Midterm #2 - J385 - Winter 2002 - Key

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Five questions, each worth 14 points = 70 points.

1. Tre is a limited public figure. His fame as a member of the UO basketball team is not relevant to his status in this case, but his voluntary role as the primary spokesperson for a group attempting to change NCAA rules makes him a limited public figure.

In Bank of Oregon, the Oregon Supreme adopted the Gertz v. Welch "vortex" standard for determining limited public figure status in libel cases:

(1) A public controversy must exist before the publication of the defamatory material. Yes, NCAA rules governing payment to athletes is a pre-existing controversy. The fact that Tre was hired by an advocacy group involved in the debate is evidence that the controversy existed before Tre became involved and before the paper reported on it.

(2) The plaintiff must voluntarily enter the controversy for the purpose of resolving the public issue. Yes. Tre is advocating change in a public policy. (see Middleton, pp 114.) In contrast to the Gertz case, where the plaintiff was a lawyer representing a client in litigation, and to Bank of Oregon, where the plaintiff engaged in advertising activities unrelated to the controversy and entered the public controversy only when accused, Tre became involved in this controversy solely for the purpose of influencing the outcome.

(3)The plaintiff must assume a significant role in the efforts to resolve the controversy. Yes. Tre took on the role of leading spokesperson for PAN, a group working to change current NCAA rules regarding payment to college athletes.

Tre has met all three parts of the Gertz "voluntary limited public figure" standard.

2. The defendants claim that none of the statements are defamatory, and should any be defamatory, they are: (1) true; or (2) protected opinion. Will the defendants' asserted defenses be successful? EXPLAIN YOUR ANSWER.

The defendant claims that none of the statements are defamatory. Certainly it is not defamatory to have not completed college. The other statements are mildly critical of Tre, but they are the sort of statements we expect in public debate and it would be difficult to make a case that his reputation has been harmed.

Assuming for the purposes of this analysis that the statements are defamatory, the defendant's claim of truth will fail in all three statements. The statement "If Tre had ever finished his college education" is false. Tre did complete his college degree. The other statements (see below) are all subjective opinions that are not capable of being true or false.

The two other statements will be protected by the protected opinion defense. The statements "distortion of the facts," " disservice to college athletes," and " in it for the money" are all subjective statements that are not verifiable. In the context of a debate over a public controversy these statements are protected opinion. (Middleton pp. 134-139).

3. False. Middleton tells that "While the First Amendment protects the right to publish information about public issues, it does not guarantee the right to collect information about the government." (p. 470) Because the constiutition does not create a strong right of access to gather information, the government has broad authority to limit access.

The power to control access to accident scenes is quite broad. Journalists who refuse to obey a police order to leave an accident scene or to move when ordered to do so may be arrested. While police orders may be challenged in court, judges tend to give police authorities broad discretion to control accident scenes (Middleton, p. 477)

Military control of access to war zones during the Gulf War, in Bosnia and Kosovo, and in the current conflict in Afganistan demonstrate the broad power the military has to control access to war zones. Inspite of press guidelines developed by the military in consulation with media organizations, the military continue to strictly control access. The courts have rejected all media challenges. (Middleton, p. 480).

Absent evidence that the FDA does control and possess the record, the requested materials are not an agency record subject to release under the FOIA.

5. NO. In order to be a public meeting, the meeting must be a meeting of a "governing body:" '"Governing body" means "the members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration." ORS 192.610(3)…A purely advisory group is a 'governing body' only if it makes recommendations to a 'public body,' which we construe not to mean an individual official." 44 Op Atty Gen at 260 (AG opinion on website)

Since the advisory committee is reporting to the dean, who is an "individual official," it is not a governing body subject to the Open Meetings Law.