Tag Archives: first amendment

The Right to Privacy

The new season of the Netflix series “The Crown” is out. Around this time last year I wrote a homework assignment paper about the production elements in the show for Media and Culture class. As I start to view the new Season 4, I’m recalling our studies last week in Media Organization Regulations class on the legal aspects of privacy. How does what we learned illuminate how entertainment companies depict real people in a fictionalized drama? Here is an amalagamation of a couple of last week’s homework assignments. If you like to watch “The Crown” or other dramas based on historic events and real people, you might find some of the legal considerations involved interesting. In the series are also depictions of emotional abuse and mental illness, topics I’ve written about before and which again came up in last week’s homework. Abuse takes many forms and some of them are perfectly legal. These selections have been graded by my professor but I didn’t make any changes before publishing. Please keep in mind I am not an attorney or law student, I’m an Advertising and Marketing Communications major. Enjoy!

The Right to Privacy

The theory of a right to privacy developed in US law over about the last 130 years, derived from the 3rd, 4th, 5th and 14th amendments (Trager et al 234). The right to privacy is defined as “1) The right not to have one’s personal matters disclosed or publicized; the right to be left alone. 2) The right against undue government intrusion into fundamental personal issues and decisions” (Legal Information Institute “Right to privacy”).

A tort is a transgression by one person or entity on another’s rights, resulting in an injury (Trager et al 234). Law school dean William Prosser described four torts in the following categories; “false light, appropriation, intrusion and private facts” (Trager et al 235). Commercialization and the right to publicity are sub-categories under appropriation (Trager et al 235). The right to publicity “prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion” (Legal Information Institute “Publicity”). Besides being a subset of the right to privacy, the right to publicity differs in that it prevents unauthorized commercial exploitation of an individual rather than addressing non-commercial violations of rights.

right_to_privacy_diagram

False light, intrusion and private facts only apply to living persons (Trager et al 235). The appropriation tort is broader. It applies to living persons and in addition the deceased, businesses, non-profits and associations (Trager et al 235). The states vary a great deal in which torts they recognize – many only recognize single categories or subsets and not necessarily the same ones (Trager et al 235).

Celebrities don’t forfeit their right to privacy by being celebrities, but since people want to know about them many of their activities could be considered newsworthy (Trager et al 246). That doesn’t mean people are entitled to know facts about a celebrity that are not determined to be in the public interest (Trager et al 260, 262). A person’s notoriety might make them the licit subject of a satirical, artistic or transformative work that stops short of commercial use (Trager et al 248-249), which would interfere with the celebrity’s right to publicity.

Appropriation, Commercialization and Political Speech

Appropriation torts are recognized by 46 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico (Trager 235).  The remaining four states have yet to rule on appropriation (Trager 241).  Commercialization and the right to publicity are the two torts included in the privacy law category of appropriation (Trager 235).  Commercialization, also known as misappropriation, is the act of using the likeness or name of a living or dead person in advertising or for commercial purposes without seeking permission from the individual in question or that of the heirs (Trager 236, 241).

The commercialization prohibition is less likely to be applied to a deceased person than right of publicity because it is intended to prevent emotional distress to an individual by upholding the person’s dignity in preserving their personal right to privacy.  As a personal right, it is not usually thought by the courts to apply after death, unlike the right to publicity which deals with the monetary value of one’s identity a form of property that can be transferred or inherited (Trager 242).

Dan Frazier is a retailer and activist who sells left-wing themed political merchandise and other products through his company Lifeweaver LLC (Lifeweaver LLC, team@lifeweaver.com).  In the first decade of the 2000s he started selling anti Iraq war t-shirts with the names of U.S. soldiers who had thus far died in the war as part of the design in small print.  Enough families of the deceased soldiers were outraged by their family members names being used to make money for Frazier that laws were passed in several states making the sale of merchandise that appropriated soldiers names or likenesses without permission illegal (Fischer, “Mom Wants Dead…”).  Frazier’s home state Arizona was one of those passing such a law (Fischer).  Frazier, represented by the ACLU in a case heard in a federal court in Phoenix, was able to stop state and local officials from prosecuting him, citing First Amendment rights to freedom of speech.  The federal court declined to strike the Arizona law from the books and decided to let future similar cases be decided on their own merits (Fischer).  The defenses against appropriation are newsworthiness, the appropriated material being in the public domain, freedom of speech under the First Amendment, incidental use, self promotional ads for the mass media, and consent (Trager 245). How would these defenses possibly apply to Frazier’s case and any future cases that are similar?

Newsworthiness

The U.S. Supreme Court has decided an appropriation case based on newsworthiness before, in hearing whether a news station deprived stuntman Hugo Zacchini of his rights to make a profit from his human cannonball act by airing the entire act as part of a news broadcast.  The court found in Zacchini’s favor, giving his right to publicity more weight than the news station’s First Amendment right to free speech (Trager 247).  In Frazier’s case, newsworthiness is obliquely mentioned in the complaint (Frazier CV07-8040-PCT-NVW) but not as a factor in the decision (Frazier 07-CV-8040-PHX-NVW) though perhaps it could have been.  Deaths in war are news, and courts have previously found that newsworthiness is a defense even though news content is sometimes sold (Trager 246).  Dan Frazier presents his company as a retailer of products as opposed to a news organization (“Campaign Finance Report…”, team@lifeweaver.com).

Public Domain

The names of those killed in war are public information, as again obliquely mentioned in the complaint (Frazier CV07-8040-PCT-NVW), and in my opinion would qualify as factual information that is in the public domain (Trager 248).

First Amendment

Most prominent in the complaint and the court’s findings are issues concerning free speech under the First Amendment. Cited in the decision was a U.S. Supreme Court case, Riley v. National Federation of the Blind, which ruled that if speech is a blend of commercial and some other purpose, the two purposes cannot be parsed out and must be considered together. Given this finding, Frazier’s t-shirts were determined to be protected by First Amendment rights as any other type of political speech would be (Frazier 07-CV-8040-PHX-NVW).

Ads for the Media

Mass media may use names and likenesses of public figures in advertisements for products if the identity-related elements are part of the original content (Trager 251).  The court in Frazier’s case considered but declined to evaluate separately the legality of the t-shirt products themselves and catalog pictures of the t-shirts with close ups showing some of the soldier’s names.  Perhaps the court did not feel it necessary to comment on whether it mattered in this context whether the names were of private or public figures since it had already found that pictures of the merchandise were “inextricably intertwined with otherwise fully protected speech” (Frazier 07-CV-8040-PHX-NVW).

Consent

Frazier made no pretense to claiming consent.  His web site included a statement reading, in part, “I have no plans to remove any names or discontinue any of these products, no matter how many requests I receive” (Watters).  He and his legal team believed they did not need it, and were eventually found to be correct in the legal sense (Frazier 07-CV-8040-PHX-NVW).  Frazier’s personal code of ethics did not preclude him from acting in a way that caused some families of the fallen soldiers listed on the t-shirts to experience what they categorized, but were unable to prove in a Tennessee court, as negligent and intentional “infliction of emotional distress” (Read).

Incidental Use

Frazier did not need to invoke the defense of incidental use to justify the soldier’s names on the t-shirts, but in my opinion incidental use would have applied (Trager 252).  An individual soldier’s name was not the main focus of the shirt design and was in a font small enough to only be legible at close viewing (Frazier CV07-8040-PCT-NVW).

Lanham Act

In my opinion the commercial appropriation issues invoked by the t-shirt design are not in the “zone of interest” of the Lanham Act of 1938, which is concerned with false or misleading advertising (Trager 556).

Works Cited

“Campaign Finance Report 2010 March/May Regular Election.” City of Flagstaff, Arizona, 2010, www.flagstaff.az.gov/DocumentCenter/View/10843/Dan-Frazier. Accessed 15 November 2020.

Fischer, Howard, “Antiwar T-shirts win protection.” Capitol Media Services, 2008, azdailysun.com/news/antiwar-t-shirts-win-protection/article_d0dd0588-d6dc-5b28-acfe-70771736099a.html. Accessed 15 November 2020.

Frazier, Dan vs. Defendants. CV07-8040-PCT-NVW. 2008. Print.
—. 07-CV-8040-PHX-NVW. 2008. Print.

Legal Information Institute. “Right to privacy.” Cornell Law School, 2020, www.law.cornell.edu/wex/right_to_privacy. Accessed 12 November 2020.
—. “Publicity”. Cornell Law School, 2020, www.law.cornell.edu/wex/publicity. Accessed 12 November 2020.

“Lifeweaver LLC.” Bizapedia.com, 2019, www.bizapedia.com/nm/lifeweaver-llc.html. Accessed 15 November 2020.

“Mom Wants Dead Son Off Anti-War Shirt.” CBS Interactive Inc., 2008, www.cbsnews.com/news/mom-wants-dead-son-off-anti-war-shirt/. Accessed 15 November 2020.

Read, Robin, et al v. Lifeweaver, LLC et al. 2:08-CV-116. 2010. www.leagle.com/decision/infdco20100506b78. Accessed 15 November 2020.

team@lifeweaver.com, “Lifeweaver LLC.” 2020, lifeweaver.com. Accessed 15 November 2020.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Watters, Jesse “Confronting Frazier.” BillOReilly.com, 2006, www.billoreilly.com/b/Confronting-Frazier/-643011088989176289.html. Accessed 15 November 2020.

 

The Film “Good Night and Good Luck” and Theories of Propaganda

DISCLAIMER: The following is graduate student work. I’m uploading it after grading from the Professor but no corrections were made. I made a couple of minor formatting changes for online viewing, the printed version attempts to conform to MLA style. Comments on any of my blog posts are encouraged at any time and if you have critiques that would help me write better I especially would welcome those.


The Film “Good Night and Good Luck” and Theories of Propaganda

Propaganda is a communication strategy that aims to influence the ideas and behavior of people without the subjects being consciously aware they are being manipulated (Baran and Davis 43). 20th century theorists in the United States differentiated between different types of propaganda. White propaganda was defined as the suppression of some ideas in favor of other ideas favorable to the goals of the propagandist. Black propaganda was the deliberate spread of misinformation (Baran and Davis 43). Gray propaganda was defined as information that made no claims to being either true or false (Baran and Davis 44). White and Black in this context are old-fashioned terms that are not accepted today because they can give offense but at the time these theories were first promoted they were shortcuts for Good, Bad and ambiguous (Baran and Davis 44).

The effectiveness of propaganda had been demonstrated to the satisfaction of many elites and social theorists by the events of WWI and the rise of totalitarian governments in Europe by the 1930s. In the United States there was concern about whether democracy could survive when the world was full of enemies willing to use propaganda as a weapon (Baran and Davis 45-46).

New York Times columnist Walter Lippmann was one of those who advocated for the formation of an intelligence bureau that would disseminate information selected by scientific methods to be distributed to government decision makers and media (Baran and Davis 51). An example of opposition to Lippmann’s view was philosopher John Dewey who believed that education was the best defense against propaganda (Baran and Davis 51). The educational prophylactic approach as a guard against propaganda came to be known as media literacy (Baran and Davis 51).

World War II and the Cold War further encouraged mass society theorists who nurtured ambitions to control information for the public good, although a formal government intelligence agency for that purpose was not formed at that time (Baran and Davis 51). Limited-effects theory advocates conducted studies that gave them confidence that leaders and the public could mitigate the effects of Communist propaganda on average people. Senator Joseph McCarthy did not share that confidence. As an apparent mass society theory believer, in the 1950s he and his allies began a campaign to purge communists from the United States government and media which came to be known as the Red Scare (Baran and Davis 22).

The 2006 film “Good Night and Good Luck” is based on historic events and chronicles the public clash between journalist Edward R. Murrow and Senator McCarthy (Clooney). George Clooney is the director of the film, the co-writer of the script and also stars as Murrow’s producer Fred Friendly. As depicted in the film, Murrow is host of a television news segment on CBS. He and and his team decide to produce a story about an Air Force officer who becomes collateral damage as a result of the Senator McCarthy’s anti-Communist actions. They fear McCarthy and his power to bring ruin to people by accusing them of being a Communist or associating with Communists. Because of their concerns about civil liberties they decide airing the story is worth the risk to themselves (IMDb.com, Inc.). Murrow is depicted as someone who is conscientious about avoiding factual errors, reporting both sides of the story, preserving his reputation as a serious newsman and taking the role of the media in a democracy very seriously (Clooney). Both antagonists try to use their best weapons to take down the other after the fight gets personal toward Murrow and some of his associates (Clooney).

George Clooney stated in an interview that his father was a news anchorman who greatly admired Edward R. Murrow (George Clooney Talks…). In another interview, Clooney told of sitting in on his news director father’s meetings and learning how to do his own news reading (Lear). Clooney looked up to his father for writing his own copy and insisting on sufficient sources for stories (Lear), qualities in common with his film’s depiction of Murrow (Clooney). Clooney admits to being concerned about being labeled a traitor and suffering a career backlash for speaking out against the US invasion of Iraq and the Patriot Act. He made “Good Night and Good Luck” when he did in response to things he was observing in post 9/11 America that reminded him of the McCarthy era and the Red Scare (Lear). Later in the interview Clooney states that he thinks the American people as a whole can understand subtleties in programming and don’t have to have their content simplified as much as the establishment thinks is necessary (Lear).

What attitudes about programming and propaganda does “Good Night and Good Luck” try to promote? The film ends with an excerpt from a famous speech that Edward R. Murrow delivered on Oct. 25, 1958 at the Radio Television News Directors Association convention (On October 15…).

A comparison of the onscreen version of the speech with a transcript of Edward R. Murrow’s speech in real life shows that while the onscreen speech has been severely truncated and rearranged, the main message behind the speech is intact (On October 15…, Clooney). The onscreen Edward R. Murrow (Clooney), the real life Edward R. Murrow (On October 15…) and George Clooney (Lear) himself all appear to support the premise that democracy is best preserved if the people are given a chance to consume news and information without having it selected or filtered by decision makers that know better than they what is good for them to hear. The film becomes a powerful argument for a media theory similar to that of John Dewey who believed that media should not be used to manipulate but to facilitate the free exchange of ideas (Baran and Davis 52).

Did director and writer Clooney make his film in a way that shows that he really believes in Murrow’s preferred approach? Some critics did examine whether the film attempted to manipulate the depiction of historic events in “Good Night and Good Luck”. Phillip Lopate includes in his review some mild criticism for film-making flourishes that increase Murrow’s heroic stature (Lopate 32). Reviewer Terry Teachout criticized the film for leaving out information showing that while many accusations of Communism were in reality false, some were not (Teachout 71). Thomas Doherty points out that several historic incidents were shown out of order and attacks on McCarthy that did not originate with Murrow were omitted from the film to give Murrow more credit for his victory over McCarthy than was actually due (Doherty 55). Clooney is also credited for giving nuance to some of the characters (Doherty 55) and including amounts of information and detail in the film that elevates it in quality from many other comparable products of his industry (Doherty 55, Klawans 48).

Clooney may have intentionally blended a benignly intended message about the role of the mass media as a source of information in a free society while simultaneously attempting to protect the interests of himself and his industry associates from the ill fates suffered by some of their on-screen counterparts (Clooney). If that was his goal, “Good Night and Good Luck” is an example of a skillful use of “White” propaganda (Baran and Davis 43, 56).

Works Cited

Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.

Clooney, George, director. Good Night, and Good Luck. TVA Films, 2006.

Doherty, Thomas. “Good Night, and Good Luck.” Cineaste, vol. 31, no. 1, Winter 2005, pp. 53–56. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=fah&AN=19418527&site=ehost-live. Accessed 7 September 2019.

“George Clooney Talks About Edward R. Murrow in Good Night, and Good Luck.” Watchr Media, 2005, movieweb.com/george-clooney-talks-about-edward-r-murrow-in-good-night-and-good-luck/. Accessed 6 September 2019.

IMDb.com, Inc., 2019, www.imdb.com/title/tt0433383/plotsummary?ref_=tt_ql_stry_2. Accessed 6 September 2019.

Klawans, Stuart. “Lessons of Darkness.” Nation, vol. 281, no. 13, Oct. 2005, pp. 48–52. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aph&AN=18506171&site=ehost-live. Accessed 7 September 2019.

Lear, Norman. “George Clooney.” Interview Magazine, 2012, www.interviewmagazine.com/film/george-clooney. Accessed 6 September 2019.

Lopate, Phillip. “The Medium and Its Conscience.” Film Comment, vol. 41, no. 3, Sept. 2005, pp. 30–37. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aft&AN=504082227&site=ehost-live. Accessed 7 September 2019.

“On October 15, 1958, veteran broadcaster Edward R. Murrow delivered his famous “wires and lights in a box” speech before attendees of the RTDNA (then RTNDA) convention.” Radio Television Digital News Association, 2019, www.rtdna.org/content/edward_r_murrow_s_1958_wires_lights_in_a_box_speech. Accessed 6 September 2019.

Teachout, Terry. “Journalism, Hollywood-Style.” Commentary, vol. 120, no. 5, Dec. 2005, pp. 69–72. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=afh&AN=18962558&site=ehost-live. Accessed 7 September 2019.


Unused interesting links: These are links that I found while researching the above that I did not use in my paper. They might be interesting reading for anyone who read my above paper and is interested in the topic(s).

“A Report on Senator Joseph R. McCarthy” – Transcript of the March 9, 1954 See it Now broadcast

Joseph R. McCarthy – Prosecution of E.R. Murrow on CBS’ “See It Now” – transcript and video of McCarthy’s response

Edward R. Murrow – Response to Senator Joe McCarthy on CBS’ See It Now – Transcript and video of Murrow responding to McCarthy on April 13, 1954.

Poll: 73 Percent of Republican Students Have Hidden Their Politics over Fears about Grades

Edward R. Movie. Good Night, and Good Luck and bad history.

George Clooney Biography

George Clooney (and his dad) vs. George W. Bush

George Clooney: Neocon

Hollywood and the Iraq War

“Good Night, And Good Luck”: PE Interviews George Clooney And Grant Heslov

Washington’s Hollow Men

‘Agent of influence’

Popular And Elite Culture

Elite Culture

Pity the Postmodern Cultural Elite