Date of Examination: December 8, 1995
Professor J.R. PIELEMEIER
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 that are not specifically permitted by the written examination instruction; (4) exceeding the examination time limit; and (5) any other dishonest conduct in connection with the examination.
INSTRUCTIONS
a. This examination consists of three questions. You have two hours (120 minutes) to complete the exam. I recommend that you spend 40 minutes on each question.
b. An answer containing only your conclusions will receive little credit. 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.
c. The fact scenarios in the questions are not set in any particular State. You should discuss all issues reasonably raised based on the general principles of law (including constitutional law) that were discussed in the course.
Oliver Smith is the Assistant Director for Technical Services of the Public Library in Metropolis, a city of approximately two million people. He also is the owner of an apartment complex called Metro Terrace, which is located next to a Junior High School. For the last few years, Metro Terrace has been the site of illegal drug activities. The community and the authorities frequently pursued efforts against drug dealing and crack dens at Metro Terrace, and the press covered their efforts.
In the course of press coverage, Smith has been questioned by reporters a dozen times over the past three years regarding efforts to eliminate drug activity in Metro Terrace. His responses to these questions were generally to the effect that he was doing everything he possibly could to eliminate the drug activity and to cooperate with the authorities. His responses were reported in both the print and broadcast media in Metropolis.
Recently, Metropolis carried out "Operation Recovery," a multi-agency operation comprised of a drug raid and housing inspections at Metro Terrace. During this operation, housing inspectors and fire marshals inspected 49 apartments and found numerous code violations. The police, however, did not recover any drugs or make any drug related arrests.
Three days before Operation Recovery, police had informed a local television station, WABC, of the planned raid. Reporter Pat Lawson was assigned to cover the story, and she arrived at Metro Terrace during the course of Operation Recovery.
While at the scene, Lawson interviewed Metropolis Police Sergeant Jeff Wilson. Wilson had recently returned to active status on the police force, after a six month suspension stemming from misconduct in another anti-drug operation. This misconduct had involved an attempted "cover-up" of the use of excessive force by one of his fellow officers. The misconduct and suspension had been covered by WABC as well as other Metropolis media.
During her interview with Sergeant Wilson, Lawson asked him about the fact that the police had not found any drugs or made any drug related arrests. Wilson responded that the police were looking into reports by some residents of the apartment complex that Oliver Smith, who had been informed of the raid in advance, might have tipped off drug dealers about the raid. He added that if these reports turned out to be true, Smith would likely be arrested for obstruction of justice.
After the interview Lawson tried to locate Smith for comment, but she was unable to locate him. She left a message at his library office requesting him to call her. She conducted no further investigation. By the time the six o'clock news began, Smith had not called her back. During the six o'clock news, Lawson reported on the raid, and during the course of the report, stated that "police are looking into reports that Oliver Smith, the owner of the complex and an employee of the public library, might have tipped off drug dealers in advance of the raid."
Smith subsequently sued WABC, alleging that the report on the six o'clock news had defamed him. Assuming that he did not in fact tip off any drug dealers, discuss his likelihood of success.
Judith Hudson, a 35 year old woman, lives alone in her small home in Bloomburg, a city of approximately 500,000 people. Late one evening, she was awakened in her upstairs bedroom by the sound of an intruder downstairs, who was apparently engaged in a burglary attempt.
Because of her fear of crime, Hudson had recently purchased a revolver, which she kept in a table beside her bed. Upon hearing the intruder, she removed the revolver from the table, quietly went to the head of the stairs, and upon turning on the light, saw a man in her living room, pointing a pistol right at her. Her immediate reaction was to shoot the man with her revolver. She determined that the man she had shot was dead, and called the police.
After investigating the incident, the Bloomburg police department determined that Hudson acted in self-defense and that the homicide was justifiable. They also identified the decedent, and informed Hudson that he was suspected of being a leader of a gang that had been involved in several recent burglaries and robberies. In two of these incidents, the crime victim had been killed.
The morning after the incident, the investigative officers informed Ron Adams, a reporter for the local newspaper, the Bloomburg Press, that the gang leader had been killed in the course of a burglary attempt, and that they had determined that it was a justifiable homicide. When Adams pressed for more details, the officers were initially reluctant. Adams then said "I'd just like to know who was involved so that I can try to interview them." The officers then gave Adams Hudson's name and address, followed by the statement: "But please don't identify her in any story without her consent."
Adams then drove to Hudson's home, accompanied by Phil Baker, a photographer for the Press. While Baker stayed in the car, Adams knocked on the door. When Hudson opened it, Adams informed her of what he understood had occurred, and asked her whether he could talk with her about the incident. She replied, "Not now, I'm still shaking from it all and the police tell me a gang's involved. I'm wondering if maybe I should move." Adams then left. Unknown to Hudson, during the conversation, Baker had taken a picture of Hudson standing just inside the threshold of her doorway with a telephoto lens.
The next morning, the Press published a story about the incident, which had been written by Adams. It included the photo Baker had taken, and Hudson's name and address. Later the same morning, as Hudson was leaving her home, she was shot and severely injured by gunfire from a moving car in front of her home. The police investigation determined that it was probable that she was shot by members of the gang of which the intruder had been a leader.
Discuss the likelihood of success in a suit by Hudson against the Press, addressing all potentially viable theories. Assume that the Press would be liable for the actions of its employees. Also assume that there are no statutes relevant to Hudson's case. Thus, any recovery would have to be based on common law theories of liability.
During this course, we have studied (1) a Supreme Court decision holding unconstitutional an attempt by government to compel the print media to publish material it would not otherwise publish (Miami Herald Publishing Co. v. Tornillo); (2) a Supreme Court decision that held an attempt by government to compel the broadcast media to broadcast material reflecting the views of others to be constitutional (Red Lion Broadcasting Co. v. F.C.C.); and (3) a Supreme Court decision discussing the constitutional standards by which governmental efforts to compel cable operators to carry broadcast stations they might not otherwise carry would be judged (Turner Broadcasting System v. F.C.C.).
Some people today take the position that the principles reflected in Tornillo should be applied to legislation requiring any of these three types of media to carry the views (or programming) of others. Others argue that the first amendment standards governing such legislation should differ, based on particular characteristics of each type of media. Take and support a position in this debate, addressing whether the principles reflected in Tornillo should be applied to (1) broadcasters and (2) cable operators. Include in your analysis a discussion of why the arguments made by those who disagree with your position are not well founded.