Case Journal 3

Significant Cases

New York Times v. United States: “A landmark decision by the United States Supreme Court on the First Amendment. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment. President Richard Nixon had claimed executive authority to force the Times to suspend publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press, guaranteed by the First Amendment, was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. The Supreme Court ruled that the First Amendment did protect the right of the New York Times to print the materials.”

 “In what became known as the “Pentagon Papers Case,” the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co.”
I concurred with Justice Stewart that “it is the responsibility of the Executive to ensure national security through the protection of its information. However, in areas of national defense and international affairs, the President of United States possesses great constitutional independence that is virtually unchecked by the Legislative and Judicial branch. “In absence of governmental checks and balances”, per Justice Stewart, “the only effective restraint upon executive policy and power in [these two areas] may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government.”

Bowers v. Hardwick: A United States Supreme Court decision, that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. While this ruling was later overturned in 2oo3, I wrote for the majority for the Supreme Court, stating that that the Constitution did not confer “a fundamental right to engage in homosexual sodomy.”

“In August 1982, an Atlanta police officer issued Michael Hardwick a citation for public drinking after witnessing Hardwick throw a beer bottle into the brush along Monroe Ave after observing him violating the city’s ordinance that prohibits drinking in public. When Hardwick did not appear in court, the court issued an arrest warrant for Hardwick. A few days later, officers went to Hardwick’s apartment to serve the warrant. Hardwick’s roommate was sleeping on the couch in the living room. The roommate invited officers in and directed them down the hall to Hardwick’s room. The door was open and the officers observed Hardwick and a companion, were engaged in mutual, consensual oral sex.

Hardwick became hostile and threatened to have officers fired for entering his home. Both men were placed under arrest for sodomy, which was defined in Georgia law to include both oral sex and anal sex between members of the same or opposite sex. The local district attorney elected not to present the charge to the grand jury, which would have been a prerequisite to any trial or punishment for the offense. Hardwick then sued Michael Bowers, the attorney general of Georgia, in federal court for a declaration that the state’s sodomy law was invalid. He charged that as an active homosexual, he was liable to eventually be prosecuted for his activities.

The legality of the officer’s entry into Hardwick’s home was never in question. Only the constitutionality of the sodomy statute was challenged.”

Furman v. Georgia: While my decisions have been characteristically conservative, I took more of a middle course on the issue of the death penalty: I was one of five justices who voted in Furman v. Georgia (1972) “to strike down several state capital punishment statutes, voicing concern over the arbitrary nature in which the death penalty was administered. The Furman decision ended capital punishment in the U.S. until 1977…”.

Furman v. Georgia, the resident awoke in the middle of the night to find William Henry Furman committing robbery in his house. At trial, in an unsworn statement allowed under Georgia criminal procedure, Furman said that while trying to escape, he tripped and the weapon he was carrying fired accidentally, killing the victim. This contradicted his prior statement to police that he had turned and blindly fired a shot while fleeing. In either event, because the shooting occurred during the commission of a felony, Furman would have been guilty of murder and eligible for the death penalty under then-extant state law, according to the felony murder rule. Furman was tried for murder and was found guilty based largely on his own statement. Although he was sentenced to death, the punishment was never carried out.”

“In a 5-4 decision, the Court’s one-paragraph per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. However, the majority could not agree as to a rationale and did not produce a controlling opinion. In fact, none of the five justices constituting the majority joined in the opinion of any other.” I was concerned about how arbitrary it was for death sentences to be imposed under the former laws, especially in relation to the high racial bias towards indicting black males defendants.”

Current Case: NBC Universal Inc. v Broker’s Choice of America

As this case is concerned, the legality in question is regarding the question of journalistic privilege. While NBC was found guilty of defamation at the district level, this ruling is questionable. The information obtained and published by Dateline was edited, not doctored, following the current regulations around digital publishing. The tape was shortened to only play a small excerpt of Clark’s speech, leaving all of his words unchanged.

It would be an infringement on the Freedom of Speech and the Freedom of Press to fully restrict journalistic privilege, especially when journalists are reporting information exactly as it is collected from the source. In this case, Clark himself as well as his students are the exact source of the information about the sales techniques in the broker industry, but no evidence was planted, doctored or coerced. While Clark did not know the “customers” were undercover, the information they collected on their voice recorders were as stated in person, and did not provide false information.

Ethical Challenge 4

As previously discussed in class, an increasing percentage of the news we take in is shared through social media. The most prominent of social media sites for sharing news is Twitter, it’s concise message size and accessibility allow for fast movement of news on a global platform. The utilization of hashtags allow people to find specific tweets about a news story to join in on the conversation as well as find new information about breaking news. While it has proven to be a great tool during natural disasters to help citizens get reach aid and connect with each other, it can have an adverse affect and result in hysteria when false information is distributed.

While it’s understandable not to have all of the details immediately when covering a breaking news story, reporting “facts” based simply on what has been shared on Twitter should always be avoided. Even if it is shared by what appears to be a reputable source, anyone can produce false pages and dispense misleading information from it. As journalists and members of the media, we are bound by a code of ethics to serve the public good as watchdogs. A traditional news story utilizes multiple sources to craft a well thought story with cultivated facts. Since our credibility is defined by the stories we produce, what does it say about our ability and credibility as journalists when we release information based solely on here-say from the internet?

However, if I found myself in a situation I would immediately retract my initial words with an apology for the mistake. Then, when I had the correct information I would reissue the story as an updated article. Regardless of the post-publishing PR scramble, the only way to ensure you are not duped and publicly embarrassed is to be relentless in confirming information. It has happened too many times now and has created a firestorm of panic, such as the journalist tweeting that Gabby Gifford had died although he did not have the doctor’s confirmation. Even when sources may appear to be authentic and reputable, following fundamental practices will ensure precision. While the reporter who made the initial call about Gifford’s “death” was informed by a police officer and another congressman, only medical doctors can officially declare deaths.

As with the Huffington Post “interview” with an alleged witness of a shooting, led the reporter astray with false information. While it is unethical that the “witness” allowed this process to take place and intentionally provided false witness, a reporter should never conduct a major interview via social media, especially when they have no prior communication or knowledge of the source. When the source already lacks credibility, the story and reporter will as well.

Case Outline


– The plantiff, Broker’s Choice of America Inc., operates as an IMO. As an IMO, they enter into agreements with insurance companies in order to market their insurance products. The IMO then recruits and makes the insurance products available to independent licensed insurance agents who then, market these products to consumers. BCA was founded by Plaintiff Tyrone M. Clark.

– The defendant, NBC Universal,  produces  television report broadcasts on Dateline NBC. One specific show focused on the predatory sales tactics that were being used in the sale of equity-indexed annuities to senior citizens. This report provided information on training sessions for insurance agents held by BCA by the name “Annuity University”.  Annuity University is a two-day training session that BCA offers to insurance agents on the sale of annuities, depicting the most effective methods to sell. These sessions are not open to the public but NBC cameras were allowed in to observe.

In 2007, Dateline ran an investigation into the tactics used by insurance agents selling EIAs to senior citizens. As part of the investigation, Dateline arranged for volunteers in Arizona and Alabama to pose as potential customers of insurance agents. These volunteers were equipped with hidden cameras to record the agents’ sales pitches. During the sales pitches, the insurance agents failed to disclose the risks associated with EIAs, including the substantial penalties for withdrawing the funds before their maturity dates.

– The Issue: In their original complaint, the Plaintiffs filed: defamation, trespass, fraud, intrusion against the defendants. On June 1, 2009 the defendants filed a Motion to Dismiss for failure to state claims upon which relief could be granted. On October 22, 2009 the Court granted the Motion to Dismiss, without prejudice. But, on November 20, 2009 the plaintiffs filed an amended complaint. The primary difference between the factual allegations in the original and in the amended complaint are that the amended one includes actual statements from a sales training seminar in March 2007 and the plaintiffs’ original claims for trespass, fraud and intrusion are no longer alleged, meaning, the plaintiffs now alleges only two claims for relief.


Clark and Hansen should both testify. As both the heads of the opposing groups and the leaders for these specific programs, they should both testify as to what the intent and process was. However, the undercover “customers” and the material they collected should be put on the stand as well because their information was taken without explicit consent of the BCA.

While the case was initially dismissed due to insufficient evidence, it’s retrial comes at the reconsideration of a case that was dismissed prematurely. The dismissal is considered premature because there is stock in BCA’s claims that the evidence found was collected illegally and published with malicious intent to defame Clark and BCA’s reputation. The violation of privacy and the innate rights that accompany it are at risk here but also, the media’s rights to perform as the watchdog of big business and inform the public of violations. However, the problem remains, was it obtained and produced legally?

Ethical Challenge 2: Sony Hack Scandal

Computer and account hacking has become a prominent issue for many high profile public figures as well as corporate companies. From nude photographs to customers’ financial data, it seems like nothing saved on a data program is safe. However, when a corporate company such as Sony has their executive emails hacked, leaking embarrassing and degrading correspondence, how should everyone respond? Many felt that they deserved the embarrassment of being caught in their judgment and inappropriate language in regards to celebrities and political figures, such as President Obama.

1. As the CEO I would have issued an immediate apology to the public, the individuals who were involved in the emails and the uninvolved Sony employees. However, I also would have stepped down from my position as a Sony executive, because it is a tarnishing reflection on the company and on one’s professionalism. As a journalist, I would have still published the information even though it was technically stolen, as most news outlets undoubtedly found out about it after it had been published on an individual website. Once information is out, it is automatically news. While the republishing of hacked nude pictures would be not only obscene but also unethical, the reporting of corporate executives insulting some of the best know public figures in western culture is not a story you bypass.

2. I reached this decision because as I said, once accounts of public figures or companies are hacked, the information is almost immediately published on independent sites. It only takes a few thousand site clicks until it becomes news, it is not the type of information that established news outlets allow to be absent from their own sites. Even reporting on the hack itself is relevant and intriguing news, everyone is fascinated by these cases and how they keep occurring.

3. I decided based on these factors because journalists and members of the media are taught from the start, “If it bleeds, it leads” when choosing what stories to publish. While I don’t believe in publishing scandal stories simply on the basis of exploiting the parties involved, hacking scandals such as this are fair news because they can bring down an individuals reputation and company’s credibility in the public eye and the industry. Also, the hackings themselves of private and professional accounts is definitely unethical, but still arguably gray in regards to whether it is illegal. The theft of private property is definitely illegal, but what about when these materials have been deleted off of devices and hackers are operating solely through data, who does the information belong to when it has been deleted? Like the proverbial trash that police and media members go through when a high profile individual is in the limelight, can these third parties go through discarded property we have and/or create?

Justice Byron White

I’ve embodied the American Dream, being from the greatest generation America has ever experienced. I was an all-star athlete in high school, an Ivy league student and a veteran. I have served my country in every aspect possible and hold fast to my beliefs of how our country should look. I may be staunch in my beliefs, but I serve as a justice whose “…mandates will be clear, crisp, and leave those of us below with as little room as possible for disagreement about their meaning.” Now I’m brought this case of BROKERS’ CHOICE OF AMERICA V. NBC UNIVERSAL, INC.; GENERAL ELECTRIC CO. over an accusation of libel and specifically, defamation of character.

BCA V. NBC details a lawsuit on the basis of NBC and their employees taking exclusive footage of a two day “Annuity University” seminar. NBC titled the segment “Tricks of the Trade” and focused the story on how these seminars teach brokers how to scheme and commit fraud, using a small doctored excerpt of Clark’s lecture to pad the argument against the event. While BCA originally filed this lawsuit in the form of defamation of character, it has already been dismissed once per the request of NBC. However it has been appealed by BCA as “It contends the district court failed to credit its allegations as true and improperly made factual determinations to reach its conclusions.”

As with Miranda v. Arizona when I declared the court to be inventing their own version of the fifth amendment rights, ruling on this case to restrict the press’ freedom to publish their information, would be an overreach of the court creating their own version of the amendments. As a conservative voice in this court, I stand that our initial rights as Americans should remain in tact as they are and not be bent by corporate quibblings. The reviewing of the segment video, which has already be reviewed once, will undoubtedly result in the same conclusion as has already been upheld by the court in the past. While Clark and BCA may feel their seminar was taken out of context, it does not null the fact that by restricting this material taken at liberty while shooting by invitation at the seminar, would strip first amendment rights and dangerously narrow the liberties of not only citizens but also, journalists. The liberal political force has been aiming to increase government involvement with social and political liberties, and I think there needs to be a detachment of governmental involvement in societal matters that overlap into politics.


Ethical Challenge 1: Rolling Stone Rape Case

Rolling Stone magazine sent shock waves through America in November when they published an article based on the alleged rape of a University of Virginia student. The student accused multiple brothers of a Fraternity house and claimed that her university friends found her outside of the house, after she ran out without anyone noticing her battered state, but instead of finding solace and support she was told not to report it.

The article spread like wildfire, there was such in depth detail included that it held a morbid fascination for people as does most sensationalist journalism. Once people looked past the crude detailing, the main question began to flow: Was it true?

1. I read this article when it was initially published and while it read as sensationalist then, what bothered me the most was how it was one-sided. If this were my story, I would not have included every detail as I don’t believe it is necessary to include all of them in order to still contribute to the higher purpose of exposing sexual assault on campuses. As journalists we can facilitate societal discussion without exploiting our subjects. Also, while I sympathize with the victim, I still believe in innocent until proven guilty and it is simply good journalism to research all sides of a story. I would have interviewed the accused rapists, or at least the fraternity board members, to at least give them a chance to respond to the allegations.

2. I believe the loopholes in this journalist’s style read as a pseudo manual for what not to do when investigating a criminal case for a major publication. The break in this case, with more thorough research and objective interviews, would have been a career changing project but the way it was handled speaks not only to the journalist’s victim bias but also, her short sightedness as a professional. No one pursues a career in writing with the goal of publicly exposing their weaknesses. I reached my decision by evaluating the skill and integrity this piece was written with, and while we cannot fully know what the journalist’s motivations were for writing this piece in the manner she did, I personally strive to keep a more objective perspective on news and crime related articles.

3. I reached this conclusion based on the fact that as soon as the article was published, the fraternity issued a public statement denying any involvement with the young woman and insisting that there was no official event that night. While the truth has may have been warped by either or both sides of this issue, it does not null the fact that both sides deserve to be given the chance to provide their side of the story. Even if you personally favor one side over another, as a journalist it’s imperative to stay as objective as possible. It’s dangerous to fall in love with our subject or story, we lose sight of what our duty really is to the public.