Date of Examination: December 15, 1998
Professor J 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 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.
a. This examination consists of four 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 this course.
Disagreement exists in United States courts on the existence and extent of a reporter’s First Amendment privilege not to disclose unpublished materials. Assuming that such a privilege does exist, briefly discuss (1) whether the privilege should be easier for litigants to overcome in criminal cases than in civil cases (where the press is not a party); and (2) whether the privilege should extend to protect materials and information that were not obtained by the reporter pursuant to a promise of confidentiality
A Federal Communications Commission Rule currently in effect, which regulates broadcast content, is the “Personal Attack Rule.” This Rule requires that if a person’s “character, honesty, or integrity” is attacked during a broadcast discussion of a controversial issue, the broadcaster must afford that person a “reasonable opportunity” to respond. Based on the material covered in this course, discuss arguments that might reasonably be made for and against the Rule’s constitutional validity, and explain which arguments you find most persuasive.
In early 1997, Dennis Jones, a prominent businessman, was killed by a shotgun blast to his head while lying asleep in bed at his home. The event was a major news story in the local area. News coverage included media questions to Dennis’ wife, Mary Jones, who was a tenured Professor of History at the local State University. Mary had occasionally been interviewed by the local media in the past about matters of local history, and the local media had broadcast and published her comments.
In response to the media’s questions about the murder, Mary, who appeared grief-stricken, stated that she had been working alone at her University Office at the time, had no idea who might have a motive to murder her husband, and hoped that the police would bring the killer to justice in a short amount of time. Her statements were included in local media coverage of the murder.
The local police department promptly began an investigation led by Deputy Tom Adams. Almost immediately, Adams focused on Mary Jones. Despite Adams’ conclusion that Mary Jones had both the motive (she had been having an extra-marital affair) and the opportunity to kill her husband, a five month investigation turned up little evidence connecting Mary Jones with the murder. Adams’ final investigative report, available as a public record, concluded that “The circumstantial evidence is too tenuous to support an arrest of anyone at this time.” After the investigation was completed, Mary Jones resigned from her job and moved to another state with the man with whom she had been having an affair.
Towards the end of the investigation, Adams was approached by John Martin, a reporter for the local television station WWTV, who expressed interest in airing a report updating viewers on the progress of the investigation. Adams told Martin that Mary Jones was his only suspect, but that he hadn’t found proof sufficient to arrest her.
Over the next month (during which the investigation was completed), Martin and WWTV prepared a news segment on the killing of Dennis Jones that WWTV ultimately broadcast. Promotions of the nightly news during the day of the broadcast urged viewers to watch, because of the segment entitled “Did she get away with murder?” These promotions included a photo of Mary Jones, along with the title of the segment.
The segment as broadcast began with a description of Dennis Jones’ death (accompanied by a photo of him and then an exterior shot of the Jones’ former house), along with a recounting of Mary Jones’ statements to the media after it occurred.. The segment then noted that Mary Jones had recently moved away, “with a man with whom she was allegedly having an affair at the time of the murder.”
The centerpiece of the segment, however, included statements made by Deputy Adams. These included the following:
Adams: Somebody walked directly into the house, up the stairway, into the bedroom, and, it appears, shot him while he was sleeping. The gun was pressed to his head and she pulled the trigger. This was a personal thing. I think it was a well planned out, methodical execution of Dennis Jones.
Martin: By his wife?Adams: I believe so. We don’t have enough evidence to show, to prove that she did it beyond a reasonable doubt, but I just know in my gut that she did it.
Martin: You’re one hundred per cent sure that Mary killed Dennis?
Adams: One hundred per cent. There is no doubt about it. Maybe she had somebody help her, but I think she planned it all, and I think she had been planning it for a long time.
The segment continued with Martin stating that he had attempted to call Mary Jones to ask her for comment about the murder, but that she had refused to speak with him. The segment ended with Martin stating that there had been no arrest, but “Did Mary Jones get away with murder?” This was accompanied by a slowly approaching exterior shot of the Jones’ former home, followed quickly by an unflattering photo of Mary Jones.
Subsequent to the broadcast, Mary Jones sued WWTV for defamation. During discovery, Martin testified that he had made no independent investigation into the facts surrounding Dennis Jones’ death, but that he had relied wholly on the statements of Deputy Adams “which I had no reason to doubt.”
Assuming that Mary Jones can persuade a jury that she was not involved in the killing of Dennis Jones, discuss the likelihood of success of her defamation action, including a discussion of all defenses WWTV might reasonably raise.
In preparation for “sweeps week” (a week when ratings of television programs have a great impact on stations’ ability to charge higher prices for advertising), the news department of WBCD television decided to do a series of stories on Commercial Phone Sex. (Note: Commercial Phone Sex entails a person making a telephone call to another who, for a fee usually charged by the minute, will engage in sexually explicit conversation. Such activity has been held to be protected by the First Amendment, although the government may require that steps be taken to restrict such conversations from minors, such as requiring a credit card).
In preparation for the series, one of WBCD’s reporters, Mary Smith, agreed to apply, without informing them she was a reporter, for a job with a company in the Commercial Phone Sex business. She was hired, given sample scripts by the company, and arranged to have phone calls to the company transferred to her home telephone number during specific designated hours, during which she would engage in sexually explicit conversation with callers. She was given a “code name” of “Abbie” to use in the phone calls, and repeat customers could request that their calls go to Abbie if they called during her designated hours.
Unbeknownst to the Phone Sex Company (and to all of her callers), WBCD also provided Mary Smith with equipment to tape record her phone conversations, thinking it might wish to use edited portions in their series.
Mary Smith kept this job for two weeks, during which she engaged in a total of twenty hours of sexually explicit conversation with callers, recording all the conversations. Early in this period, she received a call from a man, who identified himself as “Bob” but whose voice seemed very similar to that of David Owen, who was the main news anchor for a competing television station (“Channel 12"). The next week the same man called again (having asked for Abbie), during which part of the conversation was as follows:
“Abbie”: You know, your voice sounds very similar to that guy I hear on the Channel 12 news sometimes.
“Bob”: Who?
“Abbie”: Owen, I think his name is David Owen. I’ve always really admired him. Did you know you sound like him?
“Bob”: This is private, right?
“Abbie”: We’re the only ones talking, aren’t we?
“Bob”: Well, that’s me.
“Abbie”: You’re kidding! ....
During preparation of the series, WBCD decided it would play some of the less explicit portions of “Abbie’s” conversations with “Bob” and identify Bob as being really David Owen. Shortly before this segment was to be aired, the producer of the series called Owen, told him of their plan, and asked if he wanted to comment. “Oh, please no” was his response before hanging up the phone.
The promotions for the series on Commercial Phone Sex included phrases like “You’re not going to believe who called.” And in the segment itself, portions of the conversations with Owen were played, and then WBCD identified “Bob” as really being David Owen, the main news anchor for Channel 12.
Owen was immediately fired from his job and wishes to bring suit against WBCD. Discuss theories of liability he might reasonably assert against WBCD and his likelihood of success. Assume “Bob” really was David Owen. Also assume that no statute makes Smith’s recording of the conversations illegal.