Exam Number _______________

HAMLINE UNIVERSITY SCHOOL OF LAW

Date of Examination: December 11, 1999

Professor Pielemeier

Fall Term

FINAL EXAMINATION–MASS MEDIA LAW

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 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.

INSTRUCTIONS

1. This examination consists of six (6) pages in addition to this cover page and a one page attachment. Please ensure that you are not missing any pages.

2. The time allowed for this examination is three (3) hours.

3. Outside material permitted: NONE

SPECIAL INSTRUCTIONS

a. This examination consists of six questions. (Question I consists of four multiple-choice questions.) A recommended amount of time is given for each question. The total amount of recommended times is two hours and fifty minutes, giving you ten minutes to allocate as you wish.

b. 47 U.S.C. §315(a), which is pertinent to one of the multiple choice questions in Question I, is reprinted at the end of this exam.

c. Except for question I, 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.

d. 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.

QUESTION I

(fifteen minutes total) (four multiple choice questions)

Identify, in your bluebook, which of the choices in the following questions is the best answer to the questions. If you wish, you may explain your answer in no more than three sentences. Your explanation may warrant partial credit if your answer is incorrect.

1. Assume that the City of St. Paul passes an ordinance that bans all billboards with commercial advertisements, but permits billboard advertisements for political and charitable advertising. Assume that the stated reason for the ordinance is to further the government’s interests in esthetics and reducing visual clutter. If challenged,

A.The ordinance would probably be found to be constitutional because commercial speech is entitled to less constitutional protection than political speech and speech encouraging charity.

B.The ordinance would probably be found to be constitutional because it would further governmental interests in esthetics and reducing visual clutter.

C.The ordinance would probably be found to be unconstitutional because governmental interests in esthetics and reducing visual clutter are not sufficient justifications for banning speech.

D.The ordinance would probably be found to be unconstitutional because the distinctions between the types of billboards banned are content based and have no bearing on the interests asserted.

2. Plaintiff, a California resident, is defamed by a New York newspaper, which distributes thousands of copies in the state of New York, but which has a regular circulation of only thirteen copies in California, pursuant to subscriptions it did not solicit. Plaintiff sues the newspaper in California. Defendant moves to dismiss for lack of personal jurisdiction. Based on the materials studied in this course,

A.Defendant’s regular circulation of thirteen copies in California is a sufficient basis for jurisdiction to be constitutionally permissible.

B.The fact that the target of the defamation is a California resident is a sufficient basis for jurisdiction to be constitutionally permissible.

C. The combination of defendant’s regular circulation of thirteen copies in California and the fact that the target of the defamation is a California resident constitutes a sufficient basis for jurisdiction to be constitutionally permissible.

D.Jurisdiction is not constitutionally permissible.

3. (47 U.S.C. §315(a), which is pertinent to this question, is attached at the end of this exam.)

A well known Governor who is a former professional wrestler decides to run for re-election. Shortly before the election, on its own initiative and not at the request of the Governor’s campaign organization, a television station in the state broadcasts a tape of one of the Governor’s past professional wrestling matches.

A.Other candidates running for Governor are not entitled to equal opportunities for time on the station because the broadcast of the wresting match was not a “use” of the station by the Governor.

B.Other candidates running for Governor are entitled to equal opportunities for time on the station because the broadcast of the wrestling match was a “use” of the station by the Governor.

C.Other candidates running for Governor are not entitled to equal opportunities for time on the station because the broadcast of the wrestling match was within the statutory exceptions to the requirement of equal opportunities.

4. F.C.C. regulations of broadcast hoaxes provide:

No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or a catastrophe if (a) the licensee knows this information is false, (b) it is foreseeable that broadcast of the information will cause substantial public harm, and (c) broadcast of the information does in fact directly cause substantial public harm. Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.

This regulation is probably constitutionally permissible because,

A.Speech that foreseeably will cause substantial public harm is not protected by the first amendment.

B.Spectrum scarcity justifies more intrusive governmental regulation of broadcast speech than is permitted for regulations of more traditional print media.

C.The rule regulates speech that is knowingly false.

D.The intrusion of broadcasting into the home and the unique availability of broadcasting to children justify some regulations of broadcast that would not be permitted of more traditional print media.

QUESTION II

(15 minutes)

In Syracuse Peace Council v. Federal Communications Commission, the United States Court of Appeals for the District of Columbia upheld the F.C.C.’s repeal of the Fairness Doctrine. The decision is precedent calling into question any regulation of broadcasters to enhance the variety of viewpoints reflected in their programming. Briefly discuss your understanding of the reasoning underlying the decision and your views regarding its propriety.

QUESTION III

(15 minutes)

Disagreement exists among courts today on whether reporters have a first amendment privilege protecting them from having to disclose information obtained during the course of newsgathering. Among those courts holding that there is such a privilege, disagreement exists over the scope of the privilege. Assuming such a privilege exists, briefly discuss whether it should extend to protect against disclosure of information not obtained through a promise of confidentiality, including arguments on both sides of the issue.

QUESTION IV

(15 minutes)

An unsettled issue in the courts today is whether, as a constitutional matter, a private plaintiff (not a public figure or public official) suing for false light invasion of privacy must prove that the defendant made the false statement with “actual malice,” or whether they can recover upon showing the defendant made the statement with negligence as to its falsity. Briefly discuss appropriate arguments on this issue and how it should be resolved.

QUESTION V

(40 minutes)

Television station WABC produced and broadcast “The Sara Show” on weekday afternoons. The Sara Show, hosted by Sara Martin, was a show in which guests would discuss topics and their experiences in front of a live audience. To increase its audience share and ratings, the show frequently encouraged its guests to disclose personal aspects of their lives.

One topic on which “The Sara Show” decided to do a program was religious cults and their effect on families. 26 year old Mary Grounds, who was concerned about her mother’s involvement in what Mary considered a religious cult, learned of the planned program and notified WABC that she would like to be one of its guests.

Before the show aired, Mary Grounds told WABC personnel that she had confronted her mother (Elaine Grounds) over her involvement with a religious cult in the past without success. WABC suggested that it might be helpful for the program if Mary Grounds would confront her mother again on the subject, and have this confrontation taped for the show. Mary Grounds agreed.

Mary arranged to meet with her mother, Elaine, for lunch in a public park. At the agreed upon time, they met at a picnic table next to a walkway on which others occasionally passed by, and had a discussion while having their lunch. Unknown to Elaine, WABC was videotaping their meeting from a secluded location not far away, and Mary was wearing a hidden microphone provided by WABC which enabled WABC to record their conversation on the videotape. During the conversation, Mary expressed her concerns to her mother about her involvement with a religious cult, and they discussed Elaine’s religious beliefs and how they were affecting Elaine’s income and the stability of her marriage.

One week later, “The Sara Show” did its program on religious cults and their effect on families. As part of its promotions for the show, WABC had broadcast that it would include actual tapes of family conversations on the topic of religious cults. When the actual show aired, Mary Grounds was one of the guests, and significant portions of her videotaped conversation with Elaine were broadcast. Elaine had never been informed of the taping.

As a result of the show, Elaine was embarrassed and humiliated. Although nothing broadcast during the show was false, she would like to bring suit against WABC. Discuss reasonably plausible theories of liability and their likelihood of success. Assume that WABC’s actions did not violate any applicable wiretap statutes.

QUESTION VI

(70 minutes)

Ron Jones was a Professor of Physical Education at Central State University, which was a mid- sized state university. He was also the Assistant Coach for the University’s men’s basketball team. During his time at Central State, Jones had written two books and several articles on the subject of physical conditioning of athletes. He had also been interviewed occasionally by sports reporters about games the team played.

In the fall of 1998, tragedy struck the basketball team when one of its star players died as a result of his use of illegal drugs. Jones was one of several persons interviewed by the media for stories regarding the death. His comments, which were published by the media, were to the effect that he was very upset and had “no idea” that the player might have been using illegal drugs. Jones also wrote an opinion piece that he submitted to the local newspaper, which it published. This opinion piece expressed Jones’ shock at the player’s death and Jones’ commitment to a drug free society.

Subsequent to the basketball player’s death, rumors began to surface that illegal drug use might be prevalent in Central State’s men’s athletic program. Two men (not associated with the University) were arrested for selling illegal drugs on campus, and they were quickly convicted. The facts underlying their convictions indicated they had made sales to at least one, and perhaps more, student-athletes at Central State.

Concerned about these developments, Central State’s President retained a firm to prepare an investigative factual report for the University regarding the possible use of illegal drugs by Central State athletes. The final report, including summaries of interviews with various persons, was 800 pages long and was released by the University one morning in April of 1999.

Lucy More, a reporter for a local television station, WBNS-TV, received the report in the early afternoon of the same day and began reviewing it to write a script for the six p.m. evening news. The report’s summary was quite general, noting that the information contained in the report raised “serious matters which should be of concern to the university.” Given her time constraints, More did not read the entire report. Rather, she focused on some of the summaries of interviews contained in the report, particularly the interviews of the two men who had been arrested for selling illegal drugs.

In these interviews, the two men identified three persons employed by the University as persons to whom they had sold substantial quantities of illegal drugs. The three included Ron Jones, who, they said, bought the drugs for athletes. Because of time constraints, More did not read a page that appeared five pages after the interviews, which stated that the claim about Jones had been further investigated and that he had been cleared of any wrongdoing. (Nor did she see anything else in the report that suggested Jones’ innocence.)

Based on her reading of portions of the report, More prepared a script that aired on the evening news. A portion of the script was as follows:

The investigative report released by Central State University today contains serious charges about the Assistant Coach of the Men’s Basketball Team, Professor Ron Jones. The two men arrested for selling drugs on campus claim that they sold substantial quantities of illegal drugs to Jones, who passed them on to athletes. Bear in mind these are statements made by convicted drug dealers, but if true they suggest Jones is clearly unfit for any position at the University.

Jones subsequently sued WBNS-TV for defamation. Assuming he can prove that he never purchased illegal drugs from anyone, discuss his likelihood of success.

Attachment to Exam.

47 U.S.C. §315(a)

(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any:

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or

(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),

shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.