Exam 2

Question 1

Be able to discuss whether American courts consider it possible for a well-known person
to pass his/her right of publicity on to an heir.

Answer 1

A public person cannot pass their publicity on, but there are some states that have laws
that allow publicity to be passed down.

Question 2

What are the circumstances in which written consent may not suffice as a defense in an
appropriation case? (HINT: there are 3.)

Answer 2

-Consent given today may not be valid in the distance future
- some people cannot legally give consent because they’re underage or mentally impaired
- If material (photo) in particular has been substantially altered before publication

Question 3

What must a plaintiff, who is suing for the publication of private facts, prove to the court
to win his/her suit?

Answer 3

Must prove:
-what was publicized was private facts
- if people knew these private facts, it would be offensive to a reasonable person
- no legitimate public reason
- it was publicized

Question 4

Most persons think of publication of private facts about a person when they think of the
right to privacy, yet this tort has been the least accepted by the courts. Why?

Answer 4

If you have a successful suit for publication of private facts, it punishes the publication of truthful information that has been legally obtained.

Question 5

Know the FOUR factors set out by a federal judge in 2009 for determining whether a
government agency has sufficient “control” over a document to render it an “agency
record” for purpose of the federal Freedom of Information Act.

Answer 5

-The intent of the document’s creator to retain or relinquish control over the records
-The ability of the agency to use and dispose of the record as it sees fit
-The extent to which agency personnel have read or relied upon the document
-The degree to which the document was integrated into the agency’s record system or files

Question 6

Explain how the courts have responded to the argument that the First Amendment
protects the right to gather news.

Answer 6

Courts have generally rejected the right to gather news. they do this to prevent journalists from demanding private information and using an amendment to excuse their behavior.

Question 7

Define trespass – as described in Calvert.

Answer 7

An intentional, unauthorized entry onto land that is occupied or possessed by another.

Question 8

Know the three questions that courts typically ask in a civil lawsuit in determining
whether a qualified reporter’s privilege NOT to testify should be overcome.

Answer 8

Courts will consider:
-Is the information of certain relevance in the case?
-Does the information go to the heart of the issue before the court?
-Can the person who wants the information show there is no other source for the
information?

Question 9

Know what a trial judge must do before he/she can issue a restrictive order against the
press during a criminal proceeding. (Hint: there are 3 parts.)

Answer 9

-There must be an intense and pervasive publicity about the case.
-No other less drastic means to mitigate publicity
-The restrictive order will actually do the job

Question 10

What are the processes or legal devices a trial judge can use to try to ameliorate or
remedy the effect of mass media publicity about a case? (HINT: There are 6 remedies.)

Answer 10

-Voir dire
-Change of venue
-Change of veniremen
-Continuance
-Admonition
-Sequestration