Media Law - Section 1
Final Examination
Professor Harpaz
December 10, 2009

Question I
(Suggested time: 60 minutes) (1/3 of total exam points)

    Gary Graham (GG) has been accused of murdering 5 people and is currently awaiting trial in the State of Stone.  The crimes took place at the Landers residence.  The victims are Linda Landers (LL) and her husband and 3 of her 4 children.  The fourth child, 7 year old Ryan, was in the basement playing video games during the murders and escaped injury.  Ryan discovered the bodies when he went upstairs for a snack.  He ran to a neighbor’s house for help and the neighbor called the police.  The prosecution is claiming that the motive for the murders is that GG and LL were having an affair and 2 days before the murder LL broke off the relationship.  GG claims that he is innocent of the crimes and that he was the one who ended his relationship with LL.  

    Newspapers in the State of Stone have been publishing stories about the murders on a daily basis since the bodies were discovered almost a year ago and local radio and television stations have been covering the murders as well.  The story has been front page news for so long for a number of reasons including the fact that GG comes from a prominent Stone family, he has been involved with many women who have sought the limelight to talk about their relationships with him, and sex tapes with GG and LL featured in them have surfaced since GG was arrested.  However, the story has not received much publicity outside of the State of Stone.

    Several months ago, GG’s lawyer filed a motion for a change of venue and the motion was denied.  The trial is now 3 weeks away and GG’s lawyer is concerned that GG will be unable to get a fair trial if publicity continues up until and during jury selection and the trial itself.  He has filed 2 motions with the judge assigned to the case.  First, he is asking the judge to bar local media from publishing any information that would be likely to prejudice potential jurors from now until the jury is selected.  Second, he has requested that the courtroom be closed when arguments are made over the admissibility of several pieces of highly inflammatory evidence including several sex tapes and a number of crime scene photos that are particularly gruesome.

    In addition to GG’s 2 motions, the judge has received a motion from a guardian ad litem appointed to represent Ryan Landers.  The motion asks that the courtroom be closed for Ryan’s testimony in order to protect the child since he has been in a fragile emotional state since he discovered the bodies and he would be further traumatized by testifying in a crowded courtroom.

    You are a law clerk for the judge assigned to the murder trial.  The judge has asked you to do some research into the First Amendment issues presented by the 3 motions pending before her which are opposed by a coalition of local newspapers and broadcasters.  She has asked you to write an analysis detailing the First amendment issues presented by the 3 motions, the First Amendment arguments in favor of granting each of the motions vs. the First Amendment arguments against granting each of the motions, and your best judgment as to whether she can grant any of the 3 motions without violating the First Amendment.

Question II
(Suggested time: 60 minutes) (1/3 of total exam points)

This question consists of 2 parts, A and B, each part consisting of a short essay question.  You must answer both parts.  

(A) The United States Department of Justice has learned that the New York Times has received a copy of a top secret government report that details plans for a new weapon system that is being developed by the Department of Defense.  The Department of Justice would like to prevent the New York Times from publishing this report.  Will it succeed?

(B) A reporter for a news organization secretly filmed a famous actress while she was working out at a health club.  The club admits only members to its facility and promises its members that their privacy will be protected, but the reporter paid for a membership using funds provided by her employer in order to gain access to the club.  The reporter then filmed the actress using a hidden camera while they were both working out on adjacent pieces of exercise equipment.  If the actress brings a tort action against the news organization and the reporter on the theory of invasion of privacy based on intrusion, is it likely that the actress will win?   

Question III
(Suggested time: 60 minutes) (1/3 of total exam points)
    Barbara Barnes (BB) writes a newspaper column for the Stone Gazette in which she talks about state and national politics.  Recently her column has focused on a brewing scandal involving Mike Morgan, the Governor of Stone.  Governor Morgan was in a car accident on November 13th and the circumstances surrounding the accident are at issue.  The first reports about the accident suggested that the governor’s car was being driven by his driver, and it skidded in wet weather when the governor was being driven home from a fundraising dinner.  More recent reports have revealed that the governor himself was driving the vehicle and that the location of the accident was inconsistent with the claim that he was on his way home.  The State Police conducted a brief investigation into the accident and have announced that they have closed their preliminary investigation without filing any charges against anyone or issuing any citations for reckless driving, but that the investigation could be reopened at a later time.

    BB has been investigating the accident and she is interested in obtaining some state records to further her investigation.  She wants to obtain copies of the State Police investigative reports related to the accident and copies of the service log maintained on the governor’s vehicle that details the starting and ending location each time the governor’s car leaves the state-owned garage where it is kept.  The Stone Gazette made a request for this information under the Stone Open Records Act.  Its request was turned down in writing.  The denial states: 

The information you have requested is not available under the Open Records Act.  The files you have requested are exempt from disclosure for the following reasons:

(1) The State Police reports are unavailable under Exemption 4 which exempts:
Law enforcement records, other than initial police arrest reports and initial incident reports,  are not subject to disclosure if they (A) could reasonably be expected to interfere with any pending investigation of criminal or unlawful activity, (B) would deprive a person of a right to a fair trial or an impartial adjudication, or (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy.

(2) The service log is not available under the Open Records Act because that Act only makes available records maintained by public agencies.  Under Section 2 of the Act, a public agency does not include “a provider of goods or services through agreement with the State if the agreement provides for the payment of fees to the entity in exchange for goods or services.”  The service log you seek is maintained by the Royal Limousine Service, a private company that serves as the provider of car and driver services for state officials under a contract with the State.

    Shortly after the Stone Gazette received the letter turning down its request under the Stone Open Records Act, BB received an anonymous envelope at the newspaper’s offices.  The envelope contained a photograph of an accident scene.  In the photo, the governor is seen slumped over the wheel of his car and a women who is not is wife is in the passenger seat.  The photograph contains a stamp on the back which reads: “State Police Investigation Photograph November 13, 2009.  Confidential.  Not to be released to the public.”  BB is anxious to publish the photo as part of her next column in the Stone Gazette.

    You represent the Stone Gazette.  The newspaper has asked you for advice.  First, it would like to know what arguments it could make if it appealed the denial of its requests for information under the Stone Open Records Act.  Second, it would like to know about potential liability if it publishes the accident scene photo BB received in light of a Stone statute that makes it a crime to “intentionally disclose confidential information that the State maintains and which it has not authorized for release to the public.”  Please provide the Stone Gazette with the advice that it seeks.