Chapter 9: Cameras in the Courtroom

In 1999, the Oregon Supreme Court adopted a number of revisions to the state’s Uniform Trial Court Rules that refined the procedures for allowing cameras, both video and still, and audio recording devices to be used by the media in courtrooms. The adoption and revision of Uniform Trial Court Rule 3.180, followed nearly a decade of experimentation with cameras under a temporary Canon of Ethics, the establishment of a court rule and evolutionary revisions recommended by the Oregon Bar-Press-Broadcasters Council.

The text of Uniform Trial Court Rule 3.180 follows:

MEDIA OR OTHER PUBLIC ACCESS COVERAGE OF COURT EVENTS

  1. Courtrooms. Upon request or on the court’s own motion, after notice to all parties, public access coverage shall be allowed in any courtroom, except as provided under this rule.
  2. There shall be no public access coverage of the following:
    1. Proceedings in chambers.
    2. Any notes or conversations intended to be private including, but not limited to, counsel and judges at the bench and conferences involving counsel and their clients.
    3. Dissolution, juvenile, paternity, adoption, custody, visitation, support, mental commitment, trade secrets, and abuse, restraining and stalking order proceedings.
    4. At a victim’s request, sex offense proceedings.
    5. Voir dire.
    6. Any juror anywhere during the course of the trial in which he or she sits.
    7. Recesses.
  3. Limitations on Denial of Public Access Coverage in Courtrooms. A judge may deny a request for or terminate public access coverage only if the judge makes findings of fact on the record setting forth substantial reasons for the denial. The judge may prohibit public access coverage if there is a reasonable likelihood of any of the following:
    1. The public access coverage would interfere with the rights of the parties to a fair trial or would affect the presentation of evidence or outcome of the trial.
    2. Any cost or increased burden resulting from the public access coverage would interfere with the efficient administration of justice.
  4. A judge may summarily prohibit public access coverage of a particular witness only if the judge finds on the record that public access coverage would endanger the welfare of the witness or materially hamper the witness’ testimony.
  5. Areas Outside of Courtrooms. The presiding judge may allow public access coverage in any area outside the courtroom that is on the courthouse premises and under the control and supervision of the court. Courts are encouraged to designate an area or areas outside the courtroom that is on the courthouse premises for public access coverage. For areas subject to this subsection, each judicial district, by SLR, may establish, for any court location, procedures for obtaining permission for public access coverage that differ from this subsection or may designate locations where public access coverage is allowed or prohibited. SLR 3.181 is reserved for SLR adopted under this subsection.
  6. Public Access Coverage Defined. As used in this rule:
    1. “Public access coverage” means coverage by means of any public access coverage equipment.
    2. “Public access coverage equipment” means any of the following in the possession of persons other than the court or the court’s staff: television equipment; still photography equipment; audio, video, or other electronic recording equipment.
  7. Equipment and Personnel for Public Access Coverage. The court may limit the location of public access coverage equipment. One pool video camera and one pool still camera and one pool tape recorder shall be permitted.
    1. No public access coverage device shall be operated by more than one person.
    2. No person shall use public access coverage equipment that interferes or distracts from proceedings in the courtroom.
    3. The video camera must be mounted on a tripod or other device or installed in the courtroom. The tripod or other device must not be moved while the proceedings are in session. Video equipment must be screened where practicable or located and operated as directed by the court.
    4. No artificial lighting devices of any kind shall be allowed.
    5. Any pooling arrangement required by limitations on equipment and personnel imposed by the judge or by this rule must be the sole responsibility of the persons seeking public access coverage, without calling upon the judge to mediate any disputes involved therein. In the absence of agreement on such issues by persons seeking public access coverage, the judge may exclude any or all public access coverage.
  8. Upon request, any person engaging in public access coverage of a court event or in a courtroom, courthouse, its premises, or environs under the control and supervision of the court must provide to the court, without expense, or to any other person, if the requestor pays actual copying expense, a copy of any public access coverage the person performed.
  9. A judge may impose other restrictions or limitations necessary to preserve the solemnity, decorum, and dignity of the court and to protect the parties, witnesses, and jurors. A judge may terminate any or all public access coverage at any point upon finding, based on substantial reasons in the record, that this UTCR or other rules imposed by the judge have been violated.
  10. Nothing in this rule is intended to limit the court’s contempt powers.
  11. Nothing in this rule shall alter or affect the rules of the Supreme Court promulgated under “Video-Trial Project No. 88-38.” Under that project, the audio-video coverage constitutes the entire record. In all other courts, the record shall be preserved with court reporters or audiotape. Restrictions on releasing audio-video coverage in courts participating in the Video-Trial Project shall be set forth in separate rules.

NOTE: Uniform Trial Court Rule 3.180 was adopted by the entire Oregon Supreme Court, and any changes to the rule will be made only with the consent of the Supreme Court.

Share]]>

No related posts.

Chapter 1: Free Press and Fair Trial

Several institutions exist in Oregon to help assure the rights of free press and fair trial. Their purpose is to protect both— through cooperation and consultation rather than by confrontation.

They include:

Oregon State Bar-Press-Broadcasters Council: This council was established in 1962 by the Oregon State Bar (OSB), the Oregon Newspaper Publishers Association (ONPA) and the Oregon Association of Broadcasters (OAB) to work on matters of common interest to the three professions,

The council is composed of six members appointed by Oregon Association of Broadcasters, six members appointed by the Oregon Newspaper Publishers Association and 12 members appointed by the Oregon State Bar. It operates on a yearly calendar that begins with the September meeting and ends with the May meeting. It meets on the first Saturdays of September, November, February and May, and the meetings are hosted on a rotating basis by the member organizations. If the September meeting date falls on the Labor Day weekend, the September meeting is on the second Saturday.

The council is empowered to act on its own authority, without referring its actions to the parent organizations, but it may not take positions on behalf of its parent organizations.

The chair of the joint council shall rotate annually by its calendar years. For example, in 1997-98, the chair was held by the Oregon State Bar; in 1998-99, the chair was held by the Oregon Newspaper Publishers Association; and in 1999-2000, by the Oregon Association of Broadcasters.

Much of the work of the council is focused on issues of free press and fair trial, but from time to time the joint council organizes and sponsors other activities of mutual benefit to the legal and news professions, such as conferences, seminars and the publication of this handbook.

Any person may bring a matter before the joint council. It can be reached through the central office of any of the three sponsoring organizations: the OSB, ONPA or OAB.

Guidelines for Reporting and Comment on Criminal Proceedings: The first main activity of the joint council was, in 1962, to draft and agree upon a joint statement of principles for news reporting and comment on criminal proceedings, aimed at assuring the public the opportunity to be kept fully informed without violating the rights of any individual.

In 1967 the joint council added to this statement a set of guidelines for reporting of criminal proceedings. These recommendations, often referred to as the ìOregon Bar-Press Guidelines,î are intended to advise reporters, lawyers, law enforcement officials and other involved persons as to what is generally appropriate to say, or not to say, about a criminal proceeding prior to a trial. The guidelines also make recommendations concerning the photographing of criminal defendants.

The guidelines are advisory only. The decision on whether to follow them in a particular case is left to the discretion of the individuals involved. However, they have been approved by the respective conventions of the Oregon State Bar, Oregon Newspaper Publishers Association and Oregon Association of Broadcasters.

The joint council has also established a procedure for dealing with complaints of violations of the bar-press guidelines.  In essence, it calls for the joint council to try to mediate a resolution of the complaint between the parties involved. If this is unsuccessful, the joint council is authorized to appoint a subcommittee to investigate and publish an advisory opinion as to whether a violation of the guidelines has occurred.

Judicial Conference Resolution of 1977: In 1975 and 1976 the joint council considered the constitutional issues raised by judicial restraining orders aimed at limiting news coverage of criminal proceedings, particularly pre-trial proceedings. It proposed a procedure by which a judge, lawyer or journalist who anticipates a possible fair trial-free press conflict in a particular case can attempt to have the issues resolved by voluntary consultation rather than by issuance of a court order. The Oregon Judicial Conference considered and amended the joint councilís draft and then adopted it unanimously on April 20, 1977, as a recommended procedure for Oregon judges to follow.

Share]]>

No related posts.

Chapter 10: Broadcast Media Regulation

Broadcasting in the United States is one medium which still remains subject to substantial forms of content-based regulation, principally by the Federal Communications Commission (FCC). Justification for this regulation is based on the “public interest” rationale. Essentially that rationale is that there is a quid pro quo between the station operator (“licensee”) and the federal government which issues the operator a license in exchange for an obligation to serve the interest of the community. This obligation requires the licensee to “ascertain the needs of the community” and then provide program service to foster public understanding of those issues. How the licensee provides programming to serve the needs is left to the licensee’s discretion.

“Public Interest” Regulation:

Despite the prohibition against censorship in the Communications Act of 1934, the “public interest” standard has spawned substantial regulation in a number of areas which directly relate to the content of the programming which a station may broadcast. These include political editorials, obscene and indecent programming, lotteries, contests and promotions, children’s programming on television, recorded telephone conversations, prohibited advertising on broadcast stations.

(1) Political Editorials: For years news and issue-oriented programming was governed by the FCC’s “fairness doctrine,” a doctrine which had its genesis in the political broadcast rules adopted pursuant to ß315 of the Communications Act of 1934, as amended. The fairness doctrine was meant to insure that all sides of controversial issues aired over a broadcast station were represented. To do this the rules of the FCC imposed certain affirmative obligation on broadcast stations to identify the “controversial issues” of public importance in its community and to respond to programming, including different points of view, regarding those issues. Thus when a station carried one viewpoint on a “controversial issue” it had an obligation to present the contrasting view.

Although a well-intended idea in theory, the fairness doctrine proved a nightmare to broadcasters. With the growth of political activism, broadcasters were constantly facing claims that they had been “unfair” in covering issues or refusing to present contrasting viewpoints. In response, many stations simply backed away from the coverage of controversial matters. Ultimately the fairness doctrine was repealed by the Commission, a decision which was then later upheld by the appellate courts.

Despite the demise of the fairness doctrine, there are two corollary doctrines which remain in effect. These include the “political editorial rule” and the “personal attack rule.”

The Political Editorial rule requires that if a station editorializes either for or against a candidate for public office, the station must notify the disfavored candidate about the editorial within 24 hours; provide a transcript or tape of the editorial tape and offer the challenged candidate an opportunity to have his or her representative reply to the editorial. In order to avoid creating “equal time” rights, which would be triggered by an appearance of the candidate, the political editorial rule limits the reply to a spokesperson for the candidate.

(a) The Personal Attack Rule is invoked when a person or group’s character or integrity is impugned during the discussion of a “controversial issue of public importance.” In this instance the station must notify the person or group attacked within one week, provide a script of the program, and offer a reasonable time in which to respond. The rule does not apply to newscasts or to commentary and analysis contained in news broadcasts. The rule is usually invoked in programs involving panel discussions or talk shows.

(b) Political Candidate Advertising — Candidates for political office enjoy certain access rights to the broadcast airways. The scope of these rights depends upon whether the candidate is running for a state or local office or a federal office. In the case of a candidate for federal office, any legally qualified candidate is entitled to “reasonable access” to use a stations’ facilities, including a right to purchase program length time. “Reasonable access” is not quantified but is subject to the circumstances prevailing at the time of the candidate’s request for time.

State candidates do not have quite the same benefits as federal candidates. In fact a broadcast station has no obligation to provide any time to a candidate for state office, even a candidate for governor. However, if a station chooses to sell political time to a state candidate, that candidate’s opponent is entitled to equal time on that station. Moreover, political candidates are entitled to a discount on the price for the time charged by the station. This discounted rate is known as the “lowest unit charge,” a concept which is very complex because of the wide range of selling practices and pricing formulas employed by broadcast stations. Nonetheless, political candidates are entitled to “lowest unit rate” for any time purchased within sixty (60) days of a general election and forty-five (45) days of a primary election.

In order to qualify for “equal time” and “lowest unit charge” the candidate must appear in the political advertisement. By an “appearance,” his or her voice or visual likeness must appear in the ad. The appearance of the candidate constitutes a “use.” Without a “use” there is no access entitlement nor is there a right to lowest unit rate. Instead, the station has no obligation to sell or, in the event it does sell time on a candidate’s behalf, to charge whatever the prevailing rate is for that air time.

Should a candidate purchase time outside the protected 45 and 60-day periods a station may not charge a candidate any more than would be charged for “the comparable use” of such time by other advertisers. This prevents a station from charging one price to a retail advertiser versus another higher price to an occasional political purchase.

A station is obligated under Commission rules to provide “full disclosure” to a political candidate of the various rates and options available to them. Many stations publish rate cards which set out a variety of advertising availabilities by day and program. Since these are often subject to change, including pricing changes based on the delivery of audience, full disclosure can often be extremely burdensome. However the failure to “fully disclose” all rates and options may result in substantial fines.

The “equal time” obligations imposed on broadcasters is not limited to paid appearances. Instead, if a candidate should make a guest appearance on a morning variety show, his or her opponent has a right to request equal coverage. The “equal time” aspects of the political broadcast rules are further complicated by the various “exemptions” available to candidate appearances on certain programs. For instance, the appearance of a candidate on a “bona fide newscast” or news interview does not trigger equal time obligations. And certain talk shows which are syndicated may also be exempt. However, exemptions on major or syndicated talk shows are done an a case-by-case basis.

A station is forbidden by federal law to censor the content or comment of a candidate appearing in a political spot or program. This exemption is absolute and thus in theory allows a candidate to make libelous or obscene statements. Fortunately the law recognizes that a station does not have liability for the defamatory or libelous remarks of the candidate. Nonetheless the problem is often created in the mind of the public that a station is responsible for the remarks of a candidate.

The FCC’s sponsorship identification rules as well as the rules of the Federal Election Commission require that all paid-for political announcements carry certain precise sponsorship identification taglines. These rules even go so far as to specify the size of the letters which appear in a television screen involving a broadcast ad.

Broadcasters are also obligated to maintain a political file which must contain all requests for political time, their disposition, schedule of times provided or purchased, rates charged, the dates aired, etc. The rules require that this information be placed in that file immediately after being received. The FCC takes the position that it is important to candidates to have timely access in order to exercise whatever equal time rights they have. During the heat of a hotly contested political campaign involving multiple candidates, this can impose a significant burden upon a broadcast station.

Political broadcasting takes other guises than political spot ads. This includes political debates sponsored by broadcasters which attempt to put all competing parties on the same platform. If a broadcast station sponsors such a debate, it is exempt from equal time opportunities provided the debate has “genuine news value;” does not allow any candidate to control the format or content of the debate; and does not attempt to advance the candidacy of one candidate over another. In these instances, a station is entitled to invite only the major candidates for a particular office and may disregard minor candidates if the station determines the minor candidate is “not significant.” Moreover, the failure to invite a minor candidate to a political debate does not create any separate “equal time” rights for the minor candidate.

Determining just who is a “legally qualified candidate” is not a simple task. Certain rules have been established in an attempt to define who qualifies. Briefly, they require that the candidate must publicly announce his or her intention to run and be qualified under the applicable law to hold that office. Candidates for presidency or vice presidency of the United States are national candidates and as such must qualify as a candidate in at least ten states. An “opposing candidate” is a person legally qualified for the same office as the legally qualified candidate. Interestingly, candidates for a party’s nomination are not considered to be opponents of candidates seeking other party’s nomination. For instance, when Bill Clinton sought the Democratic nomination in 1992 and ran against seven other Democratic hopefuls, he was not considered an opponent of George Bush during the primary phase of the campaign. This ruling holds despite the fact that the candidate during the primary could be directing his or her remarks and challenging the other party’s candidates in their respective primaries.

(2) Obscene and Indecent Programming: “Indecent” programming is that which is “patently offensive as measured by contemporary community standards for the broadcast medium and describes sexual or excretory activities and organs”. On the other hand, program material is “obscene” if “the average person, applying contemporary community standards, would find that the material appeals to the prurient interest; that the material describes or depicts sexual conduct in a patently offensive manner; or taken as whole, the material lacks serious literary, artistic, political or scientific value”. Perhaps the most distinguishing feature between obscene and indecent programs is that stations are barred from carrying any obscene programs.

Not so with indecent material. As a result of the famous George Carlin broadcast of the “seven dirty words” which were determined to be indecent, the Commission adopted a rule that such indecent programming could air but only when the number of the children in the audience was reduced to a minimum, suggesting late evening hours. The Commission vigorously polices “indecent” programming and has levied fines in excess of $100,000 when it has found a station to have carried such programming. Primarily these fines have been levied against “shock jock” hosts who go through great lengths to explore sexual and excretory activities on the air.

(3) Lotteries: The broadcast of any information regarding a “lottery” is tightly regulated under federal statute and FCC rules. “Lottery” is defined as a contest or promotion involving the awarding of a (1) “prize;” (2) based on “chance” selection; and (3) for which a participant must pay “consideration.” All three elements must be present or otherwise the activity is not a lottery under federal law and under most state laws. A prize is anything of value offered in the contest. Chance is present if the award of the prize depends in whole or in part upon chance rather than skill or some other factor within a contestant’s control. (Fishing contests are expressly exempted from the federal lottery statutes.) The final element is “consideration” which usually presents the greatest difficulty in interpreting the lottery statutes and rules.

Consideration not only involves items of value but can be found if the participant has to exert substantial time and energy in order to participate. Consideration is also subject to varying interpretations, depending upon whether federal or state law is applied. Some states hold that requiring the presence of a participant at a drawing is sufficient to constitute “consideration” even though the participant has done nothing more than register for a drawing. Oregon requires that for consideration to exist, a participant is required to provide some consideration of minimal value. Exerting a modest amount of personal time to participate does not meet that requirement.

Consideration presents other problems because a participant need not pay money to participate in a lottery if he or she is otherwise required to make a purchase to participate. Thus a person purchasing a new car may have a further right to participate with other new car buyers in a drawing for a new television set. The fact that the participant paid full value for one item in order to participate in a promotion at no extra cost is still deemed to be “consideration.”

(a) State Conducted Lotteries and State Authorized Lotteries — The federal lottery laws, particularly those affecting broadcasting, were greatly relaxed in 1990. As of that date broadcasters were permitted to advertise lotteries authorized or not otherwise prohibited by state if the lottery was conducted on behalf of (1) a not-for-profit organization; (2) governmental organization; or (3) commercial entities, where clearly the lottery was occasional and ancillary to the primary business of the commercial organization. However, this change in the law did not give broadcasters carte blanche to air ads regarding lotteries. Instead there was a further requirement that the lottery be authorized by the state in which the station was located. Clearly state conducted lotteries can be advertised over radio and television.

Charitable organizations are also permitted to air information regarding their lotteries provided they obtained appropriate authorization or permits from the state government. Occasional commercial lotteries have not benefited very much under the new federal rules because most states, including Oregon, prohibit those lotteries.

(b) Indian Gaming — Another form of gaming or lottery activity which is permitted to be advertised over broadcast facilities is Indian gaming. There are restrictions on Indian gaming ads as the rules require that the gaming and lotteries be conducted on Indian land; that they be operated by the Tribe; that the Indian gaming is permitted under state law where conducted; the state has entered into a “compact” to permit the games where participants “play against the house” instead of each other, e.g. slot machines, blackjack, etc.

(4) Contests and Promotions: The FCC has adopted a rule which prohibits the broadcasting of “false information concerning a crime or catastrophe,” if a station knows that the information is false or it is foreseeable that the broadcast will cause “substantial public harm” and such broadcast does in fact cause such harm to occur. Instances where broadcasts have announced that radio stations had been seized by Indians or that a volcano had erupted, or that the country was under nuclear attack, have been deemed the kind of catastrophe which will cause “substantial public harm.” However, stations can engage in creative programming and will not be presumed to propose foreseeable harm if a disclaimer “clearly characterizes the program as fiction” and is presented in a reasonable manner under the circumstances. At the heart of this rule is the goal of avoiding such public hysteria as resulted from the famous Orson Wells’ broadcast of the Martian invasion in 1938. The FCC has stated that the rule is only intended to prevent false reports of crimes and catastrophes and was not intended to prevent “harmless pranks.”

(5) Children’s Programming on Television: Under congressional legislation adopted in 1990, television stations are obligated to air at least three hours a week of programming specifically meant to serve the “educational informational needs of children” between 7:00 a.m. and 10:00 p.m. The failure to air this minimum amount of programming has cost television stations dearly with major fines ranging as much as $150,000.

In addition to airing the programming, television stations must file in their public inspection files on a quarterly basis a report showing their efforts during the previous three months and their proposed efforts for the succeeding quarter to serve the educational and information needs of the children. Furthermore, television stations must publicize the existing and locations of the reports and file them on an annual basis with the FCC.

In addition to minimum requirements television stations are also limited in the amount of commercial matter which may appear in a children’s program. The current limits are that no more than 10_ minutes of commercial time may appear on weekend programs designed for children and no more than 12 minutes during the weekdays. These limits apply to those programs designed for an audience of 12 years old and under.

(6) Recorded Telephone Conversations: Both radio and television stations today engage in active news coverage. A regular feature of news coverage is the recordation of telephone conversations. The recordation of telephone conversations brings at least three separate sets of laws into play: the FCC rules, state laws, and the federal criminal code. Federal law allows the recordation of a telephone conversation if only one party has given consent. Thus a newspaper reporter initiating a call to a third party can record that conversation without seeking the recipient’s consent. However, if a broadcast station records such a conversation, that does not entitle the station to rebroadcast that conversation over the air as part of its programming. Instead, the FCC rules require that “all parties” must consent prior to the beginning of the conversation. It is a violation of the rule to air a recorded conversation if prior consent has not been obtained, even though the party may later consent to the airing of that conversation. Finally, state laws often require that both parties consent to a conversation before it can be recorded.

Thus, even before considering airing a recorded conversation as part of a radio or television program, the broadcaster’s first concern is to make sure that all parties consented to the conversation before recordation. The problems with recorded conversations most often surface with morning talk shows where hosts will make random calls to members of the public. Unless that person has been forewarned and has consented to the call, the conversation cannot be recorded or broadcast.

Another area where the unauthorized use of communications arises is in the “intercept” of information transmitted over a discrete frequency. For instance, if newsroom personnel monitor a police channel for the purpose of securing information on accidents or crimes and then utilize that information as part of a news report, the broadcaster is exposed to both civil and criminal penalties for an unlawful intercept. While a news organization may listen to such transmissions, they may not divulge the content of those transmissions.

Competition for being first with the news in broadcasting can be intense. However, the fact that one station attains a news story and airs it does not permit a competing station to rebroadcast that programming without first obtaining the written consent of the originating station. The FCC rules require that copies of written consents for such rebroadcasts be available at the station. The key is the consent of the originating station and not that of the FCC.

(7) Prohibited Advertising on Broadcast Stations:

Hard Liquor Advertising— In addition to the limits on the amount of commercial material which may appear in children’s programs, there are other areas of content-based commercial matter which are heavily regulated. These include the advertising of alcoholic of beverages and the ban on advertising tobacco products.

While there is no federal prohibition against the advertisement of alcoholic beverages by broadcasters, many states do in fact prohibit the advertisement of alcohol other than beer and wine. Oregon bars the advertising of hard liquor ads on any broadcast medium.

Tobacco Products— Congress has banned the advertising of cigarettes and little cigars over broadcast facilities. In 1986 Congress also banned the advertising of smokeless tobacco products such as chewing tobacco and snuff. The law does not bar the broadcast advertising of pipe tobacco or cigars provided the cigar is not a “little cigar.” Although not addressed it is generally understood that a station may carry advertising for cigarette papers

Fireworks— Under Oregon law, the broadcast of any advertisement for the sale of fireworks, the use or possession of which is “unlawful” in Oregon, is prohibited. Generic ads for fireworks which do not mention specific items prohibited, are probably permissible. Broadcast stations must be careful though because of the dual state-local approached to fireworks regulation which exists in Oregon. Thus a particular fireworks may be permissible under state law but prohibited under county or municipal ordinance. Under those circumstances the ad would be prohibited.

Share]]>


Related posts:

  1. Media Guide Handbook on Oregon Law and Court System

Chapter 11: The Federal Freedom of Information Act (FOIA), The Federal Privacy Act, Oregon Public Records Law

The Freedom of Information Act (FOIA), 5 USC 552 (1988), and the Privacy Act, 5 USC 552a, are the two general federal statutes governing access to government data. There are many other specialized statutes (like the Internal Revenue Code at Title 26 USC) which govern specific areas and types of records. The law in this area is dynamic and complex. This summary touches only upon some of the main principles of interest to those, like the press, seeking access to government data.

The Freedom of Information Act

Published Data:

The easiest federal data to access is the mountain of officially published data. Five types of public data access are provided for officially published data.

  1. Agency Reading Rooms or libraries open to the public: These are generally found in the Washington, DC, area. The biggest and best is the Library of Congress. The National Archives also maintain public reading rooms. Their nearest branch office is in the Seattle, Washington area at the Federal Records Center in Auburn, Wash. Some of these federal libraries are available via computer data links or other services, such as certain data of the Securities and Exchange Commission and of the Patent Office. Individual agencies have to be contacted for information on these services, as well as some general federal data services found in the Washington, DC area and elsewhere in the country.
  2. Federal Depository Libraries: Across the Nation, many larger libraries have signed contracts to act as federal depository libraries, receiving free federal publications in exchange for agreeing to make them available to the public. In the Portland area, the Portland State University Library is the handiest federal depository library.
  3. The Government Printing Office bookstores: Portland has one in the downtown area around 1st and Jefferson. These stores stock and sell popular and topical federal publications on a wide range of subjects.
  4. Government Contract Publishers: Congress and the federal courts, both of whom are exempt from the FOIA, have chosen to make some federal records available only from private publishers at relatively high prices. The worst examples of this are those federal courts who publish their decisions exclusively through private publishers.
  5. Mailing lists: Most federal agencies maintain mailing lists for specific types of data, some of which are free and some of which require paid subscriptions. If one is interested in a particular area and a particular agency, it is always worth checking to see if and how one might get on a particular mailing list. Some of the above data is required to be made available under the FOIA and some is made available under other statutes or regulations.

Non-Published Federal Records:

The most commonly sought records under the FOIA are the non-published records maintained by federal agencies. A requester must know two things: What one is looking for, and who has it.

Agencies are not required to create or compile records. Moreover agencies generally charge for both the search time and the copying cost. (Members of the press are entitled to reduced costs in non-commercial situations.) Thus the more a requester knows about what one is looking for and where it is, the cheaper the request will be. Agencies are not required to look for records that are not defined with reasonable specificity.

Requesting Data Under the FOIA:

  1. Call the agency you think has information of interest to you and inquire generally about the following:
    1. WHO (name, office address, office phone number) is the official agency FOIA contact point;
    2. WHO (same data again) at the agency might be able to tell you something about agency records you may be interested in; and
    3. WHERE one can find and read a copy of the agency’s FOIA regulations, since any appeal of FOIA matters must be based on compliance with agency FOIA regulations to avoid being rejected in court for failure to “exhaust administrative remedies,” i.e. follow agency appeal procedures.
  2. Contact the official contact or other referenced official and just ask for general information about what types of records they might have that meet one’s needs, and how and where one might inspect, copy, or get copies of the records.
  3. Before filing an official written FOIA request, discuss the request with the persons who will have to answer it. While some persons may be uncooperative, generally FOIA officials will try to help focus the request to something available readily (reduce search costs), something relatively small in size (reduce copying costs), and something releasable without additional agency review (avoid disputes over exempt materials).

These practical rules can in most cases allow the requester to obtain a minimum number of pages, focused on one’s need, with a small or no fee (fees are waived below certain dollar amounts).

Even if a request does involve disputes and appeals over releasability or involve huge numbers of documents, prior coordination with agency FOIA officials will still speed the processing of the request and keep costs to a minimum.

Vaughn Indices and Disputes and Appeals Over Exemptions:

The usual procedure when FOIA requests are pursued on exempt documents which the agency opposes releasing is to create an index of the documents (known as a Vaughn index) and to prepare two copies of the documents, one copy which is identical to the original and another copy which has the exempt materials blacked out or whited out or otherwise removed. This excised copy represents what the agency will turn over without dispute, upon prepayment of the appropriate fees. The copies are then forwarded through agency channels to the senior officials with authority to make final agency FOIA decisions. What happens next depends upon the agency and the current policy. Agency and federal policy on what exempt materials are released without protest after review varies with each administrator and Presidential Administration.

Once the requester has a final agency denial (which occurs after one or more layers of review), the matter can be pursued in US District Court if desired. Even in federal court, the Justice Department may decide to release something that the agency refused to release. At other times, for critical policy reasons, the government may fight the release all the way to the United States Supreme Court.

As a practical matter, it is advised to negotiate a release agreement at the lowest agency level possible. Both significant time and cost can be saved by doing so.

Exemptions to FOIA:

The nine statutory exemptions are the most complex part of the FOIA, because they include a rainbow range of policies and concerns. Some exemptions are purely discretionary. Some exemptions are based upon other federal law protecting data against release. Some exemptions are waived with minor impacts and inconvenience. Other exemptions protect the lives of federal informers and classified military and security operations personnel or the most sensitive of national secrets. Sometimes a requester can be given data under the FOIA and still be subject to federal criminal prosecution or civil action if the requester uses it or further discloses it.

Exemption Zero— Data Not Covered by the FOIA: Generally only records of the executive branch agencies are covered by the FOIA. Records of Congress, the President, the courts, state governments, municipal corporations (local governments), and private citizens are not covered by FOIA. Agency records generally include only those records properly part of the agency’s record system, established under federal law, and do not include personal notes of government officials that are not part of or required to be part of the official agency records.

Agencies do not have to create records, create compilations, or do anything more than search for and copy existing records.

Exemption One— National Security: Matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order. This exemption protects classified data and special sensitive data.

Exemption Two— Internal Personnel Rules and Agency Practices: Matters that are related solely to the internal personnel rules and practices of an agency. This exemption protects things like agency exams and tests.

Exemption Three— Special Statutory Exemptions: Matters that are specifically exempted from disclosure by statute (other than 552b of this title), provided such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of matters to be withheld. This exemption covers many types of data covered by other laws.

Exemption Four— Confidential Commercial, Financial, and Trade Secret Data: Matters that are trade secrets and commercial or financial information obtained from a person and privileged or confidential.

Exemption Five— Privileged Agency Memoranda: Matters that are inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency. Executive privilege, attorney-client privilege, and attorney work-product privilege documents are included here.

Exemption Six— Unwarranted Invasion of Personal Privacy Data: Matters that are personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This exemption is related to the Privacy Act and to generally recognized case-law privacy rights.

Exemption Seven— Law Enforcement Data: Matters that are records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.

Exemption Eight— Financial Institution Regulatory Data: Matters that are contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.

Exemption Nine— Geological Data: Matters that are geological and geophysical information and data, including maps concerning wells.

In processing FOIA requests, it is common that more than one exemption may apply to a document, in which case each exemption must be reviewed and claimed or waived by the agency. Since the latest published Justice Department FOIA Guide (September, 1993) runs to over 500 pages, it should be noted that this summary is extremely limited and general. The case law is a constant tug-of-war between release and publication and non-release and secrecy.

Pre-Notification Procedures for Exemption Four: The one major new development affecting private parties is President Reagan’s Executive Order that sets up pre-notification procedures for release of data covered by Exemption Four (Exec. Order 12,600, 3 CFR 235 (1988)). The effect of this order is to allow “reverse FOIA” suits to bar release of data to competitors.

Comparison of FOIA and Litigation Discovery Procedures: FOIA is a one-sided discovery mechanism against the Government, and gives the Government no comparable rights against other parties. FOIA is limited to official agency records and subject to the exclusions and exemptions provided by law. Discovery procedures are two-sided mechanisms that provide roughly equal rights to all parties and generally cover all available non-privileged information, regardless of its official or unofficial nature.

Time-wise, FOIA is available anytime, whereas discovery is limited to a specific time frame within formal litigation procedures.

Data-wise, the FOIA exemptions and exclusions are far broader than discovery procedures’ limits, absent the granting of special protective orders, which are often sought in litigation. FOIA provides for no protective orders, although misuse of certain data may subject a party to criminal prosecution or civil damages.

Cost-wise, FOIA can be far more expensive because, once invoked with its payment guarantee, a party can be deluged with copies of documents as well as very large search-time bills. In discovery parties can generally only charge for the copies, not the search time.

Purpose-wise, FOIA has no limitations, although commercial searches are subject to more challenges and greater costs. Discovery is limited by the scope of the litigation and civil and criminal procedural rules.

The Privacy Act

The Privacy Act has developed into a regulated release of information act. The Justice Department manual describes the act as giving individuals protection against disclosure, rights of access, and rights of correction. In addition the act provides for uniform fair information practices.

For those systems of records that it applies to, it prescribes publication of periodic listings of agencies’ system of records in the Federal Register, along with a description of routine uses. It also requires government agencies requesting information to provide a Privacy Act notice. In addition to the routine uses, the statute lists permitted government uses of the data, including matching programs to cross-check various government programs. One such matching use is the cross checking of tax refunds for other debts and child support payment debts.

The statute also provides for review and correction of records by the persons whose names or other personal identifiers are used to index the records. The statute was also amended to provide for agency record integrity boards and procedures.

Exemptions and Exceptions:

There are important exceptions and exemptions to the act. Besides criminal investigatory and personnel use exceptions, the most important exclusion to the act is that it applies ONLY to SYSTEMS of records in which the indexing system is by personal name or identifier. It has NO APPLICATION to record systems in which other, non-personal-name or identification numbers are used to index the files.

The reason for this exclusion is the fact that, if a system of files is not indexed by personal names, theoretically no one, government or otherwise, can readily access data by name or personal identifier. This is true for paper files, but not necessarily true for electronic files subject to electronic word searches.

The practical impact of this exclusion is that there are a lot of places where personal data may be recorded in government files and records not covered by the act.

Routine Destruction of Records:

Most government records are routinely destroyed, with only a small number of determined historical interest preserved. Each agency is required to establish as part of its record management program a routine destruction schedule.

The usual procedure for most government records of no lasting value is to keep the records in an active file somewhere, while in use; then to retire them for a while to archive storage; then to destroy them a set number of years after placing them in archive storage. The time periods vary with the type of record and use. Most accounting data is disposed of within a year or two simply because the huge volume of intermediary records and checks and balances are not required to be saved. Government contract files are routinely destroyed about three or four years after a contract is closed. Even litigation files usually are destroyed around 10 years after the close of the litigation, once all applicable statutes of limitations have expired.

Unofficial Records: Private notes and copies of documents kept by government employees solely for their personal use and not required to be kept as official records and not actually kept as official records are NOT covered by the FOIA or the Privacy Act.

Electronic Records:

The official copies of electronic records and systems of records are subject to the same rules as official paper records and systems of records.

However the nature of computer systems and electronic records is such that E-Mail and other systems tend to create a lot of extra unofficial copies in readable and unreadable electronic media. The rapidity of change in both software and hardware, as well as in communication systems, has precluded the same level of control and management of electronic records as paper records, largely because of the automatic backup features of many software systems. Destruction of these records is also complicated by the various types of delete file commands and file restoration programs.

Data security is also more of a challenge with electronic data, as a number of well publicized incidents have demonstrated.

It should be recognized as a practical reality that the challenges of new technology will always be a step ahead of laws and regulations, and that no amount of law and regulation can make a perfect federal information system.

For More Information:

Each agency has designated FOIA, Privacy Act, computer systems, and records management officials. These persons should be contacted for more information about a given area as it applies to a particular agency. These persons are usually known to the agency’s lawyers or are agency lawyers themselves.

The Public Records and Oregon’s Law

“The laws of our country have given us a right — the liberty — both ofexposing and opposing arbitrary power … by speaking and writing the truth.” Andrew Hamilton, defending John Peter Zenger

Public records document practically every human activity. They follow us from birth to death, from school graduation to retirement. They shadow our movements in daily living, in business, in politics, in ordinary and extraordinary changes in our lives.

They give detail. They allow news reporters to replace mushy generalities with specific facts. Members of the public can rely on documents to get an accurate picture of human interactions

Oregon’s Public Records Law: In 1973, Oregon adopted one of the nation’s most sweeping public records laws, making virtually every document in government files open to public inspection. The fundamental philosophy of Oregon’s Public Records Law, ORS 192.410 to 192.505, is that every government document is open to public view unless it is specifically exempted by the Records Law or another law.

Over the years since 1973, the Legislature has adopted hundreds ofexemptions to the public records law’s openness, but many records are still available.

Sources of Public Record Information: Oregon Attorney General’s Public Records and Meetings Manual — The most useful source of information on Oregon’s public records law is contained in the Oregon Attorney General’s Public Records and Meetings Manual, which is updated every two years after the biennial legislative session.

It is an inexpensive book — about $15 — and it contains guidance about the law and how to use it. Being an official “Attorney General’s Opinion,” the manual offers clear and persuasive instruction on the methods of obtaining public records as well as appealing a denial of one’s request to inspect public records. The book is so comprehensive that there is no reason to repeat its contents in this manual. The Attorney General’s Manual is available directly through the Attorney General’s office or through various state bookstores.

The World Wide Web — In addition, the World Wide Web has become a useful source of information on how to obtain public records, as well as obtaining the records themselves. For example, it is possible to get full-text copies of Oregon laws through the Web by connecting to http://gopher.leg.state.or.us/.

“Open Oregon, a Freedom of Information Coalition,” a new organization, has begun helping Oregon citizens obtain public information. Open Oregon has a Web site, www.open-oregon.com, to which Web browsers can connect.

Tips on using the Public Records Law:

  • If the record you are seeking is being held by a government agency, you can assume that it is a public record, unless it is specifically exempted by state law.
  • You should make a request to the custodian of that record to inspect or copy it.
  • If the custodian says the record is exempt from disclosure, you should ask the custodian to cite the exact statutory provision that exempts the record from disclosure.
  • If you disagree with the custodian about the exemption, you have the right under the law to seek a ruling from the Attorney General (for state records) or from the local District Attorney (for city and county records).
  • The Attorney General’s manual provides a form for any petition for are view of a disclosure denial.

If you are denied access to a public record by an elected official, your only recourse is to seek redress in court, since the Attorney General and a District Attorney don’t have the authority to rule on elected officials’ actions.

Chapter 12: Defamation

The importance of a free press is enshrined in the First Amendment to the United States Constitution, which provides that “Congress shall make no law… abridging the freedom of… the press.” The Oregon constitution, however, does not specifically mention a “free press,” but instead provides:

No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right. (Oregon Constitution, Article I, section 10)

That provision exists in tension with Article I, section 10 of the Oregon constitution, which provides that “every man shall have remedy by due course of law for injury done to him in his… reputation.” There is an obvious tension between the right to speak freely and the right to seek redress from injuries caused by that speech. This chapter will explore the aspects of defamation law that are most relevant to media entities.

What is Defamation?

“Defamation” is the term that has essentially subsumed the older terms of libel, which concerns written or printed defamatory statements, and slander, which concerns spoken defamatory statements. Although the law may sometimes still use the older terms, there is really no substantive difference between the two: both amount to defamation. Defamatory statements can be written, oral, broadcast, or pictorialized.

A plaintiff who sues for defamation must generally prove three things: (1) that a defamatory statement was made or communicated; (2) that the defamatory statement was published, and (3) that the defamatory statement caused the plaintiff to suffer damages.

Oregon courts have set forth the following definition of a defamatory statement:

A defamatory communication is one which would subject a person to hatred, contempt or ridicule, or tend to diminish the esteem, respect, goodwill or confidence in which one is held or to excite adverse, derogatory, or unpleasant feelings or opinions against one.

Newton v. Family Federal Savings and Loan Association, 48 Or App 373, 376, 616 P2d 1213 (1980). A person who is not directly named in the defamatory statement may still bring suit if he or she can prove that persons hearing the remarks would understand them to refer to the plaintiff.

Several types of statements are considered defamatory per se; in other words, the mere utterance of the statement is sufficient to defame someone. Historic examples of statements that are defamatory per se include statements that impute an inability or unfitness to perform the duties of one’s employment, accusations that one has committed a crime, or assertions of unchastity in a woman, or of having a “loathsome disease.” When a statement is defamatory per se, the plaintiff is not required to prove that he or she was damaged by the publication of the statement.

At the other end of the spectrum are statements that are not defamatory as a matter of law. Opinions — defined as statements that cannot reasonably be interpreted as stating actual facts — are protected by the United States and Oregon constitutions and are therefore not defamatory. Nevertheless, when an “opinion” implies the existence of undisclosed defamatory facts, it is actionable as a defamatory statement. Statements that are not defamatory per se nor capable of a defamatory meaning are considered reasonably capable of a defamatory meaning and are almost always resolved by the jury.

The second element a plaintiff must prove is that the defamatory statement was “published.” Publication means merely that the statement was disseminated or reproduced to another person. In the case of a broadcaster, newspaper, or other publisher, the publication will be obvious.

Finally, the plaintiff must show that he or she suffered damages as a result of the publication of the defamatory statement. Although this chapter will discuss in greater detail the types of damages for which a media defendant might be liable, it is worth reiterating here that statements which are considered defamatory per se are presumed to cause damage to a person’s reputation.

Oregon’s Retraction Statute:

Truth is an absolute defense to an action for defamation; if the statement is true, a media defendant cannot be liable for publishing it. The Oregon legislature, however, has provided another way for a media defendant to attempt to insulate itself from some of the damages that might result from a defamatory statement. Oregon’s Retraction Statute, ORS 30.150-30.175, provides that a plaintiff may not recover so-called general damages (damages which are not measurable by proof of a specific monetary loss. In the context of defamation, general damages are designed to compensate the plaintiff for the harm to reputation -a harm which is not measurable in a money loss.) unless a correction or retraction is demanded but not published. Otherwise, the only way a plaintiff might recover general damages is if he or she can prove that the media defendant actually intended to defame him or her — a very high standard to meet. Even in that situation, the publication of a correction or retraction may be considered to mitigate the plaintiff’s damages.

The retraction procedure allows an allegedly defamed person or his or her attorney to make a written demand for correction or retraction that must be delivered to the publisher of the statement — either personally, by registered mail, or by certified mail, return receipt requested — at the publisher’s place of business or residence within 20 days after the defamed person first becomes aware of the defamatory statement. The demand for retraction must specify which statements are false and defamatory and request that they be corrected or retracted. In addition, the demand may refer to the sources from which the true facts may be accurately ascertained. The publisher then has two weeks after receiving the demand for retraction to investigate the demand and determine whether to publish a correction or retraction. The retraction must appear in the first issue published, or first broadcast made, after the expiration of the two-week deadline. The content of the retraction should substantially state that the defamatory statements previously made are not factually supported, and that the publisher regrets their original publication. Finally, the correction or retraction must be published in substantially as conspicuous manner as was the defamatory statement. In other words, a retraction regarding an article that appeared in the front page of a newspaper should not run in the classifieds section.

Publishers and broadcasters would generally be wise to consider publishing corrections or retractions, even when the demand suffers from a procedural defect, because the retraction statute provides a relatively cost-free method of eliminating a potential plaintiff’s claim for general damages.

Oregon courts have held that the retraction statute does not violate the Oregon constitution and that it applies only to publishers and broadcasters, and not to individual defendants whose statements happened to be published or broadcast.

In a case entitled Schenck v. Oregon Television, Inc., the Oregon Court of Appeals recently decided that each time an allegedly defamatory statement is republished, the defamed person is allowed a two-week opportunity to demand retraction. In the Schenck case, a television station broadcast a news report in October 1993 that contained an allegedly defamatory statement about the plaintiff. In March of 1994, the same report was re-broadcast. Although he was aware of the October 1993 broadcast, the plaintiff did not demand a retraction until April 11, 1994, within 20 days after the March 1994 broadcast. The Court of Appeals held that the plaintiff’s demand for retraction was not untimely — notwithstanding the fact that he had actual knowledge of the defamatory statement five months earlier — because “each publication is a discrete tort.”

Privileges:

A media defendant might also be protected by the common law’s doctrine regarding privileges. A privilege is a right to make a statement, even if that statement is defamatory. Privileges fall into two categories: absolute and qualified.

An absolute privilege protects the speaker or publisher from any liability for defamation; the privilege is also referred to as “absolute immunity” because the speaker is immunized from liability. The doctrine of absolute privilege arose from the theory that there are certain circumstances in which the ability to speak freely — usually in the context of governmental functions — is so important that it outweighs the interest that an individual has in his or her reputation. Absolute privileges attach to statements made in the course of or incident to judicial proceedings, including statements made by witnesses and parties. An absolute privilege also attaches to statements made during quasi-judicial proceedings, such as proceedings before administrative boards, commissions, and disbarment actions. Statements made as part of a legislator’s duties are also absolutely privileged, although it should be noted that statements made by a legislator to the press outside the actual legislative meeting place and not during the legislative process are not absolutely privileged. Finally, an absolute privilege attaches to publications that are consented to (if the defamed person had reason to know that the published statement might be defamatory) and to statements that are made to carry out a statutory requirement.

Unlike an absolute privilege, a qualified privilege does not bar a defamation claim. Instead, it protects the speaker or publisher from liability unless the plaintiff proves that the speaker had “actual malice”— a term that will be explained in greater detail in the next section — when making the statement. Qualified privileges attach to statements that are either (1) made to protect the defendant’s interest, (2) made to protect the interests of the plaintiff’s employer, or (3) on a subject of mutual concern to the defendant and the person to whom the statement is made. For example, a former employer has a qualified privilege to make defamatory communications about the character or conduct of his or her employees to present or prospective employers. Other examples of statements that are subject to qualified privileges are the fair and impartial reports of judicial proceedings and “fair comment and criticism,” which permits commentary on matters related to government, public employment, or political campaigns.

Media Standards in Defamation Lawsuits:

Historically, liability for defamation could be imposed without fault. In other words, regardless of the speaker’s motive, or even his or her knowledge of whether a statement was false, if the statement was defamatory then the defendant was liable. That analysis was changed in 1964 by the landmark case New York Times Co. v. Sullivan. In that case, the United States Supreme Court ruled that the First Amendment protected media defendants from strict liability for defamation when matters of public interest or concern were being discussed. The Court established the rule that when the defamation plaintiff is a “public official” or a “public figure,” the First Amendment shields a media defendant from liability for the publication of a defamatory statement unless it was published with “actual malice” — that is, knowledge that the statement was false or reckless disregard as to whether it was true. Those two inquiries: whether a plaintiff is a public figure and whether the defendant acted with actual malice are the critical matters at the heart of every defamation suit against a media defendant.

Public Figure Plaintiffs:

A media defendant can invoke the New York Times rule if the plaintiff is either a “public official” or a “public figure.” A government employee is a public official if (1) he or she has, or appears to have, substantial responsibility for or control over the conduct of governmental affairs, or (2) occupies a position in government that has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it.

Public officials will obviously be limited to persons employed by the government. However, because most plaintiffs will not be government employees, the critical question in most defamation lawsuits is usually whether a plaintiff is a public figure. Media defendants who can establish that the plaintiff is a public figure will have the benefit of the “actual malice” standard, which provides virtually bulletproof protection against defamation plaintiffs.

According to the United States Supreme Court, a person is a “public figure” if he or she achieves such fame or notoriety that he or she becomes a public figure in all contexts, i.e., becomes a household name. The more common public figure is a person who “voluntarily injects himself or is drawn into a particular public controversy” and is therefore considered a public figure for a limited range of issues. However, the controversy into which the plaintiff injects himself must pre-exist the defamatory publication; a person does not gain notoriety as a public figure simply as a result of the alleged defamation itself. In addition, the mere fact that events surrounding a private individual attract public and media attention does not transform that person into a public figure. Nor does a corporation become a public figure simply by opening its doors to the public, offering stock for sale, or advertising.

What is “Actual Malice?”

If the court determines that the plaintiff is a public official or a public figure, then the media defendant can be found liable for defamation only if the plaintiff proves that the defendant acted with actual malice. As already described, a media entity acts with “actual malice” if it publishes a defamatory statement either actually knowing that the statement is false or with “reckless disregard” as to its truth. But what does “actual malice” mean in practical terms? It means that the plaintiff must demonstrate subjective knowledge on the part of the media defendant that the defendant knew that a statement was false or that it in fact “entertained serious doubts as to the truth of [its] publication.” McNabb v. Oregonian Publishing Co., 69 Or App 136, 140, 685 P2d 458 (1984) (quoting St. Amant v. Thompson, 390 US 727, 731, 88 S Ct 1323, 20 L Ed 2d 262 (1968)). Allegations that the defendant relied on statements from a single source, or failed to verify statements received from an adequate news source, or performed slipshod investigation have all been rejected as bases for inferring actual malice. Nor may malice be inferred from the fact that the accusations are of a serious nature, or that a published statement was not “hot news,” which might otherwise justify shoddy investigation. However, actual malice could be inferred from facts indicating that the defendant possessed information contradictory to what was published or that the defendant had serious doubts as to the trustworthiness of the source of its information.

In short, actual malice is not measured by what a reasonably prudent publisher would have published, or should have investigated before publishing. Rather, actual malice concerns only the subjective state of mind of the defendant at the time of the publication. Further, the plaintiff must establish by clear and convincing evidence that the media publisher acted with actual malice. That is a higher standard of proof than the typical “preponderance of the evidence” standard prevalent in most civil lawsuits.

Private Figure Plaintiffs:

If the court determines that the plaintiff is not a public figure but instead simply a private individual, then the actual malice standard does not apply. A private individual need only prove that the defendant acted with ordinary negligence in publishing a defamatory statement. In a case titled Bank of Oregon v. Independent News, Inc., the Oregon Supreme Court held that when private figure plaintiffs are involved, media defendants are held to the same standard to which an individual defendant would be held. The Court also noted that the Oregon Constitution does not require that media defendants are treated differently than any other defendant would be in a defamation action.

The implications of Bank of Oregon are clear: when private individuals are involved, media defendants are held to a much higher standard and can more easily be held liable for defamation.

Damages:

Assuming that the jury has found liability, what kinds of damages can be assessed against a media defendant? A defamation plaintiff may recover only compensatory damages against a media defendant — that is, damages that compensate him or her for the harm done to reputation. Remember, if the statement is one that is defamatory per se, the plaintiff does not need to prove any special damage. In such a case, the plaintiff is entitled to recover general damages, which include harm to reputation, without evidence of the harm incurred. Even where the defamation is actionable per se, the plaintiff may recover “special damages” over and above general damages, if he or she pleads and proves that the defamatory statement was a substantial factor in causing that harm. Such special damage may include an inability to obtain employment. However, the Oregon Supreme Court has ruled that media defendants may not be held liable for any emotional distress, bodily harm, humiliation, or mental anguish that results from the publication of a defamatory statement. Wheeler v. Green, 286 Or 99, 124, 593 P2d 777 (1979). Finally, punitive damages are not allowed in actions for defamation.

Chapter 13: Ethics

In covering an arrest or trial, a reporter may often feel frustrated by what he or she sees as a lack of cooperation from law enforcement officials. In asking questions of officers of the court, the reporter should bear in mind that formal guidelines or professional codes may restrict the amount of information that can be divulged in a particular case. These guidelines include judicial canons, state bar disciplinary rules, state law and the Oregon Bar-Press-Broadcasters Joint Statement of Principles and its accompanying guidelines, included in Chapter 1 as Appendices A and B.

Police Agency Personnel:

While some police agencies have public information officers who can be quite helpful, many reporters feel they are being kept from the best source of information. A reporter frustrated by this channel can lodge a grievance with the chief of police. In some police agencies, only certain people may be authorized to talk to the media.

A reporter who feels that the chief of police is being uncooperative can go to the chief’s superior, usually the mayor or city council. The head of the state police is the superintendent of the state police. In the case of an elected sheriff, there is no immediate superior.

Jurors: During the course of a trial, the members of the jury are instructed not to discuss the case, except when deliberating among themselves, until the case is concluded. Although there are no restrictions on jurors against talking to a reporter following a trial, they may choose not to.

State and federal grand jury proceedings are secret, even to the listing of jurors who serve on them. State grand jurors are sworn to secrecy for their term of duty while federal grand jurors are instructed to keep their official activities secret permanently. The only time the results of grand jury activities are released is through the return of an indictment or reports.

Attorneys:

Attorneys in Oregon are governed by a code of professional responsibility consisting of nine general canons of conduct, supported by specific requirements, known as disciplinary rules, and aspirational guidelines, called ethical considerations. The bar’s current code was developed by the American Bar Association to serve as a model of ethical standards for attorney conduct. The code was made binding on Oregon attorneys with its adoption by the Oregon Supreme Court in 1970. In 1983, the ABA approved a new code of professional conduct. That code has not yet been adopted by the state bar.

The State Supreme Court is responsible for establishing and enforcing the standards of ethical conduct for Oregon attorneys. The Court has original jurisdiction to hear disciplinary proceedings and is solely responsible for sanctioning attorney misconduct. Under the Court’s statutory authority and rules of procedure, the Oregon State Bar conducts investigations into allegations of unethical conduct by attorneys.

Because of a Supreme Court decision in 1976, disciplinary files of the state bar are available to the public under Oregon’s public records law. Any public record retained or prepared by the bar pertaining to the professional conduct of any member of the bar is available for public inspection, unless otherwise exempt under the public records law.

The disciplinary rules regarding attorneys cover all areas of practice, including advertising guidelines and trial publicity. The disciplinary rule which limits extra-judicial statements an attorney may make regarding a case in which he or she is involved is DR 7-107.

The types of information allowable under that rule in a criminal matter include: information contained in public records; the fact that an investigation is in progress; the general scope of the investigation; the identity of the victim of the crime; information on the arrest and investigation; a description of physical evidence seized at the time of arrest other than a confession, admission or statement; substance of the charge; scheduling or result of any step in the judicial proceedings; that the accused denies the charges made against him or her; and a warning to the public of any danger or a request for assistance.

Areas the attorney is not allowed to discuss include:

  • The character, reputation or prior criminal record of the accused (including arrests, indictments or other charges of crime);
  • The possibility of a plea of guilty to the offenses charged or to a lesser offense;
  • The existence or contents of any confession, admission or statement or the refusal or failure to make one;
  • The performance or results of any examination or tests or the refusal or failure of the accused to submit to them;
  • The identity, testimony or credibility of prospective witnesses.

During the course of the trial, attorneys and members of their law firm are forbidden to make extrajudicial comments that could affect the outcome of the trial.

In a civil case, an attorney may quote from public records but is forbidden to discuss: evidence regarding the occurrence or transaction involved; character, credibility or criminal record of a party or witnesses; performance or results of examinations or tests or the failure of a party to submit to tests; opinions as to the merits of claims or defenses of a party; or any other matter which may interfere with a fair trial.

These rules do not preclude an attorney from replying to charges of misconduct publicly made against him or her from participating in proceedings of the legislative, administrative, or other investigative bodies.

These rules are based on Ethical Opinion 7-33, which says: A goal of our legal system is that each party shall have his or her case, criminal or civil, adjudicated by an impartial tribunal. The attainment of this goal may be defeated by dissemination of news or comments which tend to influence judge or jury. Such news or comments may prevent prospective jurors from being impartial to the outset of the trial and may also interfere with the obligations of jurors to base their verdict solely upon the evidence admitted in the trial. The release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal. For these reasons, standards for permissible and prohibited conduct of a lawyer with respect to trial publicity have been established.

As an added protection for the public resulting from dishonest conduct by attorneys, the bar’s policy-making body, the board of governors, established a client security fund. The fund is maintained through annual payments from all active members of the Oregon bar. When a client suffers a loss due to criminal activity or dishonesty by an attorney (losses not protected by malpractice coverage), he or she may file a claim against the client security fund with the state bar. A bar committee is vested by statute with the discretionary power to determine if reimbursement to the client is appropriate. As a prerequisite to having a claim against the fund, the client must have obtained judgment against the attorney arising out of alleged dishonest conduct, or the attorney involved must have been criminally convicted for the offense causing the loss.

Those with complaints against their attorneys follow a procedure that begins with a written complaint, referred to the general counsel of the bar.

Complaints filed with the bar follow a procedure that involves a response from the attorney who is being complained about, investigation by volunteer attorney committees and, where appropriate, referral to the Supreme Court for disciplinary action.

Judges:

When an attorney becomes a judge, he or she remains subject to the ethics of the profession but also must follow to a separate ethical code and disciplinary procedures.

The code of judicial conduct was adopted by the Oregon Supreme Court. Seven canons in this code pertain to the integrity of the judiciary, avoidance of impropriety, impartial and diligent performance of duties, professional activities off the bench, extra-judicial activities, compensation for extra-judicial activities and political activities.

The code is the standard of ethics in this state for all judges, whether serving full— or part-time or if they are attorneys. In many respects it follows a code of judicial conduct adopted by the ABA.

The Oregon Judicial Conference was created by state law as the official professional organization of all appellate, tax and circuit court judges. It has a standing committee on judicial conduct which assists in judicial education and interprets the conduct code in light of inquiries received from judges.

The investigation of formal complaints and recommendations for discipline against judges, however, are in the hands of the Oregon Judicial Fitness Commission. Under the State Constitution, the commission’s investigations are confidential unless a judge under investigation requests a public hearing. From its recommendations, the Supreme Court may take official disciplinary action to censure the judge or remove or suspend him or her from office. The commission’s record becomes public at this point in the proceedings. The powers of the commission and the Supreme Court were broadened by vote of the people in 1976 and the grounds for discipline were extended to include general incompetence and willful violation of the rules of conduct established by the court.

The commission is comprised of three judges appointed by the Supreme Court, three attorneys appointed by the board of governors and three lay members appointed by the governor with the approval of the Oregon Senate. Each of the commissioners serves for a specified term. A chairperson is elected annually from the members of the commission and, historically, is always a lay member or attorney, not a judge.

The commission meets quarterly. Employees have offices at Northwestern College of Law at Lewis and Clark College, 10015 S.W. Terwilliger Blvd., Portland, OR, 97219.

The commission has no formal procedures by which it accepts complaints. It prefers that complaints be written and submitted to the Lewis and Clark office. Complaints should describe the situation as completely as possible, including who else was present or witnessed the incident.

General complaints that the judge was “unfair,” “biased” or “didn’t listen to the evidence” are not satisfactory since they give the commission no basis for action. The fact that the judge ruled on the issue in litigation contrary to the way in which the complainant would have liked to have the ruling is not grounds for action. The commission can do nothing about litigation; if a judge rules wrongly, only appellate or other trial courts can correct the misjudgment.

Types of actions for which a judge may be suspended, removed or censured by the Supreme Court include: conviction in a court in this or any other state of a crime punishable as a felony or involving moral turpitude; willful misconduct in a judicial office where the misconduct bears a demonstrable relationship to the effective performance of judicial duties; willful or persistent failure to perform judicial duties; general incompetent performance of judicial duties; willful violation of any rule of judicial conduct established by the Supreme Court; habitual drunkenness or illegal use of narcotic or dangerous drugs.

Federal Government Ethics Rules:

The U.S. Government has its own ethics laws and regulations. Generally in federal litigation, only the Justice Department will issue press releases if they are involved in a case. With regard to documents and other materials, release and publication will be based upon the Freedom of Information act and the Privacy Act, as well as rules applicable to court proceedings.

In addition there is a government-wide ethics code applicable to all federal employees (with some variations for Congress, federal judges, and senior political officials.) The Justice Department also publishes its own guidelines and regulations on how it interprets other parties’ rights under the attorney-client privilege with regard to official federal investigations.

The best source of information on federal agency activities is usually the agency’s own public affairs or press coordination office. The personnel who staff these offices either have or can get the information on a matter that can be publicly released and often will put the information on a ready-to-use press release form.

Chapter 14: Health Care Information: Oregon Code of Cooperation

The Code of Cooperation provides a set of guidelines for cooperation between Oregon healthcare providers and the news media. It is devised cooperatively to facilitate accurate, ethical, and timely news coverage of medical and other health-related events. This code balances the patient’s right to privacy and well-being with the public’s right to receive information.

In the code, all references to “hospital” or “hospitals” include individual facilities, health systems, clinics and provider organizations.

The Oregon Code of Cooperation is published by Oregon Association of Hospitals and Health Systems, with editorial contributions from member hospitals, Oregon Medical Association, Oregon Newspaper Publishers Association, and Oregon Association of Broadcasters. The code is a set of guidelines for healthcare news media relations, and should be adapted to the news media policies of individual facilities.

By agreeing with the code’s guidelines, the Oregon news media and healthcare providers acknowledge a shared responsibility to provide accurate public information and to assure patients and healthcare providers that the gathering and reporting of this information does not infringe upon patient privacy, professional medical ethics, or patient care.

In cooperation with the code, each healthcare facility will have a spokesperson available at all times to respond quickly and accurately to news media inquires. Physicians will be accessible to the news media, either directly or indirectly or through an authorized spokesperson, and will respect media deadlines to an extent consistent with patient privacy and well-being.

News media will seek information through designated spokespersons and will respect hospital regulations regarding entry into all areas of the facility, whether or not a patient has already agreed to be interviewed.

Guidelines for Hospitals and Other Healthcare Facilities:

The communications director or officers or designated staff members of Oregon Association of Hospitals and Health Systems (OAHHS) will help the news media get prompt and accurate information on health and hospital subjects.

Each facility will designate an authorized spokesperson who will be accessible to the news media at all times. A hospital spokesperson serves as the primary resource for the news media and assumes responsibility for coordinating exchange of information from and access to the hospital. When requested by a patient or a patient’s family, the hospital spokesperson will direct calls to the patient’s designated spokesperson.

Unless there are extraordinary circumstances, a written consent to release information should be obtained from the patient, a member of the patient’s family or the patient’s spokesperson.

All news media in the community served by the hospital should be informed of the hospital’s designated spokesperson(s). It is the hospital’s responsibility to keep this information current.

When a physician’s approval is necessary to release information, the hospital spokesperson will obtain it even if the reporter later speaks directly to the physician.

Before releasing an attending physician’s name, the hospital spokesperson must get the physician’s approval. However, the spokesperson may acknowledge that a patient is under the care of the hospital staff.

Hospital spokespersons and physicians should be aware that they probably will not be permitted to review or edit interviews before publication or broadcast. Although reporters and editors try to double check information whenever possible, each news organization determines what it will publish or air.

When a hospital invites the news media to cover a patient story, the hospital will provide reporters with requested follow-up information and access consistent with the guidelines in the code and according to the wishes of the patient and attending physician.

The hospital spokesperson is responsible for obtaining information about patients as rapidly as possible without interfering with the health, welfare, or privacy of patients. In compliance with ORS 192,525, 179.505, and other applicable state and federal laws, no information that violates the confidence, privacy, or legal rights of the patient should be given. (See sections on Psychiatric, Drug and Alcohol Abuse Cases, and Unusual Illnesses.)

Guidelines for Physicians:

The communications director or designated staff members of Oregon Medical Association (OMA) will be available to the news media to help get prompt and accurate information on health and medical subjects. If information is not immediately available to comply with news media deadlines, OMA will inform the news media and, depending on the nature of the request, either continue to gather the information for a later deadline, or refer the reporter to another competent authority as a resource.

Officers, committee chairpersons, or designated spokespersons of OMA are expected to agree to be quoted by name in matters of public interest for the purpose of authenticating medical information. An up-to-date list of OMA spokespersons should be maintained so that OMA can respond quickly to inquiries from the news media.

This policy is not to be construed by OMA members as a breach of the time-honored medical practice of avoiding personal publicity. It is intended only to serve the best interests of the public and the medical profession. To this end, physicians should be introduced only by those titles and credentials/affiliations that are relevant to the particular news-gathering situation.

County and regional medical societies in Oregon are urged to adopt a similar policy for their officers, committee chairpersons, and other designated representatives, and to maintain up-to-date lists of spokespersons for media contact.

In matters relating to the practice of medicine, physicians are encouraged to give information to the news media, as long as it does not jeopardize the physician-patient relationship or violate the confidentiality and privacy of the patient’s medical records or legal rights. The physician may choose, however, to provide information through a hospital or OMA spokesperson.

Notifying news media of an event implies that coverage will be welcome. Therefore, speakers at publicized medical meetings should expect to make themselves available to the news media on request, providing that their schedules and commitments to the sponsoring organization are not compromised.

Physicians are not authorized to participate in controversial public discussions as spokespersons for OMA without prior OMA approval.

Guidelines for News Media:

The first obligation of physicians and hospitals is to safeguard each patient’s life and health. Therefore, representatives of all news media are expected to cooperate by refraining from any action or demand that might jeopardize the patient’s health or interfere with orderly operation of the healthcare facility.

On all matters pertaining to hospitals and physicians in the community, representatives of the news media are expected to make every reasonable effort to obtain information from authorized sources before proceeding to publication or broadcast. The news media should not use the name of an attending physician without the physician’s consent.

In the case of legal charges against a physician, hospital, or clinic, the reporter is expected to make every effort to verify the charges and offer the accused an opportunity to reply before publication or broadcast.

When using a tape recorder, the reporter must advise the hospital spokesperson, patient, or physician prior to questioning, according to ORS 165.540.

Reporters and photographers are expected to obtain hospital permission and to abide by individual hospital rules regarding media access before entering a healthcare facility for interviews and/or photographs. Access will be arranged if the patient or patient’s guardian is willing and his or her condition permits. The hospital will assist by obtaining written consent from the patient or a responsible family member before videotaping, photographing, or interviewing is permitted.

When seeking information about a trauma patient, reporters will make every effort to obtain the patient’s full name and age from police, fire, or other public officials before calling the hospital for a condition report.

Access Restrictions:

Hospitals are bound by state and federal laws, and regulations (including Oregon Administrative Rules Chapter 333), and hospital policies that restrict public access to certain service areas and departments in hospital buildings. These sensitive areas include labor and delivery rooms, nursery, operating rooms, intensive care unit, cardiac care unit, emergency treatment rooms, infection control areas, and psychiatric facilities. In emergencies, access to other hospital areas that are normally available to the news media also may be restricted temporarily.

Advance notice of visits by reporters, video crews, or photographers will enable hospital staff to secure space clearance and make arrangements necessary to ensure that electronic equipment used by the news media will not impede patient care. In some areas of the hospital, news people may be required to wear special clothing and have their equipment disinfected or protected.

Release of Information to News Media:

All news media inquiries should be directed to the hospital spokesperson.

Information reported over public airwaves (commercial radio and television channels, and police/emergency radio frequency bands) is considered public information. In cases reported by fire or police departments, sheriff, medical examiner, or other public authority, the hospital spokesperson may confirm or respond to inquiries about the following without obtaining the consent of the patient: name, city of residence, sex, age, general description of injuries (as ascertained by medical personnel) within the guidelines described below. If the patient is a minor, names of parents also may be given. No statement may be made as to whether a patient is intoxicated or under the influence of drugs.

In cases not reported by a public authority, the same facts outlined above will be made available if permission has been given by the patient, the patient’s designated representative who has power of attorney for healthcare, or a responsible member of the patient’s family. The release of information about certain patient situations and conditions is controlled by state and federal law. (See Psychiatric, Drug and Alcohol Abuse Cases.)

A prognosis for a specific patient should never be given to the news media or the public.

Patient Conditions Defined:

Oregon hospitals agree to use the following standard definitions when describing a patient’s condition:

Good: Vital signs such as pulse, temperature, and blood pressure are stable and within normal limits. Patient is conscious, comfortable, and there are not complications.

Fair: Vital signs are stable and within normal limits. Patient is conscious and alert although may be uncomfortable or in pain and may have minor complications.

Serious: Vital signs may be unstable or outside normal limits. The patient is acutely ill or injured and may have major complications.

Critical: Vital signs are unstable or outside normal limits. There are major complications. (Most patients in an intensive care unit are considered critical until ready to be moved to a regular nursing unit.)

Note: “Stable” is not a condition.

Police and Accident Cases:

Information about police and accident situations is the most frequent request a hospital receives from the news media. Release of patient information in these situations should follow the guidelines for cases reported by a public authority. The general nature of the accident may be described, such as injury by automobile, explosion, shooting, etc. However, the hospital spokesperson should not enter into any discussion of the circumstances of the accident or its cause. (See Interviews and Photographs.)

No information should be given that violates the confidence, privacy or legal rights of the patient. For example, the hospital should not make a statement as to whether a patient was intoxicated, whether injuries were the result of assault or an attempted suicide, whether a patient is suspected of being a drug addict, the circumstances in which a patient was shot or stabbed, or the details relating to an automobile accident and whether there was an arrest.

Specific Injuries:

Further medical information dealing with specific injuries in police and accident cases may be given by hospital spokespersons as follows:

Fractures (except head injuries): Indicate the part of the body involved and whether the fracture is simple or compound. The words “possible” or “probable” should be used when X-ray diagnosis is not available.

Injuries to the head (except fractures): A simple statement may be made that there are injuries to the head. However, it may not be disclosed that the skull is fractured. No opinion may be given regarding severity of the head injury until the condition is definitively determined by a physician.

Trauma and internal injuries: Trauma cases usually involve injuries to more than one body location. A statement may be made that there are multiple trauma injuries. It may be stated that there are internal injuries, and the general site of such injuries may be given.

Unconsciousness: If the patient is unconscious when brought to the hospital, this fact may be stated. However, the cause of unconsciousness may not be given.

Shooting or stabbing: A statement may be made that there is a gunshot or stabbing wound and its position indicated. The hospital spokesperson may not state how the accident occurred (i.e., accidental, suicidal, homicidal, etc.), nor describe the situation under which it took place.

Paralysis, loss of limb: No statement may be made without permission from the family or the patient’s designated healthcare representative. Hospitals and the news media recognize that in cases of paralysis or loss of limb, there is great emotional turmoil for the patient and family. Often the family opts to wait for a short time to tell the patient of the extent of his or her injuries. In such cases, both hospital personnel and the news media will cooperate to ensure that the patient’s privacy is protected.

Burns: A statement may be made that the patient is burned and the hospital spokesperson may identify the area of the body involved. A statement as to the severity and extent of burns may be made if indicated by the physician.

Poisoning: A statement may be made that the patient is being treated for a suspected poisoning. The cause of the poisoning may not be described (such as suicidal, homicidal or accidental). However, when poisoning is proven to be accidental and reported to public authorities, the hospital spokesperson may confirm the nature of the poisoning. The product ingested should be described generically (such as “weed killer” or “detergent”) and not by trade name. When the ingested material has not been identified, this fact should be so stated.

Battered children: No statement shall be made that a child’s injuries appear to be the result of child abuse, even if an official report has been filed. The nature and extent of injuries may be released according to the above guidelines for cases of public record.

Rape: Every effort will be made to protect the privacy of an alleged rape victim. Names will not be released. No statement will be made concerning the nature of the incident or injuries without the specific written consent of the patient. Once a case is reported to the police, further news media questions should be directed to law enforcement authorities.

Outpatient and Emergency Care:

In facilities where outpatient care is provided by medical staffs, hospitals may choose to release information on patients consistent with the guidelines established in this document.
When a patient is brought to the emergency department but is not admitted to the hospital, the hospital spokesperson should respond to inquiries consistent with guidelines established for cases of public record. The statement, “The patient is being evaluated in the ER,” or the “The patient was treated and released,” may be used in place of a condition report.

Psychiatric, Drug and Alcohol Abuse Cases:

State and federal laws prohibit the disclosure of any information about psychiatric, alcohol and drug abuse cases (42 USC Section 290; 42 CFR Section 2.1; ORS Chapter 426). This includes confirmation of the patient’s admission to or discharge from a psychiatric, drug or alcohol treatment facility.
When reporters have information from the police or other sources concerning persons who are being treated at psychiatric, drug or alcohol abuse facilities, it is recommended that all such media inquiries be answered, “We cannot, under federal or state law, comment on such a case.”

Organ Transplants:

In the case of organ recipient, the hospital spokesperson will confirm or respond to inquiries about the following if permission has been given by the transplant recipient or a responsible adult member of the family: name, city of residence, sex, age, date of transplant, and condition.
In cases of public fund-raising for organ transplants, the hospital should follow the code guidelines for
Newsworthy Persons.
In the case of organ donors, a potential organ donation will not be discussed by the hospital spokesperson. When a potential organ donor dies, as determined by the attending physician, the disposition of the body will not be revealed. The hospital spokesperson shall refer questions on definition of death to the attending physician. The hospital performing the transplant will not release information about the donor that might ultimately reveal the donor’s identity.

Maternity:

Policies on the publication of births vary from hospital to hospital. Hospitals should obtain written consent from the parent before permitting photographs or release of information about newborns.
Questions about drug-affected newborns (babies born to drug-addicted mothers) should be directed to a physician.

Unusual Illnesses:

Healthcare facilities will confirm any unusual illnesses or potential epidemics after such illnesses and conditions have been reported to local health authorities. Names of patients will not be released without permission. HIV patient confidentiality is protected by federal law. The identity of a person tested for HIV or the results of an HIV-related test are confidential (OAR 333-12-270(1)).

Death:

While announcement of a death usually is not made by a hospital, such news is public information after next of kin has been notified. If next of kin has not been notified, the news media shall be so advised and asked to refrain from release of news for a reasonable time, as determined in cooperation with the attending physician.
When the patient is of significant prominence, the hospital spokesperson should facilitate timely release of information to the news media. (See
Newsworthy Persons.)
Information on the cause of death may be given by the hospital spokesperson after receiving approval from the attending physician and members of the patient’s family.
If a death becomes the object of a medical examiner’s investigation, news media inquiries as to the cause and circumstances of death will be directed to the medical examiner’s office.
The name of the funeral home receiving a body may be released to the news media.
Determination of whether a death is a suicide is not within the province of the hospital. A medical examiner is usually the qualified authority for rendering such a judgment. The hospital spokesperson should never release statements asserting suicide or attempted suicide as a reason for hospitalization or death of a patient.

Interviews and Photographs: Media-requested photographs, videotapes, or interviews can be granted with the patient’s written consent. When the patient is a minor, permission of a parent or guardian must be obtained.
The patient’s physician should be informed of news media requests. For each request, the hospital should obtain in advance a completed, dated and signed patient consent form for photography and videotaping. This consent form should be filed as a permanent part of the patient’s record in accordance with individual hospital or health system policy.
Requests to interview or photograph a patient under arrest or in custody are to be referred to the police department or government agency holding jurisdiction.
A hospital may refuse permission to interview or photograph a patient if such actions would interfere with the patient’s well-being or the delivery of patient care. However, such circumstances are often temporary and approval may be given when conditions change.
The hospital spokesperson may stay with the news media and the patient throughout the session to provide assistance and to protect the patient’s rights as well as the rights of other hospital patients.
News media coverage of unconscious patients, or patients suffering from severe illness or injury, will be permitted only with permission of the patient’s family or designated healthcare representative.

Patient Discharges: Once a patient is discharged, the hospital no longer will disclose information about him or her to the news media. All further inquiries should be directed to the patient or the family. However, a hospital may confirm a patient’s dates of admission and discharge.

Newsworthy Persons: A person whose activity is a matter of public interest or whose livelihood or success depends on being kept in the public eye (i.e., a sports figure, an elected official, an actor) forfeits some right of privacy.
When a prominent person is hospitalized, the hospital will coordinate with the patient, family, and physician to provide information about the patient’s illness in a manner that is consistent with maximum possible protection of the individual’s privacy.
The prominent person may elect to name his or her own spokesperson, to whom all requests for information will be directed. When a newsworthy person is in serious or critical condition, the hospital should arrange for medical bulletins to be issued on a regular basis. These bulletins should be issued by the hospital spokesperson in cooperation with the attending physician, the family and/or designated healthcare representative.

The above practices also may apply to the patient who, whether willingly or not, has been involved in an occurrence of public or general interest and, as a result, becomes hospitalized.

If a patient is hospitalized due to an occurrence that draws public attention, information should be provided by the hospital spokesperson for the duration of the hospital stay, according to the guidelines described in the code under Police and Accident Cases.

Chapter 15: Oregon’s Shield Law

Oregon’s shield law, ORS 44.510 through ORS 44.540, provides broad protection for reporters and others against compelled testimony, production of evidence and searches.

This law protects people connected with, employed by or engaged in a medium of public communication, including print and broadcast media, books, periodicals, pamphlets, wire services or feature syndicates. The protection extends beyond information related to news and includes unpublished notes, out-takes, photographs, tapes or other information, regardless of whether it is related to published information.

The statutes protect reporters from being compelled to disclose: (1) a source of information obtained in the course of work, regardless of whether the information has been published; and (2) unpublished information obtained or gathered in the course of work. Reporters also are protected from searches of their papers, effects or work premises, unless there is probable cause to believe the reporter has committed, is committing or is about to commit a crime.

The protection is not limited to situations where a relationship or pledge of confidentiality exists. The protection is not lost if the reporter: (1) disclosed the information, source or related information elsewhere; or (2) ceases to be connected with, employed by or engaged in a medium of public communication.

Statutory exceptions:

There are exceptions and limitations in the statute. It does not apply to: (1) utterances by a government official or employee within the scope of his or her governmental function; (2) political publications subject to certain Oregon laws regulating political advertising and publications; or (3) the content or source of allegedly defamatory information, in a civil action for defamation where the defendant bases a defense on the content or source of the information.

Informant’s consent:

If the source of the information offers himself or herself as a witness, it is deemed to be a consent to the examination of a reporter or other protected person on the same subject. This provision has not been interpreted or explained in a published Oregon court decision. But it seems obvious that the provision should not affect the shield on anything other than the informant’s communication with the reporter or other protected person. The reporter or other protected person could argue this provision does not dissolve the reporter’s right to refuse to disclose (even as to the informant’s communication with the reporter), because the shield law is a right, not merely a privilege, for confidential communication. In raising this argument, the reporter may argue for state and federal constitutional protection for freedom on the press and against nonessential compelled disclosure.

Protection other than Oregon’s shield law:

The Oregon shield law protects against Oregon state legislative, executive or judicial officers or bodies. It may govern in federal court if the pending case or proceeding is a civil action and the evidence pertains to an element of a claim or defense to which Oregon law controls. (See rule 501 of the Federal Rules of Evidence.)

However, the Oregon statute will not control in some federal proceedings and usually will not apply at all to proceedings in other states. There is no broad federal shield law for reporters. Some states do not have a shield law either.

An important case development is the recognition by many courts that reporters have a “qualified privilege” against being compelled to give evidence, unless the party seeking the evidence proves that compelling disclosure is essential to the case and the information cannot be obtained elsewhere. Most of these courts base the privilege in the First Amendment of the United States Constitution or in state constitutional protections for freedom of the press and the free flow of information, which would be impaired by forcing reporters to become witnesses or require them to reveal unpublished information.

The Washington Supreme Court adopted a common law qualified privilege to preserve confidential news sources or confidential information, unless the party seeking the information shows that his or her claim is meritorious, the information sought is necessary or critical to the suit or defense, and a reasonable effort has been made to obtain the information elsewhere. In Washington state courts, this doctrine applies in civil and criminal cases. A reporter who is not a party to the action will receive the greatest protection under the privilege. A reporter who is a defendant in the action will receive less protection. A reporter who is a plaintiff will receive little or no protection. (Clampitt v Thurston county, 98 Wn2d 638,658 P2d 641 (1983); state v Rinaldo, 102 Wn2d 749, 689 P2d 392 (1984).

Elsewhere, several states and federal courts approved the reporter’s qualified privilege in civil cases; some approved it in criminal cases; and some approved it for “qualified” protection of not only information received in confidence but also non-confidential, unpublished information.

In criminal cases, the defendant’s constitutional right to a fair trial may overcome the shield law and qualified privilege.

While there is no broad federal shield law for reporters, there is a federal statute forbidding government offices or employees investigating or prosecuting a crime to search for or seize any work product of someone “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communications in or affecting interstate or foreign commerce.” The statutes has exceptions and forbids only searches, not subpoenas. (Privacy Protection Act of 1980, P.L. 96-440, 42 U.S.C. sections 2000aa et seq.).

In addition, the U.S. Department of Justice has published a formal policy to minimize Justice Department subpoenas or interrogation, indictment or arrest of news media members or subpoenas of their telephone toll records. These guidelines are not law but demonstrate an intent by the Justice Department to discourage investigative and prosecutorial activities against the news media. Administrative disciplinary action may be taken if the guidelines are violated. (42 U.S.C. section 2000aa-12; Code of Federal Regulations, Title 28, section 50.10).

Chapter 16: Glossary

Legal Glossary

ACTION, CASE, SUIT, LAWSUIT: These words mean essentially the same thing. They refer to a legal dispute brought into court for trial.
ADVERSARY SYSTEM: The system of justice in the U.S. and some other countries in which court cases are decided on the basis of evidence and arguments presented by each of the opposing, or adversary, parties who thus have full opportunity to present and establish their opposing contentions before the court or jury.
AMICUS CURIAE: (a me’kus ku’re-i) A “friend of the court”; one who interposes and volunteers information and argument on some matter of law before the court. The court has to give permission before someone can appear “amicus curiae.”
ANSWER: The paper in which the defendant answers the claims of the plaintiff.
APPELLANT: (a-pel’ant) The party appealing a decision or judgment to a higher court.
APPELLATE COURT: A court having jurisdiction of appeal and review; not a “trial court.”
ARRAIGNMENT: In criminal law, the stage where a prisoner is brought to court to hear the charge against him or her.
ATTACHMENT: A remedy by which a plaintiff is able to acquire a lien on property of a defendant for satisfaction of a judgment the plaintiff may obtain in the future.
BAIL: To set at liberty a person arrested or imprisoned, on security being taken for his or her appearance on a specified day and place to answer the charges brought against him or her.
BAILIFF: A court attendant whose duties are to keep order in the courtroom and to have custody of the jury.
BENCH WARRANT: An order issued by the court itself “from the bench” for the arrest of a person.
BURDEN OF PROOF: In the law of evidence, the necessity of proving a fact in dispute.
CERTIORARI: (Sur’shi-o-ra’re) An order commanding judges or officers of lower courts to certify or to provide records of proceedings in a case to a higher court for judicial review.
CHANGE OF VENUE: The removal of a lawsuit begun in one county or state to another for trial.
CIRCUIT COURT JUDGE: (See JUDGES).
CIRCUMSTANTIAL EVIDENCE: Evidence of an indirect nature by which a court or jury may reason from proved circumstances to establish by inference a principal fact.
CIVIL CASE: A lawsuit is called a “civil case” when it is between persons in their private capacities; or when the government sues an individual under the law, as distinguished from prosecuting a criminal charge. It results generally in a judgment for the plaintiff or for the defendant and, in many cases, involves the giving or denying of damages.
CLAIMANT: One who claims or asserts a right, demand, or claim.
CLERK: The clerk usually sits at the desk in front of the judge, is an officer of the court and keeps a record of papers filed. He or she has custody of the pleadings and records of the trial of the case, orders made by the court during the trial, and the decision at the end of the trial. He or she also administers the oath to jurors and all witnesses before they testify and marks all exhibits when they are presented as evidence.
CLOSING ARGUMENT: An oral review of the evidence and argument why their clients should win the case, by the attorneys at the end of the case, after all of the evidence is in.
CODE: A collection of laws systemically arranged and adopted by legislative authority.
COMMIT: To send a person involuntarily to prison or to an asylum or reformatory by lawful authority.
COMMON LAW: Law which derives solely from previous legal practice or from the previous decisions of courts.
COMMUTATION: The change of a punishment from a greater degree to a lesser degree, as from death to life imprisonment. In Oregon the governor has the power to commute sentences.
COMPLAINT: The paper in which the person who brings the lawsuit sets forth his or her claims against the defendant.
CONTEMPT OF COURT: Any act calculated to embarrass, hinder or obstruct a court in the administration of justice, or calculated to lessen its authority or dignity. Contempts are of two kinds: direct and indirect. Direct contempts are those committed in the immediate presence of the court; indirect contempt usually refers to the failure or refusal to obey a court order.
CORPUS DELICTI: (kor’pus de-lik’ti) The body (material substance) on which a crime has been committed, e.g., the corpse of a murdered man or woman, the charred remains of a burned house. Commonly used to mean the “body of evidence” indicating that a crime has been committed.
COURTS OF RECORD: Those courts whose courtroom proceedings are recorded by a court reporter. Courts not of record are those of lesser authority, whose proceedings are not recorded.
COURT REPORTER: The court reporter takes down in shorthand or on a machine everything that transpires, which constitutes the record in the case. The notes are subject to transcription later, if necessary.
CRIMINAL CASE: A lawsuit is called a “criminal case” when it is between the state on one side, as plaintiff, and a person on the other side, as defendant, charging the defendant with committing a crime, the verdict usually being “guilty” or “not guilty” and can result in incarceration.
CROSS-EXAMINATION: The questions a lawyer asks the other side’s witness after the other side’s attorney has finished with his or her questions or direct examination.
DECREE: In Oregon, this term has become obsolete. It means the same thing as “judgment,” which now is the technically correct term. A final judgment is one which fully and finally disposes of the litigation; an interlocutory decree or judgment is a temporary or preliminary decree or judgment which is not final.
DEFENDANT: In a civil case, the defendant is the person against whom the lawsuit is brought. In a criminal case, the defendant is the person charged with the crime.
DE NOVO: (de no’vo) Anew, fresh. (See TRIAL DE NOVO).
DEPOSITION: Questioning of a witness either orally by a lawyer in front of a court reporter or by written questions and answers, prior to trial. Depositions may be transcribed and under some circumstances may be used in a trial.
DIRECT EXAMINATION: A lawyer’s questioning of witnesses that he or she has called to provide testimony.
DIRECTED VERDICT: An instruction by the judge to the jury to reach a specific verdict, or the entry of such a verdict by the judge in a jury case.
DISCOVERY: A process for finding out relevant facts in a lawsuit before the trial begins. Discovery methods include depositions; inspections (“production”) of documents, things or property; physical or mental examinations of persons; requests for admission of facts; and written interrogatories that the other side must answer.
DISMISSAL WITHOUT/WITH PREJUDICE: Dismissal of a case “without prejudice” permits the complainant to sue again later on the same facts, while dismissal “with prejudice” bars the right to sue again on the same facts.
DISTRICT COURT JUDGES: (See JUDGES).
DOUBLE JEOPARDY: Common-law and constitutional prohibition against more than one criminal prosecution for the same acts.
DUE PROCESS: The guarantee of due process requires that every person have the protection of a fair hearing and procedures.
EMINENT DOMAIN: The power to take private property for public use by condemnation.
EQUITY, COURTS OF: Historically, courts which administer remedial justice according to the system of equity, as distinguished from courts of law. Equity courts are sometimes called courts of chancery. Juries are never used in equity cases. In Oregon, there is no distinction between courts of equity and courts of law, but some lawsuits are still equitable in nature, e.g. injunctions.
EQUITABLE ACTION FOR INJUNCTION: A lawsuit filed to restrain threatened wrongs, injuries, or actions, or to require a person to do specific actions. Equity cases do not use juries. The judge makes all decisions.
EXHIBITS: Objects, including pictures, books, letters and documents, are often received in evidence. These are called “exhibits” and are generally given to the jury to take into the jury room while deliberating.
EX PARTE: (ex par’te) By or for one party; done for, in behalf of, or on the application of, one party only and without the other parties being present in court for a hearing.
EX POST FACTO: (eks post fak’to) After the fact; an act or fact occurring after some previous act or fact. The Constitution of the United States prohibits ex post facto laws. This means that a person cannot be prosecuted for acts that were not crimes at the time the acts occurred.
EXTRADITION: The surrender of an individual in the custody of one state or nation to another state or nation on its request.
FELONY: A crime of graver nature than a misdemeanor. Generally, an offense punishable by death or one or more years imprisonment in a penitentiary.
GRAND JURY: A jury of inquiry whose duty is to receive complaints and accusations in criminal cases, hear the evidence and find bills of indictment in case where they are satisfied a trial is needed. Grand juries also can initiate their own investigations.
HABEAS CORPUS: (ha’be-as kor’pus) Latin for “You have the body.” The name given a variety of proceedings whose object is to bring a person before a court or judge. Usually, a writ of habeas corpus is directed to the official person detaining another, commanding him or her to produce the body of the prisoner or person detained so that the court may determine if the person is legally held or has been denied his or her liberty without due process of law.
INDICTMENT: An accusation in writing issued by a grand jury, charging that a person has done some act, or been guilty of some omission, which, by law, is a crime.
INJUNCTION: A court order that either requires a person to do an act or forbids a person to do an act.
INSTRUCTIONS OR “CHARGE” TO JURY: The outline of the rules of law which the jury must follow in deciding the factual issues submitted to them is called either the judge’s “charge” to the jury or his or her “instructions” to the jury.
INTERLOCUTORY: Provisional; temporary; not final. Refers to court orders pending final judgment in a case.
INTERPLEADER: When two or more persons claim the same thing (or fund) held by a third person, and he or she, making no claim to it him or herself, is unsure which of them has a right to it, he or she may sue the claimants as defendants and require them to interplead their claims so that he or she can get a court order who has the right to the thing.
ISSUE: A disputed question of fact or law is referred to as an “issue.”
JUDGES: In Oregon, the constitution provides that judges of the Supreme Court and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, that their compensation shall not be diminished, and that they shall retire at 75 years of age. All judges must be citizens of the United States, residents of Oregon for three years (exceptions noted below), and members of the Oregon State Bar. Supreme Court judges, at the time of their election, must have been admitted to practice before the Oregon Supreme Court. District judges are required to be residents of the county only, unless they are elected in counties with over 500,000 population. In that case, they must be residents for three years. There are no requirements that county judges, municipal judges or justices of the peace be lawyers.
JUDICIAL CONFERENCE: All the judges of the Supreme Court, Tax Court, and circuit courts belong to the Oregon Judicial Conference, which meets at least annually. The conference is charged by statute with the responsibility of keeping judges aware, through continuous survey and study, of the organization, jurisdiction, procedures, practices, and methods of administration and operation of the various courts of the state, and with the objective of improving the administration of justice in Oregon.
JURISPRUDENCE: The philosophy of law or the science which studies the principles of law and legal relations.
JURY: A certain number of citizens, selected according to law and sworn to consider questions of fact brought to the court for decision.
JURY PANEL: All of the prospective jurors from which the trial jury is chosen.
MANDAMUS: (man-da’mus) The name of an order by which a court of superior jurisdiction directs an inferior court or public officer to perform an official act.
MANDATE: A judicial command directing a public officer to enforce a judgment or sentence.
MISDEMEANOR: An offense less than a felony; generally one punishable by fine or imprisonment other than in penitentiaries.
MISFEASANCE: Usually, the improper performance of some lawful act.
MISTRIAL: An erroneous or invalid trial due to a substantial error that voids the trial.
MOOT: A moot issue is one not settled by judicial decision but no longer in dispute or in need of a decision.
OBJECTION OVERRULED: This term means that, in the judge’s opinion, the lawyer’s objection is not correct under the rules of law. The judge’s ruling, so far as a juror is concerned, is final and must be accepted by the jury.
OBJECTION SUSTAINED: This means that the judge agrees that, under the rules of law, the lawyer’s objection was correct. This ruling likewise is not subject to question by jurors.
OPENING STATEMENT: Before introducing any evidence for his or her side of the case, a lawyer is permitted to tell the jury what the case is about and what he or she expects the evidence to be. This is called the “opening statement.”
PARTIES: The plaintiff and defendant in the case. They are sometimes called the “litigants.”
PEREMPTORY CHALLENGE: The challenge a party may use to reject a certain number of prospective jurors without assigning any reason.
PETIT JURY: The ordinary jury of 12 (or fewer) persons for the trial of a civil or criminal case. So called to distinguish it from the grand jury.
PLAINTIFF: A person who files a lawsuit.
PLEADINGS: The parties in a lawsuit must file in court papers stating their claims against each other. In a civil case, these usually consist of a complaint filed by the plaintiff, an answer filed by the defendant and, oftentimes, a reply filed by the plaintiff. These are called “pleadings.”
POWER OF ATTORNEY: A document authorizing one person to act as another person’s agent.
PREJUDICIAL ERROR: Synonymous with “reversible error;” an error of sufficient seriousness to justify an appellate court’s reversal of a judgment.
PROBATION: In modern criminal administration, allowing a person convicted of some offense to go free, under a suspension of sentence, during good behavior, and generally under the supervision of a probation officer.
PROSECUTOR: One who instigates the prosecution on which an accused is arrested or who presses charges against the party whom he or she suspects to be guilty. Also, the attorney who represents the government in prosecuting a criminal case.
QUASH: To overthrow; vacate; to annul or void a summons or indictment or other document.
QUO WARRANTO: (kwo wo-ran’to) An order issuable by the state, through which it demands an individual to show by what right he or she exercises an authority or claims public office which can only be exercised or claimed through a valid grant or franchise from the state.
RECORD: This refers to the pleadings, the exhibits, and the word-for-word record made by the court reporter of all the proceedings at the trial.
REPLY: The paper in which the plaintiff answers any claims made by the defendant in his or her answer.
REST: This is a legal phrase which means that the lawyer has concluded the evidence he or she wants to introduce in that stage of the trial.
SINE QUA NON: (si’ne kwa non) An indispensable requisite.
STARE DECISIS: (sta’re de-si’sis) The doctrine that, when a court has once decided a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to future cases where the facts are substantially the same.
STATUTE: The written law adopted by the Legislature as distinguished from the common law.
STAY: A stopping or temporary halting of a judicial proceeding by order of the court until some future even occurs.
STRIKING TESTIMONY: On some occasions, after a witness has testified, the judge will order certain evidence stricken from the record and will direct the jury to disregard it. When this is done, the jury must treat the evidence stricken as though it had never been given and must wholly disregard it.
SUBPOENA: The document which is issued for service on a witness to compel his or her appearance in court or for a deposition or other hearing.
SUBROGATION: The substitution of one person in the place of another with reference to a claim, so that he or she who is substituted succeeds to the rights of the other in relation to the claim.
SUBROGEE: One who is subrogated; one who succeeds to the rights of another by subrogation.
SUBSTANTIVE LAW: The law dealing with rights, duties and liabilities, as distinguished from the law regulating procedure.
SUMMONS: An order directing the sheriff or other officer to notify the named person that a lawsuit has been commenced against him or her in court and that he or she is required to appear by a certain time, and answer the complaint or suffer a judgment against him or her.
SUPREME COURT JUSTICE: (See JUDGES).
TESTIMONY: Evidence given verbally by a witness, under oath, as distinguished from evidence derived from writings and other sources.
TORT: A tort is negligent or wrongful conduct which causes bodily injury or property damage for which compensation can be recovered in a civil lawsuit. Most torts are the result of negligence such as automobile accidents. Some are intentional, such as libel, slander, assault and battery.
TORT CLAIMS ACT: In Oregon, the traditional doctrine of governmental immunity was ended in large part by legislation enacted in 1967. Under the new law, every public body, including every local government agency, is liable to third parties for wrongful deaths, personal injuries, and property damage that result from governmental operations involving negligent or wrongful conduct, subject to limitations on the amount that can be recovered. This law is commonly referred to as the Tort Claims Act.
TRIAL DE NOVO: (de no’vo) A new trial or retrial in an appellate court in which the whole case is gone into as if there had been no trial in a lower court and regardless of the findings and decisions of the lower court.
TRUE BILL: In criminal practice, the endorsement made by a grand jury on a bill of indictment when they find it sufficient to support a criminal charge.
USURY: Charging an illegally high interest rate.
VENIRE: (ve-ni’re) Technically, an order summoning persons to court to act as jurors; popularly used as meaning the body of people summoned.
VENUE: (ven’u) The particular county, city, or geographical area in which a court with jurisdiction may hear and decide a case.
VERDICT: The formal decision or finding made by a jury and reported to the court.
VOIR DIRE: (vwor dear) To speak the truth. The phrase denotes the preliminary questioning of potential jurors by the court and attorneys to determine the jurors’ qualifications.
WITNESS: One who testifies, under oath, to what he or she has seen, heard, or observed.
WRIT: An order requiring the performance of a specified act or giving authority to have something done.

Chapter 2: Common Law

The system of law in the United States is unique among nations because of its combination of common law and constitutional hierarchy.

Common law is judge-made law. It is case law. The only way that the judiciary can speak is through individual cases brought to it for resolution. Unlike the other branches of government, the judiciary is not a self-starter. Common law begins when citizens file a case in the courts. Only constituents can invoke the workings of common law.

During the past 40 years, federal, state and local governments have enacted increasing amounts of legislative law. However, rather than lessening the impact of judge-made law, this development has added broader dimensions to the common law. Legislation needs interpreting. Courts construe statutes when required to do so in individual cases. Thus a body of common law develops around the enactment.

Many of the legal problems of the media are resolved by common law processes. Libel and privacy cases are common law torts unfettered by comprehensive legislative enactment or administrative regulation. As a result, reporters, editors, broadcasters and publishers must piece together judicial decisions in order to discover the sometimes complex jigsaw of legality.

Dual Function of Common Law:

Case decision in the common law process fulfills two purposes: It resolves the dispute between the litigating parties, and it lays down a precedent on which the future can rely. Thus, it looks backward at a controversy already existent and looks forward to potential controversy not yet in being.

The former function is born out of the need to look at each case anew, to give every citizen a day in court, to examine each case in its own context. It is situational justice; it champions specificity. The latter function, however, is born out of the need to be consistent with the past, to examine previous cases in conjunction with the case at hand. It protects societal security and stability. It fosters generalization.

There is, therefore, a strange mixture of rigid generality with flexible specificity in the common law. The need to be uniform and to apply law consistently in like situations locks common law into fixed rules and principles and regards the common law as a neatly balanced, self-structured system. On the other hand, ad hoc decision-making favors examination of contemporary norms and customs and regards the common law as the reflection of current society.

Justice Oliver Wendell Holmes, Jr., said  “It is the merit of the common law that it decides the case first and determines the principle afterward.” He was urging that the value of common law is its contemplation of each dispute as it arises without its own situational justice. Generalizations that single-package all situations should be mere observations after the fact, not controls before the fact. To this extent, common law is anathema to statutory law.

Statutory law applies deductive thinking. The statutory norm becomes the major premise in a syllogism; the alleged fact of a violation is the minor premise. Outcomes in statutory law are arrived at by application of reasoning from the general to the specific, from abstract to reality. (The case by case tenets of common law suggest an inductive approach.)

A case decision by the courts becomes precedent for future cases. This is called the doctrine of stare decisis (to adhere to decisions). To what degree should judges follow precedent set by former cases? A great deal of controversy has always existed on that issue.

At one end of the spectrum are judges who look to the former case(s) and theorize some generality from it; the “rule” of the prior case becomes mechanically controlling in all similar future cases. The most strict of these judges will give “the rule” a status akin to statute and will deny even their own power to overturn it. This was the clear law in England until as late as 1965 where not even the highest court in England (Law Lords of the House of Lords) would overturn their own prior decisions.

At the other end of the spectrum, there are judges who regard case precedent as simply persuasive analogy. Those judges will not consider the decisions of prior cases as settled law in deciding the case at hand. They are, however, influenced (but not bound) by a need to reason uniformly in similar situations, so that outcomes are reached with logical consistency.

Trial courts are committed to the strict view in applying the decision of higher appellate tribunals. Appeals courts are the ones more apt to evaluate the need for stare decisis.

Some appellate courts will vacillate in choosing the strict or liberal view of precedent. That ambivalence is usually the product of court personnel changes. Our own Supreme Court of Oregon has wavered on stare decisis and the overturning of precedent. In 1955, in Landgraver vs. Emanuel Lutheran Charity Board, Justice Walter L. Tooze speaking for a 5-2 majority refused to strike down the court-created charitable immunity doctrine, stating: “Once the court has ascertained and declared that public policy, it becomes the law of the state, and is as binding as a legislative enactment.”

In the following eight years, five new justices reached the court. This new alignment in 1963 overturned the charitable immunity doctrine. Justice Alfred T. Goodwin, writing the majority opinion, said: “It is neither realistic nor consistent with the common law tradition to wait upon the Legislature to correct an outmoded rule of case law. The pull of stare decisis is strong, but not inexorable.”

In European countries such as France, courts are neither bound nor influenced by their own decisions nor by the decisions of higher courts. Indeed, a judge is precluded from announcing general rules in a given case; citation to the applicable provision of a written legislative code is all that is necessary.

The European courts are also less centralized, so that district appellate courts rather than a central hierarchical court are more likely the final resort. With detailed codes providing national continuity, there is less need for judicial uniformity or centrality.

Distinguishing Common Law Precedent:

The overruling of precedent is, of course, the most drastic result that can occur in the common law. Because overruling precedent disturbs the stability of the common law, judges often employ the tactic of distinguishing precedent rather than overturning it.

One device for ignoring a prior case pronouncement is simply to declare that pronouncement is dictum, a tangential remark not necessary to the decision in the previous case and, therefore, not precedent. Because the judiciaryís power can only be invoked by disputants in controversy, a court cannot broaden its power by going beyond the confines of what is necessary to solve that controversy. Any attempt to do so is mere dictum and not binding.

Another device for distinguishing precedent is to find that facts of the previous case are not analogous. For example, pronouncements in a criminal opinion are not binding in a contract case.

A more candid device for not applying precedent mechanically is the recognition that some precedent is not as compelling as others. The late U.S. Supreme Court Justice Felix Frankfurter urged that cases which were not well researched, carefully argued, or thoroughly considered, should be frankly devaluated on the scale of precedent.

Precedent may be viewed strictly or loosely. It may be strictly construed and held to its narrow environment, thus virtually discarding it as precedent. Or it can be broadly construed and liberally extended to all of its language, thus spreading its mantle over large area of subsequent cases. Whether a given court chooses one or the other deployment depends upon that courtís attitude as persuaded by trends, “trends in the situation or in the times at large.”

Due to the volume of cases and the need to expedite case backlogs, many federal courts and boards have adopted rules whereby certain specified decisions are not to be used as precedent and whereby certain expedited decisions may not be appealed.

Formalization of Common Law Appellate Opinions:

There are by-products of this common law system. A case-by-case approach to the law demands the writing and publication of judicial opinions. In the two centuries of American law, more than 3 million judicial opinions have been written and are housed in over 17,000 volumes of cases. The millions of words of judicial opinions written each year further spawn texts, encyclopedias, and a vast amount of commentary upon the law published in over 500 law reviews and other periodicals, all of which command thousands of pages of indices. Such proliferation unmasks the notion that common law is “unwritten” law. On the contrary, it is the most written law.

The essence of the common law is the written judicial opinion. Unlike statute or executive decree, it spars in the marketplace of ideas. In the pattern of editorials or essays, the judicial opinion talks to us, gives us reasons with which we may agree or differ. It discusses. It attempts to persuade. But most of all, it deals directly with the non-antiseptic world of actual behavior between real and specific people.

Common law is born out of citizen dispute. A legal system that develops from those popular origins in contrast to one where laws are propounded sweepingly by the political elite from abstraction and perceived future needs, is arguably more responsive to the spirit and mores of its constituency.

Share]]>

No related posts.