Exam Number _______________
HAMLINE UNIVERSITY SCHOOL OF LAW
Date of Examination: December 17, 1997--Professor Pielemeier
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.
a. This examination consists of five questions. A recommended amount of time is given for each. The total amount of recommended times is three hours, which is the total amount of time permitted for the exam.
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 the course.
Ed Foster was arrested for the brutal and gruesome murder of John Gaza. Gaza’s murder took place on a public street. Peter Holt witnessed the attack on Gaza and his subsequent murder from his apartment window. After calling the police as the attack began, Holt videotaped the remainder of the events from his window. The next day, after Foster was arrested, Holt provided a copy of the videotape to WTRO, a local television station. Foster’s attorney learned that WTRO planned to broadcast portions of the tape that evening and, after giving notice to WTRO, went to court, moving for a restraining order against its broadcast on the ground that its broadcast would prejudice Foster’s right to a fair trial. The judge stated that she would be inclined to issue the restraining order if she found “a clear and present danger that its broadcast could impinge on Foster’s right to a fair trial.” She then restrained WTRO from broadcasting any portion of the videotape until the she made a determination of whether its broadcast would violate that standard, and ordered WTRO to turn over the videotape so that she could review it. Discuss the constitutional validity of the judge’s actions.
The Daily News, a newspaper, published an arguably false and defamatory article about John Smith. The article first appeared on The Daily News’ World Wide Web pages on the Internet on November 14, 1996. It then was printed and distributed in The Daily News regular newspaper on November 15, 1996. Smith learned of the article on November 15, 1996, and neither he nor his attorney was aware that the article had appeared a day earlier on the World Wide Web pages. Smith filed suit against and served process on The Daily News on November 15, 1997. The Daily News moved to dismiss on the ground that the applicable statute of limitations had expired. That statute requires that “Any action for defamation shall be brought within one year after the day the cause of action accrued.” Discuss how the motion to dismiss should be resolved.
Section 315(a) of the federal Communications Act, as currently construed, requires both broadcasters and cable operators to afford equal opportunities for political candidates to use their facilities, subject to certain exempt categories of uses. In light of the materials studied in this course, discuss the continuing constitutional validity of imposing this requirement on (1) broadcasters and (2) cable operators.
Robert Kimestra, who lived in Bigtown, testified favorably for the prosecution in federal criminal proceedings against two men who were primarily responsible for a nationwide drug trafficking organization. The prosecution took place in Bigtown. Because the drug trafficking organization had a reputation for being extremely violent and dangerous, Kimestra’s testimony came after the government promised to protect him from possible retaliation by placing him in the Federal Witness Protection Program (“Program”). After the criminal defendants were convicted and sentenced to long prison terms, Kimestra, his wife Ann, and their four year old child David were relocated pursuant to the Program.
Under the Program, the Kimestras were given new identities, with their last names changed to Johnson. They were relocated to the Landville, a city with a population of 30,000 approximately 300 miles away Bigtown. The government provided them with housing on the west side of Landville, and also assisted in obtaining new employment there for Robert and Ann.
Their lives as the Johnsons continued relatively uneventfully during their first eighteen months in Landville. One morning shortly after that, however, Robert was one of a group of four people walking up the courthouse steps when gunfire erupted towards them from a car driving down the street. Nobody was hit by the gunfire.
The local police investigated the incident, interviewing all four who had been on the steps. During their interview with Robert at the police station, he disclosed to two police officers his former identity and role in the drug prosecution, but urged them to keep this information confidential, to which they agreed. However, just as Robert was leaving the police station, one of the officers came after him, tapped him on the shoulder and said, “Oh, Mr. Kimestra, can we ask you one more thing?”
Joe Smith, a reporter for a WSTV, a local television station, was at the station awaiting police announcements on the shooting and was within hearing distance when this comment was made to Robert. The comment puzzled Smith, who had met Robert once on an earlier occasion and recalled his name as Johnson.
Smith also recalled the earlier criminal prosecution in Bigtown, which had made the news in Landville, and that one of the main prosecution witnesses had been a Robert Kimestra. He decided to go to Robert’s home to see if he could get any further information. No-one answered the door. Smith then went around to the back of the house and noticed that the garbage left in the alley had not been picked up. He opened the lid on the garbage can, and saw an opened envelope addressed to Robert Johnson with a return address of D. Kimestra in Bigtown. He then read the letter that was inside the envelope, which included “Hope you can return to Bigtown for a visit soon” and “Your brother, Dennis.” Smith put two and two together and concluded that Robert must have been the main prosecution witness in the Bigtown prosecution.
During an afternoon press conference, the local police chief declined to identify any of the four who had been on the steps, and informed the press that the police were still investigating the matter and were uncertain as to who had fired the shots and any possible motive for the shooting.
That evening on the WSTV news, Smith made a report on the shooting, and summarized the police chief’s press conference. He continued, however, with the following:
WSTV has reason to believe, however, that one of the people on the steps was Robert Kimestra, the main prosecution witness in the Bigtown drug prosecution of a couple of years ago, now living with his family under the name of Robert Johnson on the city’s west side. It may well be that the shooting was an attempt at retaliation for his testimony.
That evening, the police arrested those they believed had been involved in the shooting at the courthouse steps, and determined that they had no connection to the earlier Bigtown prosecution. Robert and Ann, however, were extremely upset by WSTV’s disclosure of their identities, and decided to leave Landville the next morning. As they were leaving, Robert was shot and severely injured by gunfire from a car driving by their home. Although the police never caught the person who shot Robert, they concluded that it was probably someone acting in retaliation for Robert’s testimony in Bigtown.
Robert and Ann wish to sue WSTV. The only statute providing for sanctions for disclosure of the name of a person under the Federal Witness Protection Program applies only if the person disclosing the information received it from the federal government. Discuss potential theories of liability and their likelihood of success.
Ben Powell was a thirty-five year old man living in Bloomburg, which has a population of approximately 45,000 people. Powell held two part-time jobs there.
The first was as Associate Minister for the Second Baptist Church of Bloomburg, which had a congregation of 400 persons. In this position, Powell was in charge of Sunday School programs for the church’s youth, he participated in Sunday services, and he occasionally (about eight times a year) preached the Sunday sermon. His sermons usually stressed the need for high standards of morality and civility. Although they received relatively low ratings compared to programs on other stations, the church’s Sunday services were regularly broadcast on a local radio station.
His second job was as a certified Flight Instructor and Examiner for the Federal Aviation Administration (“FAA”). His certification as a Flight Instructor enabled him to give flight instruction to prospective pilots of single engine aircraft, and permitted him to charge what the market would bear for such instruction. His certification as a Flight Examiner enabled him to conduct the actual flight tests for persons who wished to become licensed pilots and to issue pilot licenses for those he deemed to have passed the appropriate tests. Certified Flight Examiners serve as representatives of the FAA in granting licenses, although their sole compensation is from fees they may charge examinees for conducting the flight tests and filing reports.
In May of 1997, Marci Dayton, a twenty-eight year old stockbroker, completed her flight instruction with an instructor other than Powell, and was ready to take her final flight test to qualify for her pilot’s license. FAA regulations dictated that final flight tests be taken with someone other than the person’s main instructor. She therefore arranged to have Powell conduct her final test. After it was completed, Powell informed her that she had failed the test and that he would not be issuing a license. He informed her that she could re-apply in six months.
Shortly after this occurred, Dayton wrote the following letter to the local newspaper, the Bloomburg Daily:
I want to alert our community that one of our local certified flight examiners, Ben Powell, is a disgrace to his position. Although I had heard some rumors that he engaged in sexual harassment, I had no reason to believe them until I recently took my final test for a pilot’s license with him. When we boarded the plane, he smelled of alcohol. During the flight, he made suggestive remarks, to which I refused to respond. And although I know I performed extremely well on the test, he determined that I had failed and told me “we need to get along better first.” This alcoholic sexual harasser has no business testing potential pilots.
Marci Dayton
Bloomburg
Without any investigation, the Daily published Dayton’s letter in its “Letters to the Editor” section. That section always includes the following language at the beginning:
This is a forum for viewpoints from the community. It is a place for all to speak freely, and we make no effort to censor or verify the accuracy of the viewpoints expressed. We urge letter writers to write responsibly.
Powell subsequently sued the Daily for defamation, alleging that all the statements about him in the letter, except those that said Dayton took the test with Powell and that she had failed, were false and defamatory. He also alleged that he had given Dayton detailed, performance related reasons for denying Dayton’s license, and that if he said anything close to the quote that was attributed to him, it would have been along the lines of “you and the plane need to get along better first.”
Assuming that Powell can prove the falsity of at least one of the statements in the letter, discuss his likelihood of success in the suit.