Pielemeier--Fall 1993 Mass Media Law Exam

Outside material permitted: NONE

Special instructions:

a. This examination consists of three questions. The suggested amount of time to be spent on each is 45 minutes, resulting in a total amount of suggested time of two hours and fifteen minutes. The total time permitted for the exam is two hours and thirty minutes, leaving you an "excess" fifteen minutes to allocate in any manner you deem appropriate.

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

I

(45 minutes)

Plans are currently under way for politically conservative groups to begin a new cable television channel, entitled National Empowerment Television, or "NET." The channel will focus on promoting and popularizing conservative political views through various news and entertainment programs.

Assume the following.

NET is currently in operation, and is being carried as a separate channel on numerous cable television systems throughout the United States. Also, it produces hour-long weekly "NET Highlights" of its programming, which it sells to a number of broadcast television stations, who broadcast the hour-long Highlights during various times of the week. NET's programming appears to be quite popular. Its audience share greatly exceeds initial expectations.

A number of politically liberal groups also operate a new cable television channel, entitled Progress for America Television, or "PAT." PAT focuses on promoting and popularizing liberal political views through various news and entertainment programs.

PAT also produces hour-long weekly "PAT Highlights" of its programming, which are sold to and broadcast by some television broadcast stations. PAT, however, has been much less successful than NET in obtaining carriage of its programming on various cable television systems and in selling its "Highlights" programs to broadcasters. Its audience share when its programming is carried is much less than NET's, and because it is carried by fewer cable systems and fewer broadcasters than NET, PAT's national viewership is much lower than NET's.

You are on the staff of a member of Congress who is deeply concerned about the increasing popularity of NET and the inability of PAT to have its programming carried. She sincerely believes that the national mood that has resulted from the popularity of NET poses dangerous consequences to American civil liberties, including the right to freedom of speech, and to the future of the United States in general.

She would like to propose legislation that would require the following:

(1) All cable television systems that carry only NET or PAT as a separate channel, and not both (only two systems in the nation currently carry only PAT) would be required to carry a separate channel with programming that promotes and publicizes contrary points of view. (The most likely result of this requirement would be that cable systems that now carry only NET or PAT would also carry the other);

(2) All broadcast television stations that broadcast the hour-long "Highlights" of only NET or PAT would be required to broadcast programming promoting and publicizing contrary points of view during a time where the normal audience share is approximately equal. (The most likely result of this requirement would be that broadcasters that now broadcast the "Highlights" of only one of the channels would also carry the "Highlights" of the other).

The stated purpose of the legislation would be to ensure that a greater diversity of viewpoints is available to the American public, resulting in a wider "marketplace of ideas."

She has asked for your opinion whether such legislation, if passed into law, would be likely to survive against a challenge that it violates the First Amendment. Write your opinion, stating the reasons for your conclusion.

II

(45 minutes)

42-year old Joe Boroski owns and operates "Joe's Place," which is a popular and successful bar in Megaville, population 100,000. In January of 1993, his home was burglarized, and the burglar stole Joe's wallet and a pistol. Joe reported the burglary to the police, who came to his home, made a brief investigation, and filed a report in their files.

Don Duke, a reporter for the local newspaper, the Megaville Star included a report of the burglary in the "Crime News" column of the Star. Duke regularly wrote this column, based primarily on his review of police reports that were made available to the press and public. Duke, who was interested in doing a follow-up story about a recent increase in burglaries in the city, also went to Boroski's home and spoke with Boroski about the burglary. Boroski was unable to provide him with any significant information that was not reflected on the police report, which included the address, the method of the break-in, and the items stolen.

Boroski was acquainted with the Mayor of Megaville, and had informed her of his willingness to assist her on any projects she might desire. In May of 1993, the Mayor decided to establish an Advisory Committee to Study Alcoholism and Drunken Driving in Megaville, and she asked Boroski if he would be willing to be a member. He accepted, and began attending monthly meetings of the Committee at City Hall, where the Committee solicited and discussed information on these matters. The position was without pay, although the City would reimburse certain expenses incurred by members. The formation and membership of this Committee were reported in the Star, but its meetings were generally not covered.

In August of 1993, the Megaville police arrested a man who identified himself as Joe Boroski (but who in fact was not) for possession of marijuana and carrying a concealed weapon. The man was carrying Boroski's driver's license, which had been altered to include the arrested man's photo and to change the date of birth to that of a 32-year old man. Otherwise the license contained Boroski's actual home address, height, weight, hair color (which was the same as the arrested man's) and social security number. The police did not notice that the license had been altered at the time of the arrest.

On the evening after the arrest had been made, Don Duke was reviewing the police reports in preparation for writing his "Crime News" column for the following day. The report of Boroski's arrest contained the charges and the information that was on the driver's license (but it did not contain a copy of the license, and thus included no photo of the arrested man).

When he came across this report, Duke showed it to the police officer on duty in the office where the reports were maintained, who had just begun his shift, and said, "Is this the Joe Boroski who owns "Joe's Place?" The officer responded, "Beats me, but I guess so--that's the only Joe Boroski I know."

Duke then included the following in his "Crime News" column, which appeared in the next morning's edition of the Star:

BAR OWNER ACCUSED OF DRUG POSSESSION

Joe Boroski, the owner of Joe's Place and a member of the Mayor's Advisory Committee to Study Alcoholism and Drunken Driving, was arrested yesterday for possession of marijuana and carrying a concealed weapon.

During the day on which this story appeared, the police determined that the man they had arrested was an imposter who had altered Boroski's stolen license. They also arrested him for the burglary of Boroski's home.

The next day, the Star published a retraction of the statement about Boroski, and also ran a story explaining the error.

Boroski, however, became extremely upset by the story stating that he was arrested, and he has come to your office, wishing to sue the Star. Discuss Boroski's likelihood of success in such a suit. Assume that the state in which Megaville exists has no statutes pertaining to retraction.

III

(45 minutes)

In late 1992, news of a tragedy gripped the public in Smithtown, a large metropolitan area. Joel Sternberg was arrested for the beating and murder of his 6-year old daughter, Lisa. Widespread coverage of the incident included photos of and stories about Sternberg's live-in companion, Heather Nissen. These photos clearly showed that Nissen had also been subject to extreme abuse by Sternberg. Her face was bruised and disfigured and her lips were split and swollen.

Shortly after this event took place, Nissen voluntarily committed herself to the Four Winds Hospital, a secluded private psychiatric facility in the state.

A few months later, after Sternberg had been convicted and imprisoned, Ron Reese, a reporter for the Smithtown Daily, wrote to Nissen at Four Winds, requesting an interview. She accepted.

When Reese arrived at Four Winds for the interview, hospital officials requested that he check his camera equipment with them before he entered. He was told that this was because the hospital had a strict policy against the photography of patients on the hospital grounds. Reese complied, proceeded with his interview of Ms. Nissen, and then left the facility, after recovering his camera equipment.

Shortly after leaving the hospital grounds, Reese stopped his car on the side of the road. The hospital grounds were fenced and generally secluded from public view, with numerous shrubs and trees tending to block any public observation. Notwithstanding these obstacles, Reese searched for and found, outside the fence, a spot where one could see a small portion of the grounds.

Reese then attached a telephoto lens to his camera (which made things at a distance appear much closer), and after approximately a thirty-minute wait, got what he was hoping for. Nissen and a female companion were walking together on that part of the grounds he could see from his location. He shot several photographs of them before they walked out of view.

One week later, the Smithtown Daily published Reese's story about Nissen. The story focused on Nissen's physical and mental rehabilitation, and included quotes from her such as "I feel good. I'm healthy. They're good to me here." It contained her description of her recovery from her earlier trauma, which included several positive statements about how the personnel and her stay at Four Winds had been helpful.

Above the story were two photographs. One was of Nissen taken shortly after the arrest of Sternberg, showing her bruised and disfigured face, and her matted hair covered with a scarf. The other was one of the ones taken by Reese after he left the hospital grounds. In it, Nissen's facial wounds had clearly healed, her hair was stylish, and she was neatly dressed in jeans, a sweater, and earrings. The woman walking beside her was dressed in stylish tennis attire and sneakers, her face was clearly discernible, and she was smiling.

The caption below the photographs read as follows: "The battered face above belongs to the Heather Nissen people remember--the former live-in lover of convicted child killer Joel Sternberg. The serene woman in jeans is the same Heather, strolling with a companion on the grounds of the upstate psychiatric center where her face and mind are healing from the terrible wounds Sternberg inflicted."

Assume that shortly after this story appeared, a woman named Mary Lee comes to your office. She is the "companion" in the photo taken by Reese that was published. Although she was never named in the story or photo caption, she is extremely upset about the photo. She brought with her a letter from one of her physicians stating that she is a patient at Four Winds and that it was very important to her recovery that her hospitalization remain a secret from all but her immediate family.

Mary Lee wishes to sue the Daily. Discuss potential theories on which she might do so, and their likelihood of success.