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Key - Midterm #2 - Winter 1997
1.(15 points)
False. E.O. 12958, the current Executive Order defining the Confidential classification, states: "Confidential" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe. This definition is part of an effort in the Clinton administration to "err on the side of openness when weighing whether a new document should be classified." (Pember)It replaced the definition found in President Reagan's E.O. 12356 which did not require the classification authority to identify or describe the specific harm disclosure would cause. The "may cause damage" standard in the question is in conflict with E.O. 12958 because it gives the classifying authority far more discretion than is permitted under the Clinton order, or even the Reagan order. The plain meaning definition of "may" is "be in some degree likely to." (Webster's New Collegiate). A "may cause" standard does not require a reasonable liklihood that damage may result from disclosure nor does it require that the damage be identified or described.
2. (15 points)
Rant is probably correct that the Code of Conduct and the suspension violate his First Amendment rights. Rant attempted to distribute an unofficial student newspaper on the South Anywhere High School campus. Assuming that South Anywhere is a public high school, the unofficial status of the publication removes it from the Hazelwood class of official school publications. While schools may require review for specific criteria prior to distribution of unofficial publications (Pember, pp. 81-82), the lack of specific criteria place South Anywhere High School's Code of Conduct in conflict with the 9th Circuit's decision in Birch v. Barker (9th Cir. 1988). The Code of Conduct requires students get approval before distributing "any newspaper, pamphlet, leaflet or other printed material on campus." In Burch v. Barker, the Court held that a similar policy violated the First Amendment. The court said that a prior review policy for unofficial student publications could not be based on "undifferentiated fear or apprehension of disturbance." A school, the court said, may not have "a blanket [distribution review] policy of unlimited scope and duration."
3. (30 points) a. Executive Session
b. Public Record
a. No. The Anywhere, Or., Board of Education is a public body under the Oregon Public Meetings Law. Since the board voted to go into executive session from a regularly scheduled meeting, it is in compliance with the procedural requirements of the public meetings law; however, it is not clear that the content of the board's list of topics for discussion is in agreement with the executive session provisions of the law. The board cited "personal privacy" and "employment decisions" as the topics for discussion in the executive session. Neither of the two cited topics clearly fall into one of the listed allowable topics for executive session under the Public Meetings Law. While topics that protect certain specific types of personal privacy are on the executive sessions topic list, the general category of "personal privacy" is not. As for "employment decisions," while the body may enter executive session to discuss the hiring of a specific individual, it may not do so to discuss more general employment topics. Given the recommendations in the fact-finding team's report, e.g., the creation of a new "events coordinator" position, we have no evidence that "employment decisions"could be interpreted as meaning the hiring of a specific individual.
b. Yes The fact-finding team's report clearly is a public record under Oregon public records law. The fact-finding team is an advisory committee to a public body which funded the research and writing of the report, possesses it and used it in the policy making process. Under the public records law certain kinds of information are unconditionally exempt from disclosure and other information is conditionally exempt. Given the subject of the investigation and the report, it is possible that some information contained in the report may be exempt from disclosure. The school board may be able to claim that any information identifying specific students is either unconditionally exempt under the federal Buckley amendment, or conditionally exempt under the"Information of a personal nature..." conditional exemption. It is also possible that some information may be exempt under the "Information submitted to a public body in confidence..." conditional exemption. Even if some of the information contained in the report is exempt, the majority of the information in the report does not appear to be exempt given the focus of the investigation and the report; therefore the board will be required to release the redacted report to you.
4. (15 points)
False In the Pentagon Papers case, the Court said: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." A standard that allows the government to forbid the publication of the identity of an alleged victim is constitutional when no individual has been captured and charged with the crime must be evaluated against that presumption. In Florida Star v. BFJ, a case concerning a state law forbidding the publication of the identity of an alleged victim of sexual assault, the U. S. Supreme Court held: "Where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order..." The Florida Star case mirrored the fact pattern in the question, that is, the name of the alledged sexual assault victim was legally obtained and published while the person who had commited the crime remained at large. While the court in Florida Star said that "discrete factual context[s]" may exist where the state could legally punish the publication of a rape victim's name it did not find that the conditions present in Florida Star met the state interest of the highest order standard. Given the strong presumption against prior restraints and the Florida Star decision, the standard stated in the question is in conflict with current U.S. Supreme Court interpretation of the First Amendment.
5. (30 points) a. Falsity
b. Fault standard
a. falsity Builder: Yes Emerald Empire:Yes As the president of the company, Builder has a cause of action if the story falsely accused him or his company of engaging in illegal practices or of being charged with or investigated for illegal activity. Company executives have a cause of action even when not identified by name if the story alleges company involvement, since they are responsible for company actions. The story says that Emerald Empire faces criminal fraud charges, when the only pending investigation involves the SEC. That investigation could result in a variety of different actions short of a criminal fraud charge. The claim appears to be broader than the facts will support. The most damaging statement in the article is Carrie Count's. Builder could certainly argue that her statement accuses him of allowing Sleeze's illegal activity. This is defamatory and there is no factual basis for it.
b. Should negligence be the standard of fault in these suits? Yes The status of both Builder and Emerald Empire would be determined using the Gertz limited public figure test (see Bank of Oregon v. Independent News). The facts indicate that a public controversy may have existed prior to the publication of the story since the company was under government investigation; however, there is no evidence that either Builder or the company voluntarily entered the controversy in order to resolve it. Since both Builder and the company are not limited public figures under Oregon law, negligence is the correct fault standard.
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