final exam review sheet

J559 Exam #4 Review Some Important Terms, Concepts and Cases for the Fourth Exam (Spring 2009) Access to Information  First Amendment   Prison Access Pell v. Procunier (1974) No special access rights for press to interview specific state prison inmates selected by press Press has no more rights than public First Amendment does NOT require government to make sources available to press where those sources are not generally available to public Houchins v. KQED (1978) Nearly absolute ban on access to county jail does not violate First Amendment rights of press Press has right to gather info from any source by legal means, but there is no First Amendment requirement that sources must supply information In general, the press has no First Amendment right of access to places or information not generally open to the public   First Amendment and Fair Trial The Sixth Amendment: ?In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.....? Irvin v. Dowd (1961) First reversal on grounds of prejudicial publicity Sixth Amendment violated where there is evidence of pattern of deep and bitter prejudice throughout the community and reflected in the jury itself Jurors needn?t be ignorant or without preconceived notions provided they can put preconceptions aside   Sheppard v. Maxwell and its suggested ways for controlling prejudicial publicity Another conviction reversed No direct restriction on publication suggested (or prohibited) Alternatives listed: insulating witnesses control of courtroom itself control of release of info from cops, witnesses, counsel continuance change of venue sequestration mistrial Other controls Gagging the Press: Rejected in Nebraska Press Restricting Media and Public Access to Court Proceedings   Courtroom Access (Richmond Newspapers, Press Enterprise I and II and associated standards) Richmond Newspapers First Amendment gives press and public right of access to criminal trials Openness furthers fairness, discourages perjury, has therapeutic value, cathartic, provides legal education, promotes confidence in judiciary There is long history of openness that inheres in criminal trials Openness NOT absolute, but can be limited only if: judge makes specific findings, justified by evidence, to support closure interest justifying closure is overriding no alternatives exist Press Enterprise I Voir Dire is part of trial and subject to the Richmond test; judges cannot close jury selection to protect juror privacy without satisfying Richmond test closure is no broader than necessary Press Enterprise II: Pre-trial hearings Judge closed hearing based on ?reasonable likelihood? of prejudice and refused access to transcripts Pre-trial hearings in criminal cases held to same standard as trials and voir dire If reason for closure is protection of Sixth Amendment rights, judge must demonstrate that there is ?substantial probability? of prejudice, NOT merely a ?reasonable likelihood?   Camera coverage/access Estes v. Texas: Inherent prejudice Chandler v. Florida Prejudice NOT inherent but must be proved States may permit cameras in courts even over objection of defendant if they wish Nearly all states now permit cameras Supreme Court and federal district courts prohibit cameras; appeals courts have discretion Camera access is privilege that can be granted but is NOT First Amendment right  Statutory Characteristics of Strong Open Meetings/Records Laws Wide applicability ? broad definition of meetings and records Presumption of openness; burden on those who would close/withhold Notice/index requirements Narrow and discretionary exceptions Access to ?any? person Right to record, tape, copy Reasonable fee limitations Time limits for disclosure/notice Remedies and penalties   Wisconsin Open Meetings Law - procedures, exemptions, enforcement 19.81 Declaration of policy. (1) In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business. (2) To implement and ensure the public policy herein expressed, all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law. 19.82 Definitions. As used in this subchapter: (1) "Governmental body" means a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order; a governmental or quasi-governmental corporation. . . . . (2) "Meeting" means the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. If one-half or more of the members of a governmental body are present, the meeting is rebuttably presumed to be for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. The term does not include any social or chance gathering or conference which is not intended to avoid this subchapter. . . . . 19.83 Meetings of governmental bodies. Every meeting of a governmental body shall be preceded by public notice as provided in s. 19.84, and shall be held in open session. (3) Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting. 19.85 Exemptions. (1) Any meeting of a governmental body, upon motion duly made and carried, may be convened in closed session under one or more of the exemptions provided in this section. The motion shall be carried by a majority vote in such manner that the vote of each member is ascertained and recorded in the minutes. No motion to convene in closed session may be adopted unless the chief presiding officer announces to those present at the meeting at which such motion is made, the nature of the business to be considered at such closed session, and the specific exemption or exemptions under this subsection by which such closed session is claimed to be authorized. No business may be taken up at any closed session except that which relates to matters contained in the chief presiding officer's announcement of the closed session. A closed session may be held for any of thefollowing purposes: [Exemptions follow] 19.88 Ballots, votes and records. (1) Unless otherwise specifically provided by statute, no secret ballot may be utilized to determine any election or other decision of a governmental body except the election of the officers of such body in any meeting. ??19.96 Penalty. Any member of a governmental body who knowingly attends a meeting of such body held in violation of this subchapter, or who, in his or her official capacity, otherwise violates this subchapter by some act or omission shall forfeit without reimbursement not less than $25 nor more than $300 for each such violation. (3) Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the attorney general or the district attorney of the county wherein the violation occurred. (4) If the district attorney refuses or otherwise fails to commence an action to enforce this subchapter within 20 days after receiving a verified complaint, the person making such complaint may bring an action . . . . In such actions, the court may award actual and necessary costs of prosecution, including reasonable attorney fees to the relator if he or she prevails. . . . .   Wisconsin Open Records Law - procedures, balancing test, enforcement 19.31 Declaration of policy. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employes who represent them. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied. 19.32 Definitions. (1) "Authority" means any of the following having custody of a record: a state or local office, elected official, agency, board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance, rule or order; a governmental or quasi-governmental corporation. . . ; any court of law; the assembly or senate . . . . ?(2) "Record" means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. "Record" includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. "Record? does not include drafts, notes, preliminary computations and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working. . . 19.35 Access to records; fees. (a) Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. The Balancing Test: Custodian must balance public interest that would be served by disclosure against the public interest that would be served by withholding, with a preference for disclosure. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, but may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33 makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made. (h) A request under pars. (a) to (f) is deemed sufficient if it reasonably describes the requested record or the information requested. * * * * A request may be made orally, but a request must be in writing before an action to enforce the request is commenced . . . . (i) Except as authorized under this paragraph, no request under pars. (a) and (b) to (f) may be refused because the person making the request is unwilling to be identified or to state the purpose of the request. (L) . . . . this subsection does not require an authority to create a new record by extracting information from existing records and compiling the information in a new format. 19.36 (6): If a record contains information that is subject to disclosure. . . . and information that is not subject to such disclosure, the authority having custody of the record shall provide the information that is subject to disclosure and delete the information that is not subject to disclosure from the record before release. New rights for subjects of records created by Supreme Court: Woznicki and Milwaukee Teachers cases Response by legislature: no notice or right to sue by public officials/department heads in some situations, notice must be given to other employees and they have right to sue some employee information never subject to release (e.g., home address and phone, email address, Social Security number, employment exam scores.....) (3) Fees. (a) An authority may impose a fee upon the requester of a copy of a record which may not exceed the actual, necessary and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law. (e) An authority may provide copies of a record without charge or at a reduced charge where the authority determines that waiver or reduction of the fee is in the public interest. (4) Time for compliance and procedures. (a) Each authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority's determination to deny the request in whole or in part and the reasons therefore. (b) If a request is made orally, the authority may deny the request orally unless a demand for a written statement of the reasons denying the request is made by the requester within 5 business days of the oral denial. If an authority denies a written request in whole or in part, the requester shall receive from the authority a written statement of the reasons for denying the written request. 19.37 Enforcement and penalties. (a) The requester may bring an action for mandamus asking a court to order release of the record. (2) Costs, fees and damages. (a) . . . . the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole or in substantial part in any action filed. . . . (3) Punitive damages. If a court finds that an authority or legal custodian under s. 19.33 has arbitrarily and capriciously denied or delayed response to a request or charged excessive fees, the court may award punitive damages to the requester. (4) Penalty. Any authority which or legal custodian under s. 19.33 who arbitrarily and capriciously denies or delays response to a request or charges excessive fees may be required to forfeit not more than $1,000. Journalist?s Privilege  Branzburg v. Hayes - the U.S. Supreme Court?s view Branzburg v. Hayes (1972) No First Amendment privilege for journalists to withhold confidential information from grand juries investigating possible criminal behavior States free to recognize privilege under own constitutions or by statute Powell concurrence and Stewart dissent important  Wisconsin Law: Green Bay Newspaper and associated standards/test The target of the subpoena must show that she/he is a journalist, AND the information in question was given in confidence The party seeking the information must demonstrate reasonable probability that the information is relevant, material, competent helpful to the seeker, AND efforts have been made, without luck, to obtain the information from other sources If the seeker establishes the above, the information must be provided to the judge for in camera examination. Only if, after examining the material in camera, the judge concludes that the information is relevant, material, competent, helpful and necessary to the seeker, must it be released Copyright and Trademarks  Definitions and coverage Copyright A divisible property right based entirely on statute law and interpretation/application by courts Protects exact expression NOT ideas or facts Ownership can be by individual or by business entity, but NOT government Work for hire Lasts for: Author?s life plus 70 years in case of individual ownership OR 95 years after publication or 120 years after creation, whichever is shorter, in case of company ownership or work for hire Then enters ?public domain? Have it automatically BUT registration provides meaningful legal rights Fill out appropriate form, submit copies and $30 to Copyright Office,Library of Congress Post notice even if you don?t register: © 2004 YOUR NAME Remedies Injunctions Actual or statutory damages Destruction of infringing work Must register before suing Remedies are limited if you don?t register until after infringement occurs Proof of Infringement requires The allegedly infringed work to be original The infringer to have had access to the original Substantial similarity Fair Use Doctrine can defeat claim of infringement, and depends on.... Purpose and character of the use (the more commercial, the more dangerous) Nature of the copyrighted work Amount used (the more, the riskier) Effect on market for copyrighted work (the greater, the riskier) Vicarious Infringement Contributory Infringement DMCA -- locking the door Permission (in writing) Royalties or other consideration Licensing Trademark Names, words or symbols used to identify particular manufacturers? goods. Brand names are technically proper adjectives Protected by federal statute, state and common law Identifiable by ® if registered or by ? if registration is pending Can last forever if protected/defended successfully Infringement can occur through Confusing of consumers Dilution of value Protect through advertising reminders letters to offenders litigation Commercial Speech and the First Amendment  Central Hudson case and the test for First Amendment protection Central Hudson Gas & Electric: 1980 Court offers definitive test for determining First Amendment protection of commercial speech Is the advertising for an illegal product or service? Is it deceptive or misleading? If so, NO First Amendment protection If not false, misleading or deceptive, then..... Is government asserting an "substantial interest" to justify the regulation? If so, does the regulation directly advance the interest? If so, is the regulation more extensive than necessary to accomplish its goal? (Is there a "reasonable fit"?)  FTC and deceptive advertising Advertising is illegally deceptive if: An express or implied claim was made That was likely to mislead a reasonable consumer And the misleading claim was "material," i.e., involved important information that is likely to affect the consumers' purchase decision Evidence of nature of the ad claim can be simple, common-sensical facial analysis as well as extrinsic evidence such as consumer surveys and copy tests Proof that deception actually occurred is NOT required. Only requirement is that "significant minority of consumers" would be deceived by the "deceptive interpretation" of the claim Proof of actual consumer injury is NOT required Remedies Fines Cease and Desist Orders Consent orders Corrective advertising Injunctions