Legal IssuesLegal Issuesfor thefor the

Public Affairs OfficerPublic Affairs Officer

Gordon W. Odell, Jr.Gordon W. Odell, Jr.

General CounselGeneral Counsel6 August 20086 August 2008

Desired Learning Desired Learning OutcomesOutcomes

1.1. Understand legal issues Understand legal issues sufficient to meet duties and sufficient to meet duties and honor rights.honor rights.

2.2. Be acquainted with legal issues Be acquainted with legal issues associated with mass associated with mass communications.communications.

Desired Learning Desired Learning Outcomes Outcomes (Continued.)(Continued.)

3.3. Recognize when it is appropriate Recognize when it is appropriate to confer with counsel & higher to confer with counsel & higher authority before releasing authority before releasing information.information.

Desired Learning Desired Learning Outcomes Outcomes (Continued.)(Continued.)

In other words, we’re here to help In other words, we’re here to help you know how to:you know how to:

- Avoid the minefield(s),Avoid the minefield(s),- And if you can’t, to avoid the And if you can’t, to avoid the

mines,mines,- And know when to ask for help!And know when to ask for help!

A. You Already Know This A. You Already Know This StuffStuff(3. “Exceptions.”.)(3. “Exceptions.”.)

1. First, the law:1. First, the law:

Congress shall make no law. . . Congress shall make no law. . . abridging the freedom of abridging the freedom of speech, or of the press. . . .speech, or of the press. . . .

U.S. Const. Amendment 1U.S. Const. Amendment 1

2. So, can you say or print 2. So, can you say or print anything you want?anything you want?

A. You Already Know This A. You Already Know This StuffStuff(Well, pretty much, anyway.)(Well, pretty much, anyway.)

3. What “exceptions” permit legal 3. What “exceptions” permit legal action upon the following:action upon the following:

a. Shouting “FIRE!” in a crowded a. Shouting “FIRE!” in a crowded theater?theater?

Unlawful because you have a duty to _____.Unlawful because you have a duty to _____.

b. Selling copies of your favorite b. Selling copies of your favorite DVD?DVD?

Unlawful because the author has a right: _____.Unlawful because the author has a right: _____.

A. You Already Know This A. You Already Know This StuffStuff(3. “Exceptions” continued.)(3. “Exceptions” continued.)

c. Telling all “Harry has AIDS”? c. Telling all “Harry has AIDS”? (Untrue.)(Untrue.)

Unlawful because you would be ______ing Harry.Unlawful because you would be ______ing Harry.

d. Telling all “Harry has AIDS”? d. Telling all “Harry has AIDS”? (True.)(True.)

Unlawful because Harry has a right to _____.Unlawful because Harry has a right to _____.

e. “Harry received a positive AIDS e. “Harry received a positive AIDS test?” (Without acknowledging he test?” (Without acknowledging he is a physician.)is a physician.)

Unlawful because you have a duty to _____.Unlawful because you have a duty to _____.

A. You Already Know This A. You Already Know This StuffStuff(3. “Exceptions” continued.)(3. “Exceptions” continued.)

f. Publishing photographs of f. Publishing photographs of unlawful acts to childrenunlawful acts to children

Unlawful because government has a duty to ________.Unlawful because government has a duty to ________.

g. Publishing plans to make an g. Publishing plans to make an atomic bombatomic bomb

Unlawful because the government has a duty to_______..Unlawful because the government has a duty to_______..

A. You Already Know This A. You Already Know This StuffStuff(3. “Exceptions” continued.)(3. “Exceptions” continued.)

h. Advertisement: Lee Galocifer is h. Advertisement: Lee Galocifer is the best lawyer in town, he’ll get the best lawyer in town, he’ll get you top dollar.you top dollar.

B. Discussion – The Law Its B. Discussion – The Law Its ApplicationApplication

To whom does the law apply?To whom does the law apply?

CongressCongress shall make no law. . . shall make no law. . . abridging the freedom of abridging the freedom of speech, or of the press. . . .speech, or of the press. . . .

Amendment I of the U.S. ConstitutionAmendment I of the U.S. Constitution

State and local State and local governmentsgovernments, too., too.Amendment XIV of the U.S. ConstitutionAmendment XIV of the U.S. Constitution

B. Discussion – The Law…B. Discussion – The Law… (Continued.) (Continued.)

Is CAP part of the government?Is CAP part of the government?

No. No. 1. We’re 1. We’re anan AF auxiliary when we’re AF auxiliary when we’re

providing services to the Federal providing services to the Federal Government (10 USC §9442(a).)Government (10 USC §9442(a).)

2. We’re “deemed to be” 2. We’re “deemed to be” anan instrumentality of the U.S. with instrumentality of the U.S. with regard to our acts or omissions when regard to our acts or omissions when performing a mission assigned by performing a mission assigned by SAF (10 USC §9442(b)(2).)SAF (10 USC §9442(b)(2).)

B. Discussion – The Law…B. Discussion – The Law…(Continued.)(Continued.)

Who does it protect?Who does it protect?

““Persons”Persons”What’s a person?What’s a person?

What does it protect?What does it protect?““[T]he freedom of speech” [T]he freedom of speech”

Which means what?Which means what?

““[The freedom] of the press” [The freedom] of the press” Which means what?Which means what?

B.B. Discussion – The Law…Discussion – The Law… (Continued.) (Continued.) 1: Shouting “FIRE!”1: Shouting “FIRE!”

What duty is violated by shouting What duty is violated by shouting “FIRE!” in a crowded theater “FIRE!” in a crowded theater when, in fact, there is no fire?when, in fact, there is no fire?

B. Discussion – The Law…B. Discussion – The Law… (Continued.) (Continued.) 2: Selling2: Selling

Whose rights are violated by selling Whose rights are violated by selling commercial DVDs?commercial DVDs?

What right?What right?

Does the law require that we have Does the law require that we have Harry’s permission to use his Harry’s permission to use his likeness in a commercial?likeness in a commercial?

B.B. Discussion – The Law…Discussion – The Law… (Continued.) (Continued.)

3: Saying Bad Things 3: Saying Bad Things About Harry.About Harry.

Harry has a right to his reputation.Harry has a right to his reputation.

___ is when you damage his ___ is when you damage his reputation.reputation.

Harry has a ___ right to not be Harry has a ___ right to not be presented in a “false light.”presented in a “false light.”

B. Discussion – The Law…B. Discussion – The Law… (Continued.) (Continued.) 3: Selling/Publishing stuff 3: Selling/Publishing stuff about Harry.about Harry.

Harry has a right to _______. There Harry has a right to _______. There are 4 ways that right can be are 4 ways that right can be violated:violated:

AppropriationAppropriation

IntrusionIntrusion

False lightFalse light

Public disclosure of private factsPublic disclosure of private facts

B. Discussion – The Law…B. Discussion – The Law… (Continued.) (Continued.) 3 & 4+: Publishing stuff 3 & 4+: Publishing stuff about Harry. about Harry. (Continued.)(Continued.)

About the need for permission. . . .About the need for permission. . . .

B. Discussion – The Law…B. Discussion – The Law… (Continued.) (Continued.) 3 & 4+: Publishing stuff 3 & 4+: Publishing stuff about Harry. about Harry. (Continued.)(Continued.)

About avoiding d_______ (s & l)About avoiding d_______ (s & l)

““allegedly”allegedly”

““we have received reports”we have received reports”

Stick to the facts.Stick to the facts.

B. Discussion – The Law…B. Discussion – The Law… (Continued.) (Continued.) 5: Nasty pictures5: Nasty pictures

2 exceptions to “Freedom of Speech” 2 exceptions to “Freedom of Speech” empower the government to empower the government to prohibit making or possessing prohibit making or possessing photographs. They are-photographs. They are-

The authority to regulate The authority to regulate ____. (Hint: I can’t define it, “but I ____. (Hint: I can’t define it, “but I know it when I see it...”) andknow it when I see it...”) and

B. Discussion – The Law…B. Discussion – The Law… (Continued.) (Continued.) 6. Publishing Bomb-Making 6. Publishing Bomb-Making InstructionsInstructions

The government can regulate, The government can regulate, control, & prohibit those control, & prohibit those “expressions” that are a danger “expressions” that are a danger or safety risk to the public.or safety risk to the public.

Consider: Consider: National Socialist Party v National Socialist Party v SkokieSkokie, 432 U.S. 43 (1977), 432 U.S. 43 (1977)

B.B. Discussion – The Law…Discussion – The Law… (Continued.) (Continued.) 7. Advertising/Commercial 7. Advertising/Commercial SpeechSpeech

C. As a Practical Matter C. As a Practical Matter

1.1. Confine yourself to the facts. Confine yourself to the facts. Consider:Consider:

a. The aircraft was seen at. . .a. The aircraft was seen at. . .

b. We have reports of a b. We have reports of a sighting of the aircraft at. . .sighting of the aircraft at. . .

c. We have unconfirmed c. We have unconfirmed reports that the aircraft was seen reports that the aircraft was seen at. . .at. . .

C.C. As a Practical Matter As a Practical Matter (Continued.)(Continued.)

2. Avoid speculation2. Avoid speculation

C.C. As a Practical Matter As a Practical Matter (Continued.)(Continued.)

3.3. Why should you do these things?Why should you do these things?

a. Preserve security/limit accessa. Preserve security/limit access

b. Shred documentsb. Shred documents

c. Correct wrong/inaccurate infoc. Correct wrong/inaccurate info

C.C. As a Practical Matter As a Practical Matter (Continued.)(Continued.)

4.4. Why NOT do these things?Why NOT do these things?a. Speculatea. Speculate

b. Name people on boardb. Name people on board

c. Name participants (individuals) c. Name participants (individuals) involved in the searchinvolved in the search

d. Allude to criminal activitiesd. Allude to criminal activities

e. Discuss potential legal issuese. Discuss potential legal issues

f. Share search dataf. Share search data

C.C. As a Practical Matter As a Practical Matter (Continued.)(Continued.)

4.4. Specific ProblemsSpecific ProblemsWe don’t discuss personnel matters & We don’t discuss personnel matters &

anticipated/ pending litigation.anticipated/ pending litigation.

d. Takeawaysd. Takeaways

1.1. Use reasonable care – don’t defame Use reasonable care – don’t defame or misrepresentor misrepresent

2.2. When you speak/write for CAP, it’s When you speak/write for CAP, it’s CAP’s freedoms that we’re protecting CAP’s freedoms that we’re protecting here.here.

3.3. Use other folks’ materials with care.Use other folks’ materials with care. Permission – copyrightPermission – copyright AppropriationAppropriation PrivacyPrivacy False lightFalse light