Media Law - Section 1

Final Examination

Professor Harpaz

May 2, 2005

Question I

(Suggested time: 60 minutes) (50 out of 150 total exam points)

            Roger Randolph (RR) has been indicted by the State of Northeast on charges that he illegally sold narcotics. He is represented by Sarah Sanders (SS). Several weeks ago Ms. Sanders filed a motion to suppress critical evidence in the case on the ground that the evidence was illegally obtained. After SS’s motion was filed, Judge Thomas Turner, the judge assigned to the case, scheduled a hearing on her motion to suppress. Shortly before the hearing date, the prosecution filed a motion to close the suppression hearing to the public because it would be necessary for the government to elicit testimony from two undercover police officers in the course of the hearing. Since these officers were still involved in investigations related to the charges brought against RR, the government argued that any disclosure of their identities would endanger the officers as well as put the ongoing investigation at risk.

            Judge Turner, after hearing from both the prosecution and the defense, agreed to close parts of the hearing including during the testimony of the undercover officers and during any part of the hearing where the activities of the officers would be discussed thereby creating a risk of public disclosure of their identities. He made findings that the closure was necessary both to protect the safety of the officers and to avoid compromising the effectiveness of an ongoing criminal investigation. He also found that the closure would be effective in protecting those interests. He did not reach any conclusions as to whether any alternatives to closure would be effective. No member of the press attempted to intervene in the case to object to the closure of the hearing.

            The suppression hearing was held on April 20, 2005. Judge Turner instructed the bailiff to clear and close the courtroom before the two undercover police officers testified. After all spectators left the courtroom, the two undercover police officers testified. During the cross-examination of the second officer, the prosecutor noticed a man sitting in the rear of the courtroom and he asked the judge to stop the hearing. The judge asked the man to identify himself and the man told the judge that he was Walter Winters (WW), a reporter for the Springfield Sun, a local newspaper. The judge asked WW how and when he had entered the courtroom. WW said he had been attending a trial in the courtroom next door on assignment for his newspaper. When the trial adjourned for the day he decided to see what else was going on in the courthouse. He entered Judge Turner’s courtroom just after the prosecutor ended his direct examination of the first officer and the attorneys were engaged in a discussion with the judge. WW said that no one attempted to stop him from entering the courtroom and he was not aware that he was not allowed to be there.

            The judge then asked the bailiff whether the courtroom had been locked or a notice of closure posted. The bailiff then explained that he had failed to follow the normal procedures for closure which included locking the courtroom and posting a closure notice, but had inspected the courtroom from time to time to make sure no one had entered. He had not noticed Mr. Winters enter the courtroom. 

            After hearing from Mr. Winters and the bailiff, the judge issued an order to prevent Mr. Winters from revealing anything he had heard while in the courtroom during the testimony of the officers for any purpose at all including to publish any information about what he had heard in his newspaper or to disclose the information to anyone else in order to facilitate publication of the information. The judge told Mr. Winters that he was not entitled to be in the courtroom for the hearing because of the closure order and he therefore had no choice but to order him to keep silent about what he had heard in order to protect the safety of the undercover officers and to avoid compromising an ongoing police investigation.

            The Springfield Sun, on behalf of itself and its reporter, Mr. Winters, has filed a motion to vacate the order issued by Judge Turner. You are a law clerk to the judge assigned to rule on the motion to vacate. The judge has asked you to write a memorandum of law analyzing the First Amendment issues raised by the motion including (1) whether the original decision made by Judge Turner to close the courtroom for parts of the suppression hearing was valid under the First Amendment, and (2) whether the order issued by Judge Turner preventing Mr. Winters from revealing anything he heard while in the courtroom was valid under the First Amendment.

Question II

(Suggestion time: 60 minutes) (50 out of 150 total exam points)

            Gary Graham (GG) is a former member of Congress. Several years ago while he was still serving in Congress he had an affair with a Congressional aide who worked for him. The affair came to light after the aide was found murdered. GG was questioned by the police after they learned of the affair, but he was never officially considered a suspect in the murder. Nevertheless, accusations against him suggesting he might have been involved in the aide’s murder sprang up all over the internet and on cable news stations. A year after the aide’s body was discovered, the police arrested and charged a vagrant with the murder of the aide.

            Jury selection has now begun in the murder trial of the man accused of murdering the aide. As a result, interest in the case has increased and it is once again the subject of much discussion on the internet and on various cable channels. Jane Jordan (JJ), a journalist employed by Scandal TV, a cable network specializing in covering celebrity scandals, has covered the case since the discovery of the aide’s body. In recent weeks, she has appeared on 4 of her network’s talk shows discussing the case. Despite the arrest of the vagrant, JJ has always believed that GG had some involvement in the aide’s murder. In her recent cable television appearances she has made the following comments:

“I’m sure he’s involved in some way. Maybe he hired the vagrant to kill her.”

“While I can’t get anyone to confirm it on the record, I was told early on in the murder investigation by a police officer involved in the investigation that the police believed that GG was involved in the crime even though they never said so publically.”

“I can’t believe he’s getting away with murder. I’m sure there is blood on his hands, but in this country if you’re rich and powerful you can even get away with murder.”

            After learning of JJ’s comments, Gary Graham decided to file a defamation action against JJ and Scandal TV. He has filed the action in state court in the State of Northeast where he resides, where Scandal TV has its headquarters and where its programming originates. According to Northeast law, defamation that occurs on television, whether cable or broadcast and whether scripted or not, is treated as libel and not slander. Under state law, libel is actionable if it is “the intentional publication of a statement of fact concerning the plaintiff which is false, unprivileged, and has a natural tendency to injure.”

            Northeast libel law recognizes several qualified privileges. They include a privilege for neutral reporting which privileges the republication of accusations that target a public figure and that are made by a respectable individual or organization. To be entitled to the privilege, the reporter must convey the accusations accurately, and the reporter must not espouse or concur in the charges made by others. Another privilege recognized by Northeast is the fair and accurate report privilege which protects the media when they fairly and accurately report someone else’s defamatory statement made in an official government document, a court proceeding or the meeting of a government body. In addition, Northeast libel law complies with past decisions of the United States Supreme Court that recognize First Amendment limits on state libel law.

            Your firm has been hired to represent Scandal TV and Jane Jordan in defending against the libel action filed against them by Gary Graham. You have been asked to write a memorandum (1) describing what Gary Graham will be required to prove to succeed in the libel action, (2) describing the defenses you believe can be raised on behalf of Scandal TV and Jane Jordan in arguing that JJ’s comments were not libelous, (3) describing any First Amendment arguments you might be able to make as part of your defense in the case and (4) describing how GG will respond to the defenses that you will assert on behalf of Scandal TV and Jane Jordan.

Question III

(Suggested time: 60 minutes) (50 out of 150 total exam points)

            Congress has become increasingly concerned that cable television is presenting significant amounts of indecent programming. While federal law outlaws indecency in broadcast radio and television, there is no similar restriction imposed on cable television. Despite the fact that cable television is a subscription service, it has become the pervasive means of accessing television programming. More than 65 percent of all Americans with televisions receive their television programming via cable rather than over the airwaves. Moreover, while parental control techniques are available to block particular cable channels and particular program categories, there is evidence that very few subscribers make use of this technology. Therefore, to prevent children from exposure to indecent cable content during hours of the day and evening when children are likely to be watching television, a bill has been introduced that provides as follows:

A Bill to Control Indecent Cable Content to be called the Cable Indecency Reduction Act (CIRA):

(1) Cable operators may not air indecent programming on basic cable stations except between the hours of 10 p.m. and 6 a.m. This statute does not apply to premium cable channels for which cable subscribers pay additional fees beyond those paid for basic cable service.

(2) For purposes of this statute, indecency is defined as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the cable medium, sexual or excretory activities or organs. This definition shall not be satisfied by isolated instances of indecent language or material, but will only be satisfied when a cable program is characterized by significant quantities of indecency. In addition, indecency that is presented in the context of programs that have serious literary, artistic, political or scientific value shall not violate this act.

(3) Wherever possible cable operators shall warn viewers that indecent content will soon be aired no matter whether it is broadcast on a basic or premium cable channel and whether it is broadcast between 6 a.m. and 10 p.m. or between 10 p.m. and 6 a.m.

(4) Each violation of this section shall be punishable by a fine of up to $50,000.

You are a staff attorney for a member of Congress. You have been asked to write a report evaluating the Cable Indecency Reduction Act. Your report should discuss the relationship of CIRA to the treatment of indecency on broadcast radio and television as well as provide an analysis of the First Amendment arguments that are likely to be raised by the cable industry in a challenge to the constitutionality of CIRA and how a court is likely to respond to those arguments.

END OF EXAMINATION