Communication Law and Ethics

Case Study

CASE I

The first case is a libel case which can be difficult to prove the plaintiff, the person suing, has to prove that false information was published recklessly with malice intentions.

Public figures are people that are celebrities or someone who holds a public office. There are also temporary public figures which are people involved as key figures in high-profile crimes, popular court cases, or other trending incidents. If people aren’t public figures, then they’re private figures which are ordinary people that don’t hold a public office and aren’t well-known. Private figures have more protection from libel than public figures so it can be easier for them to win libel cases.

In this case Tom would be the plaintiff suing the local newspaper, the defendant, for libel because they published an article about his custody battle headlined, “Losing custody to a ‘child molester.’”

A big factor that comes into play is whether or not Tom’s a public figure or not. There could be an argument that Tom’s a temporary public figure since he’s been a part of a court case for months before this article; however, Tom would probably still be a private figure. As a private figure Tom would get more protection from libel. This is because of the Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), a court case which determined newspapers didn’t get the same First Amendment protections as they did when writing potential libel against public figures. Gertz was a lawyer in case opposing a law enforcement officers so he sued the journal for libel when they printed content calling him defamatory names, as a private citizen, he won. Therefore, private figures didn’t have to prove the reckless publishing of false information with malicious intentions like public figures would have to under NYT, Inc. v. Sullivan, 376 U.S. 254 (1964) case. NYT, Inc. v. Sullivan was a case where the newspaper ran an ad with a few minor fact errors that Sullivan, the public safety commissioner believed was attacking him and his workers; however, the court ruled public figures needed to prove actual malice to win which Sullivan could not. NYT, Inc. v. Sullivan gave the press room to use their First Amendment right to publish defamatory statements as long as they weren’t done so recklessly with malice intent.

Another important thing to note is whether the newspaper article was a news piece or an opinion piece. Under the case Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the court decided that opinion pieces weren’t protected from libel. Milkovich v. Lorain Journal Co. was about a wrestling coach that felt a column written about him was defamatory, and he won because opinion isn’t facts, so the court decided not to protect it from libel laws. Therefore, if this was an opinion piece published and it turns out that Tom isn’t a child molester, he’s got a strong case for libel, even more so if the court considers him a private figure.

Something else to consider is whether the headline, “Losing custody to a ‘child molester’” actually reflects what the article is about. Under the case Kaelin v. Globe Comm, Corp., 162 F.3d 1036 (9th Cir.1998) the headline didn’t reflect the content of the story, but by reading the headline people assumed Kaelin was the new murder suspect in the OJ Simpson case. In that case that headline became clear evidence providing malice intent. Therefore, if the local paper’s article isn’t really about Tom being a child molester, Tom could point out they put it in the headline with malicious intent to damage his reputation.

While talking about the content of the article the local newspaper published, it could also potentially be a parody of sorts. If the court did decide Tom was a temporary public figure and the article was a parody, under the case Hustler v. Falwell, 485 U.S. 46 (1988) parodies of public figures are protected under the First Amendment even if they are meant to cause distress to their targets. Hustler v. Falwell was a case were a magazine published an ad where Farwell talked about having sex with his mother in an outhouse, but Farwell as a public figure didn’t win since it was meant as satire.

Tom could win by using Gertz v. Robert Welch, Inc. to claim he’s a private citizen that’s been defamed by this newspaper article. He can also use Milkovich v. Lorain Journal Co. to strengthen that argument if it was an opinion piece rather than a news piece the local paper published. Tom could also use Kaelin v. Globe Comm, Corp. to show actual evidence of malice if the headline doesn’t match up the content of the story which would be helpful if the court does decide to count him as a temporary public figure since that’s a standard for winning libel cases as public figures.

Something the local newspaper could do to win is make the argument that Tom was a temporary public figure when the article was published due to his months of appearing in court. If the court agrees that Tom was a public figure then under NYT, Inc. v. Sullivan the newspaper has First Amendment protections, so Tom would have to prove the newspaper recklessly published the article with malicious intentions. It’s hard to prove malice intent, so it would probably be in the newspapers’ favor. If the article happened to be a parody and Tom was considered a temporary public figure under Hustler v. Farwell, the paper would be protected under the First Amendment because parodies of public figures are protected even if they are intentionally causing distress to the subject.
Overall the one of the biggest deciding factors of the case are whether Tom is going to be considered a temporary public figure or a private figure because that defines who gets more protection under the laws. The other big factor is what type of content is in the actual article because depending on if it’s news, opinion, parody/satire can also change how the court deals with the issue of libel.

I think Tom has a strong case for libel if he’s considered a private figure and it could be even stronger depending on the content of the article.

Case II

Case two is a copyright case with multiple layers, so it makes the already tricky concept of who holds copyrights to what more complex with four different parties involved versus two. Copyrights is ownership of intellectual ideas like art, music, books, etc. that are tangible in some way. Plus, copyright cases can come down the jury’s opinion which can unpredictable.

In this case, we have Trevor Noah the host of the Daily Show doing a speech that wrote down at rally with the use of some clips from Fox News with both Comedy Central, the network that Noah hosts on and Jennifer, a college blogger filming and airing the full event.

Noah, the plaintiff, could have a copyright infringement claim against Jennifer, the defendant, for filming his whole entire speech without permission. Though it would be good to know exactly what Jennifer posted to the blog because it could make a difference if she did something like a vlog, news coverage, parody, or commentary and review. Noah could potentially have a claim against Comedy Central if they didn’t get the clearance from Noah as well, but since they Noah works with them it’s likely they asked to film this for his show or a TV special.

Fox News, the plaintiff, could file a copyright infringement claim against Jennifer, the defendant, if in her video she also filmed over 15 seconds of the multiple 20 seconds clips of Fox News that Noah played behind him. Fox News could potentially file copyright infringement against Noah and Comedy Central if they didn’t get permission to use the clips since they played more than 15 seconds of Fox News footage as well.

Comedy Central, the plaintiff, could potentially file a copyright infringement claim against Jennifer, the defendant, if this rally was something the network was planning on copyrighting with Noah for his show or for some kind of TV special. Though if it’s a public event with other people filming things it gets harder to make the case. Though since Jennifer aired the whole thing rather than clips on her blog that makes her more liable for things. Though I think it would be important to know exactly how Jennifer presented the footage on her blog. It could make difference if she just straight up posted the event footage or if she shot it as a vlog, news coverage, or with commentary and critique.

I don’t think Jennifer, the plaintiff, has a copyright infringement against Comedy Central, the defendant, unless they used some of her footage she posted to her blog when they aired their coverage of the event. Just because Jennifer posted about event first doesn’t make her the copyright holder of all coverage of the event.

One case that could apply is the Feist Pub. V. Rural Telephone Serv. Co., 499 U.S. 340 (1991) case where a publishing company used the yellow page information from phone book and the phone book company tried to sue the other publishing company but lost because the content wasn’t creative enough to protect under copyright laws. This could be used for an attempt to argue in Jennifer’s favor in the case Noah tries to claim his speech is protected by copyright since there isn’t a definitive line of what’s creative enough to count as copyrighted. It’s not likely since a written speech is vastly different from phone book yellow pages, but she could try. Jennifer could try to make the same argument if Fox News tries to sue her over their clips if they appear in her video.

Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003) is another case that could apply where the owner of Walking Mountain Productions took photos of barbies in unusual poses to critique the objectification of women and Mattel sued for copyright. Walking Mountain Productions won because the barbies were used in a creative enough way to be considered a parody for fair use, so the social critique of Barbie held up as fair use. This could apply to the case because if Jennifer created some kind of transformative parody or social critique out of the event footage she posted, she could potentially be protected by fair use from Noah, Comedy Central, and Fox News.

Another case that can be referenced is Murphy v. Millenium Radio Group, LLC, 650 F.3d 295 (3rd Cir. 2011) where Millenium Radio Group published Murphy’s photo on their website of two local radio show hosts that worked for a station owned by Millenium Radio Group without photo credit or permission. Millenium Radio Group also invited people to send in photoshopped versions of the photo and posted those to their website. The court ruled in favor of Murphy because his work wasn’t used in an inventive way and it was done without crediting him or getting his permission. This could apply to Noah since Jennifer filmed his whole speech without his permission and the same could potential apply to Comedy Central if they didn’t ask permission. This could also apply to Fox News if Jennifer, Comedy Central, and Noah didn’t ask permission to use the 20 second Fox News clips and they happen to appear in any of the footage.

Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977) is another case that could be applied where Scripps-Howard Broadcasting aired Zacchini’s entire 15 second act on the news, and Zacchini sued since his whole act was aired on TV without his consent or compensation. Zacchini won because the court ruled his right to publicity protects his right to be compensated for his act. This can apply to Noah’s right publicity over his speech since Jennifer posted the full speech without his permission and without compensation. The same could apply to Comedy Central too if they didn’t ask Noah’s permission to film his event.

Noah could win the case against Jennifer using Murphy v. Millenium Radio Group, LCC because his speech which he wrote down making it tangible and copyrightable was filmed and posted in full without his permission or compensation. Noah could also use Zacchini v. Scripps-Howard Broadcasting since Jennifer used his full speech in her video without his permission and without compensation even though it was a public event.
Jennifer could potentially win the case using Feist Pub. V. Rural Telephone Serv. Co. if she can convince the court that Noah’s speech isn’t creative enough to be copyrightable. Jennifer could also use Mattel, Inc. v. Walking Mountain Productions if she had made the video transformative enough to be considered a parody. Jennifer could also make the argument that she was filming a public event because that can be harder to regulate copyright on public performances. Jennifer could make the same arguments with Comedy Central and Fox News about their clips if they appear.

Fox News could potentially win using the case Murphy v. Millenium Radio Group, LLC, against Jennifer if she did have their clips in her video. If Fox News didn’t give their permission and they weren’t credited for their clips they’d likely win if the court considers their clips long and creative, enough to be considered copyrightable.
The big thing that needs to happen for Comedy Central to win against Jennifer is if Comedy Central worked some kind of legal documentation giving them producing rights or copyright over this performance by Noah. If Comedy Central was using this as a TV Special or a segment on the Daily Show, then it would probably help their case against Jennifer filming and airing this before them. If Comedy Central managed to get this copyrighted than they could make the same Murphy v. Millrnium Radio Group, LCC, argument that Jennifer aired this content on her blog without their permission.

However, like Jennifer’s case in suing Comedy Central there isn’t really strong case without either of them having copyrighted material used by the other in their video.
The big things that need to be known to make the determinations though are if the speech is copyrightable and owns the copyrights to it, if the Fox News clips are copyrightable, if any permissions were asked and granted, and the content of Jennifer’s video and Comedy Central’s video.

Case III

The third case is a First Amendment case about a sensitive issue. The First Amendment is the citizen’s right to freedom of speech, religion, press, assembly, and protest. Something people often forget about when claiming their First Amendment right is that it may allow people the freedom to do these things it doesn’t protect them from the consequences that can come from them like getting arrested for protesting at a funeral for example.

The case is about members of the Westboro Baptist Church in Topeka that came to protest the United States alleged support of homosexuality at a soldier killed in Iraq, Duane Benson’s funeral in Minnesota. The protesters were closer than the allowed distance and were protesting by chanting that Duane was going to hell with picket signs, having a baby wear an American flag diaper, and having a child shovel manure on an American flag. The Benson’s, the plaintiffs, are suing Revered Fred Phelps from the Westboro Baptist Church, the defendant, for inflicting intentional emotion distress with the protests at the funeral.

The big question is probably whether the First Amendment rights protect these protestors from being sued for emotion damages.

One case that could be applied to this situation is Texas v. Johnson, 491 U.S. 397 (1989) which was a case about Gregory Johnson burning an American flag outside the Republican National Convention in Texas as a symbolic representation of free speech to protected by the First Amendment. The court agreed with Johnson that the First Amendment protects his right to burn flag as a symbolic representation of free speech even though it may anger and offend society and the court said society doesn’t have the right to suppress freedom of speech it is offended by. Therefore, even though people were offended and emotional distressed by the protests the court could say Phelps is protected under the First Amendment.

Another case that could be applied to this situation is the United States vs. O’Brien where David O-Brien burned his draft card as an expression of his anti-war ideal even though it was a federal crime to destroy draft cards. The court said O’Brien wasn’t protected under the First Amendment and the court developed the O’Brien Test to determine whether government regulations involving symbolic speech were justified. Under the test the government must be able to justify that the suppression if it is within the government constitutional power, furthers government’s interests, and the suppression is unrelated to free speech. Therefore, if the government finds the protests to be disruptive of their interests like progressing society to be more inclusive than they could potentially have the right to suppress the protesters. Then the protesters would not be protected under the First Amendment.

In order for the Benson’s to win, the court has to decide that the protests do not pass the O’Brien Test to be designated as symbolic speech protected under the First Amendment. This can be argued with the United States v. O’Brien case.

In order for Phelps to win, the court has to decide the protests are designed as symbolic representation of freedom of speech protected under the First Amendment even if it is offensive to society as a whole. This can be argued with the Texas v. Johnson case.

The big determining factor in this case is going to be whether the court considers the protests a symbolic representation of freedom of speech that should be protected under the First Amendment or not.

REFERENCES

Messenger, Ashley. 2014. A Practical Guide to Media Law. London, England: Pearson

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