Exam Number _______________

HAMLINE UNIVERSITY SCHOOL OF LAW

Date of Examination: December 11Professor Pielemeier

Fall 2000

FINAL EXAMINATION–MASS MEDIA LAW

CODE OF CONDUCT

Violations of the Code of Conduct include: (1) unauthorized conversation among students concerning the examination; (2) giving, receiving, or soliciting unauthorized aid; (3) using materials which are not specifically permitted by the written examination instruction; (4) exceeding the examination time limit; or (5) any other dishonest conduct in connection with the examination.

INSTRUCTIONS

1. This examination consists of four (4) pages in addition to this cover page and a one page attachment. Please ensure that you are not missing any pages.

2. The time allowed for this examination is three (3) hours.

3. Outside material permitted: NONE

SPECIAL INSTRUCTIONS

a. This examination consists of five questions. A recommended amount of time is given for each question. The total amount of the recommended times is two hours and forty minutes, giving you twenty minutes to allocate as you wish.

b. An answer containing only your conclusions will receive little credit. Taking into account the amount of time recommended for each question, state fully the reasons supporting your answers. In addition, discuss all issues reasonably raised by each question, even though you resolution of one issue may seem to render the others moot.

c. The fact scenarios in the questions are not set in any particular state. You should discuss all issues reasonably raised based on general principles of law (including constitutional law) that were discussed in this course.

QUESTION I (20 minutes)

An issue that has been the subject of litigation in recent years is whether there is a constitutional right of access to the names and addresses of jurors after a trial has ended. Discuss the considerations that courts use in resolving this issue, and your views on whether such a right should be recognized, taking such considerations into account.

QUESTION II (20 minutes)

Assume that sometime in the foreseeable future, Congress passes a statute that re-imposes the Fairness Doctrine on the broadcast media, explicitly finding that it is in the public interest. Also assume that the courts would uphold the statute’s constitutionality on the ground of the spectrum scarcity that exists in the broadcast media. Taking into account the amount of time suggested by this question, briefly discuss whether a statutory scheme also imposing the Fairness Doctrine on (a) cable television operators; and (b) the World Wide Web pages of broadcasters would be constitutionally permissible.

QUESTION III (40 minutes)

The City of Megaville commissioned an outside study regarding pay raises for certain city employees. The study recommended modest pay raises, not exceeding five per cent. The City Manager approved this recommendation and passed it on to the Mayor and City Council. The Mayor (Tom Roberts) and City Council followed most of the recommendations, but made a small number of exceptions, which had been determined outside of the City Council meeting and were not explained at the meeting.

One of these exceptions was for Sue Zipus, who was Executive Secretary to the Mayor. In this capacity, Zipus handled the Mayor’s correspondence and filing, kept his schedule, and handled most of his telephone calls. She would frequently telephone others with messages the Mayor wanted to relay to them and frequently took messages from others and conveyed them to the Mayor. She frequently accompanied the Mayor when he was performing his duties, and was generally known in the community as the “person to contact if you want to get a message to Tom [the Mayor].”

Zipus’ raise was greatly in excess of that recommended by the study. Instead of the recommended raise from $33,000 per year to $34,000 per year, her pay was increased to $40,000 per year.

The morning after the pay raises were passed, “Smart” Al Leck, a local radio talk show

personality whose show frequently included political commentary, made the following comments on his radio show:

You see, folks, it seems certain members of the Council voted to give pay raises to certain people they know against the recommendation of an outside study AND the recommendation of the City Manager. What does that tell you fellow citizens? What does it mean when there’s no good reason to give someone a raise, but a politician goes ahead and does it anyway?

I’ll tell you exactly what it is. It’s hush money, says I, and let me tell you why. One of the folks that got a whopping raise was Mayor Tom’s executive secretary, Sue Zipus. You see, Sue “Zip a Lip” sits in the same office as Mayor Tom Roberts. She hears, she sees, she knows all. Yep, young Miss Zipus knows a lot about Mayor Tom.

And slick Mayor Tom knows, this increase of over twenty per cent, wow!, will keep her from spilling the beans on some shady and probably illegal deals that have been done in that office--deals that Mayor Tom would like to hide. He knows it and she knows it. Now you know it too.

Based on these comments, Zipus sued Leck and the radio station for defamation, contending that the statements were false, and that the real reason for the raise was that she had been given an offer of other employment with a similar raise in pay.

Assume that Mr. Leck’s explanation for the statement is that “it was the only logical reason I could think of. I did believe it.” Assume also that he testifies that he was not aware of any specific “illegal deals,” but that he “wouldn’t be surprised if there were some.” Also assume that he had been highly critical of the Mayor in other shows. Finally, assume Link had made no attempt to contact Zipus, the Mayor, or anyone else before making his comments. Discuss Ms. Zipus’ likelihood of success.

QUESTION IV (20 minutes)

Calder, who is a prominent elected public official in Bigstate, is advocating for the legalization of the use of marijuana, currently an illegal drug. While discussing this issue at a private fund- raising event, he says “My nearby neighbor, John Schmoe, smokes marijuana frequently, and he doesn’t seem to have problems. He seems like a fine respectable citizen to me.”

A reporter for a major newspaper attending the event notes Calder’s statement, goes back to the newspaper and telephones Mr. Schmoe, who strongly denies that he has ever smoked marijuana or used any illegal drug. The reporter and an editor then discuss the statement, wondering aloud whether it is really true or is another example of what they see as Calder’s “strange” sense of humor. Nevertheless, the newspaper does no further investigation and reports Calder’s statement, stating in the story that Mr. Schmoe denies the truth of Calder’s statement about his marijuana use.

Assume Mr. Schmoe is neither a public official nor a public figure. Assuming he can prove that Calder’s statement about his marijuana use is false, discuss whether Mr. Schmoe should be able to recover against the newspaper for defamation.

QUESTION V (60 minutes)

Shining Oaks is one of several nursing homes in the City of Bigtown. Each year the State Department of Health inspects all nursing homes and publishes a report summarizing its findings. For the year 1999, the Department’s report rated Shining Oaks “marginal” in several categories regarding quality of care.

The news department of WABC television, after reading this report, decided to do an investigative report about Shining Oaks. To create video footage for the report, it equipped two of its reporters with hidden microphones and miniature cameras.

The first reporter, Tom Jones, telephoned Shining Oaks and falsely represented himself as a person whose father might need nursing home care in the near future, and made an appointment to tour the facility. When he arrived, he was met by the owner and manager, Charles Smith, who stated how proud he was of the facility and boasted of the quality care residents were given. Smith gave Jones a tour, which included one of several hallways of residents’ rooms, an area where nurses centralized their activities, an activities area, and a dining area. Jones recorded the entire tour with his hidden equipment. While they encountered several residents in the hallways and common areas during the tour, it appeared to Jones that such tours were nothing out of the ordinary for them. Everything Jones saw made it appear that Shining Oaks was a relatively appealing, clean, and efficient nursing home.

The second reporter, Susan Cass, learned that Shining Oaks sometimes used volunteer assistants for various tasks that did not require medical training. Cass applied to do such volunteer work two afternoons a week, and Shining Oaks accepted her application. As was the case with Tom Jones, she did not disclose that she was a reporter for WABC.

Cass did this volunteer work over a period of three weeks, working in several hallways of residents’ rooms. During this period, she recorded with her hidden equipment several instances of residents subject to physical restraints and visibly uncomfortable in their beds, chairs, or wheelchairs, several instances of unsanitary conditions that were not corrected promptly, and a few instances where nursing home personnel reacted to residents’ requests with angry, irritated remarks. In addition, she recorded an instance in a hallway where a nurse informed a man who was there to visit his father that his father had taken a “turn for the worse” and may have to be hospitalized. Her recording included the man’s visibly upset reaction.

WABC then put together its “investigative report,” which it ran on the evening news. During the preceding few days WABC had informed viewers of the “upcoming report on our nursing homes” and urged them to tune in.

The report as broadcast began by noting the State’s marginal ratings of Shining Oaks in its annual report. It then included portions of Jones’ tour of Shining Oaks, stating that “they try to give you a good first impression.” It then continued, “but when our reporter Susan Cass went undercover, we found a different story.” It then broadcast portions of Cass’ recording reflecting the matters noted above. The report ended with the statement, “If you have a loved one who may need nursing home care, check out the State’s report and investigate carefully.”

In the report as broadcast, none of the residents were identified by name. In the portions of the broadcast that were recorded by Susan Cass, the faces of all residents were obscured so they would not be identifiable to viewers. The face of the man who was told his father had taken “a turn for the worse,” however, was clearly visible and identifiable, as were the faces of the residents included in the broadcast of Tom Jones’ tour.

Assume that nothing in the broadcast was false. Also assume that Shining Oaks has a reception area where visitors can ask for the location of particular residents. Assume, however, that visitors are not required to check in and that they can freely move about the facility, but they will be asked to leave if they do not appear to have a legitimate reason for being there.

Discuss theories of liability under which each of the following might plausibly assert claims against WABC, and their likelihood of success.

A. Shining Oaks and Charles Smith (assume they are one and the same for purposes of analyzing this question).

B. The residents whose identities were identifiable in Tom Jones’ recording.

C. The man who was told his father had “taken a turn for the worse.”

(You need not concern yourself with potential claims by the residents whose faces were obscured or other personnel of Shining Oaks.)