FOIA Defamation Correcting Privacy Newsgathering

Falsehoods Disinformation Copyright Prevarications NoNos

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400 400 400 400 400

500 500 500 500 500

 FOIA Falsehoods – 100

A reporter files a request for “all body

camera videos taken by United States Park
Police officers relating to anti-Trump
protests on federal parkland”
 FOIA Falsehoods – 100

A FOIA request must “reasonably describe” the

records requested. It is not in your best interest
– and might be a route to denial – to file
requests that are too broad
 FOIA Falsehoods – 200

A reporter considers her request denied

when she doesn’t receive the records
promised to her within 20 days of filing her
request
 FOIA Falsehoods – 200
The government must respond to the
request within twenty days but records are
unlikely to be delivered for much, much
longer
Also note: going directly to court isn’t
possible (must do administrative appeal)
and there are better alternatives to
litigation anyway (OGIS)
 FOIA Falsehoods – 300

A requester refuses to divulge that he is a

reporter or the reasons behind his request
when asked by the FOIA officer processing
that request
 FOIA Falsehoods – 300
Technically OK but not smart:
The government can charge fees for time spent
searching for and reviewing records, as well as
the cost of making copies, with reporters getting
the first 2 for free and the first 100 pages of
copying (or the equivalent) free
Expedited proceeding of requests may be
available in some circumstances
 FOIA Falsehoods – 400
A reporter files a request with the Department
of Justice seeking records relating to an
investigation she believes was pending against
the major tobacco companies to conspire in the
creation of a tobacco-tomato hybrid called
“Tomacco” which was to be marketed as a
“healthy alternative to smoking” but which
charges were later dropped as the government
co-opted the idea for purposes of flooding the
Iranian market with an addictive substance
 FOIA Falsehoods – 400
There are nine exemptions, many of which are discretionary
in nature (meaning information can still be given out by the
government), which are limited in application (meaning as
much information as possible must still be given out)
This may run afoul of :
Exemption 1 (national security)
Exemption 4 (trade secrets)
Exemption 5 (privileged work product)
Exemption 7 (interference with an ongoing law enforcement
investigation)
 FOIA Falsehoods – 500

A reporter files a request for the actual

water quality samples collected by the EPA
from random houses in Flint, MI or, in the
alternative, asks the agency to produce
and deliver a video demonstrating how
existing samples were collected
 FOIA Falsehoods – 500
Agencies do not have to produce (or allow you to
inspect) physical objects that are not “records”
While a video is a “record” and an agency has to
produce a record in any form or format in which
you request it, an agency does not have to create a
record to fulfill your request nor does it have to
recreate a record in the form or format of your
choosing if it would be unreasabonel to do so
 Defamation Disinformation – 100

You are writing an article about the hedge

fund that just bought your paper and
decide to publish a quote by from a former
business partner who describes the 25
person group as “corrupt”
 Defamation Disinformation – 100
This raises questions regarding:

The defamatory meaning of “corrupt”

Whether you can defame an entire group
Whether the statement caused damage
Whether this falls within the “neutral reportage”
privilege
 Defamation Disinformation – 200
The Washington City Paper runs an article
about Daniel Snyder (owner of Washington’s
professional football team) with this cover art
 Defamation Disinformation – 200

No one would reasonably believe that the

City Paper is insinuating that Snyder the
devil (and, besides, the statement may not
be materially and substantially false) and
his allegations of Anti-Semitism don’t make
this as “defamatory” statement harmful to
his reputation
 Defamation Disinformation – 300
You see this in the galley proof of your magazine
SPORTS REPORTERS SEEKING TO HOOK into a teleconference with University
of Central Florida football coach George O'Leary got a little more action than
they bargained for, according to an article in the Chicago Tribune.

When school officials handed out the phone number for reporters to gain
access to the teleconference, they were off by one digit. Instead of getting
the coach, reporters got another kind of fantasy league. According to a blog
by an Orlando Sentinel staffer, the voice on the other line said, "Hi sexy,
you've reached the one-on-one fantasy line.“

The reporter hung up, rechecked the school news release again to make sure
he hadn't typed in the wrong number, and dialed again. Instead, he got the
same phone sex hotline, "complete with offers" that the blogger wrote, "I
can't really post on this blog.“

The culprit was the school's new director of athletic communications, who
accidentally listed one digit incorrectly when he released the teleconference
contact information. The September teleconference was postponed until the
school could come up with a less personal connection.
 Defamation Disinformation – 300
This is a classic example of “False Light” a companion to
defamation which involves

• Widespread publication

• About the plaintiff

• Of private information

• That would be highly offensive to a reasonable person

• Is not of legitimate public concern (not newsworthy)

 Defamation Disinformation – 400
You write the following at noon on January 1,
2018 after reaching out to Mariah Carey’s
publicist for comment but receiving none:

“2018 is hours old and we already have our first

big question: What was in that cup Mariah?
Singer allegedly had other substances in the tea
she so desperately sought before NYE
performance because her famous voice has
deteriorated to such a degree”
 Defamation Disinformation – 400

While Carey is a public figure and you can

only be successfully sued if you publish
something false about her with actual
malice (the knowledge that it is false or
with reckless disregard of truth or falsity),
one easy way to act with actual malice is to
simply refuse to get the subject’s
viewpoint; using “allegedly” doesn’t cover
it up
 Defamation Disinformation – 500
In a comment to one of your stories about the
incoming first family, a reader writes, “Everyone
knows that Melania Trump worked as a highly
paid escort during her modeling days before she
came to the US.”
You edit the comment to replace “Everyone
knows that” with “In my opinion”
 Defamation Disinformation – 500

You aren’t going to be liable for comments

posted by a third party, no matter how
defamatory they are (and prefacing a
comment with “in my opinion” doesn’t
protect a statement if it is otherwise a
statement of fact) but you could be liable if
you change those comments to make them
read differently.
 Correcting Copyright – 100

You publish a photo taken by your

friend without her permission since
you know that she hasn’t registered it
with the Copyright Office anyway
 Correcting Copyright – 100
First: you’re a TERRIBLE friend. Shame on you.
In a legal sense: copyright exists the moment
there is an “original work of authorship fixed in a
tangible medium of expression” – and, in fact, if
we are in a “Work for Hire” situation, your friend
may not own the photo
Registration is a prerequisite to filing a lawsuit
and, if it occurs in a timely fashion can affect the
damages awarded when infringement is proven
 Correcting Copyright – 200

Based on the success of “Hamilton”, you decide

you will write another musical about a
prominent politician:

“Johnson” contains both kinds of music (country

and western!) and is based on Robert Caro’s
“Master of the Senate” biography series
 Correcting Copyright – 200
There are 5 exclusive rights given to a copyright
owner which are violated when a “substantially
similar” version of the original work is:

Reproduced
Distributed
Displayed
Performed
Made into a Derivative Work
 Correcting Copyright – 300

You see a cool picture on the Internet and

paste it into your blog because, well, once
it’s on the Internet it’s “public domain”
 Correcting Copyright – 300
“Public Domain” refers to whether the
copyright term has expired

While something on the Internet may have

more relaxed licensing terms attached, you
must be aware of any conditions of use
 Correcting Copyright – 400
This is an example of “Fair Use” because, well,
it’s awesome:

http://www.slate.com/blogs/xx_factor/2013/11
/19/goldieblox_commercial_rewrites_the_beast
ie_boys_urges_young_girls_to_pursue.html

So you should make awesome stuff too!

Correcting Copyright – 400
 Correcting Copyright – 500
After Portugal wins the European Championships in
2016, you go online and see this photo of celebrating
fans available via a Creative Commons Noncommercial
+ Attribution + Sharealike License.

So you can use the photo without a problem, right?

Correcting Copyright – 500
You could be wrong and right:
 Prevaricating Privacy – 100

An unmarked (not mailed, not traceable)

envelope shows up in your mailbox containing
Donald Trump’s 2015 tax returns along with a
typewritten note saying “From your friends at
the IRS (the Internal Resistance Society of the
federal government)”
 Prevaricating Privacy – 100

“Truthful information that has been

lawfully obtained may always be
published”
 Prevaricating Privacy – 200

The San Francisco Chronicle is sued by a

Secret Service agent it “outed” in a story
asking why the agent was never publicly
thanked by President Gerald Ford after
saving Ford’s life in an assassination
attempt
 Prevaricating Privacy – 200

The Chronicle has every right to publish this

because there is evidence that the agent was
already “out” in San Francisco (just not in his
hometown in Kansas) and this is a newsworthy
fact
 Prevaricating Privacy – 300

You obtain a video of former professional

wrestler Terry Bolean (aka “Hulk Hogan”) having
sex with his friend’s wife
 Prevaricating Privacy – 300
• Social Value of the Facts Published

• Depth of the Intrusion

• Extent to which the person acceded to the position of notoriety

– Is there a relationship between the social value of the story and the private facts or are
they just added for titillation

– Was the private fact included for its own sake or was it included to advance the report

– “The line is to be drawn when publicity ceases to be the giving of information to which
the public is entitled and becomes a morbid and sensational prying into private lives for
its own sake to a point where a reasonable member of society, with decent standards,
would say he has no concern”
 Prevaricating Privacy – 400

You are the first person to report that actor

Woody Harrelson’s father was a hit-man who
once killed a federal judge and is now in the
Supermax prison
 Prevaricating Privacy – 400
Unclear whether this is a problem because:

It may not be a “highly offensive” private fact

It may be in a public record
It may be publicly known
Harrelson, as a public figure, may have given up
some privacy rights
 Prevaricating Privacy – 500
You seek two kinds of records from the
University of North Carolina:

1. All Emails regarding the “fixing” of parking

tickets issued to student athletes, including
copies of the tickets themselves
2. Grade records, to show that student-athletes’
grades were “fixed”
 Prevaricating Privacy – 500

The grade related records are probably

unobtainable because they are the exact
type of “educational record” supposed to
be protected under the Family Educational
Rights and Privacy Act (“FERPA”) but you
should get the parking records since they
are not educational in nature
 Newsgathering NoNos – 100

You falsify “chronic medical conditions” so

you can get a prescription for medical
marijuana for your story on fraud and
abuse of your state’s newly legal medical
marijuana industry
 Newsgathering NoNos – 100

The First Amendment does not allow

reporters to violate laws of general
applicability, i.e., breaking and entering,
fraud, looking at child pornography
 Newsgathering NoNos – 200

You tape a telephone conversation with a

source in the State of Maryland without
the source’s knowledge and consent
 Newsgathering NoNos – 200

Sorry, Maryland is a “Two Party Consent” State

(DC and Virginia allow “One Party Consent”)

 Newsgathering NoNos – 300

Someone comes to you with a photo of a

topless Kate Middleton sunbathing on a
private beach taken with a camera
equipped with a high resolution telephoto
lens while sitting on a yacht anchored
about a mile off the shore
 Newsgathering NoNos – 300

The answer lies in Middleton’s “reasonable

expectation of privacy”
 Newsgathering NoNos – 400

A law enforcement officer tries to restrict

you from taking a photo or shooting video,
but you stand your ground, firmly and
forcefully reminding him of your First
Amendment rights
 Newsgathering NoNos – 400

NEVER pick a fight with a man holding a gun

 Newsgathering NoNos – 500

A confidential source gives you a tape

showing a Presidential Candidate bragging
about grabbing women without their
consent which you broadcast, feeling
confident that you will not be forced to
reveal that source thanks to the “reporters
privilege”
 Newsgathering NoNos – 500
The reporter’s privilege exists in 49 states and
DC but not clearly at the federal level

Its application varies in many ways, including

Who is a “reporter”
Whether information is protected or just
sources
Whether the privilege is absolute or qualified