Arizona Reporter's Handbook On Media Law

By Perkins Coie

Principal Author and Editor: Daniel C. Barr
This seventh edition of the Arizona Reporter's Handbook on Media Law was prepared by Perkins Coie LLP. This edition marks 34 years that Perkins Coie has represented the First Amendment Coalition of Arizona, Inc. and provided this Handbook to the Coalition's member organizations: the Arizona Broadcasters Association, the Arizona Cable Telecommunications Association, the Arizona Newspapers Association, the Society of Professional Journalists and the Arizona Press Club. This Handbook addresses: (1) access to the news, including media access to court proceedings, public records, governmental meetings and facilities, and private property; (2) interference with the news gathering process, such as subpoenas, search warrants and gag orders; (3) limitations on the content of communications, including prior restraints and the laws of defamation and privacy; (4) promises of confidentiality to sources; and (5) copyright and trademark law.

This Handbook provides a general summary of media law and should not be relied upon or used as a substitute for seeking your own attorney's advice on the specific legal issues. If you wish further advice about anything contained in this Handbook, contact Daniel C. Barr at Perkins Coie at 602-351-8000 or through the firm's website, www.perkinscoie.com, which contains a description of the firm's Media Law practice and lists those professionals who practice in the area.

• Language: English
• Publisher: Perkins Coie
• Release date: Feb 19, 2015
• ISBN: 9781311831545

Perkins Coie

Perkins Coie LLP offers legal advisory services. The firm’s practice areas include business law, bankruptcy and restructuring, environment and natural resources, estate planning and trust services, finance, intellectual property, labor and employment, litigation, product liability, real estate and land use, regulatory and government affairs, and taxation. The firm was founded in 1912 and is based in Seattle, Washington with additional offices in Anchorage, Beijing, Bellevue, Boise, Chicago, Dallas, Denver, Los Angeles, Madison, New York, Palo Alto, Phoenix, Portland, San Diego, San Francisco, Shanghai, Taipei and Washington, D.C.

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Arizona Reporter's Handbook On Media Law

7th edition

Perkins Coie LLP

Copyright © 2015 by Perkins Coie LLP

Distributed by Smashwords

Arizona Reporter's Handbook on Media Law

This seventh edition of the Arizona Reporter's Handbook on Media Law was prepared by Perkins Coie LLP. This edition marks 34 years that Perkins Coie has represented the First Amendment Coalition of Arizona, Inc. and provided this Handbook to the Coalition's member organizations: the Arizona Broadcasters Association, the Arizona Cable Telecommunications Association, the Arizona Newspapers Association, the Society of Professional Journalists and the Arizona Press Club. This Handbook addresses: (1) access to the news, including media access to court proceedings, public records, governmental meetings and facilities, and private property; (2) interference with the news gathering process, such as subpoenas, search warrants and gag orders; (3) limitations on the content of communications, including prior restraints and the laws of defamation and privacy; (4) promises of confidentiality to sources; and (5) copyright and trademark law.

This Handbook provides a general summary of media law and should not be relied upon or used as a substitute for seeking your own attorney's advice on the specific legal issues. If you wish further advice about anything contained in this Handbook, contact Daniel C. Barr at Perkins Coie at 602-351-8000 or through the firm's website, www.perkinscoie.com, which contains a description of the firm's Media Law practice and lists those professionals who practice in the area.

TABLE OF CONTENTS

DETAILED TABLE OF CONTENTS

I. ACCESS TO THE NEWS

II. INTERFERENCE WITH THE NEWS GATHERING PROCESS

III. LIMITATIONS ON THE CONTENT OF COMMUNICATIONS

IV. PROMISES OF CONFIDENTIALITY TO SOURCES

V. COPYRIGHT

VI. TRADEMARK

APPENDIX A: Arizona Public Records Law Request Letter A-1

APPENDIX B: Federal Freedom of Information Act Request Letter B-1

Detailed Table of Contents

I. ACCESS TO THE NEWS

A. Court Proceedings

1. Constitutional Rights of Access Under the First Amendment

2. Access to Arizona Court Proceedings

a. Access to Arizona Court Records

b. Access to Search Warrant Documents

3. Depositions

4. Photographing and Broadcasting Court Proceedings

a. Arizona State Courts

b. Federal Courts

5. What to Do When a Courtroom Is Closed

B. Public Records

1. Arizona Records

a. Denial of Access

b. Records Deemed Confidential

2. Federal Records

3. What to Do When You Are Denied Access to Records

a. Arizona Governmental Agency Records

b. Records of Federal Agencies

c. Arrest Information

C. Open Meetings

1. Arizona

a. Definitions

b. Minutes

c. Notice and Agendas

d. Executive Sessions

e. Exemptions and Limitations

f. Effect of Violation and Remedies

g. Judicial Construction of the Open Meetings Law

h. Arizona Attorney General Opinions on Open Meetings Questions

2. Federal Agencies

3. What to Do When You Are Excluded From a Meeting

D. Access to Public Facilities

1. Constitutional Right

2. State of Arizona's Policy Regarding Prisons

E. Private Property

F. Selective Access

II. INTERFERENCE WITH THE NEWS GATHERING PROCESS

A. Subpoenas Issued Against the Press

1. Introduction

2. Shield Laws

3. First Amendment Qualified Privilege

a. Information Sought by Investigative Bodies

b. Information Sought by Criminal Defendants

c. Information Sought by the Judge to Discover the Source of Interference With the Criminal Process

d. Information Sought by Civil Litigants When the Press Is Not a Party

e. Information Sought by Plaintiffs in Libel Actions Against the Press

4. Arizona's Media Subpoena Law

5. What to Do if You Are Subpoenaed or Asked to Testify

a. General Rules

b. Subpoenas Requesting Eyewitness Testimony

c. Subpoenas of Your Sources, Notes, Tapes and Other Materials Not Published or Broadcast

d. Subpoenas of Library Files

B. Search Warrants

C. Gag Orders Against Trial Participants

1. Actions to Take When a Gag Order Is Issued Against Trial Participants

D. Contempt of Court

III. LIMITATIONS ON THE CONTENT OF COMMUNICATIONS

A. Prior Restraints in the Coverage of Trials

1. What to Do When a No Print Order Is Entered

B. Prior Restraints and Compelling State Interests

C. Libel

1. Introduction

a. Defamatory Statement

b. Statement of Fact

c. Concerning the Plaintiff

2. Privileges and Defenses

a. Truth

b. A Fair and Accurate Summary of Official Proceedings

c. Conditional Privileges

d. Neutral Reportage

e. Constitutional Privilege

f. Public Officials

g. Public Figures

h. Private Persons

i. Immunity for Online Content

3. Damages and the Arizona Correction Statute

4. Criminal Libel

5. How to Handle a Libel Claim

D. Privacy

1. Public Disclosure of Private Facts

2. False Light in the Public Eye

3. Intrusion Upon Seclusion

4. Appropriation of Name or Likeness

5. Statutory Provisions

IV. PROMISES OF CONFIDENTIALITY TO SOURCES

V. COPYRIGHT

A. Introduction to the Law of Copyrights

1. Subject Matter

2. Ownership

a. Copyright Ownership and the Employment Relationship

b. Joint Works

c. Collective Works

3. Rights

4. Infringement

5. Registration

B. Limitations on Copyright Protection

1. The Fair Use Doctrine

2. Parody

C. The Digital Millennium Copyright Act

VI. TRADEMARK

A. What Is a Trademark?

B. Registration

C. Consequences for the News Media

1. Parody

2. Generic Use

3. Innocent Infringement

•APPENDIX A: Arizona Public Records Law Request Letter A-1

•APPENDIX B: Federal Freedom of Information Act Request Letter B-1

FIRST AMENDMENT TO THE

CONSTITUTION OF THE

UNITED STATES

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

ARTICLE TWO, SECTION SIX

OF THE CONSTITUTION OF

THE STATE OF ARIZONA

Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.

I. ACCESS TO THE NEWS

The First Amendment does not guarantee a right of access to all sources of information within government control or an unrestricted right to gather information. Nevertheless, the courts have recognized the news media's special role in gathering information for dissemination to the public, and the United States Supreme Court has acknowledged that news gathering is not without its First Amendment protections because without some protection for seeking out the news, freedom of the press could be eviscerated. Branzburg v. Hayes, 408 U.S. 665, 707, 681 (1972). Although the scope of this right of news gathering cannot be stated with precision, there is substantial case authority demarking the right of the press to gather information in a variety of factual settings, which are discussed separately in Sections I(A) through I(F) below.

A. Court Proceedings

1. Constitutional Rights of Access Under the First Amendment

Once court proceedings are opened to the public, the press has a virtually absolute right to report all events that transpire in the courtroom. Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976). The limited situations in which a court may restrict publication of open court proceedings are discussed in Section III(A) of this Handbook.

During the 1980s, the United States Supreme Court decided five landmark cases upholding, in various contexts, the First Amendment right of the press to attend criminal proceedings. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980), the United States Supreme Court recognized a First Amendment right of the press and public to attend criminal trials. As then-Chief Justice Burger observed, a trial courtroom is a public place where the people generally—and representatives of the media—have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. Under Richmond Newspapers, a judge may not close a criminal trial without first making specific findings of an overriding interest in closing the courtroom and that alternatives less drastic than closure would be ineffective.

Following its ruling in Richmond Newspapers, the Court further strengthened the media's right of access to criminal trials by invalidating a statute that required closure of criminal sex offense proceedings during the testimony of minor victims. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982), the Court explicitly articulated the Richmond Newspapers presumption of access and established a rigorous standard for excluding the press from any criminal trial. Any denial of access must be necessitated by a compelling governmental interest, and [be] narrowly tailored to serve that interest. Globe Newspaper, 457 U.S. at 606-07. While the Court acknowledged that these determinations could be made only on a case-by-case basis, it emphasized the importance and value of the open criminal trial and noted that the circumstances under which the press and public can be barred from a criminal trial are limited.

In Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) ("Press-Enterprise I"), the United States Supreme Court significantly enhanced the First Amendment right of access. Press-Enterprise I recognized the right of the press to attend the voir dire examination of potential jurors in a criminal proceeding. The Court refined the Globe Newspaper test, declaring that the presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. In the wake of Press-Enterprise I, sweeping closure orders—unsupported by specific findings that the restraint on access is constitutionally compelling—are subject to successful challenges by the press.

In Waller v. Georgia, 467 U.S. 39 (1984), the Supreme Court held that the right of access also extends to a suppression hearing prior to presentation of evidence to the jury. Finally, in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14 (1986) ("Press-Enterprise II), the Supreme Court extended the First Amendment right of access to criminal pretrial proceedings as conducted in California because (1) the proceedings have traditionally been open and (2) public access to the proceedings plays a significant role in their functioning. The Court held that these preliminary hearings cannot be closed unless specific, on the record findings" demonstrate that the test articulated in Press-Enterprise I is met. Further, the Court held that if the interest asserted is the defendant's right to a fair trial, a preliminary hearing cannot be closed, unless there is a showing (1) of substantial probability that publicity will prejudice the right; (2) that closure would prevent that prejudice; and (3) that no reasonable alternatives to closure can adequately protect the right. The Court did not specifically extend the right of access to pretrial proceedings. But see El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993) (invalidating Puerto Rico statute providing for closure of preliminary hearings regarding whether defendant should be held for trial); Gannett Co. v. DePasquale, 443 U.S. 368 (1979) (one concurring opinion considering, but declining to decide, whether right of access extends to pretrial suppression hearings, but majority of justices finding qualified right of access).

The United States Court of Appeals for the Ninth Circuit, which includes Arizona, has "gone further and held that in general the