Communications Law

Professor Harpaz

Final Examination

May 2, 1995

Question I

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

For the past six months Judge Moore has presided over the highly publicized murder trial of State v. King. During that time the jury has been sequestered in order to insulate them from the flood of publicity that has appeared in the media. The trial has now concluded and the jurors have been deliberating for five days. All indications are that jury deliberations will take many additional days. There has already been media speculation that the jury may deadlock and not be able to reach a verdict.

Yesterday, CBS News received an audiotape in the mail. The voices on the tape appear to be the voices of the jurors in State v. King. The tape appears to be a 60 minute segment of the previous day's jury deliberations. The tape was sent to CBS anonymously and CBS does not know who is responsible for sending the tape to them. CBS also does not know whether there are additional copies of the tape. Moreover, CBS has no information about who participated in making the tape or how the tape was made. From the quality of the tape, CBS speculates that one of the jurors may have been concealing a small voice-activated tape recorder under their clothing. CBS is aware that any juror who wilfully records jury deliberations is guilty of a misdemeanor.

CBS News has no way of guaranteeing the authenticity of the tape. However, CBS reporters who have been covering the trial of State v. King believe the tape is authentic. CBS is planning to preempt its regular programming to play the tape as part of a special broadcast to be aired tomorrow night. CBS has started to promote its planned broadcast of the tape in a series of commercials.

Judge Moore has just learned about the planned CBS News broadcast of the audiotape. He has ordered CBS News and the defense and prosecuting attorneys in State v. King to appear in his courtroom for an emergency hearing. The purpose of the hearing is to decide whether he should issue an injunction to prevent CBS from airing the audiotape.

You are a law clerk to Judge Moore. In preparation for the emergency hearing, Judge Moore has asked you to write a memorandum of law. Judge Moore tells you that in preparing your memorandum you should assume that CBS News is entitled to the same First Amendment protection that would be available to a newspaper. The memorandum should: (1) describe the First Amendment arguments that CBS News is likely to make challenging his authority to issue an injunction preventing the broadcast of the audiotape; (2) describe the First Amendment arguments that can be made in support of a decision to issue the injunction; (3) suggest a procedure for Judge Moore to follow in reaching a decision in the case; and (4) inform Judge Moore whether CBS would be free to broadcast the tape even if he issues an injunction.

Question II

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

"Scavenger" is a monthly magazine devoted to getting something for nothing or next to nothing. A typical recent issue contained articles about how to effectively use supermarket coupons, how to refinish furniture that has been abandoned at the town dump, how to shop at thrift shops and how to get free seeds to grow a vegetable garden. "Scavenger" encourages its readers to follow the advice it offers and send the magazine stories and pictures describing successful bargain hunting. Each month it awards a "Reader of the Month" prize in the amount of $100 for the most successful example of bargain hunting.

Several months ago, "Scavenger" published an article entitled "Hunting Wild Mushrooms." The article described where to find wild mushrooms that were safe to eat, how to recognize these mushrooms and how to prepare and cook them. The article was written by Linda Winter, a frequent contributor to "Scavenger" magazine.

Doris Roth is a long time subscriber to "Scavenger" magazine. She has twice been awarded the "Reader of the Month" prize for successful bargain hunting. After receiving her copy of "Scavenger" and reading its "Hunting Wild Mushrooms" article, she decided to go on a hunt for wild mushrooms. She carefully followed the directions contained in the article describing mushrooms that were safe to eat. After cooking and eating the mushrooms she found, she became critically ill from mushroom poisoning. As a result of her illness, she required a liver transplant.

Doris Roth has filed suit against "Scavenger" magazine. She alleges that the magazine contained false information concerning the identification of safe mushrooms. One of the mushrooms described in "Hunting Wild Mushrooms" as safe to eat and particularly delicious was in fact a deadly species of mushroom. In her suit, Doris Roth alleges the magazine is liable based on products liability, breach of warranty, negligence, negligent misrepresentation and false representations.

In the course of discovery, Doris Roth has learned that the original draft of the "Hunting Wild Mushrooms" article described the mushroom that she ate as deadly and warned readers not to confuse it with other mushrooms described in the article. In the course of editing the article, the magazine deleted this warning and instead the deadly mushroom was described as one of the mushrooms it was safe to eat.

The magazine has moved for summary judgment asserting that Doris Roth's claims fail as a matter of law because the magazine's behavior is protected by the First Amendment to the United States Constitution.

You are a law clerk to the judge assigned to the case. The judge has asked you to write a memorandum of law describing the arguments that "Scavenger" magazine can make in favor of granting its motion for summary judgment on First Amendment grounds as well as the arguments that can be made by Doris Roth opposing the motion for summary judgment.

Question III

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


Wendy Bergen is an investigative reporter with the news department of a Denver, Colorado television station. Shortly after Colorado passed a law making professional dogfighting a crime, Ms. Bergen began work on a feature story concerning dogfighting in Colorado.

In the course of her investigation, Ms. Bergen began searching for the opportunity to videotape an actual Colorado professional dogfight. She located a confidential source who informed her that he could arrange for her to attend a dogfight and film the fight. Ms. Bergen then accompanied her confidential source to a dogfight involving pitbulls, a breed of dog commonly used as fighting dogs. She filmed the fight and used part of the footage in her story on dogfighting in Colorado. The story recently aired over her television station.

The Colorado Attorney General's Office has been investigating illegal dogfighting in Colorado. A grand jury is currently hearing testimony on the subject. When Ms. Bergen's story was broadcast, she was immediately issued a subpoena. The subpoena required her to testify before the grand jury and to provide the grand jury with all footage of the dogfight including both aired footage and outtakes.

Ms. Bergen has asked a state court judge to quash the subpoena claiming that she has both a First Amendment and a state law privilege not to provide the grand jury with any information.

Colorado has enacted the following shield law to protect reporters:


A person employed by the news media for the purpose of gathering, procuring, transmitting, reporting, compiling, editing or disseminating news for the general public has a privilege to refuse to disclose in any legal or quasi-legal proceeding:


a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated or delivered; and


b.Any news or information obtained in the course of pursuing his or her professional activities whether or not it is disseminated.


c."In the course of pursuing his or her professional activities" as used in the previous section means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.

You are a law clerk to the judge considering Ms. Bergen's motion to quash the subpoena. The judge has asked you to write a memorandum of law describing all the constitutional and statutory arguments available to Ms. Bergen in claiming that she cannot be forced either to testify before the grand jury or to provide the grand jury with any videotape of the dogfight as well as the constitutional and statutory arguments available to the State of Colorado in opposing Ms. Bergen's motion to quash the subpoena.