Media Law - Section 1
December 14, 2007
This is a two part question. The facts described below are
applicable both to Part A and Part B of this question.
Jane Jackson (JJ), a full-time school teacher and
part-time freelance reporter, was pursuing a story about a 9 year old
girl, Courtney Davis, who was found severely beaten in an alley about
half way between her school and her home. Courtney was taken to
the hospital and remains in a coma. Courtney had last been seen
leaving school at 3 in the afternoon with a friend. The friend
told the police that shortly after they started walking home she
realized she had left her gloves in the classroom so she ran back to
get them, telling Courtney to wait for her. When she returned,
Courtney was gone so she walked home on her own and did not see
Courtney again. Since Courtney was hospitalized, Courtney’s uncle
has been the family spokesperson in dealing with the media.
Courtney’s mother, Dolores Davis (DD) has not spoken to the press.
JJ was very interested in interviewing Courtney’s
mother, but so far had been unsuccessful in speaking with her. In
her efforts to speak with DD, JJ has learned that DD has been spending
most of her time in her daughter’s hospital room or speaking with the
police, but occasionally leaves the hospital for brief periods.
JJ was determined to speak with DD so she dressed like a hospital staff
member, located DD’s car in the hospital parking lot, and hid
nearby. JJ waited till DD exited the elevator and approached her
car. JJ then ran up to DD and told her she was a grief counselor
at the hospital who was assigned to Courtney’s case. She asked if
she could speak with DD to try and help her cope with the
situation. DD immediately began to cry and JJ suggested they sit
in DD’s car and speak. JJ had a video recording device hidden in
her coat collar so she filmed the entire encounter with DD.
JJ began the conversation by telling DD that there was nothing worse
for a mother than having a seriously injured child, and that nothing
could make the situation better, but that sometimes it helped to speak
with a stranger rather than grieving family members. DD said she
wanted to speak about her daughter and proceeded to speak with JJ about
her love for her daughter and her guilt at what happened to
Courtney. JJ asked her why she felt guilty and DD hesitated, at
first answering that she just should have protected Courtney and then
saying that she should have gone to pick up Courtney at school.
Throughout the 30 minute conversation, DD kept breaking down and crying.
After JJ finished talking to DD she sold the video
of the conversation to a cable television station for broadcast,
earning $25,000, and wrote a story, quoting extensively from her
conversation with DD, which she sold to a newspaper for $5,000.
The cable television station played about 15 minutes of the 30 minute
video on the air and the newspaper published JJ’s story.
(Suggested time: 75 minutes) (50 points out of 120 total exam points)
The facts described below are only applicable to Part A of this
DD was extremely upset when she saw the film of her
conversation with JJ on cable television and read the related newspaper
story. DD has also learned that JJ is making a documentary film
about what happened to Courtney. DD has come to you for legal
advice about whether she can successfully sue JJ for filming the
conversation and anyone else legally responsible for the use of DD’s
conversation with JJ. Your job is to describe for DD the various
causes of action you can bring on her behalf, the legal arguments you
can make on her behalf to support those claims, the defenses you
anticipate will be raised in response to those arguments, and the
remedies that would be available to DD if she were to prevail.
In researching various theories of liability, you
have learned that the State of Southland, where these events occurred,
recognizes all of the traditional common law torts. In addition,
the state has enacted the following wiretapping and eavesdropping
Section 101: Wiretapping and
A. Intentionally recording a private conversations by means of
any electronic amplifying or recording device without the permission of
all parties to the conversation is prohibited.
B. Use of a recording made in violation of this statute with
actual knowledge or reason to know it was recorded in violation of this
statute is prohibited. A use of a recording under this provision
is limited to the use of the audio and/or video recording itself and
shall not apply to the information on the recording.
C. Violations of this Section are punishable by imprisonment for
up to a year.
D. A civil action shall be available to persons injured by
violations of this statute and those injuries can be remedied by
equitable and legal relief including damages and injunctive relief.
(Suggested time: 60 minutes) (40 points out of 120 total exam points)
The facts described below are only applicable to Part B of this
Several months after the events described in
Question I (page 1 of exam), Courtney died and DD, Courtney’s mother,
became the chief suspect in the case. The prosecutor assigned to
the case has convened a grand jury. In presenting the case to the
grand jury, the prosecutor has issued a subpoena summoning JJ to
testify as a witness before the grand jury and ordering the production
of all audio and video tapes she recorded showing DD speaking about
JJ does not wish to either testify or produce the
recording of her conversation with DD. She comes to you for legal
advice. You have done some research and discovered that the State
of Southland, where these events occurred, has a Shield Law that
protects journalists from being forced to testify in certain
circumstances. The provisions of the Shield Law relevant to JJ’s
situation are as follows:
Section 202: Shield Law
A. Pursuant to this statute, a journalist is granted a privilege
to refuse to testify in criminal or civil proceedings, including before
a grand jury.
B. The privilege granted under this section is available to
persons who make a substantial part of their income as journalists
working for print, internet, broadcast or cable outlets.
C. The privilege granted under this section is available to
shield any news or information obtained by a journalist in the course
of the journalist’s professional activities. However, the
privilege does not apply to physical evidence of a crime, eyewitness
observations of criminal activities, or visual or audio recording of
D. The privilege granted under this section can be overcome in a
criminal case if the prosecutor can prove that the information
requested from a journalist is not reasonably available from other
sources, and is necessary to prove the guilt of the defendant.
This showing will be required whether or not the information sought was
provided to the journalist under a promise of confidentiality.
. . . .
Your job is to advise JJ about whether she will be
protected under the Southland Shield Law both from being compelled to
testify before the grand jury and required to provide the prosecutor
with the videotape of JJ’s conversation with DD. In analyzing
JJ’s situation under the Shield Law, please be sure to include a
description of any arguments the prosecutor can make to overcome JJ’s
assertion of a journalist’s privilege under the Shield Law. If
there are other sources of protection you believe would provide JJ with
greater protection than the Southland Shield Law please include them in
(Suggested time: 45 minutes) (30 points out of 120 total exam points)
One morning during the broadcast of a popular
morning radio program, the Harry and Larry Show, the listening audience
heard a voice shouting in the background. The man said, “You are
now my hostages. We are taking over this radio station you
motherfuckers and we will take over America. We have planted
bombs and they will go off within the hour if our demands are not
met.” For the next 15 minutes, Harry and Larry are heard trying
to reason with the man and find out what his demands are and where the
bombs are planted. The man keeps repeating, “No one is safe from
my bombs -- not at work, not at school, not at home.” After about
20 minutes of conversation, Harry and Larry scream, “Gotcha” and
announce that the entire event was a joke they played on their audience
to poke fun at all the hysteria about terrorists that has come to
dominate politics in the United States.
The Federal Communications Commission (FCC) received
100 complaints about the Harry and Larry broadcast. Among the
complaints were people who complained they were so terrified by
listening to the broadcast that their health suffered and several who
said they got into car accidents racing to their children’s schools to
remove them in case a bomb was planted in the school building.
The Commission has notified WXYZ, the station that
broadcasts the Harry and Larry Show, that it intends to impose a fine
of $25,000 on the station because the fake terrorist incident it
broadcast violated the FCC’s Anti-Hoax Rule. The Anti-Hoax Rule
provides as follows:
Section 1. No licensee of any
broadcast station shall broadcast any false information concerning a
crime or catastrophe if:
(1) the information is presented as true factual information; and
(2) the licensee knows or has reason to know that the information is
(3) it is foreseeable that broadcast of the information will unduly
alarm the public.
Section 2. Violations of this rule are punishable by a fine of up
to $25,000 per incident.
WXYZ has come to you for legal advice. They
want to know whether they can challenge the application of the
Anti-Hoax Rule to the Harry and Larry Show’s broadcast of the fake
terrorist incident on First Amendment grounds. Your job is to
describe the First Amendment arguments that can be made by WXYZ in
challenging the Anti-Hoax Rule and its application to the Harry and
Larry Show as well as the First Amendment arguments that can be made by
the FCC in defense of the constitutionality of the Anti-Hoax Rule and
its application to the Harry and Larry Show.
END OF EXAMINATION