Cal Case
Auty to consult with plaintiff or spea/ to sources favorable to
plaintiff)
Bnfairness or bias in story
=so long as he has no serious doubts concerning its truth he can present
#
but oneside of the story 8eaders Aigest
<ll will, spite, common law malice
<'ll get you and <'ll destroy you Jerbert v. :ando
8eliance in a hostile source not enough but can factor in
Co clear rule or definition
=fact=based analysis
=factors may add up to actual malice
=clear and convincing standard
Affirmative "vidence of %ack of Actual #alice:
=8eview by outside counsel
=?ublication of prompt correction
=Agreeing not to repeat statement
=8epeated attempts to interview plaintiff
=<nclusion of plaintiff's denials
=Aisclosure of bias
Damages
a% ActualO(eneralOCompensatory Aamages
=vidence of loss attributable to harm caused by defamation
=.ends to be imprecise
b% 2pecial Aamages=per +uad vs. per se p.6
=?laintiff must plead and provide evidence of precise monetary loss
attributable to defamation $a/a out=of=poc/et losses% $Civ. C. F
5Pa$5%$b%% $<n some cases, this is the only type of damages
recoverable%
c% ?resumed Aamages
=Aamages that may be recovered whether or not the plaintiff can prove
actual or special damages
=8e+uires proof of actual malice
=*e conclude that permitting recovery of presumed and punitive
damages in defamation cases absent a showing of actual malice does not
violate the 0irst Amendment when the defamatory statements do not
involve matters of public concern.Aun N Eradstreet, <nc. v. (reenmoss
Euilders, <nc., 5#6 B.2. #54 $!4P7%.
d% ?unitiveO;emplary Aamages
=Aamages that may be recovered whether or not the plaintiff can prove
actual or special damages
=8e+uires proof of actual malice
= <n CA, a plaintiff must establish actual malice and common law malice
and clear and convincing evidence to recover
-rivileges and Defenses:
a) Consent= best if clear or in writing or on tape
b) Civil Code F 5#: F5#$a%
?ublication in proper discharge of an official duty
P
;tends to high=level officials and lower=level officials acting in scope of
duties $Copp v. ?a;ton%
Absolute privilege
Civil Code F5# b= (tatements in legislative proceedings
Absolutely privileged if there is logical connection between
statement and proceeding
Civil Code F5#$b%6=(tatements in judicial proceedings (aka ;litigation
privilege)
Absolutely privileged if there is some connection to
e;isting proceedings or once
contemplatedOthreatened in good faith> Applies to any
claim arising from publication, e;cept malicious
prosecution 2plit: e;tent of application for out=of=court
statements to media
Civil Code F5#$b%$3%=(tatements in other official proceedings authori5ed b*
law
Absolutely privileged
&ther e;emptions
Civil Code F 5#$c%= rarel* invoked ;'ommon interest privilege<
Applies if statements is made to a person interested in the
communication:
$!% Ey one who is also interested in the communication
$6% Ey one who stands in such relation to the person interested
as to afford a reasonable ground for an innocent
motive for communication
$3% Ey one who is re+uired by the interested person to give the
information
@ualified privilege: defeated by common law maliceO just
malicious
Civil Code F 5#$d)=;8air and true report privilege<
A fair and true report by a public journal that captures the
gist or sting of public proceedings or documents
=0le;ibilityOliterary license
=6ule: .he report must be fair and true, not the underlying
material
Absolute privilege: can report even /now if it is underlying
information is false
=media merely conveying contents
Applies even to closed proceedings and partial documents
Communications to a public journal
Civil Code F 5#$e% 8air and true reports of the proceedings of a public
meeting and matters for the ;public benefit<
Absolute privilege
c) Ceutral 8eportage: Ceutral 8eportage
2uccinctly stated, when a responsible, prominent organization li/e the
4
Cational Audubon 2ociety ma/es serious charges against a public figure, the
0irst Amendment protects the accurate and disinterested reporting of those
charges, regardless of the reporter1s private views regarding their validity.
dwards v. Cat1l Audubon 2oc., <nc., 779 0.6d !!3, !6" $6d Cir. !4##%
0actors:
$!% Cewsworthy charges that create or are related to a public controversy
$6% Charges must be reported accurately and disinterestedly
='ianci: 0ailure to reveal facts can lead to failing this factor
$3% Accusation made by a responsible source
$5% .he charges are about a public official or public figure $/hawar%
d) *ire 2ervice Aefense: Cot fully recognized in California courts
,ire (ervice Defense>
0our factors:
$!% Gaterial from reputable news agency
$6% Co /nowledge of falsity
$3% 2tory appeared credible on its face
$5% ?ublished without substantial change
e) 0air Comment=superfluous now since 34 Times
Common :aw Aefense
0actors:
$!% 2tatements about people in positions of prominence $i.e., public officials
and public figures%
$6% Gade without actual malice
f) <nnocent Construction 8ule= 8ejected in CA
8ead in conte;t, if a statement can be given and innocent construction
then it cannot give rise to a defamation claim
8ejected in CA, but accepted in some other states li/e <llinois
g% :ibel ?roof ?laintiff=Cot good in CA
*ho is a libel proof plaintiff) 8eputation is so bad, it can't get worse
*hat is the incremental harm doctrine) 8eputation is so bad a little
defamation doesn't add to it
-rocedural )ssues:
Iurisdiction=
a% 0or defamation, jurisdiction is proper if effects of defamation are suffered in
forum state $Calder v. Iones%: 8ather, their intentional, and allegedly tortious,
actions were e;pressly aimed at California. ?etitioner 2outh wrote and petitioner
Calder edited an article that they /new would have a potentially devastating
impact upon respondent. And they /new that the brunt of that injury would be felt
by respondent in the 2tate in which she lives and wor/s and in which the 3ational
"n!uirer has its largest circulation. Bnder the circumstances, petitioners must
reasonably anticipate being haled into court there to answer for the truth of the
statements made in their article
!"
Calder v. Iones, 597 B.2. #P3, #P4=4"$!4P5%.
b% ?ublication, broadcast or circulation in a 2tate, gives courts of the 2tate
jurisdiction over the publisherObroadcaster $Reeton v. Justler%: here, as in this
case, respondent Justler Gagazine, <nc., has continuously and deliberately
e;ploited the Cew Jampshire mar/et, it must reasonably anticipate being haled
into court there in a libel action based on the contents of its magazine. ,orld=
,ide ?olkswagen 'orp$ v$ ,oodson, 555 B.2. 6P9, 64#=64P, !"" 2.Ct. 774, 79#,
96 :.d.6d 54" $!4P"%. And, since respondent can be charged with /nowledge of
the single publication rule, it must anticipate that such a suit will see/
nationwide damages. 8espondent produces a national publication aimed at a
nationwide audience. .here is no unfairness in calling it to answer for the contents
of that publication wherever a substantial number of copies are regularly sold and
distributed. Reeton v. Justler Gagazine, <nc., 597 B.2. ##", #P!, $!4P5%.
c% <nternet conte;t: j;n rests with the audience
!.*hether defendant purposefully conducted activities in the 2tate)
6.*hether the plaintiff's claims arise out of activities there)
3.*hether the e;ercise of j;n would be constitutionally reasonable)
d% <nternational considerations: lessons from Aow Iones v. (utnic/ $Australia%
:essons: chec/ location of subject, sense of self=censorship, how much assets do
we want in other countries
Aemands for 8etractionO CorrectionO Clarification=5P$a% <n any action for damages for
the publication of a libel in a newspaper, or of a slander by radio broadcastK.he court
first held that the protection against damages for libel that is afforded newspapers by Civ.
Code, F 5Pa, is limited to those who engage in the immediate dissemination of news, and
that the trial court properly concluded defendant publication was not a newspaper for
purposes of F 5Pa, since the evidence indicated it provided little or no coverage of
subjects such as politics, sports, or crime, that in general it did not ma/e reference to
time, and that normal lead time for its subject matter was one to three wee/s.
Eurnett v. Cat1l n+uirer, <nc., !55 Cal. App. 3d 44!, !43 Cal. 8ptr. 6"9 $Cal. Ct. App.
!4P3%
=*ithin 6" days of learning of publication or broadcast: $media gets special treatment%
?laintiff must serve written notice on publisher or broadcaster
2pecifying the defamatory statements
Aemanding a retractionO correctionO clarification
=*ithin 6! days after that, defendant may publish correction in as conspicuous a manner
as original publication or broadcast
=<f the correction is not published the plaintiff may recover actual and special
damages and may also recover punitive damages if he proves actual malice as
defined in Civ. Code. 5P $i.e. common law malice, with e;ception for good faith
belief in truth at the publication%
=<f the correction is published, then the plaintiff is limited to special damages
=<f the correction is not demanded, then the plaintiff is limited to special damages
!!
=Lou have to plead special damages with specificit* otherwise general claim wiil
fail: e;actly what happened, who defrauded, etc.
5P$a%= 8etract and demand, average person can't do this
2ingle ?ublication 8ule
8ule: 8eissues of the same publication do not give rise to a new cause of action,
but new versions or editions may give rise to anew rise of action
?urpose: sufficiently litigate all issues and damage claims arising out of
defamation in one proceeding
.his rule is an e;ception to the general rule that each communication of
defamatory matter is separate and distinct publication for which separate cause of
actions arises
Application in California)
=Civil Code 3567.!=3567.7=you have to fit under this
=Also applies to publication on <nternet
=3567.5: only once chance to sue
=3567.3: Co person shall have more than one cause of action for damages for
libel or slander or invasion of privacy or any other tort founded upon any single
publication or e;hibition or utterance, such as any one issue of a newspaper or boo/ or
magazine or any one presentation to an audience or any one broadcast over radio or
television or any one e;hibition of a motion picture. 8ecovery in any action shall include
all damages for any such tort suffered by the plaintiff in all jurisdictions.
2tatute of :imitations
=<n California, the 2&: for defamation is one year $Civ. C. F 35"$3%%
=2&: begins to run on first publication to the public $2hively v.
Eozanich%
=.he 2&: may be tolled where a defendant intentionally tries to hide his or her identity,
but only until the plaintiff learns, or through reasonable diligence could have learned, the
defendant's identity
=0or 2&: purposes:
.he distribution does not have to be in the forum state
.he rule of discovery does not apply to mass media defendants
.he rule of discovery applies when non=media defamation occurred such that
the plaintiff had no access, no cause to see/ access and there are no facts to
suggest that the plaintiff would have been put on in+uiry notice of the alleged
defamation $Jebrew Academy%
II. )ri*acy Torts
!6
A) 8alse %ight
@
= meant to protect how people feel, how they want to be portrayed to the
world
lements:
i. ?ublicizing
ii. 0alse 0acts
=2pahn: even good facts can cast a bad light
iii. About an identified individual
iv. <n a highly offensive manner
v. *ith fault
*hat are some of the difference between false light and defamation)
Corporations can't sue for false light> the don't have emotional interest in how
they are perceived
Gust be more publicity, needs to be more than ! person
/) -ublication of -rivate 8acts
i. -ublic disclosure (about the plaintiff)
=Aisclosure to the public in general or a large number of people as distinguished
from one individual or a few $?orten%
=*hat are the parameters)
=About the plaintiff)
=often not listed as a substantive element
=(hulman: not identified by full name or face, but the plaintiff was still
identifiable
ii. 7f ;private< (and true) information
A
=0acts that are already public or that leave plaintiff open to the public eye
are not private
==private facts seem to be se;, finances that would be highly offensive to a
reasonable person
iii. That would be highl* offensive to the reasonable person
B
7
(cope of 8alse %ight:
2hould the tort e;ist at all) 36 states recognize false light, !6 states reject
Time v$ Hill: alternate scenerio: what if person is raped
*hat about flattering, but false portrayals)
=2pahn: even flattery could suggest lying, or what if girl in time is raped)
Bnder California :aw>
Can't simultaneously claim false light and defamation on same set of facts
All defamation defenses apply
Aifference with statute of limitations, more time for false light
9
;amples: Gr. 2ipple=0ord's savior= homose;uality, not private because didn't
try to conceal, ?olice blotter, transgender $Aiaz v. &a/land .ribune%, /issing in
mar/etplace is not private, in a bathroom stall, military e;ercises, molested children
$vulnerable groups%, murder witness
#
*hat courts have found inoffensive)
=a report of a person's release after his arrest resulting from mista/en identity
!3
iv. And is not of legitimate concerns to the public (i$e$ not newsworth*)
=Congruent element and affirmative defense, but lac/ of newsworthiness
is an element $2hulman%
=<f a publication is newsworthy, it cannot serve as the basis for a
publication of private facts claim
=.est from (hulman:
a% the social value of the facts published
b% the depth of the article's intrusion into ostensibly private affairs
c% the e;tent to which the party voluntarily acceded to a position of
public notoriety
=paramount test from 2ipple: whether the matter is of legitimate public
interest, which in turn must be determined according to community
mores
= .here must be a logical relationship or ne;us between the events and the
person's notoriety $2hulman%
=.he standard is not necessity> the media has editorial discretion
$2hulman%
=does not constitute a morbid and sensational prying into private lives for
its own sa/e $2hulman 35"%
The press cant be held liable from truthful reporting of information lawfull*
obtained through government records unless there is interest of the highest
order $'o+ and 8lorida (tar case%
') )ntrusion
lements:
!. ?laintiff had a reasonable e;pectation of privacy
=?laintiff must show objectively reasonable e;pectation of seclusion or
solitude in the place, conversation or data source
= &f course legitimate countervailing social needs may warrant some
intrusion despite an individual1s reasonable e;pectation of privacy and
freedom from harassment. Jowever the interference allowed may be no
greater than that necessary to protect the overriding public interest. Grs.
&nassis was properly found to be a public figure and thus subject to news
coverage. (ee 2idis v. 0. 8. ?ublishing Corp., !!3 0.6d P"9 $6d Cir.%, cert.
denied, 3!! B.2. #!!, 9! 2.Ct. 343, P7 :.d. 596 $!45"%. Conetheless,
(alella1s action went far beyond the reasonable bounds of news
gathering. *hen weighed against the de minimis public importance of the
daily activities of the defendant, (alella1s constant surveillance, his
obtrusive and intruding presence, was unwarranted and unreasonable. <f
=a person returning S67","""
=a photograph of a postal employee at wor/
=article describing !6 year old giving birth
*hat courts have found to be offensive
= Article about woman with tapeworm
=display by protesters disclosing identities of planning aborting
=article that references child narcotic dude
!5
there were any doubt in our minds, (alella1s ine;cusable conduct toward
defendant1s minor children would resolve it. (alella v. &nassis, 5P# 0.6d
4P9, 447 $6d Cir. !4#3%
= to summarize, we conclude that in the wor/place, as elsewhere, the
reasonableness of a person1s e;pectation of visual and aural privacy
depends not only on who might have been able to observe the subject
interaction, but on the identity of the claimed intruder and the means of
intrusion. 0or this reason, we answer the briefed +uestion affirmatively: a
person who lac/s a reasonable e;pectation of complete privacy in a
conversation, because it could be seen and overheard by cowor/ers $but
not the general public%, may nevertheless have a claim for invasion of
privacy by intrusion based on a television reporter1s covert videotaping of
that conversation. 2anders v. Am. Eroad. Companies, <nc., 6" Cal. 5th
4"#, 463, 4#P ?.6d 9#, ## $!444%.
6. .he defendant intentionally intruded on plaintiff's private place, conversation or
matter
=unintended or mista/en foray does not give rise to liability
3. .he intrusion would be highly offensive to a reasonable person
=consider degree of intrusion, conte;t, conduct, motives of intruder and
e;pectations of plaintiff
=court determines in first instance
= courts must consider the e;tent to which the intrusion was, under the
circumstances, justified by the legitimate motive of gathering the news.
2hulman v. (roup * ?roductions, <nc., !P Cal. 5th 6"", 639=3#, 477
?.6d 594, 543 $!44P%
= .he mere fact the intruder was in pursuit of a story does not,
however, generally justify an otherwise offensive intrusion>
offensiveness depends as well on the particular method of investigation
used. At one e;treme, Troutine ... reporting techni+ues,' such as
as/ing +uestions of people with information $including those with
confidential or restricted information% could rarely, if ever, be deemed
an actionable intrusion. At the other e;treme, violation of well=
established legal areas of physical or sensory privacy = trespass into a
home or tapping a personal telephone line, for e;ample = could rarely, if
ever, be justified by a reporter1s need to get the story. 2uch acts would be
deemed highly offensive even if the information sought was of weighty
public concern> they would also be outside any protection the
Constitution provides to newsgathering.2hulman v. (roup *
?roductions, <nc., !P Cal. 5th 6"", 63#, 477 ?.6d 594, 545 $!44P%
?ublication is not an element hereUUU &nce you go through information you have
intruded
;amples:
0ilm crew accompanying paramedics into a house of person with heart attac/
!7
Adult daughter of heart attac/ victim who watch broadcast of father's ordeal
2e;y mom add in newspaper and people ended up showing up to house
2ecret recording of employee's conversations by cowor/er in employee=only
area $2anders 595%, yes=just because you're telling one person doesn't mean
whole world
2ecret recording of business discussion by stranger invited into bac/ office area
$Ged :abs= yes, business discussion and stranger%
(athering private information about a third person under false pretenses
8eporter secretly recording in person's living room
Co reasonable e;pectation in restaurant
D) ,iretappingC"avesdropping
0ederal :aw lements:=only need one=party consent
!. <ntentional
6. <nterception, disclosure, or use of
3. An oral, wire, or electronic communication or
5. <ntentional use of a device to intercept an oral communication
Aefense: one party consent beforehand, and not for criminal or tortuous
purpose
=Eartnic/i v. Hopper: media obtained secret recording from anonymous source
Jeld: disclosures of even illegally intercepted material is protected by the 0irst
Amendment if:
=Aefendant plays no part in the interception
=Aefendant obtains access to information lawfully
=<ntercepted matters relate to matter of public concern
2tate :aws:
Gost have one=party consent rule
About a dozen have all=party consent rule
Cal. ?enal Code F93!
.ypes of wiretapping:
Bnauthorized connection to telephone or telegraph
:earning or attempting to learn the contents of a wire transmission without the
consent of all parties
Ga/ing use of information obtained by such improper means
Aiding, abetting, or attempting to aidOabet any such conduct
Cal. ?enal Code F936
?rohibits
!. <ntentionally eavesdropping on or recording
6. Ey means of an electronic amplifying or recording device,
3. A confidential communication
V 8ecordings of contents of audible or symbol=based communications
$Arennan%
!9
V 2tatute says:
Q <ncludes communications that may reasonably indicate that any party to
the communication desires it to be confined to the parties thereto
Q ;cludes circumstance in which the parties to the communication may
reasonably e;pect that the communication may be
V &verheard or
V 8ecorded
Q ;cludes communications in public gathering or proceeding open to the
public
V 0lanagan resolved prior split in law, holding: a communication
is confidential where a party to the conversation has an objectively
reasonable e;pectation that the conversation is not being overheard
or recorded K regardless of whether the arty e+ects that the
content of the con*ersation may later !e con*eyed to a third
arty
V :ieberman defined overheard as listening without a spea/er's
/nowledge or intent that his speech be heard, as in eavesdropping,
which is to Tlisten secretly to what is said in private'
V Co 0irst AmendmentOnewsworthiness e;ception
5. *ithout the consent of all parties to the communication
= *hy does this matter)
=relevant to the +uestion of consent
=8elevant to the overheard +uestion
=:ieberman v. RC&?: 8eporter's friend was a party
=?atient's $reporter's% friends was a party
=A party to a communication need not spea/
=Bnli/e other privacy torts, corporations can sue $)on "!uip.%
*hat about calls from California to a one=party consent state) California law governs
Cal Civil Code F !#"P.P. ?hysical or constructive invasion of privacy> damages and
e+uitable remedies> employee=employer relationships> defenses: &nly pertains to personal
and familial activities
V Hiolations:
Q ?hysical trespass to capture personal or familial activity in a highly
offensive manner or
Q Capturing a person in a personal or familial activity in a private place
with an enhancing device $e.g., telephoto lens, parabolic microphone%
in a highly offensive manner, even if there is no physical trespass or
Q Airects, solicits or induces another to obtain such material
V ;ception: recording to e;pose unlawful behavior or business practice
threatening health or public welfare
V Aamages
Q .reble general and special damages
Q ?unitive damages
Q Aisgorgement of profits
Q 8ecently amended to provide civil fines of up to S7"/ for anyone who
!#
even solicits a violation
6ide Alongs:
*ith :aw nforcement:
Jere, law enforcement authority was used to assist commercial television, not to
further law enforcement objectivesK .he invited informer doctrine thus does not
shield the media from liability. *e recognized this more than twenty years ago
when we held that eavesdropping by the media for public broadcast, even in
conjunction with law enforcement, violates important privacy interests. Eerger v.
Janlon, !64 0.3d 7"7, 7!3 $4th Cir. !44#%
.he appropriate test in this case is the joint action test. .he 2upreme Court has
said it is satisfied when the plaintiff is able to establish an agreement, or
conspiracy between a government actor and a private party. Eerger v. Janlon, !64
0.3d 7"7, 7!5 $4th Cir. !44#%.
*e hold that it is a violation of the 0ourth Amendment for police to bring
members of the media or other third parties into a home during the e;ecution of a
warrant when the presence of the third parties in the home was not in aid of the
e;ecution of the warrant.

*ilson v. :ayne, 769 B.2. 9"3, 9!5, !!4 2. Ct. !946,
!944, !53 :. d. 6d P!P $!444%
,ight of )u!licity- the ,misappropriation of name tort- protects against intrusion upon
an individual1s private self=esteem and dignity, while the right of publicity protects
against commercial loss caused by appropriation of an individual1s ,identity- for
commercial e;ploitation. 5 I. .homas GcCarthy, GcCarthy on .rademar/s and Bnfair
Competition sec. 6P.9 $5th ed.6""3%Aoe v. .C< Cablevision, !!" 2.*.3d 393, 39P $Go.
6""3%
6est$ 7f Torts A@9'
7ne who appropriates to his own use or benefit the name or likeness of another is subject
to liabilit* to the other for invasion of his privac*$
Comment:
a$ .he interest protected by the rule stated in this 2ection is the interest of the individual
in the e;clusive use of his own identity, in so far as it is represented by his name or
li/eness, and in so far as the use may be of benefit to him or to others. Although the
protection of his personal feelings against mental distress is an important factor leading to
a recognition of the rule, the right created by it is in the nature of a property right, for the
e;ercise of which an e;clusive license may be given to a third person, which will entitle
the licensee to maintain an action to protect it.
b$ How invaded$ .he common form of invasion of privacy under the rule here stated is
the appropriation and use of the plaintiff1s name or li/eness to advertise the defendant1s
business or product, or for some similar commercial purpose. Apart from statute,
however, the rule stated is not limited to commercial appropriation. <t applies also when
the defendant ma/es use of the plaintiff1s name or li/eness for his own purposes and
benefit, even though the use is not a commercial one, and even though the benefit sought
to be obtained is not a pecuniary one. 2tatutes in some states have, however, limited the
liability to commercial uses of the name or li/eness.
!P
c$ Appropriation$ <n order that there may be liability under the rule stated in this 2ection,
the defendant must have appropriated to his own use or benefit the reputation, prestige,
social or commercial standing, public interest or other values of the plaintiff1s name or
li/eness. <t is not enough that the defendant has adopted for himself a name that is the
same as that of the plaintiff, so long as he does not pass himself off as the plaintiff or
otherwise see/ to obtain for himself the values or benefits of the plaintiff1s name or
identity. Bnless there is such an appropriation, the defendant is free to call himself by any
name he li/es, whether there is only one person or a thousand others of the same name.
Bntil the value of the name has in some way been appropriated, there is no tort.
d$ )ncidental use of name or likeness$ .he value of the plaintiff1s name is not appropriated
by mere mention of it, or by reference to it in connection with legitimate mention of his
public activities> nor is the value of his li/eness appropriated when it is published for
purposes other than ta/ing advantage of his reputation, prestige, or other value associated
with him, for purposes of publicity. Co one has the right to object merely because his
name or his appearance is brought before the public, since neither is in any way a private
matter and both are open to public observation. <t is only when the publicity is given for
the purpose of appropriating to the defendant1s benefit the commercial or other values
associated with the name or the li/eness that the right of privacy is invaded. .he fact that
the defendant is engaged in the business of publication, for e;ample of a newspaper, out
of which he ma/es or see/s to ma/e a profit, is not enough to ma/e the incidental
publication a commercial use of the name or li/eness. .hus a newspaper, although it is
not a philanthropic institution, does not become liable under the rule stated in this 2ection
to every person whose name or li/eness it publishes.
"lements of 'ommon %aw 'laim in 'alifornia: $this is more misappropriation%
!. Aefendant's use of plaintiff's for defendant's commercial advantage or otherwise
6. :ac/ of consent
3. 8esulting injury
Dachchini v. 2cripps=Joward Eroadcasting
2C&.B2 says human cannonball has cause of action because station broadcast
entire act without consent> the 0irst and 0ourteenth Amendments don't prohibit or
grant immunity to press
Guch of its economic value lies in the Tright of e;clusive control over the publicity
given to his performance'> if the public can see the act free on television, it will be
less willing to pay to see it at the fair. $39P%
Gontana Case:
Advertising for a protected publication using image is o/
Giddler Case:
Bni+ue voice presents an action
(tatutor* 'ause of Action
'ivil 'ode D ::11: <nter vivos statute
lements
!4
!. &ne who /nowingly uses
6. name, voice, signature, photograph, or li/eness of a
readily identifiable person
3. on or in products, merchandise, or goods, or for
purposes of advertising or selling, or soliciting
purchases of, products, merchandise, goods or
services
5. without such person1s prior consent
;ceptions:
K news, public affairs, or sports broadcast or
account, or any political campaign, shall not
constitute a use for which consent is re+uired
K Civ. C. 3355$d%
Gedia advertising e;ception $?age%
<ncidental use
W (roup shots
3355$b%$6% Q crowd at sporting event, crowd on street or
public building, audience at theater, glee club or
baseball team
W mployee photo
rebuttable presumption that use was not /nowing
Common law vs. statute
Complements one another
Aifferences:
Attorney's 0ees
2tatute X yes
Common law X no
Aescendability
Common law X no
2tatute X Les
California Civil Code F 3355.!
?ost mortem statute
(ives heirs who register a right to sue for use of deceased person's identity on or
in products, merchandise, goods or services $or advertising of same% if the
deceased person's identity had commercial value at the time of hisOher death and
if the deceased person was domiciled in California at the time of death
;ceptions:
?lay, boo/, magazine, newspaper, musical composition, audiovisual wor/, wor/
of political or newsworthy value, or an advertisement of the above if fictional or
nonfictional entertainment, or a dramatic, literary or musical wor/. 3355.!$a%$6%
Cews, public affairs, sports broadcast or account, political campaign. 3355.!$j%
6"
Aoes not apply to the medium of advertisements $e.g., newspapers, radio, etc.%
unless owners or employees had /nowledge use was unauthorized. $this is an
e;ception that gives immunities to newspaper and television station unless they
/new% 3355.!$l%.
;pires #" years after death. 3355.!$g%.
Aamages:
Any damages sustained:
=S#7" or actual damages and
Any profits not counted for
(eneral Aamages
?unitive Aamages
<njunctive 8elief= +uestionable
Defenses:
.ransformative use test: adds significant creative elements so as to be transformed into
something more than a mere celebrity li/eness or imitation $3 2tooges%
?redominant use test: speech with a predominant artistic purpose is protected while
speech with a predominant commercial purpose is not. $.wistelli%
8ogers .est $6nd Cir., 4th Cir., 22 Case%= 2o long as there is at least a minimal artistic
relevance, it's protected from right of publicity of trademar/, unless it is e;plicitly
misleading about endorsement or sponsorship. Bsed e;act names.
.ther Claims:
A) /reach of 'ontract
<t is, therefore, beyond dispute that ,t-he publisher of a newspaper has no
special immunity from the application of general laws. Je has no special privilege
to invade the rights and liberties of others. Associated -ress v$ 3%6/, supra, 3"!
B.2., at !36=!33, 7# 2.Ct., at 977=979. Accordingly, enforcement of such general
laws against the press is not subject to stricter scrutiny than would be applied to
enforcement against other persons or organizations. Cohen v. Cowles Gedia Co.,
7"! B.2. 993, 9#", !!! 2. Ct. 67!3, 67!P, !!7 :. d. 6d 7P9 $!44!%.
/) )ntentional )nfliction of "motional Distress>
*e conclude that public figures and public officials may not recover for
the tort of intentional infliction of emotional distress by reason of publications
such as the one here at issue without showing in addition that the publication
contains a false statement of fact which was made with actual malice, i$e$, with
/nowledge that the statement was false or with rec/less disregard as to whether or
not it was true. .his is not merely a blind application of the 3ew 4ork Times
standard, see Time, )nc$ v$ Hill, 3P7 B.2. 3#5, 34", P# 2.Ct. 735, 753, !# :.d.6d
579 $!49#%, it reflects our considered judgment that such a standard is necessary
to give ade+uate breathing space to the freedoms protected by the 0irst
Amendment. Justler Gagazine v. 0alwell, 5P7 B.2. 59, 79, !"P 2. Ct. P#9, PP6,
44 :. d. 6d 5! $!4PP%
6!
') Tresspass>
.he 0irst Amendment does not shield newspersons from liability for torts
and crimes committed in the course of news=gathering. .here is no threat to a free
press in re+uiring its agents to act within the law.2tahl v. 2tate, !4P3 &R C8 4",
997 ?.6d P34, P5!=56
0urther, the 0irst Amendment does not guarantee the press a constitutional
right of special access not available to the public generally. Goreover, this
property is not a traditional public forum such as public streets, sidewal/s, and
par/s, and there is no constitutional guarantee of access. 2tahl v. 2tate, !4P3 &R
C8 4", 997 ?.6d P34, P56
D) 8raud> 8ood %ion v$ A/'
Gaterial misrepresentation, suppression or omission of a fact, that induced
reasonable reliance, and that caused damage
Bnresolved: on S6 in damages against AEC in trespass and duty of loyalty
") Harassment
&f course legitimate countervailing social needs may warrant some
intrusion despite an individual1s reasonable e;pectation of privacy and
freedom from harassment. Jowever the interference allowed may be no
greater than that necessary to protect the overriding public interest. (alella v.
&nassis, 5P# 0.6d 4P9, 447 $6d Cir. !4#3%
8) 'onversion
lements: !% &wnership, possession, or right of possession at time of
interference> 6% Actual, substantial, and intentional interference> 3%
Aefendant's interferences was a substantial factor in damage to plaintiff
.he media is not above the law, bur routine newsgathering is o/
Gere publication of stolen information is o/ $Aodd%
0) )ncitement
Advocacy directed to inciting or producing imminent lawless action that is
li/ely to incite or produce such action $Erandenburg%
8ice v. ?aladin $Jit Gan% and Jerceg v. Justler $se;ual asphy;iation%
H) (on of (am %aws=distinction drawn by 2on of 2am law between income
derived from criminal1s descriptions of his crime and other sources has nothing to do
with 2tate1s interest in transferring proceeds of crime from criminals to victims
)) )llegal Activit*> /raun v$ (oldier of 8ortune #aga5ine
0acts: Advertisement for a for=hire hit man. <t is well=settled that the 0irst
Amendment does not protect commercial speech related to illegal activity, 'entral
Hudson, 55# B.2. at 795, and, thus, there is no constitutional interest in publishing
personal service ads that solicit criminal activityKwe conclude that the 0irst Amendment
permits a state to impose upon a publisher liability for compensatory damages for
66
negligently publishing a commercial advertisement where the ad on its face, and without
the need for investigation, ma/es it apparent that there is a substantial danger of harm to
the public.
Intellectual )roerty:
A) 'op*right=
&riginal wor/s of authorship in a tangible medium
(iving control to authors of the use, reproduction and distribution of original
wor/s
8ights:
Covers original wor/s of authorship fi;ed in a tangible medium
?rotects inter alia, right to reproduce, adapt, distribute, publicly perform and
publicly display
=individual authors, joint authors, employees and wor/s for hire
=:icenses
<nfringement
3ew 4ork Times v$ Tasini=0acts: freelance writers gave wor/s to CL .imes, .imes
put it on a searchable database independent of the collective wor/, 2C says does
violate copyright laws
8air Ese: Jarper 8ow and Acuff 8ose
0air Bse 0actors: =doesn't matter if license is rejected, taste shouldn't matter
!% ?urpose of the allegedly infringing use
=.ransformative XY adds something new, with a further purpose or difference
character, e.g. parody, criticism, commentary, news
6% Cature of the copyrighted wor/
=Creative wor/s have greater protection for factual wor/s
3% Amount and substantiality of the portion used
=0air use favors use of no more than necessary> not the heart of the wor/
=+uantitative and +ualititative evaluation
5% ffect on the mar/et of the wor/
=Aoes use ma/e mar/et less li/ely that consumers will buy original wor/)
After concluding that parody could be considered fair use, the Court
quickly qualifed its holding: if the new work has no critical bearing on
the substance or style of the original composition, which the alleged
infringer merely uses to get attention or to avoid the drudgery in
working
up something fresh, the work is less transformative, and other fair use
factors, such as whether the new work was sold commercially, loom
larger Id. at !"# $he Court e%plained further that while a parody
targets
and mimics the original work to make its point, a satire uses the work
63
to
critici&e something else, and therefore requires 'ustifcation for the very
act of borrowing See id. at !"( As a result, the Court appears to
favor
parody under the fair use doctrine, while devaluing satire
<n Los Angeles News Service v$ KCAL=TV Channel 9,3 the issue of whether the
rebroadcast of news footageZin this case, film clips of the beating of truc/ driver
8eginald Aenny during the :.A. riotsZconstitutes copyright infringement or [fair use.[
.he plaintiff, :os Angeles Cew 2ervice $:AC2%, shot the video of the beating from its
helicopter and licensed it to the various media. RCA: used the film without a license,
claiming that it was a fair use. <n an unpublished opinion, the district court found that the
defendants were e;cused under the fair use doctrine based upon [undisputed facts that the
Aenny Hideotape is a uni+ue and newsworthy videotape of significant public interest and
concern[ and granted summary judgment in favor of RCA:.3.!". .he Cinth Circuit
reversed the lower court1s summary judgment decision and remanded the case for trial.
De minimis Defense= so minimal and so fleeting it shouldn't give rise
/) Trademark=
Geant to protect proprietors of goods and services in the use of mar/s that
identify their products and services
?rotects consumers from being misled and confused
8ights:
2ource identifier
*ord, logo, design, phrase, etc.
Bsed in commerce or trade
Aistinctive
=more distinctive gets more protection> more descriptive gets less protection
Eurden of proving of li/elihood of confusion is on the party to prove li/elihood of
confusion
Ailution: by tarnishment $harm to reputation of famous mar/% and by blurring
:: Eean: parody is protected from dilution claim
8air Ese=
Trademark 8air Ese:
Cominative 0air Bse
?laintiff must show
?roduct was readily identifiable without the use of the mar/
Aefendant used more of the mar/ than necessary> and
Aefendant falsely suggested sponsorship holder
Classic fair use defense
Aefendant must show
Bse of the term is not as a trademar/ or service mar/
65
A uses the term fairly and in good faith and
A uses the term only to describe good
0irst Amendment Aefense
Aefendant must show:
Bse of trademar/ has some artistic relevance to the e;pressive wor/> and
Bse does not e;plicitly mislead as to the source or the content of the wor/
SLA))
,hat is (%A--.
Geritless lawsuits brought to chill the valid e;ercise of a defendant's
constitutional right of petition or free speech in connection with a public issue
2pecial motion to stri/e causes of action in a 2:A?? suit
,hen does it appl*.
.he defendant does not need to show that the plaintiff's cause of action was
intended to chill speech or petition rights
.he defendant bears the initial burden of ma/ing a prima facie showing that the
cause of action arises from defendant's petition
!. Defendants burden: $!% any written or oral statement or writing made before a legislative,
e;ecutive, or judicial proceeding, or any other official proceeding authorized by law, $6% any
written or oral statement or writing made in connection with an issue under consideration or
review by a legislative, e;ecutive, or judicial body, or any other official proceeding authorized by
law, $3% any written or oral statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest, $e;amples of public forum: newspapers, press
conference, internet postings if other people can comment on it% or $5% any other conduct in
furtherance of the e;ercise of the constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public interest.
?ublic <nterest test: all of these are or
$!% .he subject of the statement or activity precipitating the claim was a person
or entity in the public eye. $6ivero v$ American 8ederation of (tate, 'ount* and
#unicipal "mplo*ees, A8%=')7, supra, !"7 Cal.App.5th at p. 465, !3"
Cal.8ptr.6d P!, citing, inter alia, (ipple v$ 8oundation for 3at$ -rogress $!444%
#! Cal.App.5th 669, 634, P3 Cal.8ptr.6d 9## ,Gother Iones1 article on nationally
/nown political consultant-.%
$6% .he statement or activity precipitating the claim involved conduct that could
affect large numbers of people beyond the direct participants. $6ivero v$
American 8ederation of (tate, 'ount* and #unicipal "mplo*ees, A8%=')7,
supra, !"7 Cal.App.5th at p. 465, !3" Cal.8ptr.6d P!, citing, inter alia, Damon v$
7cean Hills &ournalism 'lub $6"""% P7 Cal.App.5th 59P, !"6 Cal.8ptr.6d 6"7
,statements in unofficial community paper about general manager of large senior
citizen community-.%
67
$3% .he statement or activity precipitating the claim involved a topic of
widespread public interest. $6ivero v$ American 8ederation of (tate, 'ount* and
#unicipal "mplo*ees, A8%=')7, supra, !"7 Cal.App.5th at p. 465, !3"
Cal.8ptr.6d P!, citing #$0$ v$ Time ,arner, )nc$ $6""!% P4 Cal.App.5th 963, 964,
!"# Cal.8ptr.6d 7"5 ,2ports <llustrated article on child molestation in youth
sports-.%
Commonwealth nergy Corp. v. <nvestor Aata ;ch., <nc., !!" Cal. App. 5th 69,
33, ! Cal. 8ptr. 3d 34", 345 $Cal. Ct. App. 6""3%
.ypical 2:A??: defamation, false light
9$ (hifts to -laintiffs burden
.he burden shifts to the plaintiff to establish a reasonable probability of
prevailing on the merits of each claim under attac/
<f the ?laintiff fails to meet its burden, the cause of action must be stric/en
from the Complaint
2tay on discovery:
=filing of notice of motion triggers automatic stay on all discovery in the
action
=.he court has the discretion to order specified: discovery upon noticed
motion and showing of good cause
Co :eave to Amend
=<f the anti=2:A?? statute applies, the plaintiff may not amend its
complaint
Jigh <nitial Eurdens on the ?laintiff:
=.he plaintiff must demonstrate a probability of prevailing with admissible
evidence
=?laintiffs have the burden of meeting all constitutional defenses as well
as non=constitutional defenses raised with admissible evidence
=<n cases where actual malice is an essential element of a defamation
claim the court must bear in mind the clear and convincing
standard of proof
Attorne*s 8ees:
<f defendant wins they get attorneys fees
A plaintiff can only get fees if they can show the 2:A?? was frivolous
8ight of Appeal
<mmediate right to appeal orders granting or denying an anti=2:A?? motion
?rocedural <ssue so can be used in federal court
8ederal 'ourts:
Gay be filed in federal court butK
!. Aoes not apply to federal +uestion claims
69
6. 2tay on discovery is +uestionable
3. Gay still get leave to amend
)rior ,estraints- A prior restraint is a government=imposed restriction on speech before the
speech has ta/en place
A. *hen, if ever, are prior restraints justified)
:ist from Cear:
=<n time of war=location of troops location $Cear=statute gives courts power to
enjoin scandalous and defamatory speech%
=Certain obscenity
=<ncitement to acts of violence
=&verthrow of an orderly government
E. Aefamation:
Are restraints on defamatory speech allowed after the trial on the merits)
a. .ory v. Cochran:
Aid a judge1s order that someone stop ma/ing defaming statements about a public figure,
even after that figure1s death, violate the 0irst Amendment right to free speech)
Les. <n a #=6 opinion delivered by Iustice 2tephen Ereyer, the Court held that
Cochran1s death diminished the grounds for the judge1s order and that the order
therefore amounted to an overly broad prior restraint on speech. .ory could no
longer try to force Cochran to pay him in e;change for desisting, the Court
reasoned, ending the order1s underlying justification.
b. E<H< v. :emen: 2ame as .ory e;cept speech concerned a public issue
Jolding: .he 2upreme Court of California followed suit by holding that a
properly limited injunction prohibiting defendant from repeating to third persons
statements about the Hillage <nn that were determined at trial to be defamatory
would not violate ,:emen's- right to free speech.
Cow, plaintiffs li/e the Hillage <nn have the option to see/ injunctions to prohibit
the repetition of statements that have been determined by a fact=finder to be
defamatory, without having to jump through 0irst Amendment hoops.
Concern that subject of defamatory speech will always have to bring lawsuits to
stop defamatory speech. Aamages are not an appropriate remedy in these cases.
C. ?rivacy
!. <n publication of private fact or false light cases: (ilbert v. Cational n+uirerOvans v.
vans
=Court will weigh competing constitutional rights of privacy and free speech in
deciding whether to issue injunction. 8elevant factors include:
whether the person is a public or private figure,
the scope of the prior restraint,
the nature of the private information,
whether the information is of legitimate public concern,
6#
the e;tent of the potential harm if the information is disclosed, and
the strength of the private and governmental interest in preventing
publication of the information.
=<n vans, Ct. of Appeal reversed an order preventing former wife from placing
any confidential personal information about e;=husband on the <nternet as
vague, overbroad, and not narrowly tailored
=?eople v. Eryant N Associated ?ress v. Aistrict Court
2tandard applied by the Colorado 2upreme Court:
$!% interest of the highest order $rape is of the highest order%
$6% restraint must be the narrowest available to protect that interest
$3% restraint must be necessary to protect against an evil that is great and
certain
$5% restraint cannot be mitigated by less intrusive measures
6. <ntrusion
(alella v. &nassis: Carrowed scope of injunction
*olfson v. :ewis: Court enjoined journalists because there is a public interest in
maintaining privacy
California harassment statute and Civil Code !#"P.P $prevents recording family
activities%
A. Cational 2ecurity
Cew Lor/ .imes v. B2:
/rennans 'oncurrence Test: &nly governmental allegation and proof that publication
must inevitably, directly and immediately cause the occurrence of an event /indred to
imperiling the safety of a transport already at sea can support even the issuance of an
interim order.
,hites concurrence: rejects government's grave and irreparable injury test and
reminds everyone of the potential conse+uences of subse+uent punishment for
publication
/lacks concurrence: absolutism
Harlans dissent: cabinet officers can assert irreparable impairment of national security
/lackmuns dissent: would have preferred more briefing
Bnited 2tates v. ?rogressive:
<n light of these factors, this Court concludes that publication of the technical
information on the hydrogen bomb contained in the article is analogous to
publication of troop movements or locations in time of war and falls within the
e;tremely narrow e;ception to the rule against prior restraint.
. .rade 2ecrets $Adidas%
(eneral rule is that press can't be enjoined for trade secrets
.he private litigants1 interest in protecting their vanity or their commercial self=
interest simply does not +ualify as grounds for imposing a prior restraint.
0. 0air .rials
6P
Cebras/a ?ress Ass'n v. 2tuart
8ecognized competing constitutional rights $fair trial v. free press%
.rial courts must e;amine evidence:
!. .he nature and e;tent of pre=trial news coverage
6. *hether other measures would be li/ely to mitigate the effects of
unrestrained pretrial publicity
Change of venue
?ostponement of trial
2earching +uestioning of prospective jurors
Bse of emphatic clear jury instructions
2e+uestration of jury
3. Jow effectively a restraining order would operate to prevent the
threatened danger
(. nforcing <njunctions that are prior restraints
B.2. v. Aic/inson:
Criminal contempt of even unconstitutional orders:
!. .he courts issuing the injunction must have subject and personal
jurisdiction
6. .here must be ade+uate and effective remedies available for orderly
review of the challenged ruling> and
3. .he order must not re+uire an irretrievable or irrevocable surrender of
constitutional guarantees $under lrod v. Eurns=even a moment can't
stand%
<n re ?rovidence Iournal Co.
transparently invalid order cannot form the basis for a contempt citation
Court said party should try to use appellate process, but if not available or ta/ing
to long they can still violate the order and still are its constitutionality in a
proceeding
,eorter/s )ri*ilege
?olicy:
2o people will come forward to furnish information
<ntegral to the news
<ndependence of the media
Eranzburg v. Jayes
&ustice ,hites #ajorit* 7pinion
Kreporter should not be forced to appear or testify until and unless
!. 2ufficient grounds are shown that reporter has relevant information
6. .he reporter's information is unavailable from other sources
3. .he need for the information is compelling to override 0irst Amendment
Cts. won't recognize a new privilege.
64
Cotes that it will be rare for journalists to be subpoenaed by grand juriesZ
only where the journalists are implicated in crime or possess relevant
information
Cotes how difficult it would be to define who +ualifies
8eporter's subject to general applicable laws
&ustice -owells 'oncurrence: @ualified ?rivilege
A reporter may +uash a subpoena where besides jury being in bad faith:
!. <nformation bears only a remote and tenuous relationship to the subject of the
investigation or
6. .estimony implicates confidential source without a legitimate need of law
enforcement
Douglas Dissent: Absolute 8ight not to appear before a grand jury
(tewarts Dissent> Ealancing .est=(overnment has the burden
$!% to show there is probable cause to show newsman has information that is clearly
relevant to a specific probably violation of law>
$6% show that the information cannot be sought by alternative means less destructive of
0irst Amendment rights> and
$3% demonstrate a compelling and overriding interest in the information
California 8eporter's 2hield :aw= Codified: Cal. Const. art. <, sec. 6$b% and vidence Code
section !"#"
$ ,ho is protected.: publishers, editors, reporters or other persons
connected with or employed by a newspaper, magazine, other
periodical publication, television station or networ/, radio station or
networ/, wire service or press association from contempt for
refusing to disclose sources or unpublished information
Cewspaper photographers $Cew Lor/ .imes v. 2uperior Ct.%
0reelance writer $?eople v. von Hillas and ?layboy nters., <nc. v. 2uperior Ct.%
Eoo/ author $2hoen v. 2hoen $4th Cir. !4PP%%
?ublishers, editors, reporters who gather, select, prepare, for purposes of
publication to a mass audience, information about current events of
interest and concern to that audience for an ongoing, recurring or
continuously update,d- <nternet website $&'(rady%
9$ ,hat information is protected.
<nformation obtained during newsgathering
2ource of information $confidential and non=confidential%
Bnpublished information
=<nformation obtained during newsgathering, but not disclosed to public
3"
=<ncludes notes, outlines, photographs, tapes or other data
=<ncludes newsgatherer's eyewitness observations in public place
:$-rotection involved> protection from contempt
Jow contempt wor/s:
=Gay involve jail andOor fines
=Criminal: up to 9 months in jail $meant to be punitive%
=0ederal: may be more than 9 months, but that re+uires a trial by jury
=Civil: unlimited jail time $until willing to abide by order% $meant to be coercive%
=0ederal: may not e;ceed life of proceeding or term of grand jury $6P B2C !P69%
=Iudge may switch civil contempt to criminal with a finding that the journalist has
an articulate moral principle and jail will not induce compliance $<nre0arr%
=Cot necessarily a protection from other types of sanctionsK.g., if a reporter is a
party to a lawsuit Q there can be monetary or procedural sanctions

1$ 7vercoming the shield law
Constitutionally=based so there must be a competing constitutional right
Absolute privilege for non=party reporter in civil proceeding or
subpoena by prosecution
@ualified privilege for non=party reporter when subpoenaed by criminal
defendant $or by prosecution when reporter testified for criminal defendant%
=Iournalist may be subject to contempt for not disclosing info if:
=Aefendant demonstrates a reasonable probability that the info will materially
assist the defense> and Aefendant's fair trial rights outweigh the reporter's
rights. 'ourt weighs>
a. *hether the unpublished information is confidential or sensitive
b. .he interests sought to be protected by the shield law
c. .he importance of the information to the criminal defendant $reasonable probability
the information will materially assist defense%
d. *hether there is an alternative source for the unpublished information
?rocedural aspects
=8eporter must get 7 days notice
=Court must issue written contempt order
3on=statutor* doctrine to protect confidential sources and unpublished information
=Although Cal. 2up. Ct. recognized +ualified privilege under the 0irst Amendment.
$Gitchell%
.ypically invo/ed where the shield law would not apply, e.g.:
0ederal law or law of state without a shield law
.hreatened sanction is something other than contempt
.he one see/ing protection is not one to whom shield law applies
8ederal 'ommon %aw:
Derilli: Iournalists win in civil cases
Ey !4P!, the court more fully developed the justification underlying the reporter1s
privilege and set forth a standard for its application. <n Ferilli, which was also a ?rivacy
3!
Act case, the court recognized that newsgathering re+uires the protections afforded by the
privilege and that /ran5burg e;plicitly ac/nowledged the e;istence of 0irst Amendment
protection for news gathering.
!7
.he court, however, distinguished the criminal conte;t
of /ran5burg from the civil conte;t of Ferilli and the earlier case, 'are*, holding that
/ran5burg is not controlling in civil cases.
!9
<n reaching this conclusion and thereby
barring the reporters1 depositions, the Ferilli court recognized that ,e-very other circuit
that has considered the +uestion has also ruled that a privilege should be readily available
in civil cases.
!#
.he court concluded that ,e-fforts will be ta/en to minimize
impingement upon the reporter1s ability to gather news. .hus, in the ordinary case the
civil litigant1s interest in disclosure should yield to the journalist1s privilege.
Cuthbertson: <n camera review in criminal cases
.he Court went on to e;plain what criteria must be met before a non=party news gathering
service should be forced to ma/e an in camera disclosure of unpublished material. .he court
set forth two in+uiries which should be made. 0irst, the litigant must show that the
information re+uested is not available from a non=journalistic source, that is, a source that
does not intrude upon 0irst Amendment rights. 2econd, there must be a showing that the
information sought is Tcentrally relevant' to the defense or cause of action. .he Court
concluded that since CE2 had the only documentary evidence that could possibly contradict
the testimony to be given from the stand, there was no other way of gaining access to that
information.
(onzales v. CEC: Con=confidential sources have lesser burden:
Accordingly, we now hold that, while nonconfidential press materials are protected by a
+ualified privilege, the showing needed to overcome the privilege is less demanding than the
showing re+uired where confidential materials are sought. *here a civil litigant see/s
nonconfidential materials from a nonparty press entity, the litigant is entitled to the
re+uested discovery notwithstanding a valid assertion of the journalists1 privilege if he can
show that the materials at issue are of li/ely relevance to a significant issue in the case, and
are not reasonably obtainable from other available sources. $77P%
<n California, under Gitchell, a newsgatherer only needs to reveal
sources and unpublished information if:
a. .he information is relevant and goes to the heart of plaintiff's claim
b. .he party see/ing material has e;hausted all other means of obtaining
information
c. .he need to obtain information outweighs the public interest in
protecting confidentiality $e.g., whistleblowers%
d. .he party see/ing material has made a showing of merit in the case
California Aelaney 2tandard for unpublished information in criminal matter $74P=744%
a. *hether the unpublished information is confidential or sensitive
b. .he interests sought to be protected by the shield law
c. .he importance of the information to the criminal defendant
d. *hether there is an alternative source for the unpublished information
36
0ewsroom Searches
Durcher v. 2tanford Aaily
*arrant to search newspaper offices for evidence of identity of protestors
who beat police officers> paper had policy of destroying photos that could
aid in prosecution of protestors
Joldings
0irst Amendment did not re+uire use of less intrusive subpoena
0ourth Amendment's reasonableness, specificity and probable cause
re+uirements of the warrant procedure provide enough protection K
Although where the materials sought to be seized may be protected by
the 0irst Amendment, the re+uirements of the 0ourth Amendment
must be applied with scrupulous e;actitude
-rivac* -rotection Act passed in response, but has e;ception where
there is reasonable cause to believe that notice would result in
destruction

(overnment 8etaliation
Ealtimore 2un v. hrlich
8eporters, but not the newspaper, banished for their
reporting
8eporters just didn't have access to discretionary information and there was no
punishment so o/
Aoes this give rise to an actionable claim) Co
Jow was 8ossignol v. Hoorhaar different) 2heriff bought or too/ all newspapers critical
of him
*hat about this +uote: *here the sole intention of a public official is to suppress
speech critical of his conduct of official duties or fitness for public office, his actions are
more fairly attributable to the state)
0reedom of <nformation Act, 7 B2C 776
,hos covered.
All departments of the federal e;ecutive branch
,hos not covered.
Congress
0ederal courts
,hat information is covered.
8ecords that are not e;empt from disclosure


?rocedures
=Absent unusual circumstances agency has 6" days to
respond
=often the 6" day rule is ignored
=8e+uesting party can state statutorily defined compelling need for faster response
33
=Agencies may charge for retrieval time and copying
=Easis for any withholding must be cited
=?arty not getting information may sue
=<f prevailing, court may award fees and costs

;emptions:
$!% Cational security and foreign policy data
$6% <nternal personnel policies
$3% Aata e;empt from disclosure under other statutes
$5% Confidential proprietary data
$7% Con)discoverable internal communications
Gost commonly invo/ed is the deliberative process privilege
$9% ?rivate personal data
B2A&I v. 8C0? Q no disclosure of mobster's rap sheet because it contains
private info and does not shed light on conduct of government
Cational Archives v. 0avish Q no disclosure of Hince 0oster's death photos
because there was no evidence of government misconduct
$#% <nvestigatoryOlaw enforcement records
$P% 0inancial regulations records
$4% (eological and geophysical data
California ?ublic 8ecords Act: (ov. C. sec. 967", et
se+.?ro
Geant to be construed broadly
*ho's covered): All state and local agencies
*ho's not covered)
=Courts $e;cept itemized statements of total
e;penditures and disbursements%
=.he :egislature $but see the :egislative &pen 8ecords
Act, (ov't C. sec. 4"#", et se+.%
=?rivate non)profit corporations and entities
=0ederal agencies $see 0&<A%

=*hat constitutes a record: basically anything related to public
business in whatever form or medium
=Aoes not cover public employees' private papers unless it relates
somehow conduct of the public's business
=Aoes not include records that must be generated
?rocedures:
=Agency is supposed to help locate records
=An agency is supposed to respond within !" days $or in unusual cases, 65 days if the r
ecords are voluminous%
=Access is free
=Copying costs are set by statute $!")67 cents per page%
35
=Agency must justify any withholding of records
0ile suit $petition for writ of mandate% as/ing court to order disclosure N if re+uesting par
ty wins it recovers fees
=Agency must identify an e;emption or show that the public interest in confidentiality
outweighs the presumptive interest in disclosure
=;emptions may be applied permissively
=;amples of e;emptions:
=Attorney)client discussions
U 8ecords concerning ongoing agency litigation
U 8ecords of investigations K even after an investigation is over
U 8ecords that show decision)ma/ers deliberative process, but only if the public
interest served by not ma/ing the records public clearly outweighs the public
interest in disclosure
U
?ersonnel, medical and similar files only if it would reveal intimate, private details

U ?olice personnel files have special protections $see, e.g., vid. C. !"53%
U ?olice incident reports, rap sheets and arrest records
U Eut police blotters $time and circumstances of calls to police, names and details
of arrests, warrants, charges, hearing dates% must be disclosed unless disclosure
would endanger investigations or lives
U Jome addresses in certain types of files


U Added to California Const. in 6""5 $art. <, sec. 3$b%%
U .he people have the right of access to information concerning the
conduct of the people's business, and, therefore, the meetings of public
bodies and the writings of public officials and agencies shall be open to
public scrutiny.
U Eut it does not affect:
U 8ight of privacy
U ;isting laws limiting access to public records are not repealed or
nullified
U Eut e;isting laws and new laws must favor access
U <mpact)
U ?ress nterprise Co. v. 2uperior Court
U 2ander v. 2tate Ear

U Erown Act: (ov't Code secs. 7547", et se+.
*ea/er federal analog X 0ederal Advisory Committee Act and (overnment in 2unshine
Act
=Geetings of public bodies must be open and public and may not be secret and any
action ta/en in violation of open meetings laws is void
=*ho's covered)
37
=:ocal agencies
=2tate governmental agencies are covered by the Eagley)Reene &pen Geeting Act
=Also note that many counties and localities have their own 2unshine rules that
permit even more access
=:egislative bodies of local agencies $including covered boards%
=2tanding committees of covered boards
=(overning bodies of non)profit corporations formed by a public agency or which
includes a member of a covered board and received money from that board
=*ho's not covered)
=Ad hoc advisory committees
=Gost other non)profit corporations
=&ther governmental agencies


*hat's covered)
=A meeting is any gathering of a majority of the members of a covered board to hear,
discuss, or deliberate on matters with the agency's or board's jurisdiction even if
there is no vote or action ta/en
=Aaisy chains are meetings
?rocedures
=2pecial notice
=.ypical is three days' posting
=mergency is one hour to those who re+uest it $e.g., media%
=Gedia can stay even if meeting is cleared for disturbance
=Geetings must be held in jurisdiction of agency, in a place accessible to all and be
free
=Co sign)in re+uired
=Allow non)disruptive recordings and public addresses
=Hotes must be public
=;emptions
Access to Court )roceedings and ,ecords:
Access to Criminal ?roceedings
Jistorical basis dates to ngland
*hat are the rationales that support public proceedings)
=interest in public oversight of what our government is doing especially in
issues li/e if people are going to jail
=public education and confidence in the judiciary
=Appearance of fairness
*e hold that the right to attend criminal trials is implicit in the guarantees of the
0irst Amendment> without the freedom to attend such trials, which people have
e;ercised for centuries, important aspects of freedom of speech and of the press
could be eviscerated.8ichmond Cewspapers, <nc. v. Hirginia, 55P B.2. 777, 7P",
!"" 2. Ct. 6P!5, 6P64, 97 :. d. 6d 4#3 $!4P"%
39
(rounded in two rights:
!% @ualified 0irst Amendment right for press and public to attend judicial
proceedings
6% Criminal defendants have an e;press 2i;th Amendment right to a public trial
-resumptivel* 7pen:
Criminal proceedings are presumptively open unless a showing can be made that closure
is needed to protect an overriding interest
*here, as in the present case, the 2tate attempts to deny the right of access in
order to inhibit the disclosure of sensitive information, it must be shown that the
denial is necessitated b* a compelling governmental interest, and is narrowl*
tailored to serve that interest. (lobe Cewspaper Co. v. 2uperior Court for
Corfol/ County, 57# B.2. 749, 9"9="#, !"6 2. Ct. 69!3, 696", #3 :. d. 6d 65P
$!4P6%
?rotecting minors not narrowly tailored> too speculative that minors would be
encouraged to report crimes and provide accurate testimony> might be other ways
?ress nterprise Co.v. 2uperior Court: ?ress can attend voir dire
"+ceptions: .he jury selection process may, in some circumstances, give rise to a
compelling interest of a prospective juror when interrogation touches on deeply
personal matters that person has legitimate reasons for /eeping out of the public
domain. .he trial involved testimony concerning an alleged rape of a teenage
girl. 2ome +uestions may have been appropriate to prospective jurors that would
give rise to legitimate privacy interests of those persons. 0or e;ample a
prospective juror might privately inform the judge that she, or a member of her
family, had been raped but had declined to see/ prosecution because of the
embarassment and emotional trauma from the very disclosure of the episode. .he
privacy interests of such a prospective juror must be balanced against the historic
values we have discussed and the need for openness of the process. ?ress=nter.
Co. v. 2uperior Court of California, 8iverside County, 595 B.2. 7"!, 7!!=!6, !"5
2. Ct. P!4, P67, #P :. d. 6d 964 $!4P5%
?ress nterprise Co. v. 2uperior Court: applies to transcripts of preliminary
hearings
?rocedure for closure of criminal judicial proceedings:
$!% Cotice to the public
?ublic must be given an opportunity to challenge closure
Aual)doc/eting of public and non)public is not permitted
$6% Eurden is on party $or court% see/ing closure to show substantial probability that:
a. &verriding interest will be prejudiced in a specific and compelling way>
<nterests commonly invo/ed: defendant's fair trial rights> juror and victim
privacy
b. Closure would be effective in preventing that prejudice> and
c. And that alternatives to closure will not protect interest $any closure
must be narrowly tailored%
$3% Court must ma/e specific findings on the record
3#
2idebars and in chambers proceedings: permitted in limited
measure, but not for proceedings ordinarily open
Access to 8ecords in Criminal Cases:
8irst Amendment right of access> twopart test
$!% Ao the records pertain to proceedings that historically have been open to the public)
$6% Analysis of the functional benefits derived from public access, including:
?ublic oversight of the judicial system
ducation of the public
Assurance of the appearance of fairness
.est has been applied to open transcripts of:
Hoir dire proceedings $?ress nterprise <%
?reliminary hearings $?ress nterprise <<%
2uppression hearings $B.2. v. Eoo/lier Q 4th Cir.%
?lea agreements $.he &regonian Q 4th Cir.%
2idebar or chamber conferences $B2 v. 2mith Q 3d Cir.%
Access to evidence often relies in great part on whether it was introduced at the
proceeding
Also applies to state grand jury indictments once the indictment has been returned
Co similar provision in federal law, although courts will open to serve a compelling and

particularized need
Iuvenile Court ?roceedings
.wo basic types: delin+uency and dependency
Co 0irst Amendment right to attend juvenile proceedings
)n 'alifornia, e+ceptions to the general rule:
$!% *hen the juvenile is charged with a specified list of serious crimes
$*elf. N <nst. C. 9#9%
=Bnless minor establishes a reasonable li/elihood of substantial prejudice to the
right to a fair trial $lower standard than for adults%
Also, se; crimes stay closed at victim's re+uest or if victim was under !9 at time
of offense
$6% *hen the minor and hisOher parentOguardian re+uests the hearing
to be open
$3% *hen the judge permits those with a direct and legitimate interest to attend $can inc
lude the media%
Arguments available to the media
?rotecting minor's identity may not be an issue if name is public
Ginors have no right to jury trial unless tried as adult
Access in Civil Cases:
=Cinth Circuit has held that federal common law and 08C? give right of access to
3P
civil proceedings and records $2an Iose Gercury Cews v. B.2. Aist. Ct.%
Ci;on v. *arner Communications
?ress sought to copy *atergate tapes used at trial
?ress has no right of access superior to the public
Bni+ue situation: ?residential 8ecordings Act
Already widely reported on transcripts
Nixon v$ Warner Communications, Inc$ is the only case in which the 2upreme
Court of the Bnited 2tates directly addressed the media1s right to copy evidentiary
recordings under the right of access.7" <n !4#P, in Warner Communications, the
Court reviewed and reversed the opinion of the B.2. Court of Appeals for the
Aistrict of Columbia Circuit in Enited (tates v$ #itchell.7! .he federal court of
appeals in #itchell had granted media outlets access to the audiotapes presented
in the *atergate trials, based on the well=settled common=law right of access.76
<n Warner Communications, the 2upreme Court reversed this decision on
statutory grounds, holding that the ?residential 8ecordings Act e;clusively
directed the procedure for releasing the tapes to the public.73 Although the
2upreme Court reversed the decision in #itchell, the Court did not overrule the
A.C. Circuit1s evaluation of the strength of the common=law right of access or its
method of evaluating a lower court1s decision in a right=of=access claim.75
*hat about material that the media ac+uires when it is a party to a civil
proceeding) *hat if that material is subject to a protective order)
2eattle .imes v. 8hinehart
?rotective order restricting use of materials obtained in discovery was permissible
because it satisfied and important government interest $privacy%, was narrowl* tail
ored to the case at hand, was unrelated to an* effort to suppress or punish speech,
and it allowed the media to publish information if it was obtained independentl*
Access to civil proceedings and records in California state cases
California 2upreme Court ruled that the 0irst Amendment and California
Constitution provides a presumptive right to access to civil proceedings and civil
court records $CEC 2ubsidiary%
.est for closure, from CEC 2ubsidiary adopted in Cal. 8ules. Ct.:
$!% .here e;ists an overriding interest supporting closure or sealing
$6% .here is a substantial probability that the interest will be prejudiced absent
closure or sealing
$3% .he proposed closure or sealing is narrowly tailored to serve overriding
interest
$5% .here is a less restrictive means of achieving the overriding interest
8ecords may not be filed under seal without a court order, and the public or the court sua
sponte may move to unseal a record
2pecial Circumstances in CA
34
Aomestic family proceedings and records
=?resumptively open
=Certain statutes, however, still demand closure
Gental health hearings
=?resumptively closed unless party re+uests openness
.rade 2ecrets
=Courts have authority to issue protective orders and close proceedings to
protect trade secrets
?rivacy interests
=<n theory=it is a competing constitutional right
=<n practice= it is not often used as a justification to close proceedings, and
it is still subject to the same strict scrutiny
Court proceedings and records
=may deter settlements
Aepositions: Co public right of access to depositions
Commercial Seech
'entral Hudson Test>
1 part regulation test:
$ )s the advertising false or deceptive or of illegal activities, areas of which are
unprotected b* the first amendment.
9$ )s the governments restriction justified b* a substantial government interest.
:$ Does the law directl* advance the governments interest.
1$ )s the regulation of speech no more e+tensive than necessar* to achieve the
governments interest.
Eillboards:
:ocalities may ban all signs on all public property, but K
Gost restrictions are contentbased or have e;emptions that are content
based
.g., different regulations for commercial activity, political ads, traffic signs, etc.
[ Content based restrictions are presumptively unconstitutional and must be
narrowly drawn to serve a compelling state interest
[ Content neutral restrictions must be essential to furthering an important or
substantial interest
[ ;emptions cannot place unbridled discretion in the hands of officials, even in
the conte;t of content neutral speech $?rinciple from 'it* of %akewood v$ -lain
Dealer -ublishing $newsrac/ case%%
#etromedia: ordinance is invalid if it imposes greater restrictions on
noncommercial than on commercial signs
[ Eecause the City allowed onsite commercial ads, it had to also allow onsite non
commercial ads
*hat are some government interests in this area) .he main ones cited are: aesthetics and
safety
5"
Ta+es:
0rosjean v$ American -ress 'o.
(overnment may levy ta;es of general applicability
Eut may not levy a ta; that is designated to limit the circulation of newspapers
8evolved around legislatures having bad motives
#inneapolis (tar
2pecial ta; on in/ over S!"",""" per year
Aiscriminated against large news paper
(eneral ta;es are o/, but special ta;es are not
?ublications don't have to show bad legislative motives
Arkansas ,riters -roject:
.a; on general interest magazines
;emption for newspapers and religious, profession, trade and sport magazines
.his was a content=based distinction, and it could not pass constitutional muster
%eathers v$ #edlock
.a; covered all tangible property and many services, e;empting newspapers and
magazines
Cable providers challenged the ta;
Bpheld the law as constitutional
Aid not single out the press
Co bad intent
Cot content=based
Distri!ution Issues:
'it* of %akewood v$ -lain Dealer
ven in content=neutral conte;ts, the government may not condition speech on
getting a license that is in the unbridled discretion of a government official
'it* of 'incinnati v$ Discover* 3etwork
Ean on news rac/s with the e;ception of newspapers
Aistinction between handbills and newspapers did further government interests in
safety and aesthetics, but not content=neutral or narrowly tailored
Cot only does Cincinnati1s categorical ban on commercial newsrac/s place too
much importance on the distinction between commercial and noncommercial
speech, but in this case, the distinction bears no relationship whatsoever to the
particular interests that the city has asserted. <t is therefore an impermissible
means of responding to the city1s admittedly legitimate interests. Cf. (imon G
(chuster, )nc$ v$ #embers of 3$4$ (tate 'rime ?ictims /d$, 7"6 B.2. !"7, !6", !!6
2.Ct. 7"!, 7!", !!9 :.d.6d 5#9 $!44!% $distinction drawn by 2on of 2am law
between income derived from criminal1s descriptions of his crime and other
sources has nothing to do with 2tate1s interest in transferring proceeds of crime
from criminals to victims% $#!7%
5!
Insurance:
Eroad Coverage
?ublication and newsgathering torts
.hird party subpoenas for source identities
All media=including internet
Coverage for defense costs as well as damages or settlement
;clusions:
?unitive Aamages
=can be covered through definition of damages andOor if company aggress
=who is insured)
=2hould include freelancers
Aefense and 2ettlement
Choice of counsel
<nput on settlement
?olicy conditions
*ho decides to retract)
*ho decides that a witness $e.g. journalist% should testify)
:imits on coverage for certain activities i.e. call=in shows without delays
.erritory=what is the geographic scope)
School Setting
Jazelwood v. Ruhlmeier
Jigh school districts have broad power to control school)sponsored
publications for legitimate pedagogical concerns but not if there is
no valid educational purpose
?ublication was not a public forum
?rincipal could censor two pages from an article about teen pregnancy
and divorce
8eserved whether these rules apply at the collegeOuniversity level
Josty v. Carter $#th Cir.%
After writing articles and editorials critical of college administration,
school ordered hold on papers so they could be reviewed
3)judge panel sided with students, then rehearing en banc was granted
Jazelwood applies at the university level
.he line between high school and college is not bright
California :aw:
?rimary and secondary schools: ducation Code sec. 5P4"#
(ives public school students the right to e;ercise freedom of speech and of the p
ress
2chool district must have written publications code
2chool officials may only restrict or punish speech that:
56
<s obscene, libelous or slanderous> or 2o incites students as to creat
e a clear and present danger of the commission of unlawful acts on school premise
s or in violation of the orderly operation of the school> and
$for publications% Aoes not maintain professional standards of nglish and journalism
Bsed to prevent profanity in video made by high school students $:opez%
.his is the only mechanism allowing prior restraints in public schools and it applies only
to official publications $:opez%
2chools do not have the authority to prohibit the distribution of unofficial materials on ca
mpus
$Eright%
U
Community college analog, d. C. sec. #9!6", not as e;pansive> contains an e;ception fo
r violation of lawful community college regulations
Censorship at colleges and universities: d. C. sec. 993"!$e%, censorship prohibited unles
s it constitutes hate violence as defined by Cal. :aw
ducation Code sec. 5P47"
U 2chool districts may not ma/e or enforce any rule subjecting
any high school pupil to disciplinary sanctions solely on the
basis of conduct that is speech or other communication that,
if engaged in off campus, is protected by the 0irst
Amendment or Cal. Constitution
U Analog for university level X d. C. 993"!
U 2ection 5P47" applies to private schools e;cept those
controlled by a religious organization to the e;tent
publication would interfere with religious tenets
U Analog for university level X d. C. 4539#
U Iournalism .eacher ?rotection Act $6""4%
U ?rotects journalism advisors from retaliation for trying to
protect student press freedoms
1lectronic Media
Secial ,ules re !roadcasters
8ed :ion v. 0CC
*hat is the fairness doctrine)
8e+uired broadcasters to allow reply time to the public in cases involving
personal attac/s or political editorials
Eroadcaster challenged constitutionality of rule
Court held: 0airness doctrine is constitutional, rejected argument that broadcasters
free speech rights are the same as published or spo/en word $Cf. .ornillo%
0CC license holders have duty to public
Jolding: 0re+uencies are scarce so the government is justified in creating rule and
as Iustice *hite said it creates more speech
53
.ornillo
Court declared unconstitutional right to reply law as applied to newspapers
.he Court stressed that forcing newspapers to publish a reply intrudes on editorial
discretion that is protected by the 0irst Amendment
*hat about concerns of consolidation of news industry)
Gaybe this ma/es more sense fairness doctrine
CE2 v. ACC
<s there a constitutional right of access to broadcast media by who wish to ma/e
minority views on public issues /nown)
Cot compelled speech here, editors need discretion
.he 2upreme Court in Columbia Eroadcasting 2ystem, <nc. v Aemocratic Cat.
Committee $!4#3% 5!6 B2 45, 39 : d 6d ##6, 43 2 Ct 6"P", held that, assuming
governmental action e;isted, a political committee had no constitutional right of
access under the 0irst Amendment to force a television networ/ to accept paid
editorial advertisements for broadcast. 8eversing the appellate court decision, the
court found no discrimination against controversial speech in the television
station1s refusing editorial advertisements while accepting commercial
advertisements because, unli/e situations involving state=supported school
newspapers or public transit companies, and unli/e situations where courts had
held that states may not constitutionally ban certain protected speech while at the
same time permitting other speech in public areas, the broadcasters had an
affirmative and independent statutory obligation to provide full and fair coverage
of public issues. Coting that the balancing of the various 0irst Amendment
interests involved in the broadcast media and the determination of what best
serves the public1s right to be informed is a tas/ of great delicacy and difficulty,
and that the process must necessarily be underta/en within the framewor/ of the
regulatory scheme that has evolved over the course of the past half century, the
court stated that the +uestion presented was not whether there is to be discussion
of controversial issues of public importance on the broadcast media, but rather
who shall determine what issues are to be discussed by whom, and when.
Concluding that a re+uirement of access for political advertisements would serve
to transfer a large share of responsibility for balanced broadcasting from an
identifiable, regulated entity to unregulated spea/ers who could afford the cost,
the court rejected the appellate court opinion that the 0CC fairness doctrine,
insofar as it allows broadcasters to e;ercise journalistic judgments over the
discussion of public issues and thus e;clude the editorial advertisements at issue,
is a paternalistic system which is inade+uate to meet the public1s interest in being
informed
Aoctrine revo/ed by 0CC
<nternet Considerations
8eno v. AC:B
55
Communications Aecency Act of !449 criminalized sending obscene and indecent
material on the <nternet
Jolding: Act violated 0irst Amendment
=:aw was overbroad and vague
=8estricted protected speech by adults
=<nternet is different than broadcast medium
Ashcroft v. AC:B
<nternet:
8eno v. American Civil :iberties Bnion
.he gov't can't prohibit indecent speech over the internet
(overnment stresses the vagueness of indecency and overlybroad
2peech for adults should not be eliminated to protect children
8egardless of whether the CAA is so vague that it violates the 0ifth
Amendment, the many ambiguities concerning the scope of its coverage
render it problematic for purposes of the 0irst Amendment. 0or instance,
each of the two parts of the CAA uses a different linguistic form. .he
first uses the word indecent, 5# B.2.C. F 663$a% $!445 ed., 2upp. <<%,
while the second spea/s of material that in conte;t, depicts or describes,
in terms patently offensive as measured by contemporary community
standards, se;ual or e;cretory activities or organs, F 663$d%. (iven the
absence of a definition of either term,37 this difference in language will
provo/e uncertainty among spea/ers about how the two standards relate
to each other39 and just what they mean.3# Could a spea/er confidently
assume that a serious discussion about birth control practices,
homose;uality, the 0irst Amendment issues raised by the Appendi; to our
-acifica opinion, or the conse+uences of prison rape would not violate
the CAA) .his uncertainty undermines the li/elihood that the CAA has
been carefully tailored to the congressional goal of protecting minors
from potentially harmful materials.
.he court suggested that the <nternet is fundamentally different than
broadcast regulation. Bnli/e the broadcast media, which has a limited
number of fre+uencies and therefore cannot be freely available to
everyone, the <nternet cafes or at libraries. As a result, the Court
concluded that <nternet should be treated differently than the broadcast
media
:east 8estrictive Alternatives:
Can use filters
(trict (crutin*: Ashcroft v. AC:B: <f there is commercial sites and se;ual material there
should be an age verification mechanism, a lot more specific
2C declares unconstitutional
2C uses strict scrutiny: content=based viewpoint and not the least
restrictive alternative: filters
57
Jow can these be reconciled) $Chem can't%
Cable
B2 v. ?layboy ntertainment (roup $!56P%: 0uzzy channels. Iust saying we want to
protect people from unwanted e;posures and we want to protect children.
Court uses strict scrutiny: ma/es content based restriction because it is se;ual
speech
?roblem: 2hould we still ma/e medium $telephone, cable, internet% distinctions or are
these completely blurred)
Gaybe we should just use strict scrutiny as a base line
*hat if its just se;ual commercial speech)
:et's parents put filters on
Criminal Lia!ility
(arrison v. :ouisiana
:ouisiana law criminalized true statements about public officials made with ill will or n
ot made in the reasonable belief of its truth
AA charged with criminal libel for criticizing judges
2tatute unconstitutional
<n dicta, criminal libel statutes can e;ist if:
2atisfy 2ullivan scienter re+uirements> and either restricts
speech that is
a. :i/ely to cause a breach of the peace> or
b. <nciting listeners to violence
California Criminal :ibel :aw
U <n !4#9, California Court of Appeal ruled California's criminal libel
provisions unconstitutional and the statutes were repealed !" years
later
U ?enal Code sec. !5P.9: allowed criminal prosecution for /nowingly
filing a false allegation of misconduct against a peace officer
U 6""" Q federal district judge: ruled this unconstitutional on its face $Jamilton%
U 6""6 Q Cal. 2up. Ct.: constitutional because only restricts /nowingly false
allegations $2tanistreet%
U 6""5 Q federal district judge again found law unconstitutional $Jamilton%
U 6""7 Q Cinth Circuit: unconstitutional because it only restricts /nowingly false
speech that is critical of officers $Cha/er%
U Ransas e;ample
U <n 6""6, newspaper publisher and editor convicted of criminal
defamation for publishing articles that Gayor of Ransas City lived
outside the county in violation of law $Ransas v. Carson%
U spionage Act of !4!#
U Among many, many provisions, 2ection #43$e% ma/es it criminal for
U anyone who has unauthorized possession of material
59
U relating to the national defense
U which information the possessor has reason to believe
U could be used to the injury of the Bnited 2tates or to the advantage of any foreign nation
U ,to- willfully communicate it
U .o any person not entitled to receive it
U Co limitation . . . as to either the transmitter or transmittee of information
under the spionage Act, noting further that 2ection #43$e% covers Tanyone.'
$Gorison Q 5th Circuit%
U *il/inson concurring: press organizations . . . are not being, and probably could not be,
prosecuted under the espionage statute.
U Cational defense includes all matters that directly or may reasonably be
connected with the defense of the Bnited 2tates against any of its enemies,
and refers to military and naval establishments and the related activities of
national preparedness $Gorison% and in (orin v. B2: a generic concept of
broad connotations, referring to the military and naval establishments and
the related activities of national preparedness.
U 8eceipt of thing of value $!P B2C 95!%
U <ncludes receipt of information in government record to be used
for gain, /nowing that it was ac+uired illegally
U <ntelligence <dentities ?rotection Act
U ?enalizes pattern of activities that leads to disclosure of
covert agents that one should have reason to believe would
harm B2
U :egislative history suggests it should not be applied against the
media, but there is no e;press e;emption
Atomic nergy Act
U ?enalizes receipt or communication of information relating to
energy facilities with the intent to injure the B2 or aid a foreign
nation U B.2. v. ?rogressive $law allows for injunctions%
5#