Media Law美国媒体法笔记及要义

美国司法体系

1. Why do supreme courts take the cases:

1) similar cases at different states get different results

2) Seem to contrast a previous court decision

3) If it's not previously considered: eg Internet

4) The justice find it's time to reconsider: social changes and need to update the law (society, technology, composition of the court…)

2. differences between federal courts and state courts

when should a federal court take a case from the state courts?

1) when it crosses the border of the states

2) when there might be a bias happen in one state

3) one state sues another state

3. 5 major sources: constitution宪法, statutes成文法, administrative decisions, judge made common laws公共法, the law of equity衡量法

4. difference between criminal and civil contempt: civil contempt is coersive and criminal contempt is punitive.

5. Common law: judicial determination of law based on previous cases. Stare Decisis: 先例规则

6. Law of Equity: equitable remedies provide fair and just outcomes in situations where money damages would not properly compensate an individual

7. Certiorari

Writ of Certiorari复审令：the order issued by the supreme court when it agrees to hear a case.

8. Difference between criminal and civil intigation 民事诉讼与刑事诉讼的区别: criminal: government prosecute the defendant (the illegal behavior does harm to a society as a whole) result in jail or fines that are paid to the government

Civil: between two private parties for the harm that one caused another. Many are tort actions, where the plaintiff must bear the cost of suing the defendant. Usu seek money damages. Can not result in jail.

宪法及第一修正案

0. 第一修正案保证人民的六种权利：Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

国会不得制定关于下列事项的法律：确立国教或禁止信教自由；剥夺言论自由或出版自由；或剥夺人民和平集会和向政府请愿伸冤的权利。

＊insulting and fighting words，profane，libelous，child pornography 不受宪法保护

1. 思想市场: Market Place of Ideas

the notion that there should be freedom of speech so that all ideas would have a chance to be heard, considered and compete for attention and believers

Thomas Emerson's the System of Freedom of Expression:

1) Freedom of expression facilitate self-fulfillment

2) essential tool for advancing knowledge and discovering truth

3) way to achieve a more stable and adaptable community

4) It permits individuals to be involved in the demoncratic decision - making process

2. 事先约束原则 prior restraint：essence of censorship rather than punishing the publisher after publication using criminal or civil sanctions, the government prevented from taking placing 1）.a restraining orders and injunction 2） licensing and cease and desist order

＊一些能用到事先约束原则的场合：

-obstruction of military recruitment -publication of troop locations, numbers and movements in time of war and incitements to violence (among others) -incitements to violence -forcible overthrow of government

3. Ad Hoc Balancing Test 个案衡量原则： case by case, each case you weigh the harm to the society and the freedom of society

4. Definitional Balancing

5. Over-breadth Doctrine: one statute attempted to regulate both protected and unprotected speech. definition: a law is invalid if it punishes constitutionally protected speech or conduct along with speech or conduct that government may limit to further compelling government interest.

6. If the statute is unconstitutional 1. as applied: statute cannot applied to a specific person or group. statue remain in effect, but can’t enforced against them. 2. on its face: can’t be enforce against anyone －》 void

诽谤及隐私

1. Slander Per Se:

1) 诋毁他人犯罪 imputation of a serious crime involving moral turpitude

2) 诋毁某人染有恶心的疾病 imputation of existing loathsome disease

3)影响受害者业务 a charge that attacks people's competence and honesty in business, trade and professionals

4) 某女不贞洁 a charge of the unchastity of woman

2. Libel Per Se: clear on its face, don't need additional knowledge

3. Libel Per Quod: arised when the matter by itself doesn't appear to be defamatory, but knowledge of additional information would damage the plaintiff's reputation.

4. Punitive Damage: punish defendants for bad conducts, to stop him to act again, only applicable with common law malice

5. Single Publication Rule

6. Section 230

7. Sullivan v. New York Times案件： 1）提出actual malice 2) broaden the freedom to protect even false speech

8. actual malice: knowledge of falsity, reckless disregard

negilence: failure to access due care

common law malice act with hatred and despise, ill will

9. 定义：

1) Expose a person to hatred, ridicule or contempt 2) Cause a person to be shunned or avoided 3) Disparage a person in business, trade, office or profession

精神痛苦

1. Negligent Inflction of Emotional Distress 论过失导致的情感损害：a personal injury claim when one person acts so carelessly that he must compensate the injured person for his mental or emotional injury.

2. 四要素：

1）the defendant must act intentionally or recklessly

2) conduct must be extreme and outrageous

3) conduct must be the cause

4) of severe emotional distress

3. Huster Magazine v. Falwell的案子

When an ad parodies a public figure in which no reasonable person could take as true, 就形不成精神损害。和第一修正案保证的言论自由相符。

4. Brandenburg Test

1) speech can be prohibited if it is directed at inciting or producing imminent lawless action 2) or it is likely to 如果言论煽动或产生了即刻的非法行为，它可以被禁止 （当然宪法本身是保护鼓吹暴力的言论的，只要它不煽动即刻的非法行为）

*The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

** add the "intent" element into the test

＊＊＊4 factors: a. The act is a lawless act. b. The defendant advocates the act. c. The publication went beyond "mere adovocacy" d. The incitement was directed at imminent action.

5. BPL Test

B=burden, burden of taking precaustions P=probablity of harm L=Label, degree of harm

Only if PL > B, the defendant could be held liable.

6. Eimann v. Soldier of Fortune Magazine的案子 three grounds:

1) The first amendment's protection of commercial speech prohibits the imposition of liability upon the publisher for the publication of the ad.

2) The publisher owed no duty of care to plaintiffs.

3) The injury resulted solely from the intervening intentional criminal acts of third person and, therefore, as a matter of law, were unforseeable.

7 Gross Negligence的定义： a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both.

8. A Reasonable Speaker Test: reasonable man..foresee..intent to harm->true threat

9. Planned Parenthood v. ACLA (American Coalition of Life Activists案，定义incitement和true threat的区别

Incitement vs true threat

版权和商标

1. 定义：to promote the progress of science and useful arts by securing for limited times to authors and inventors and exclusive rights to their respective writings and discoveries

*Duration

75+20 yrs from 1st publication or 120 since first creation

2. subject matter："Original works of authorship fixed in any tangible medium of expression, now known or later developed , from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device"

3. Ownership所有权: 当作品是受雇时所作，则作者并不是作品的所有权持有者 work made for hire：

1） A work prepared by an employee within the scope of his employment

2) A work specially ordered or commissioned for use as a contribution to a collective work, if the parties expressly agree in a written instrument that the work shall be a work for fire

4. Rights of Copyright Owners:

1）to reproduce

2) to prepare derivative works

3) to distribute

4) to perform or display publicly

5. First-Scale Doctrines

6. 4 factors of fair use 合理使用抗辩的四要素

1）The purpose and character of the use

2) The nature of the copyrighted work （published？ non-published? fictional? factual?)

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole

4) The effect of use upon the potential market or value of the copyrighted work

6. Authors Guild v. Google案，谷歌胜诉，因为符合合理使用抗辩，为了非商业及教育目的

7. Campbell v. Acuff-Rose Music 案，为四要素中的目的增加了新的维度：transformative use

1) Has the material taken from the original work been transformed by adding new expression or meaning?

2) Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

*conjure up test

8. The Digital Millennium Copyright Act

DMCA Safe Harbor provision:

Only till you have a notice of take-down letter and fail to take down, you lose the immunity.

9. trademark定义： protect identifying symbols - words, names, symbols or even events.

generic terms: can never become trademark

merely descriptive terms: only by acquiring a second meaning 'distinctive of the applicant's good' (Bank of America)

suggestive terms (Citi Bank)

arbitarty or fanciful (Google)

10. How to prove infringement?

1) The work is substantially similar

2) people who infringe the work have the access to the original work

11. Cybersquatting抢注域名: other people buy domain names first, and if you want to use, you have to buy from them

广告

1.商业用语的判例 4 criteria to evaluate commercial speech/Central Hudson Test

- Is the commercial message misleading or dealing with an unlawful activity? - Does the Government have a substantial interest to be achieved by the restriction on speech? - Does the restriction directly advance this interest? - Is the restriction no more extensive than necessary to further the government's interest?

2. 商业用语的定义：

1) Expression solemnly to the economic interest of its audience

2) Speech proposed for a commercial transaction

3. Who regulates advertising?

FTC

FDA

SEC

FCC

IRS

4. Equal Opportunity Section 315: require broadcasters give equal opportunity to all the candidates

5. FCC: The FCC must act in the public interest, convenience and necessity.

FTC: Federal Trade Commission: originally created to deal with unfair competition

1) unfair methods of competition

2) unfair or deceptive acts

6. Deceptive advertising

*standards:

1)Reasonable person standard: tend to desist a reasonable person

2)Ignorant person standard

*Testmonials: celebrities can get paid but not ordinary people

7. Disclaimer 免责声明

8. Three forms of Cease and Desist停止并终止:

1) General cease and desist: don't ads

2) Affirmative disclousure: during the actual ad

3) Correct advertising: run a certain amount of ads to correct the lingering false impression created by a previous ad

9. Unfairness Standard / Unfair Acts or Practices:

1) It causes or is likely to cause substantial injury to consumers

2) The injury is not reasonably avoidable by consumers; and

3) The injury is not outweighed by conterveiling benefits to consumers or to competition.

10. Trade Libel, to win, you have to prove:

1) False disparagement

2) Publication

3) Identification

4) special damages

5) depending on the states: have to prove common law malice, intent to injure, negligence

11. Puffery吹捧: Publicity or acclaim that is full of undue or exaggerated praise, which no reasonable person would presume to literally be true EX Saying you have the world's best coffee

猥亵和淫乱

1. 3 factors that material is offensive:

1) The explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities

2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs or activities

3) whether the material appeals to pander or is used to titillate , or whether the material appears to have been presented for its shock value

2. Miller Definition:

a. whether the average person, applying contemporary community standard would find that wrok, taken as a whole, appeals to the prurient interest. 是否会刺激淫欲

b. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. 明显令人生厌的方式描绘性行为

c. whether the works, taken as a whole, lacks serious literary, artistic, political or scientific value. 缺少严肃。。的价值

3. Safe Harbour: 10 p.m - 6.a.m.

4. The difference between obscentity and indecency:

Obscentity is defined by the Miller Test and is unprotected speech. It can not be broadcast at anytime. Indecency is essentially the middle third of Miller and is protected, but can be relegated to certain hours in broadcasting.

5. 2 Indecency fundemental determination:

1) whether the material depicts or describes sexual or excretory organ or activities

2) whether the broadcast is patently offensive as measured by contemporary community standard for the broadcast medium