Mass Media Law–Pielemeier

Time: 3 hours

Outside materials permitted: None

Special Instructions

a. This examination consists of four questions. A recommended amount of time is given for each question. The total amount of 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 your 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.

I (30 minutes)

In October of this year, as part of his efforts to further campaign finance reform and to reduce the amounts political candidates must spend for media exposure, United States Senator John McCain introduced a bill entitled the “Political Campaign Broadcast Activity Improvements Act.”

The bill provides, among other things, that radio and television broadcast stations must broadcast at least 2 hours per week of “candidate-centered programming or issue-centered programming” during each of the six weeks preceding a Federal election. Not less that one hour of such programming must be broadcast each week between 5:00 pm and 11:35 pm. Any broadcasts between midnight and 6:00 am shall not count for purposes of meeting the requirement. In addition, broadcasts of paid political advertising, either paid for by candidates or other sources outside the station, shall not count for purposes of meeting the requirement.

“Candidate-centered programming” is defined to include “debates, interviews, candidate statements, and other program formats that provide for a discussion of issues by the candidate.”

“Issue-centered programming” is defined to include “debates, interviews, statements, and other program formats that provide for a discussion of any ballot measure which appears on a ballot in a forthcoming election.”

Failure to meet these requirements will result in a presumption that a broadcaster’s license will not be renewed.

Assume that this bill is enacted into law. Also assume that it is then challenged on the ground that it violates the First Amendment to the United States Constitution. Discuss whether this challenge is likely to succeed.

II (40 minutes)

A television production company has strong suspicions that an automobile dealership is violating the law by rebuilding cars that have been “totaled” and selling them in the used car market without informing consumers. The production company wants to produce a program exposing these practices, in which an expert would discuss the dangers of such vehicles to drivers and other motorists.

In connection with the production, the production company is considering the following methods of obtaining material. It has asked your opinion on the advisability of using them.

1. Find a way to secretly enter the manager’s office and place a wiretap on his telephone, and then monitor and record his conversations.

2. Ask a current, disgruntled employee to wear a hidden camera and microphone while on the premises and to record events, in areas where he is authorized to go, that will help to illustrate the illegal actions.

3. Have a staff member of the production company apply for and obtain employment as a salesperson at the dealership, and have him use a hidden camera and microphone while on the premises and to record events, in areas where he is authorized to go, that will help to illustrate the illegal actions.

4. Have a staff member of the production company pose as a customer interested in buying a used car from the dealership, and have him purchase a car suspected to be in the “totaled” category, and then substantiate this for purposes of the program. The staff member would wear a hidden camera recording all interactions with the dealership.

5. Have a reporter from the production company go to the manager’s home, knock on his door, identify himself as a reporter, and then conduct an “ambush interview” that confronts the manager with allegations of illegal conduct, seeking his reactions. The “conversation” would be recorded with a hidden microphone and a camera in a van across the street.

6. Disclose the evidence they have acquired to date to the police, and when they obtain a search warrant, arrange to accompany the police when they execute the search warrant on the dealership.

Taking into account the amount of time suggested for this question, set forth the advice you would give the production company and your reasons for it.

III (20 minutes)

Assume that the production company, perhaps contrary to your advice, uses all of the methods described in Question II to obtain material for the program. The program is produced, using material obtained by all those methods. It is then televised, and reflects a devastating picture of the dealership, showing clearly that it has engaged in illegal conduct.

Nevertheless, the dealership sues the production company, alleging some of the conduct described in Question II warrants liability. It does not allege that anything in the broadcast was false.

The suit is brought three months after the program was broadcast. During that period of time, the dealership’s sales have decreased by seventy five per cent. The dealership alleges that this decrease in sales was caused entirely by the broadcast of the program. The dealership seeks to include these damages caused by the broadcast in the amounts it is entitled to recover.

Assume that at least some of the methods used in Question II warrant liability. Discuss whether the dealership should be able to recover the damages caused by the broadcast.

IV (70 minutes)

George Smith of Bigtown has been involved in local politics for most of his adult life. In 1998 he was elected Mayor of Bigtown, and he ran for re-election in 2002. As had been the case in all his political campaigns, most of his campaign brochures and mailings in 2002 included a prominent photo of George with his wife, Emily, and their two daughters, Sarah and Michelle, each identified by name.

Some of George’s campaign literature in 2002 also noted that he and his family were proud that Sarah, now 26, had taken a position as one of the two Assistant Directors of the Bigtown Public Museum of Art, which was owned and operated by the City. In this position, Sarah had a major role in decisions about new acquisitions of works of art.

George’s campaign literature stated that Sarah’s acceptance of the position “reflects our family’s continuing tradition of serving the public.” Sarah had consented to her father’s request that his literature include the photo and statement.

Sarah lived in a small house with a driveway that exited onto a public street. Her 68 year old neighbor, Mary Mack, occasionally parked her car in a way that partially blocked Sarah’s driveway. Sarah complained to Mary about this several times, but it still continued to occur occasionally.

One morning in early October of 2002, about a month before the election, Sarah was unable to leave for an important meeting because Mary’s car had again partially blocked her driveway. Feeling very stressed and upset, Sarah pounded loudly on Mary’s door, and when Mary opened it, Sarah yelled at her loudly “Why can’t you remember not to block my drive? Would you please move your car? Now!” A couple of neighbors who were outside witnessed this occurrence.

Mary got her car keys and started to walk towards her car. After walking only a few steps, however, Mary collapsed and died. Later in the day, the cause of death was determined to be heart failure.

Reporters from various Bigtown media organizations learned of this occurrence. Ultimately, two reports about the event in the Bigtown media led to lawsuits by Sarah.

The first was on the nightly news of WXYZ television. WXYZ had a receptionist who took telephone calls from viewers and who wrote down their comments. If a call came in while the receptionist was on the line with someone else, however, WXYZ’s telephone set-up would enable a caller to leave a recorded message.

At some point during the day of the event, the following message was left on WXYZ’s answering machine. “Hello. My name is George Mack, and I live in Fairburg [a suburb of Bigtown]. I’m the son of Mary Mack, who died today after Sarah Smith was yelling at her. I can’t tell you how upset I am. Sarah knew my mother had a heart condition. I just don’t understand how she could act that way. I thought you should know. Goodbye.”

WXYZ news staff was alerted to this recording after the receptionist heard it. They made no attempt to verify its authenticity. On the news that night, in reporting the incident, a WXYZ anchor said “We received a telephone call today from Mrs. Mack’s son, George, who expressed how upset he was because, he said, Sarah Smith knew his mother had a heart condition.”

The second report leading to a lawsuit by Sarah appeared in the next morning’s edition of the Bigtown Daily News, a local newspaper. The preceding evening (after Marjorie’s death), a Bigtown City Council Meeting took place. Fred Long was a member of the City Council and was running against George Smith for Mayor of Bigtown.

Two or three minutes after the City Council Meeting adjourned, a reporter for the Bigtown Daily News approached Fred Long, who had remained in his chair for informal discussions with those around him. The reporter asked Long if he had any comment about the death of Mary Mack. Long responded: “Well, it’s just very, very sad. But you know, that Sarah Smith, she’s always been a little strange. I’ve overheard comments that she might be one of the people who are stealing my campaign signs from people’s lawns.”

This statement was quoted verbatim in the next morning’s edition of the Bigtown Daily News. Its reporters had made no further inquiry into the allegation that Sarah had stolen lawn signs.

Sarah sued WXYZ and the Bigtown Daily News, alleging that they were liable for defamation. She claimed that she did not know that Mary Mack had a heart condition, that she is not “strange,” and that she has never stolen a lawn sign. In addition, it turns out that Mary Mack had no children, and there is no George Mack listed in the telephone directory.

Discuss the likelihood of Sarah’s success in asserting these claims. (By the way, George Smith lost the election.)