Media Law - Section 1
Final Examination
Professor Harpaz
December 14, 2007

Question I

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.  

Part A
(Suggested time: 75 minutes) (50 points out of 120 total exam points)

The facts described below are only applicable to Part A of this question.

    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 statute:

Section 101: Wiretapping and Eavesdropping Act

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.
Part B
(Suggested time: 60 minutes) (40 points out of 120 total exam points)

The facts described below are only applicable to Part B of this question.

    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 Courtney.

    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 crimes.

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 your analysis.

Question II
(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 false; and

(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.