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Department of Telecommunication - Michigan State University - Bauer - Fall 2002LAW AND POLICY OF THE MEDIAPrivacy: A Primer(see also: Smith, Meeske, Wright, Electronic Media and Government, New York: St. Martin’sPress 1995, pp. 442-459).1. Legal basis- Right to privacy often defined as (1) the right to be left alone, and (2) the right to be free from unwarranted publicity.- Constitution does not mention privacy.- 1890 HLR article by L. D. Brandeis and S. Warren raises privacy issue for the first time.- In Griswold v. Connecticut (1965), the U.S. Supreme Court recognized a constitutional basis for an individual’s right to be free from undue governmental interference. (The Court overturned a CT law prohibiting the sale of contraceptives on the grounds that it unduly interfered with the rights of married couples.)- In Roe v. Wade (1973) the U.S. Supreme Court stated that even though the term is not mentioned in the Constitution, “the Court has recognized that a right of privacy, or a guarantee of certain areas or zones of privacy, does exist under theConstitution.”- Most states recognize four types of invasion of privacy, either by statute of common law.2. Invasion of privacy- Appropriation or unwarranted commercialization: the using of a person’s name, picture, photograph, likeness, or any aspect of the person’s personality without permission to achieve some commcercial advantage or proft.- Privacy intrusion: occurs when one intentionally – physically or by other means –on the seclusion, private affairs, or concerns of an individual. - Recording of telephone conversations is a violation of privacy and a violation of the federal wiretap statute.- Intrusion into public or private places.. Intrusion into private dwellings: journalist must obtain permission to gather information or shoot video inside a private dwelling. A homeowner who grants an in-home interview may have no expectation of privacy.. Doctrine of conversion: a journalist who accepts and files documents acquired by another through intrusion of privacy has also committed intrusion.. Business establishments: can be public or private places; journalists can stay if invited but should leave promptly when asked to do so by owner or other legitimate authority.- Implied consent and common custom and usage: the doctrine of implied consent holds that persons who are involved in newsworthy events are considered by the courts to have given implied consent to be photographed and identified in news stories. The doctrine of common custom and usage allows journalists to enter private property as long as they leave upon request. These tow doctrines are not recognized in all states and do not offer absolute protection for journalists.- Aggressive journalism. There are no laws prohibiting aggressive and persistent pursuit of critical information and exclusive photographs. - Dissemination of private facts: occurs when media publish facts that are (1) private, (2) highly offensive, and (3) not of legitimate concern to the public, even if the information is true and accurate.- Private facts are those that are not of general interest to the public and are not a matter of public record or of the public domain.- Photographs and other communications that offend basic decency and are not newsworthy may be considered by the courts to be highly offensive.- Newsworthiness is a solid defense in private facts cases.- Putting a person in a false light: involved newscasts, photographs and other program segments that lead to some form of inaccurate interpretation of individuals shown.- False statements of distortion: occurs most often if pictures are used out of context or with critical information omitted.- Fictionalization occurs when otherwise true stories are embellished or recreated inaccurately, or when characters portrayed in a work intended as fiction come too close inresembling actual people.3. Related legal issues- Infliction of emotional distress: defined by the courts as conduct so outrageous and so extreme that is goes beyond all possible bounds of decency.- Public persons subject to more stringent standards; need to show that the publication contains a false statement and was made with actual malice (Hustler Magazine v. Falwell (1988).- Actual physical harm: publication of information that may lead to actual physical harm may not be protected (Braun v. Soldier of Fortune Magazine (1993)).Department of Telecommunication - Michigan State University - Bauer - Fall 2002LAW AND POLICY OF THE MEDIAObscenity: A Primer1. Brief historical synopsis- Commonwealth v. Holmes (1821).- Regina v. Hicklin (U.K. Queen’s Bench, 1868): Lord Chief Justice: “the test of obscenity is whether … the matter … is to deprave and corrupt those whose minds are open to such immoral influences …”- Comstock Act of 1870.2. Delineation of obscenity- Supreme Court upheld in several cases that obscene speech is not protected by First Amendment. However, standard was drawn increasingly narrow.- Roth v. United States (U.S. Supreme Court, 1957).3. Reaffirms point of view that obscenity is not protected by First Amendment. Develops three-part test:. Effect of material on average person based on contemporary community standards.. Looks at work taken as a whole.. Appeal of the work to “prurient interest”.- Initiates narrowing of “obscenity” to sexual matters.- Miller v. California (U.S. Supreme Court, 1973).- Applying contemporary community standards, would an average person find the work, taken as a whole, appealing to the prurient interest?- Does the material depict or describe in a “patently offensive” way sexual conduct specifically defined by applicable state law?- Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?- In Pope v. Illinois (1989) the U.S. Supreme Court held that a jury could not be instructed to apply a community standard but only a “reasonable person” standard. In their dissent, Justice Stevens and three other Justices argue that the “reasonable person” standard is unclear. Referring to a connection to minors or obtrusive display to unconsenting adults should narrow it.3. Pornography- Child pornography not protected by First Amendment as long as Miller Test passed. Current issue: “virtual kiddy porn” (see session on


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MSU JRN 930 - privacy

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