 |
Midterm #2 - J385 - Winter 2000 - Key |
|
|
Midterm #2 - J385 - Winter 2000 - Key |
|
1. There are three possible defendants in this suit, WKAK-AM, Harry Hotair and Frank Fan. Because it broadcast the statements of Hotair and Fan, WKAK is responsible for the statements of both speakers. Hotair and Fan are responsible for their statements.
Pember distinguishes the defenses of rhetorical hyperbole (Pember, p. 211), "pure opinion" (Pember p. 212) and "fair comment and criticism" (p. 217) Pember tells us that there is some question if the the fair comment and criticism defense is still "viable." (210).
The opinion defense relies on a four-part analysis developed in Ollman v. Evans:
A call-in sports talk show is a context in which we expect to hear outrageous opinion statements that are incapable of being interpreted as statements of fact. The statements made by Hotair are not capable of being proved true or false. They are clearly subjective evaluations. The common and ordinary meaning of terms such as "jerk," "ugly part of the book," "only word in this book you can believe is 'the'," does not allow the listener to interpret the statements as statements of fact. Hotair's statements are protected statements of opinion.
Fan's statements are a closer call. The statements "a whole lot of problems" and "doesn't get the quotes right," in some contexts could be statements of fact. However, in the context of a call-in radio show and given his other statement, "a couple of sandwiches short of a picnic," these statements not capable of being proved true or false and are protected opinion. (see Pember's discussion of Moldea v. New York Times Co., p. 215)
Since both speakers statements are protected opinion, the opinion defense will protect all three defendants.
2a. Taxer claims that the story implies that he is taking bribes. In order to prove defamation be implication, the plaintiff must show that the words in the article are capable of the asserted meaning (Pember, p. 144). Here, the plaintiff asserts that the article imply that he is guilty of taking bribes from high tech companies. While the words are capable of a defamatory meaning –that the tax assessor is giving companies in which he holds stock a favorable tax rate–the plaintiff's interpretation is not a reasonable in context. The plaintiff's claim will fail.
2b. For the purposes of this suit Taxer is a public official. Pember tells us that the "critical aspect in determining who is…a public official is the public's interest in the person's job before the controversy began." (Pember, p. 162) Taxer is a on the public payroll, he supervises an office of eight employees and the office is responsible for setting property tax rates. Given his supervisory role, the responsibility of the office and the fact that it makes decisions that have a direct effect on all property owners, Taxer is a public official.
3. False. The right to attend criminal trials is guaranteed under the common law and the federal constitution (Richmond Newspapers v. Virginia, Pember, p. 426) While the U.S. Supreme Court has not addressed this question in civil trials, a number of lower appealate courts have found a similar constitional right to attend civil trials. (Pember, p. 427) However, the right to attend trials is not absolute. Trials may be closed in the interest of the fair administration of justice and some proceedings that have traditionally been closed to the public, such as juvenile court proceedings may be closed.
Pre-trial proceedings are governed by the "Press-Enterprise Test." (Pember, p. 431) Pre-trail hearings are presumptively opened unless the party seeking closure is able to meet a complex test that balances the public interest in open hearings and the need to close the hearing in a specific situation.
