I.

LAST WEEK: Right of Privacy and Access

a. RoP
i. Intrusion by the state
1. Griswald
ii. Intrusion by other people
1. California cases Transgender student leader
2. Gay man who foiled presidential assassination
3. THESE CASES HAD DIFFERENTS OUTCOME
a. Basis of decisions was did the plaintiff truly treat
the info as private- that’s why they came to two
separate conclusions
b. Access
i. To places
1. You have no right that a member of the public doesn’t
have (obvi no lesser rights either)
2. 2 Prison cases
3. Exception (white house press conferences are okay)
a. Only a function of the fact that the owner allows
you in. You have no right to be there
4. Can’t go into a public place under false pretenses
a. CBS case
i. Up to the owner to determine
ii. Camera crew from CBS guilty of
trespassing
5. Not all places owned by gov’t open to the public
a. i.e Military Bases
6. IMPORTANT: Don’t masquerade as someone that you
are not
ii. To information (FOIA) (TODAY 15:18)
1. 1966 Congress passed FOIA
a. Many states did the same thing
i. Congressional act impacted U.S. Gov’t
ii. State act impacted states
b. Directive that information that they hold shall be
made available to the public unless it falls into 9
specified categories (BACK IN TIME) THESE
EXEMPTIONS ARE PERMISSIVE NOT REQUIRED
(agency may or may not)
i. Classified documents
ii. Information exempt by other laws
1. For example Internal Revenue
code protects someone’s
information from being released
iii. Trade secrets or confidential commercial
information
 1. Someone seeking government
contracts has to disclose
information and that information
doesn’t have to be disclosed
iv. Internal agencies memoranda and policy
discussion
1. Protect the deliberate policy
making process
2. This is a huge category (24:00)
v. Law Enforcement investigations
1. Could interfere with enforcement
of the law
2. There should be a distinction
between an ongoing law
enforcement investigation and a
completed one
vi. Data whose disclosure would warrant an
unwanted invasion of privacy
1. Medical records/ or firings
2. How would this apply to someone
who is dead? Not clearly answered
in the act
3. Ongoing ligation is NOT against the
law
vii. MORE! LOOK UP
c. FOIA officers started and answered requests
i. But this didn’t work out the way they
planned
1. Three reasons why:
a. Many exceptions and
always interpreted broadly
by gov’t agencies because
they do not like to turn of
information because of
FOIA/
b. tendency to withhold
information/ institutional
attitude
c. There has been delays and
backlogs in some cases
years for requests to be
answered (21:20)
d. Government in the sunshine laws all meetings
must be held in the public (37:30)
c. Free Speech and Press Rights of Students (44:06)
i. Students = students up to the 12th grade in public schools
 1. Once you get into University, there are far fewer
restrictions than K-12 schools
2. Court does not draw a line between the institutional
press and citizens; thus, high school newspaper
students have the rights of any other high school
student (no more & no less)
3. Courts have balanced and reconciled two conflicting
beliefs:
a. Those under 18 do have free speech rights
b. School officials have the right to regulate lives
during school time that would be considered
intrusive to adults
ii. Case 1: 1969 Tinker vs Des Moines School District (iowa
1. Happened at a time of great protest against the Vietnam
war
2. Students wore black arm bands as a sign of protest of
Vietnam war
3. Asked to remove armbands and they didn’t
4. They challenged school authorities right to tell them to
not make a political speech (symbolic speech/ free
speech)
5. School board said it could start arguments or cause
hostility
6. SC agreed with students- conflict and debate are a part
of the educational process/ had no interference with
school work
iii. PRCEDENT UNTIL Case 2: 1988 Hazelwood school district
1. HS newspaper work articles on the effect of divorce or
pregnancy in a student’s family on student performance
2. School’s advisor refused to publish because
inappropriate
3. SC said school was right because the decisions of school
authorities should be upheld if based on legitimate
concerns
4. This case CHANGED school authorities no longer have
to prove that they acted to prevent disruption only have
to prove that it was a reasonable exercise of their
authority
5. This case dealt with school lending resources to help
student expression
iv. 2007 Morris vs Fredrick Alaska (57:45)
1. The Olympic torch was set to be run through a small
town and principal Fredrick says he would schedule a
recess to watch the runner, but some students make a
sign that says “BongHits4Jesus”
 2. The principal assumes that it encourages drug use and
confiscates sign and suspends students
3. They challenge that action; students say doesn’t mean
anything and just wanted to get on tv
4. SC upholds principals’ action because he did not act
unreasonably as an endorsement of drug use
5. PRECEDENT: Schools officials only have to prove that
they THOUGHT they were doing the right thing
6. During this time the Court expanded authority of school
officials
a. Non-supreme court case (9th circuit us court of
appeals in Cali on Cinco de mayo
i. Students wanted to wear shirts noting the
holiday and celebrate the holiday; other
students wanted to wear American flag
shirts
ii. School officials getting nervous about the
potential conflict told the 1st group not to
wear cinco de mayo
iii. Students challenged and appeals court
sided with school officials
1. Could cause conflict and
disruption (1:05:00)
iv. Schools officials must keep good order
d. Access to Newspapers
i. Rights of citizens
ii. Miami Herald vs. Tornill 1974
1. A FL statute said any FL newspaper that criticized a
candidate for public office must give that person a right
to reply, publish it free of charge
2. Official wrote a reply and Miami herald said no and AG
filed criminal action for violating the statute
3. SC said that law is void as a violation of the 1st
amendment’s free speech
a. Cites Sullivan case (1:16:00)
b. When the gov’t tells a newspaper what it has to
print, there is a conflict with the 1st amendment
(telling someone that they have to publish is the
same as prior restraint ie. Near case)
c. SC also makes the point that a law like this could
discourage the free debate because it could
discourage newspaper from publishing critical
content to begin with
e. What about Radio/Television (Broadcast media)
i. Same rules DO NOT REPLY TO THEM
1. BECAUSE the spectrum is limited
 2. If there is indiscriminate use of that spectrum, there
would be chaos
ii. 1927 Congress created Federal Radio Commission (soon to be
FCC)
1. No station could broadcast without a license
2. The station had to serve the public interest
(convinience and necessity?)
iii. CASE: Not SC 1932 (U.S. Court of Appeals DC Circuit)
1. Radio station in LA owned by Trinity Methodist Church
2. Was around for several years and applied for renewal
and FRC rejected the application and terminated
license. Church Appeal and goes to court
3. The court upholds the denial of the license. (1:26:00)
a. Church was using radio station to attack Roman
Catholic church. Sermons inferred with public
justice
4. THE POINT: Radio/TV is different; congress has a right
to control other mediums
iv. CASE: 10 years later NBC case
1. Court upheld FCC’s regulation of station ownership and
management
2. No combined ownership of more than one radio station
(before the days of television (1:34:00)
v. THE FAIRNESS DOCTRINE
1. Was issued by FCC
2. A requirement of the FCC that radio and TV stations had
to give adequate coverage to matters of public concern
and the coverage had to be fair
3. Equal time to opponents
a. The very thing told that could not be done to
newspapers is now required by television
4. If there was any attack on a public figure that that figure
must be given to the person to reply (1:40:00)
5. Red Lion Case Challenged this!
a. License was denied and radio station challenged
that this violated the first amendment
b. Case said difference between broadcast and
print media
c. If they upheld red lion would decrease the
freedom of ideas
i. Court applies two separate standards
because of the laws of physics
ii. Because Station managers would only
give time to the highest bidders and with
whom they agree
d. We DON’T have the fairness doctrine anymore!!!!
 i. Died in the Regan administration
ii. BECAUSE it had become counter
productive.
1. By the 1980s, matters of public
concern became corrupted
2. Coverage was so bland it couldn’t
be said to be unfair (1:45:58)
3. That administration was
committed to de-regulation
iii. Public interest part still exists
vi. Back in the 1980s on print and broadcast and cable tv was only
making its appearance
1. No computers or networking
2. It was easier then to say we don’t need the fairness
doctrine because the marketplace will decide
vii. By the time we get to the 1990s
1. People start to ask did we make the right decision about
the fairness doctrine