Mass media law

Test Instructions:
1. You must answer six and only six questions.
2. You must answer at least one question from each part.
3. Submit your answers by uploading them to the link on Canvas as either Word documents or rich text files.
4. Attach the cover sheet with your name and section number to the front of your answers.
5. Do not combine answers to two or more questions.
6. Number your answers according to the red number that corresponds to the question you are answering.
7. Read each question. Answer only what is asked.
8. State the legal rule or definition that controls the answer.
9. Identify all facts in the hypothetical that are relevant to answering the specific question and explain how those facts affect the decision using the applicable legal rules.
10. DO NOT simply quote the facts from the hypothetical; explain how the application of the legal rules to those facts leads to a conclusion.
11. These are not research problems. Do not cite precedents or other cases to support your conclusions. Instead, show you understand how the legal principles apply to the stated facts.
12. Decide issues on the basis of the given facts; do not make up facts.
13. Unexplained conclusions receive no points.

Part I: Cronkheit Drug & Chemical Corp. v. P.T. Barnum Pharmaceutical Co.: Lanham Act false advertising
The P.T. Barnum Pharmaceutical Co. manufactures and sells a number of over-the-counter drugs. Two years ago, the company introduced a topical analgesic called Aspirgel. The product is an ointment that can be applied to the surface of the body where one has muscular aches or pains from arthritis or over-exercise. The product temporarily diminishes or eliminates pain.
To promote Aspirgel, which is sold throughout the United States, the Barnum company has prepared a television commercial. The commercial explains how Aspirgel is supposed to work and presents an endorsement of the product by Dr. Sigmund Frog. The commercial identified Frog as “a practicing physician.” Here is the text of the commercial:

Announcer: Imagine putting the strong relief of aspirin right where you hurt. Aspirgel is an odorless rub that concentrates the relief of aspirin. When you take regular aspirin, it goes throughout your body. But in seconds, Aspirgel starts concentrating all the temporary relief of two aspirin directly at the point of minor arthritis pain.
Dr. Frog: I agree. Aspirgel is the best topical pain reliever I know of. I tell all my patients to throw away their aspirin bottles and just use Aspirgel.
Announcer: No other analgesic creme delivers the pain-reducing power of aspirin directly where you hurt.

Cronkheit Drug & Chemical Corp. also manufactures a number of over-the-counter medicines, including Dr. Bill’s Warming Creme, a topical analgesic. Dr. Bill’s has been the nationwide market leader in topical analgesics for more than two decades. Americans buy about $450 million worth of analgesic creams every year, and until last year, Dr. Bill’s accounted for about 22 percent of the total sales–about $99 million. Since the appearance of Aspirgel on the market, sales of Dr. Bill’s have slumped to $83 million.
Aspirgel, meanwhile, rapidly rose to fourth place in the field, which comprises about 10 different brands. Aspirgel’s sales last year were $38 million, up from merely $11 million the year before. Marketing experts attributed the rapid ascent of Aspirgel in the field to its aggressive advertising campaign.
Cronkheit executives, fearful that sales of Dr. Bill’s will continue to decline, commissioned studies of Aspirgel, the claims in its commercials and the effect of those claims on consumers.
Cronkheit conducted a chemical analysis of Aspirgel which showed that it contains no aspirin. The active ingredient in aspirin is acetyl salicylic acid. The active ingredient in Aspirgel is trolamine salicylate, which is a chemical relation of acetyl salicylic acid but not the same thing. Trolamine salicylate is not as effective a pain reliever as acetyl salicylic acid.
Inquiries with the U.S. Food and Drug Administration also revealed that the FDA had never reviewed any of the claims for Aspirgel or other products containing trolamine salicylate nor had Barnum provided any evidence to the FDA that Aspirgel or its ingredients are absorbed into a users underlying tissues when applied to the skin.
Dr. Bill’s, on the other hand, has three active ingredients: camphor, menthol and methyl salicylate. The last constitutes 30 percent of the content of Dr. Bill’s. Clinical evidence for its effectiveness as a pain reliever is weak, but in the body, methyl salicylate metabolizes into salicylic acid, which is a known non-steroidal anti-inflammatory drug.
Cronkheit also investigated Dr. Frog and discovered that he is a medical doctor and does recommend Aspirgel to his patients. But his specialty is nephrology, and his practice is limited to patients who have kidney problems. He does not routinely treat patients with arthritis or other aches or pains of the muscles or joints.
Cronkheit also hired Trotter Polling Services Inc. to discover what effect the Aspirgel commercials were having on consumers. Trotter, a recognized leader in consumer survey techniques, interviewed 450 consumers selected from shoppers in nine malls around the country. The consumers were shown the Aspirgel commercial and were asked questions about what information they derived from it. The survey found that 74 percent of respondents concluded that Aspirgel contains aspirin and that it deposits aspirin in the tissues where it is applied. Fifty-eight percent of the respondents said they thought only Aspirgel worked as well as aspirin in relieving the aches and pains associated with arthritis. Thirty-nine percent of the respondents said they believed Aspirgel’s claims were based on scientific tests comparing Aspirgel against other leading analgesic creams, including Dr. Bill’s. And finally, 42 percent of the respondents said they thought Dr. Frog was a family practice physician or general practitioner, and 18 percent said he is a specialist in orthopedic medicine and an expert in arthritis.
Cronkheit Drug & Chemical Corp. has filed a lawsuit against P.T. Barnum Pharmaceuticals Inc. alleging that the commercial for Aspirgel violates the Lanham Act prohibitions on false advertising. Specifically, Cronkheit alleges the commercial contains two explicit falsehoods: one explicit falsehood is about the ingredients in Aspirgel and the second is about the effectiveness of Aspirgel as a pain reliever. Cronkheit also alleges the commercial contains two implicit falsehoods: the first implicit falsehood deals with the basis for its claim it works better than other topical pain relievers and the second is about the qualifications of Dr. Frog as an endorser.

1A. Would Cronkheit be able to prove all of the elements of a Lanham Act lawsuit in regard to the allegedly explicit falsehoods in the commercial? Why or why not?

1B. Would Cronkeit be able to prove all of the elements of a Lanham Act lawsuit in regard to the allegedly implicit falsehoods in the commercial? Why or why not?

Part II: FTC v. Rosewood; deception, mock-ups, substantiation
Rosewood Beauty Products Inc. manufactures Highlites shampoo and Highlites conditioner. The Highlites line had been the leading shampoo and conditioner in the nation, but it has been steadily losing market share to products manufactured by Calvin D’Cline Inc. and Vitál Buffoon, both of which have much more aggressive television advertising campaigns. Rosewood executives decided to re-establish Highlites as the dominant brand in the field and to do so they re-formulated the products and developed a series of three television commercials which have aired frequently on all networks and on selected local stations.
The first of the three commercials, called “The Foamy Spot,” emphasized how Highlites shampoo had been reformulated and improved. The commercial said Highlites produced “thicker, richer lather than ordinary shampoos for longer, deeper cleaning.” To demonstrate the claim, the commercial showed two models shampooing their hair. The first model used Highlites, which quickly produced a thick lather, and the lather remained thick throughout the commercial. The second model used a product labeled “ordinary shampoo” which lathered quickly, but the lather diminished markedly after only a few seconds. The announcer said, “With Highlites, you can be sure your hair will be completely clean.” The commercial did not mention that the second model was not using shampoo. Instead that person used a preparation that was 90 percent water to which was added a foaming agent called ultra-wet 60L; it did not contain any soaps or other ingredients normally found in shampoo. The effect of the foaming agent is to produce a foam or lather that quickly dissipates.
The second commercial, called “The Conditioner Spot,” emphasized the ability of Highlites conditioner to make hair look healthy and youthful and told viewers about a change in Highlites’ formula. “Highlites restores the natural beauty of your hair. With regular use of Highlites conditioner, your hair will quickly attain the thick, supple quality of youth. No matter what your age, Highlites conditioner can give your hair a glow that is wonderfully rejuvenating. And remember, only Highlites now has vitamin C.” Highlites conditioner does contain vitamin C, and it is the only conditioner on the market that does so. Rosewood has not conducted any research or study on what benefits the inclusion of vitamin C in a shampoo might have for the users of that shampoo. No independent researchers have conducted studies on the effect of vitamin C on hair appearance and condition when applied directly to the hair. The commercial made no mention of the absence of clinical evidence. An independent research firm conducted a scientific survey of consumers and found that 32 percent of people who saw the Highlites conditioner commercial concluded vitamin C in a conditioner helps make hair thicker and younger looking.
The third commercial, called “The Brett Favor Spot,” relied on endorsements to promote both Highlites shampoo and conditioner. The first endorser, an ordinary user, said, “Since I’ve been using Highlites shampoo and conditioner, my hair hasn’t looked this young and thick in years. And what’s more, my hair is darker and shows less gray since I’ve been using Highlites.” The second endorser, another ordinary user, told viewers, “Highlites shampoo and conditioner clean and condition better than any other brand. And after I use Highlites I can style my hair without having to use sprays or styling gels.” The last endorser was Brett Favor, a professional football player, who said, “I work out hard every day. So I shampoo every day. Believe me, that makes you an expert on shampoos pretty fast. I use Highlites shampoo and conditioner because they keep my hair soft and healthy even with daily use. Take my word for it: Highlites shampoo and conditioner are winners.” The ordinary users were, in fact, just that, and the opinions they offered about Highlites were genuine ones. Rosewood, however, has no evidence that regular use of Highlites products ordinarily will make hair darker or less gray or make it easier to style without sprays or gels. Favor received a substantial payment for endorsing Highlites, a fact that was not revealed in the commercial. Also, Favor uses a shampoo supplied by his team, not Highlites, when he cleans up after practices—a fact of which Rosewood is aware.

2A. Does the first commercial showing, “The Foamy Spot,” violate the FTC’s standard on deceptive advertising? Why or why not?

2B. Does the second commercial, “The Conditioner Spot,” violate the FTC’s guidelines on substantiation? Why or why not?

2C. Does the third commercial, “The Brett Favor Spot,” violate the FTC’s standard on deceptive advertising? Why or why not?

Part III: StarStruck v. GrayWolf: Trademark infringement; Trademark Dilution
StarStruck Inc. has been running a chain of coffee shops since 1975, and now operates more than 7,000 stores in all 50 states and 36 foreign countries. It also supplies coffee and related products to restaurants, supermarkets, airlines, hotels, movie theaters and other businesses.
StarStruck, which is based in California, has registered as U.S. trademarks several marks that it uses in its business, including the name “StarStruck” and its logo, which is a coffee cup with a crescent moon and three stars in the cup. The name and logo always appear in blue on a white background. Those marks have been registered with the U.S. Trademark Office since the company began business in 1975. They are also registered in all foreign countries in which StarStruck does business.
StarStruck advertises heavily in the mass media, and over the last two years, it has spent more than $150 million for advertising on television and radio and in newspapers, magazines and online publications. It has also paid to have its product and its logo placed prominently in four high-profile theatrical movies that have been released in the last two years. Because of this substantial investment in promoting its brand, StarStruck devotes much time, effort and money to policing the use of its trademarks. When it identifies what it sees as a potential threat to its trademarks, it sends cease-and-desist letters to the offending party and, when necessary, files lawsuits.
GrayWolf, a company based in Nirvana, also makes and sells roasted coffee products. GrayWolf is much smaller than StarStruck and has only five stores in two Nirvana cities, but it also distributes its products nationally through its website. It is run by Leif and Hedda Lettuce. GrayWolf began operation in 1997, and it specializes in selling a dark roasted blend, which it first marketed under the name “AstraStruck Blend” and later “Mister AstraStruck.” AstraStruck Blend was sold in a packaging that showed a picture of a gray wolf howling at a crescent moon with two small stars on either side of the moon. Beneath the logo are the words “GrayWolf Micro Roastery.” Below that was the slogan, “You wanted it dark … You’ve got it dark!” When GrayWolf changed the name to “Mister AstraStruck,” the packaging retained the crescent-moon-and-gray-wolf logo but it added a different slogan “Roasted to the Extreme … for Those Who Like the Extreme.” For both AstraStruck Blend and Mister AstraStruck, the words and logo appear in packaging and advertising in light gray on a dark blue background.
Not long after making its first sale of AstraStruck Blend in 1997, StarStruck demanded that GrayWolf cease use of the AstraStruck Marks. The Lettuces were angered by the demand. Leif Lettuce later said, “We hadn’t done anything wrong. My main objection was that basically this was a large corporation coming at me and saying, telling us what to do, and, oh, by the way you’re going to pay for it, too. Some of the requests that they were making were really off the wall.” Lettuce admitted that he was aware of the StarStruck brand and the success it had had in 20 years after its founding. He said he hoped GrayWolf would experience similar success. Nevertheless, the Lettuces decided to continue selling AstraStruck Blend and Mister AstraStruck coffees. “We specifically picked ‘Astra’ as the prefix for our brand name because we thought it was different enough from ‘Star’ that people would not confuse the two,” Hedda Lettuce said.
In support of its complaint against GrayWolf, StarStruck commissioned a study of consumer beliefs about the two brands by Dr. Alfred Addled, a leading consumer researcher. Addled’s study concluded, “The number one association of the name ‘AstraStruck’ in the minds of consumers was with the brand ‘StarStruck.’ The name ‘AstraStruck’ creates many negative associations in the minds of consumers when it comes to describing coffee. Many consumers believe that AstraStruck, with its emphasis on ‘dark’ and ‘extreme’ roasts is harsh and unpleasant to drink. I believe this carries over to the StarStruck brand.” Addled said slightly more than 30 percent of respondents said StarStruck was the first thing they thought of when they heard the word “AstraStruck.” Only 3 percent, however, said they believed StarStruck was also the manufacturer of AstraStruck coffee.
Addled also studied the reactions of consumers to the two logos. His results found that 15 percent of consumers found the logos similar and believed there was a connection between StarStruck and AstraStruck. Another 10 percent said there was similarity between the marks, but they did not believe the two brands were connected. The remaining respondents either said the two logos were not similar (53 percent) or had no opinion (22 percent). Addled interviewed random samples of shoppers in five shopping malls in five cities.
GrayWolf did not commission any scientific surveys or studies, partly because the Lettuces believed they had not infringed on StarStruck’s trademarks and partly because, as small-business owners, they could not afford the expense.
StarStruck, however, believed that GrayWolf’s use of the AstraStruck name and of its logo with the crescent moon and stars was infringing on and diluting its own trademark. When GrayWolf refused to comply with its demands, StarStruck filed a lawsuit in federal district court alleging trademark infringement and trademark dilution under the federal Lanham Act.

3A. Considering all of the evidence, would StarStruck be able to prove all of the elements for an action for trademark infringement? Why or why not? Be sure to consider the factor listed in the test for confusion.

3B. Considering all of the evidence would StarStruck be able to prove all of the elements for an action for trademark dilution by blurring? Why or why not? Be sure to consider all of the elements.

Part IV: GONAD v. MADDOG – Copyright: Originality, Fair-Use Defense
The Gun Owners of Nirvana for Action and Defense (GONAD) published a newsletter attacking two pieces of legislation pending before the Nirvana Legislature: a ban on assault rifles and a mandatory waiting period for firearms purchases. GONAD is a non-profit organization devoted to lobbying against any regulation of firearms. Its monthly newsletter circulates to all dues-paying members of GONAD and, on a subscription basis, to a number of academic and public libraries in Nirvana.
The newsletter summarized the two bills and presented the organization’s analysis of the impact of the bills on the rights of gun owners and potential gun owners in Nirvana. Much of the text of the newsletter was opinion, often expressed colorfully, about the purposes and effects of the bills and the motives of their supporters. Among other things, the newsletter said:

“These bills attack on the rights of honest firearms owners of the state of Nirvana. The bills, if they become law, will handcuff sportsmen and decent people worried about self-defense. Criminals will be free to take our property and threaten our lives.
* * * *
“The ‘representatives’ and ‘public-interest groups’ that support these laws have more compassion for criminals than for decent, law-abiding citizens trying to protect themselves and their property. It’s time to send a message to those who support gun-control legislation that gun owners will defend their Second Amendment freedoms.
* * * *
“Attached to this newsletter is a list of the names, addresses and phone numbers of legislators who either support these bills or who will play important roles in deciding whether they will ever become law. You, the honest, gun-owning citizen of Nirvana, must let these people know what you think. Call these people today. Call them often. Make sure they know how you feel about these bills and anyone who would support them.”

The alphabetical list included the names of the legislators who were sponsoring the bills and the names of the members of the House and Senate committees that will hold hearings on the bills. Following each name was the member’s office address and office phone number, a percentage indicating how frequently the legislator had voted against gun-control legislation, and the amount of campaign contributions the legislator had received in the last two years from opponents of gun-control legislation.
This edition of the newsletter was registered with the U.S. Copyright Office, and GONAD received a certificate of copyright.
Shortly after GONAD published the newsletter, Moms And Dads Determined to Oppose Guns (MADDOG) obtained a copy and published a rebuttal in its own monthly newsletter. Like GONAD, the Moms And Dads Determined to Oppose Guns is organized on a not-for-profit basis, and it sends a monthly newsletter to dues-paying members and other subscribers.
MADDOG devoted one issue of its newsletter to the GONAD attack on the pending legislation. The MADDOG newsletter said, “Look at what the gun lobby is doing and saying now!” The MADDOG newsletter reprinted verbatim the three paragraphs above from the GONAD letter. After each of the paragraphs, the MADDOG inserted two or three paragraphs attempting to rebut GONAD’s arguments. Along with the roughly 150 words above, the MADDOG reprinted about another 200 words of direct quotations, all shorter passages and all in the context of criticizing and rebutting GONAD. The reprinted quotations amounted to about 25 percent of the text of the GONAD newsletter and about 20 percent of the MADDOG newsletter. MADDOG also simply photocopied and reprinted the names, addresses and phone numbers of key legislators that GONAD had sent its members. MADDOG also reproduced GONAD’s tabulation of the legislators’ voting records and contributions from gun-regulation opponents. MADDOG said the legislators were on the GONAD “Hit List” and urged its members to call and write to offset the barrage of propaganda the lawmakers were likely to get form GONAD. The list of legislators constituted about 15 percent of the GONAD newsletter and 12 percent of the MADDOG newsletter. MADDOG also registered its newsletter with the U.S. Copyright Office.
Since the two bills to regulation firearms were filed in the Nirvana Legislature, both GONAD and MADDOG have experienced growth in membership. GONAD has increased its membership by about 17 percent and MADDOG by about 11 percent. Both have also seen the circulation of their newsletters to libraries and other nonmember institutions increase. GONAD’s newsletter has increased its circulation by about 5 percent, and MADDOG’s newsletter has about 3 percent greater circulation. Both organizations put their newsletters on the Web, and page views for both have increased even more rapidly, 15 percent for GONAD and 17 percent for MADDOG. Neither newsletter accepts advertising.
When GONAD learned of the MADDOG newsletter, it filed suit in federal court alleging copyright infringement. GONAD said the portions of its newsletter the MADDOG had used represented the heart of its work. Furthermore, GONAD said that while all of the information in the list of legislators was public record, GONAD officials had spent several days compiling the information on past votes and campaign contributions; therefore, the list was entitled to copyright protection and had been appropriated verbatim by MADDOG. For its part, MADDOG said that while it may have copied parts of the GONAD newsletter, the list of legislators lacked sufficient originality to enjoy copyright protection and the rest of its use of the GONAD material was protected under the fair use defense.

4A. Does the GONAD newsletter possess sufficient originality to qualify for copyright protection? Why or why not? Be sure to consider all parts of the newsletter described in this situation. In particular, does the list of legislators have enough originality to qualify for copyright protection? Why or why not?

4B. Would MADDOG’s use of the portions of the GONAD newsletter identified above be protected by the fair-use defense? Why or why not? Be sure to explain your conclusions on all four parts of the fair-use defense.

Part V: Art Deco v. NBS; Hamhocks and Flakehead v. CBC; Max Deco v. National Intelligencer: Intrusion; Surreptitious Recording; Posing
Art and Max Deco, brothers who own a real estate business, Sunnyside Estates, in the state of Nirvana, have attracted the attention of federal prosecutors and investigative reporters. The Deco brothers have lured hundreds of retired people to invest millions of dollars in a housing development near Vapid City, Nirvana. They also persuaded Vapid City to invest millions in sewer lines, water lines and roads for the development. The roads, water and sewer lines have been installed, but none of the houses have been built. And now the Deco brothers’ real estate business is under investigation by state and federal authorities, and no one knows what happed to the money the retirees invested. The federal prosecutor has said his office is studying the situation, but he refuses to say whether he plans to file criminal charges against the Deco brothers.
Negligible Broadcasting System’s weekly news magazine Some Time: Live is one of the media organizations investigating the Decos. NBS has sent Geraldo Ravioli, its ace investigative reporter, to find out what he can about the Decos. Ravioli interviewed dozens of business leaders and public officials in Vapid City and Nirvana. He also collected scores of documents from a variety of sources. At the secretary of state’s office, he learned that the Decos have incorporated seven different real estate or construction businesses and appear to be the sole owners of all of them. The only business that has proved controversial is Sunnyside Estates. The rest of the businesses control some of the most expensive and profitable properties in Vapid City, including the city’s biggest shopping center and a popular amusement park. Ravioli also learned that Art Deco divorced his wife last year. As part of the proceeding, he had to divulge a complete listing of his assets and his federal income tax statements for the last five years. All became part of the official record of the case. Those records showed that Deco had extensive holdings in a Caribbean country that has no extradition treaty with the United States.
Continental Broadcasting Company sent reporter Dan Blather of its weekly news magazine show, Deadline CBC, to investigate the Decos. Blather obtained a job working in the Sunnyside Estates office. He wore a hidden microphone and a hidden camera every time he went to the office. The state of Nirvana follows the law of a majority of states on the use of hidden microphones, but it prohibits the surreptitious photographing of people in places where they have a reasonable expectation of privacy. Blather struck up conversations with other employees about the Decos, their business, and the bankruptcy proceedings. Among others, he spoke to Harry Hamhocks and Calista Flakehead, two of the real estate business’s top sales people. Both told Blather the Decos pushed hard to have them close sales of homes and encouraged the sales people to use all the high-pressure tactics they could think of. Hamhocks and Flakehead also told Blather all of the sales personnel kept asking the Decos when model homes would be built, which would help them sell the project to prospective buyers. The Decos had promised to have model homes built soon, but “soon” never came. They also told Blather they were upset by the federal and state investigations into the operation. Those investigations have brought sales to a standstill, which also has shrunk their paychecks because they work on commission. They told Blather they hoped the Decos would sell the business to someone who would settle the problems and boost sales. All of Blathers’ conversations with Hamhocks and Flakehead occurred in an area of the office that was not open to the general public. The Deadline CBC report on the Decos included much of the information Ravioli had obtained for NBS, but it also included extensive excerpts of Blather’s secretly recorded conversations with Hamhocks and Flakehead.
A third reporter, Tom Scofflaw of the National Intelligencer, a supermarket tabloid, got a job as a handyman on Max Deco’s household staff. He lived in the servants’ quarters and worked around Deco’s house performing odd jobs. He, too, carried a hidden tape recorder and microphone and a small camera. Scofflaw’s handyman duties left him little time to talk with other household employees. He never photographed any people but he did photograph some things he saw in the course of his work. One day, Scofflaw had to repair a light fixture in Max Deco’s walk-in closet. There he saw Deco’s collection of more than 200 pairs of shoes and he photographed many of them. He also found a refrigerated cabinet stocked with dozens of kinds of chocolate candies, evidence of Deco’s passion for chocolate. On another occasion, Scofflaw was repairing the door leading to Deco’s home office, and while he was alone, he used his miniature camera to photograph some documents he found inside and on top of Deco’s desk. The documents included his scorecard from a recent round of golf and form letters inviting him to subscribe to various magazines.
All three reporters prepared and published stories based on their reporting efforts and all three prompted lawsuits for invasion of privacy by intrusion. Art Deco sued NBS over Ravioli’s investigation of his affairs; Hamhocks and Flakehead sued CBC over Blather’s use of the hidden microphone and camera; and Max Deco sued National Intelligencer over Scofflaw’s activities while he posed as a handyman on his household staff.

5A. Will Art Deco be able to show that NBS invaded his privacy by intrusion? Why or why not?

5B. Will Hamhocks and Flakehead be able to show that CBC invaded their privacy by intrusion? Why or why not?

5C. Will Max Deco be able to show that National Intelligencer invaded his privacy by intrusion? Why or why not?

Part VI: Brooke v. Nirvana – Prior Restraints; Court Closures –spring 2020
Nineteen-year-old Donny Brooke of Bland Island, Nirvana, has been accused of robbing two women and murdering one of them. The crimes occurred within one week several months ago. The first victim, Meryl Strep, was a single nurse who lived in a rented house. Her attacker stabbed her to death with a knife from the kitchen and then stole her money and valuables. Although the murder occurred mid-afternoon of a workday, none of Strep’s neighbors saw anyone enter or leave her house that day. The second victim, Gwynneth Paltry, a local accountant, was attacked as she was leaving work and getting into her car to drive home. She said she was grabbed from behind, by the robber who ordered her to remove all her jewelry and hand over her money. The robber then tried to strangle her with a scarf she was wearing. Rather than fight, she pretended to lose consciousness, and the robber left, thinking she was dead. Paltry told police she thought she could identify the robber although the attack had occurred after dark and the parking lot where she kept her car was poorly lit.
Three weeks after the attack on Paltry, police arrested Donny Brooke when a patrolling officer caught him trying to break into a warehouse in downtown Bland Island. On a hunch detectives invited Paltry to a line-up that included Brooke. Paltry told officers Brooke strongly resembled the man who had attacked her. Detectives considered that sufficient to begin interrogating Brooke as a suspect in the two robberies and murder. Police also obtained a warrant to search Brooke’s home and look for evidence that would connect him to the crimes, particularly any clothes that might have blood stains that could be matched to Meryl Strep.
The murder, robberies and arrest of Brooke were all major stories in the Bland Island Daily Press and on local TV newscasts. But none of the coverage was sensational or excessive. Nevertheless because the death of Strep was the first homicide in Bland Island – a town of about 100,000 – in nearly two years and because the prosecutor had said he would seek the death penalty for Brooke, defense attorney Hamilton Burger asked that the county judge close the preliminary hearing to the press and public. Burger contended that although the Nirvana Supreme Court had already ruled that preliminary hearings were the type of proceeding where there is a First Amendment right of access, the circumstances of this case warranted closure. Burger contended the police had obtained statements from Brooke in violation of his Fifth Amendment rights against self-incrimination and had taken evidence from his home in a search that violated his Fourth Amendment rights.
Prosecutor Tom Torquemada did not object to the closure, and the judge agreed with Burger that prejudicial information might be disclosed at the hearing. The judge heard no other evidence or arguments, but he agreed to close the entire preliminary hearing–which lasted two days–to the press. Nonmedia members of the public, however, were allowed to attend the preliminary hearing so long as they agreed not to disclose any information to any mass medium. The judge found probable cause to believe Brooke had committed the crimes and ordered him bound over for trial in district court. The judge also sealed the transcript of the preliminary hearing until Brooke’s trial began. The Daily Press and other Bland Island news organizations appealed the order closing the preliminary hearing to the Nirvana Court of Appeals as a violation of their First Amendment right of access to court proceedings.
While the closure order was on appeal, Chester Drawers, an investigative reporter for KRUD-TV, started looking into rumors of misconduct surrounding Brooke’s case. Drawers talked to several police officers, attorneys and other persons involved in or familiar with the case, almost all of whom insisted Drawers keep their identities confidential. His investigation uncovered evidence that police had violated Brooke’s constitutional rights and that prosecutor Torquemada was fabricating evidence to use against Brooke.
One piece of evidence Drawers obtained was a videotape of part of the police interrogation of Brooke. The suspect had been questioned for several hours. On the tape, which shows about four hours of the interrogation, Brooke repeatedly asked the police to let him see an attorney, and the police kept telling him his attorney hadn’t arrived. Brooke’s defense attorney said he had showed up at the police station shortly after Brooke was arrested and asked to see him, but police told him Brooke was refusing to see an attorney. At the end of the tape, Brooke was told the only way he would be allowed to see an attorney is if he signed the statement confessing to the murder and robberies. He then signed the statement.
Drawers also uncovered two versions of a laboratory analysis by the county coroner’s office of reddish stains found on a pair of trousers recovered from Brooke’s home. The first analysis said the stains were paint. The second analysis said the stains were from type A+ human blood, the same as that of Meryl Strep, the murder victim. Brooke’s blood type is B+. A confidential source told Drawers that both analyses were done on the same pair of pants found in Brooke’s bedroom. The source said Torquemada, after seeing the first analysis, called the coroner–a close friend and political ally–and told him the analysis had to show that the stains were from A+ human blood. Less than an hour later the second analysis arrived in Torquemada’s office.
When Drawers started asking Torquemada about the interrogation videotape and the lab analysis of the stained trousers, the prosecutor feared that publication of that information would compromise his case against Brooke. Torquemada asked the trial judge, Solomon Wise, to order Drawers and all other reporters covering the trial not to publish in any medium any information about the videotape of Brooke’s interrogation or any information about the laboratory tests performed on the stained trousers. Judge Wise listened to Torquemada’s request and, without taking any evidence or hearing any arguments from the defendant or from media attorneys, issued the order Torquemada requested. Now, Bland Island media are arguing that order, too, is unconstitutional and have asked the Nirvana Court of Appeals to overturn it. The appeals court has consolidated the two issues – the closure order and the gag order – and will decide both at the same time.

6A. Under the Press-Enterprise v. Superior Court standard, will the Nirvana Court of Appeals uphold the county judge’s closure of the preliminary hearing? Why or why not? (Remember that under this hypothetical, the Nirvana Supreme Court has already found a First Amendment right of access to preliminary hearings, so the only issue is whether Brooke’s hearing may be closed.)

6B. Under the Nebraska Press Association v. Stuart standard, will the Nirvana Court of Appeals uphold Judge Wise’s order prohibiting the publication of information about the interrogation and the laboratory tests? Why or why not?