14 Sources of Privacy
Constitutional law, Statutory law, Common law, Administrative law
24 Privacy Torts
Appropriation, Intrusion, Public disclosure of private facts, False light
3Appropriation (3 elements)
1. Using a person's name or likeness 2. For commercial or trade purposes 3. Without permission
4What counts as a likeness?
Voice, look-alike/model, avatar, tattoo, robot; not parodies or transformative works
5Booth Rule
Media may use someone's name or likeness to advertise the publication in which it originally appeared.
6Reasonable expectation of privacy - YES
Hospital room, private home, private conversations in protected settings
7Reasonable expectation of privacy - NO
Public places, workplace open to the public, work email
8Public disclosure of private facts (3 elements)
1. Publicity given to private facts 2. Highly offensive to a reasonable person 3. Not of legitimate public concern
9Highly offensive test
1. Would a reasonable person find it highly offensive? 2. Was the information of legitimate public concern?
10False light (3 elements)
1. Publication placed plaintiff in false light 2. Highly offensive to a reasonable person 3. Publisher was at fault
11Does Utah recognize false light?
Yes
12Can someone refuse an interview?
Yes
13Can an employer tell employees not to speak to reporters?
Yes
14Can reporters be barred from press conferences?
Generally no
15GRAMA
Government Records Access Management Act
16Reporter's privilege to trespass?
No
18Three-part reporter's privilege test (civil cases)
1. Information is of certain relevance 2. Goes to the heart of the issue 3. No alternative source exists
19Promissory estoppel (4 elements)
1. Clear and definite promise 2. Intended reliance 3. Reasonable detrimental reliance 4. Enforcement required in interests of justice
20Who is a journalist?
1. Engages in investigative reporting 2. Gathers news 3. Intended from the beginning to disseminate news to the public
216th Amendment relevance to reporters
Protects the right to every man's evidence
22Innocent third-party newsroom search case
Zurcher v Stanford Daily
23How should a subpoena be accepted?
Never accept a subpoena for someone else
24Contempt purposes
Protect litigant's rights, vindicate the law, preserve authority of the court
25Collateral Bar Rule
All court orders must be obeyed until overturned, even if later found unconstitutional
26Skilling test (7 factors)
1. Media interference 2. Magnitude and tone of coverage 3. Size of community 4. Time between crime and trial 5. Jury verdict 6. Community impact 7. Publicity of confession or smoking-gun evidence
276 Trial-Level Remedies
1. Voir dire 2. Change of venue 3. Change of veniremen 4. Continuance 5. Admonition 6. Sequestration
28Voir dire
To tell the truth
29Continuance
Requires defendant to waive speedy trial right
30Nebraska Press test (3 parts)
1. Intense and pervasive publicity 2. No alternative measures 3. Restrictive order would effectively prevent prejudice
31Rule on contacting jurors
Jurors may speak after trial if they choose; judge may delay but not permanently prohibit
32Press-Enterprise test
1. Is proceeding presumptively open? 2. Overriding interest likely harmed 3. Substantial probability of harm 4. No reasonable alternatives 5. Narrowly tailor closure 6. Make evidentiary findings
33Chandler v Florida
Mere presence of cameras does not necessarily deny a fair trial
34Are cameras more common in state or federal courts?
State courts
35Right to witness executions?
Yes
36Right to record executions?
No
37Rice v Kempler
No First Amendment right to record executions
38Indecent material
Protected by the First Amendment
39Pornography
No legal significance
40Obscenity
Not protected by the First Amendment
41Child pornography
Not protected by the First Amendment
42Revenge porn law
Utah: first offense is a misdemeanor
43Miller Test (3 parts)
1. Appeals to prurient interest under local community standards 2. Patently offensive sexual conduct defined by state law 3. Lacks serious literary, artistic, political, or scientific value
44Appropriation case
Roberson v Rochester Folding Box
45Georgia recognizes common-law privacy
Pavesich v New England Mutual Life Insurance
46Voice as likeness
Facenda v NFL Films
47Tattoo as likeness
Brophy v Almanzar
48Robot as likeness
White v Samsung
49Transformative use test
Comedy III v Gary Saderup
50Fantasy baseball names
CBC Distribution v MLB Advanced Media
51Booth Rule case
Booth v Curtis Publishing
52Newsworthy exception
Time Inc. v Hill
53Lawfully obtained illegally recorded conversation
Bartnicki v Vopper
54Public court documents rape victim
Cox Broadcasting v Cohn
55Truthfully obtained rape victim name
Florida Star v BJF
56Death photos privacy
National Archives v Favish
57Old nude photos not newsworthy
Toffoloni v LFP Publishing
58Hulk Hogan privacy
Bollea v Gawker
59First false light case
Blumenthal v Pictures Classics
60False light requires actual malice
Cantrell v Forest City Publishing
61No reporter privilege before grand jury
Branzburg v Hayes
62Grand jury rule reaffirmed
United States v Sterling
63Filmmaker protected
Silkwood v Kerr-McGee
64Privilege overcome
Hatfill v Gonzales
65Reporter is source; no privilege
SEC v Seahawk
66Reporter waives privilege
Wheeler v Goulart
67No source as matter of law
Downing v Monitor Publishing
68Journalist definition
In re Madden
69Phone records of reporters
New York Times v Gonzales
70Privacy Protection Act
Zurcher v Stanford Daily
71Collateral Bar Rule case
US v Dickinson
72Fair trial circus case
Sheppard v Maxwell
73Restrictive orders test
Nebraska Press Association v Stuart
74Impartial jury definition
US v Burr
75Prior knowledge doesn't disqualify juror
Gentile v State Bar of Nevada
76Peremptory challenge race case
Batson v Kentucky
77Restrictive order failed
Phoenix Newspapers v Otis
78Participant gag order too broad
State v Sledge
79Wall Street Journal gag order
In re Wall Street Journal
80Open criminal trials
Richmond Newspapers v Virginia
81Press-Enterprise
Test for closing proceedings or sealing records
82Civil trials presumptively open
Publicker Industries v Cohen
83Grand jury proceedings
Presumptively closed
84Voir dire
Presumptively open
85Plea hearings
Presumptively open
86Sentencing hearings
Presumptively open
87Summary jury trial
Presumptively closed
88Nixon tapes
Nixon v Warner Communications
89Cameras prejudicial
Estes v Texas
90Cameras not inherently prejudicial
Chandler v Florida
91Obscenity test today
Miller v California
92Old obscenity test
Roth v United States
93Hicklin Rule
Regina v Hicklin
94Children and obscenity
Ginsberg v New York
95Internet porn restrictions
Ashcroft v ACLU
96Texas age verification
Free Speech Coalition v Paxton
97Child pornography factors
US v Dost
98Nude dancing
Expressive conduct protected by First Amendment
99Revenge porn and AI
Utah HB13
100FOSTA
Fight Online Sex Trafficking Act