NBCU v. BCA Synopsis

I am Thurgood Marshall – I was appointed by President Lyndon B. Johnson to the Supreme Court in 1967 and served until I retired in 1991. I was the first African American to serve in the Supreme Court and grew up in a lower-middle class family in Baltimore, Maryland. I studied at Lincoln and then went one to graduate as the top in my class from the Howard School of Law in 1933. Initially I had intended to attend the University of Maryland Law School but I was turned away due to segregation. It was in college that I became deeply steeped in politics, debate, and social issues.
Some of my most notable accomplishments as a lawyer was working closely with the Civil Rights movement and arguing before the Supreme Court on the case of Board v. Education. Later, I was appointed to the second circuit in the U.S. Court of Appeals by President John F. Kennedy.
In regards to my policies, I am unwaveringly liberal and care deeply for issues of equality, and only leaned farther to the left as time went on, even in when the court was predominantly conservative. I was known for being remarkably consistent in my beliefs and opinions, and tended to favor less government regulation of freedoms, such as freedom of speech and privacy.
Due to my failing health, I retired as a justice in 1991, despite my initial determination to serve for life.

Today I will hear the case of NBC Universal v. Broker’s Choice of America, in which BCA is accusing NBC of libel and violation of the 4th amendment.
The show Dateline, which is owned by NBC, used ethically questionable methods to investigate BCA, an insurance teaching agency under suspicion of malpractice. It was suspected that BCA was using scare tactics and deceitful methods in order to coerce customers, mostly senior citizens, into buying their insurance plans. State authorities had been suspicious of BCA for some time, and gave permission to journalists to attend a private BCA seminar with fake insurance agent licenses and credentials, who then filmed the seminars with hidden cameras, which was strictly forbidden. They then used snippets of speeches by the president of BCA, Mr. Clark, that seemed to indicate that they were indeed teaching insurance agents to use scare tactics on customers. Although Dateline did not edit or manipulate these tapes, BCA claims that NBC took these quotes out of context in a way that defamed and damaged Mr. Clark and the BCA. They have accused NBC of libel, violation of privacy and libel.
NBC claims that their actions, though aggressive, were not technically illegal and stated that their feature on Dateline was factual, and therefore not libel. They also claim that Mr. Clark should be considered a public figure, and therefore is not protected by the same privacy rights as average citizens. However, BCA recognizes Mr. Clark as a private citizen, which would mean he is protected from unreasonable search and seizure like average citizens. The question here is whether or not NBC released this information with negligence to the truth and with malicious intent, not so much about how they obtained said information.
Precedent cases include Food Lion v. ABC, in which ABC reporters used false resumes to be hired at Food Lion and then secretly videotaped bad practices at the grocery chain. Because their investigation uncovered that the grocery store was in fact guilty of malpractice, they were not committing fraud and therefore did not have to compensate Food Lion for damages. However, because they were hired under false pretenses in order to go through with the investigation, the court found that they were not necessarily protected by the first amendment.
Another precedent case is Anderson v. Suiters, in which a woman’s estranged husband videotaped him sexually assaulting her. She gave these videotapes to the police, who then gave them to a local reporter. The woman accused the news station of violation of privacy and that they did not have permission to air this tape, even if it was given to them by police. If it could be proven that the reporter was working in tandem with the police, making them “state actors”, then they would have been found liable for violation of privacy. However, the intentions of the police and the news station were separate and therefore they were not working jointly. So the reporter was then still protected by freedom of the press, which he would not have been if found to be a state actor.
As a liberal and a Justice, I am firmly against regulating freedom of speech or of the press. However, I believe that the media is held to certain ethical standards and that if libel or fraud is indeed committed, then the media entity must be held responsible. I believe that NBC practiced poor fact presenting by not giving a balanced or fair account of events. They only used about 112 words spoken by Mr. Clark, when the BCA convention went on for two days. NBC also did not give BCA a chance to defend or speak for themselves, making NBC guilty of inaccurate and sensational reporting. That being said, I find little problem with the methods used by NBC to carry out this investigation. Though they themselves are not the police, they used methods that I do not consider to be unconstitutional. I do believe however, that they misrepresented the facts and information that they gathered and defamed Mr. Clark.
I think that this decision will not have any impediment on news sources’ ability to investigate and gather information, nor will it have any restrictions on the freedoms of the press. I think it will hold the press to higher standards of practice and will further establish what is considered fraud and libel.

AP vs. United States

The petitioning attorney stated that the acquisition of the Associated Press’ phone records was against the First Amendment, while the responding attorney argued that their access to the records was justified in order to “ensure national security.” The responding attorney also stated that since they weren’t actually censoring the content that the AP published, they were not in violation of the first amendment. However, the petitioning attorney pointed out that it would interfere with their ability to gather news if their anonymous sources were afraid that they would be revealed, and therefore was an indirect way of censoring the press.
In reference to the article published by the AP that brought on the government’s concern with the phone records, the responding attorney said, “I don’t think the article itself was a direct threat, but it could lead to a snowball effect.” The article talked about an attempted terrorist attack that was intercepted by the CIA, which incited some concern about anonymous sources possibly leaking information to the press, which was one of the reasons used to justify acquiring the phone records.
Ultimately, the Court ruled unanimously in favor of the AP. The Chief Justice stated, “If we say that this acquisition of private information is ok in regards to national security, we might as well say it is ok period.”

Case Journal #3

In my time serving as a supreme Court Justice, my opinions have influenced important decisions and cases. For example, in Stanley v. Georgia, I famously said, “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Stanley, whose house was searched with permission of a warrant, was charged with possession of obscene films, which I found was within his rights under the First Amendment. In the case of Piper Aircraft Co. v. Reyno, I authored the majority opinion in which I stated that the possibility of change in law, depending on if an international case is tried in which country, cannot be given weight in a forum non conveniens inquiry.
The ramifications of the case of NBC Universal Inc. v. Broker’s Choice of America, if decided in favor of NBC, will give investigative journalism unprecedented lenience as far as information gathering and will open the door to fewer libel restrictions. If voted in favor of Broker’s Choice, it will uphold the current restrictions on information gathering, investigating, and restrictions on libel.

Rolling Stone’s Rape Story

1. What went wrong with this story was the lack of fact-checking.
2. The fault relies in both the reporter and the editor for not handling such a sensitive topic without more care.
3. A major challenge presented in this case is how readily one can trust a source and get to the truth while also running the story in a timely manner.
4. I would have tried to get in touch with the victim’s friends who were with her at the night in question, and see if her story stands with them.