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

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.

Administration-

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?

http://co.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110111_0000255.DCO.htm/qx

https://www.ca10.uscourts.gov/opinions/11/11-1042.pdf

http://lawprofessors.typepad.com/elder_law/2014/07/10th-circuit-defamation-case-can-go-forward-on-nbcs-dateline-on-annuity-university.html