Legal Hotline - Miscellaneous
CAUTION:
Because the law is constantly evolving, it is important before relying
upon any opinion on this website that you check with the hotline counsel
to ascertain whether or not there has been any subsequent change or
supplementation to the law since the date of the opinion.
Answers provided by
NJPA
Legal Counsel.
Dec. 21, 2004
Question:
If the newspaper lawfully obtains the name of a juvenile charged
with a violation of law, may the newspaper publish the name?
Answer:
Yes, the newspaper can not be punished for publishing information it
lawfully obtains.
Dec. 3, 2004
Question:
May the police deny the press access to the scene of an
accident?
Answer:
The NJ Supreme Court had held that the police and fire
departments have control of the scene of an accident and may control
access. The press, however, must be afforded at least the same
access as the public.
Sept. 15, 2004
Question:
May a public official send out campaign literature on the
letterhead of a public body?
Answer:
No. The public body may spend public funds to send out
information on issues to the public but it may not use those
information pieces to urge the public to vote for or against any
person or issue. Whether or not the informational piece is an
election mailing will depend on the totality of the circumstances.
May 24, 2004
Question:
The newspaper has a policy of selling copies of published
photos. Can this offer also be made on the newspapers website?
Answer:
Yes.
May 24, 2004
Question:
If a former subscriber, one whose subscription has ceased and who
does not owe the newspaper any money, is on the Do-Not-Call list,
can the newspaper call that individual for 18 months after the
subscription ends to try and get them to subscribe again?
Answer:
No. Under the New Jersey statute and regulations there is no 18
month period after the business relationship has ended in which you
may call as there is in the federal law.
May 20, 2004
Question:
If the newspaper occasionally makes “cold calls” to residences, is
it required to register as a telemarketer?
Answer:
Yes. The obligation to register is not dependent upon how often the
calls are made. If calls are being made at all, there is an
obligation to register.
May 18, 2004
Question:
Is the public permitted to attend civil pre-trial conferences in the
federal court?
Answer:
Federal rules governing civil procedure state that all trials
must be conducted in open court but that other proceedings,
including conferences, may be done in chambers at the discretion of
the judge.
April 22, 2004
Question:
An attorney has requested a copy of a press release that the
newspaper received. Is this press release protected by the
Newsperson’s Privilege?
Answer:
Yes. The privilege protects all sources and information obtained
by a newsperson in the course of pursuing his or her professional
duties.
March 19, 2004
Question:
If a reporter enters an abandoned building in pursuit of a
story, is he or she liable for trespass?
Answer:
Under the criminal trespass statute, NJSA 2C:18-3, it is a
disorderly persons offense to enter a building, but it is a defense
that the building is abandoned. The reporter may, however, be
subject to a civil trespass action.
Feb. 19, 2004
Question:
A citizen’s group has formed to oppose a proposed development in
town. The attorney for the group has refused to identify the
members. Is there anyway to find out who the members of the group
are?
Answer:
If the group is formally organized it may be registered with the
State and its formation papers would be available from the secretary
of state. Those documents may identify at least some of the members.
In addition if the group institutes litigation it may have to
identify at least one member as a party. The complaint would then
include the name of at least one group member.
Feb. 18, 2004
Question:
May a township pass an ordinance prohibiting citizens from
videotaping or photographing a township meeting?
Answer:
An Appellate Division case from 1984, Maurice River Bd of Ed v.
Maurice River, 193 NJ Super. 488 (1984) indicates that an outright
ban on videotaping is not permitted but a public body can set
reasonable guidelines for taping so as to prevent disruption of the
meeting.
Feb. 19, 2004
Question:
If a newspaper wants to run an article about how the media is
covering the anniversary of a historic event, can it run a copy of
the cover of another publication with the article?
Answer:
A publication is copyrighted at the moment it is created so the
copyright laws would apply. However, there is exception in the
copyright law for “fair use”. Fair use includes use in a news
article or commentary. The publication should therefore be
protected.
Nov. 19, 2003
Question:
Are there regulations regarding a sale by a retailer who has lost
its lease?
Answer:
Not directly. The law prohibits more than one “going out of
business” sale in a 90 day period. To the extent the lost lease sale
is in reality a “going out of business” sale, it would be governed
by the 90 day limits.
Oct. 29, 2003
Question:
What are the statutes/regulations governing when/how a public
official can tell others to get off public property? In the context
of schools, town halls etc., do we have to listen to any government
employee who says "go away, don't shoot here" or does it have to be
someone of a certain rank, such as the police?
Answer:
There is no one answer to your question. The answer would be fact
specific. For example, a school building is considered a limited
public forum with access to school buildings generally granted only
to those persons who have a legitimate school related reason to be
on the property. In such a case, a teacher would probably be found
to have the authority to question the presence of any person and to
ask them to leave or seek to have them removed.
As to outside the school building or at other public forums, I would
think the right to ask someone to leave would be limited to the
person(s) in charge of the facility and/or scene. You will recall
the case of State v. Lashinsky, 81 N.J. 1 (1979) where the New
Jersey Supreme Court held that a police officer in charge of an
accident scene on public property had the right to control the
situation by removing bystanders and the public, including press
photographers. By this reasoning I think the courts would look to
who had the authority to control the particular premises. If the
reporter is attending a public meeting or gathering, or is otherwise
peaceably upon public property, (not creating a disturbance or a
risk to the health and safety of other persons) demanding he or she
leave or move raises First Amendment issues.
Oct. 6, 2003
Question:
Is there a time frame in which the newspaper must comply with
requests to be placed on a company specific Do-Not-Call list?
Answer:
The FCC rules require that a telemarketer cease calls to a person
who asks to be placed on the company specific Do-Not-Call list
within 30 days of the request, or sooner if the telemarketer is able
to do so.
Oct. 3, 2003
Question:
If a newspaper offers a discount ad rate to one political candidate
and not others, must that discount be reported as a contribution to
the campaign and if so who must report it?
Answer:
The discount is a contribution that must be reported by the
candidate.
Sept. 17, 2003
Question:
Do the new telemarketing rules apply to intrastate calls?
Answer:
Yes, calls from New Jersey businesses to New Jersey residents must
still be in compliance with the federal Do-Not-Call rules.
Sept. 3, 2003
Question:
An individual wants to publish a notice announcing that he has
copyrighted certain materials. Is this a legal ad?
Answer:
Legal advertisements are defined as those required by law to be
published. Only if the advertiser can point to some law that
requires the copyright notice to be published should it be run as a
legal.
April 21, 2003
Question:
May a reporter and/or photographer be inside a polling place during
the voting?
Answer:
The poll workers may prohibit any person not voting from being
inside the polling place during the vote. The reporter and/or
photographer may be outside the polling place.
March 31, 2003
Question:
What are the penalties for violation of the election laws, in
particular, the failure to file reports of contributions?
Answer:
The first offense is a fine of $3,000 and the second and later
offenses, a fine of $6,000. NJSA 19:44A-22. Further an individual
who refuses or fails to file the reports is guilty of a crime of the
fourth degree meaning the possible imposition of a fine up to
$10,000. NJSA 2C:43-3.
Feb. 11, 2003
Question:
On occasion the newspaper has reported comments made by an
individual at a public meeting. The name of the individual has not
always been included for various reasons. By failing to include the
name in every instance has the newspaper established a policy of
confidentiality?
Answer:
No, unless the newspaper has specifically agreed to withhold the
name of an individual, comments they make can be attributed to them,
especially comments made at a public meeting.
Feb. 11, 2003
Question:
A confidential source provided the newspaper with a copy of the
driver's abstract of a candidate for local office. The newspaper had
not sought the record. Is it a violation of law for the newspaper to
have the abstract?
Answer:
NJSA 39:2-3.5 makes it a violation for someone to "knowingly obtain"
the information in a driver’s record except for the purposes set
forth in the statute. Since the newspaper did not solicit the copy,
it can not be said to have "knowingly obtained" it for an improper
purpose. Further, there are a number of exceptions in the statute
which may, depending on the facts, permit a newspaper to obtain a
driver’s information.
Jan. 29, 2003
Question:
If a newspaper reprints wedding announcements or obituaries
originally published in another source, it there a violation of the
law?
Answer:
There is a copyright violation. Copyright law does not protect ideas
or facts but protects the expression of the idea or particular
description of the fact. So the fact that someone died or was
married is by itself not protected but the expression here, the obit
or announcement, is protected. Even if one newspaper learns of the
wedding or death from reading another newspaper, the only violation
would be if the second newspapers copied the original announcement
or obit.
Jan. 10, 2003
Question:
Is the term “superbowl” copyrighted or trademarked so as to preclude
its use by advertisers?
Answer:
The term is most likely trademarked and care should be taken in
using the term. The trademark can be verified by a call to the NFL.
Jan. 9, 2003
Question:
Are non-profit charitable agencies exempt from negligence actions?
Answer:
Yes. NJSA 2A:53A-7 exempts non-profit corporations and associations
organized for religious, charitable, educational or hospital
purposes from liability for negligence.
Oct. 4, 2002
Question: The newspaper has
received a copy of a notice from the prosecutor regarding a Megan's
Law registered offender living in a local community. May the
newspaper ran a story using the information disseminated to the
public by the prosecutor?
Answer:
Yes. The newspaper may publish any
information it lawfully obtains. It is however, a violation for a
citizen receiving the information to disseminate it.
Oct. 1, 2002
Question:
May the newspaper publish the names of jurors in a jury pool?
Answer:
Yes, if the names are revealed in open court or in court records.
Sept. 20, 2002
Question:
Are reporters professional (salary) or staff (hourly) employees?
Answer:
Under a decision by the Third Circuit Court of Appeals, reporters
are not professional or exempt employees under the Fair Labor
Standards Act, 29 U.S.C. 13(a)(1) and are therefore to be paid an
hourly wage. Reich v. Gateway Press, Inc. 13 F.3d 685 (1994). The
basic definition of exempt employees is that the primary duty of the
employee is "work that is original and creative in character in the
recognized field of artistic endeavor" and "the result of which
depends primarily on the invention, imagination or talent of the
employee" 29 C.F.R. 541.3(a)(2). The Court declared that "the
Gateway reporters are like the majority of reporters: although their
fact gathering duties require intelligence, diligence and accuracy,
such duties do not require invention, imagination or talent" ...
"the bread and butter work of the Gateway reporters ... is to
collect information that is by and large out in the community and
just needs to be combined into a single source." Id. at 699.
Based on these findings, the Court ordered the newspaper to pay back
wages for overtime to the reporters who had, until then, been paid a
fixed salary.
July 29, 2002
Question:
Are members of the media permitted to visit inmates in state or
county jails?
Answer:
The corrections department regulations give discretion to the
superintendent of the facility to approve visitors. Certain persons,
such as family, are presumptively permitted to visit; media
representatives are not included in that list.
May 14, 2001
Question:
Are there any specific statutes that prohibit sexual contact between a teacher and student?
Answer:
In addition to the criminal statutes governing unwanted sexual contact or contact with a minor the education statutes provide that a teacher may be dismissed or reduced in compensation for "unbecoming
conduct," NJSA 18A:6-10. "Unbecoming conduct" includes sexual contact with a student.
May
10, 2001
Question:
May the newspaper publish information and photos of "deadbeat dads" that it receives from the
sheriff's office?
Answer:
Yes. Any information the newspaper obtains through lawful means may be published.
May
2, 2001
Question:
Are real estate brokers who do commercial financing exempt from the
requirement that individuals loaning money be licensed to do so by the
state?
Answer:
Yes. N.J.S.A. 17:11C-5 states: "A real estate broker or salesperson
licensed in New Jersey…is not required to obtain a license to
negotiate a secondary mortgage loan in the normal course of business as
a real estate broker or salesman."
March 16,
2001
Question:
A
magazine advertisement has stirred a local controversy. May the
newspaper publish the ad as part of a news article?
Answer:
Yes.
Under the copyright law there is an exception for "fair use."
Republication of copyrighted material for limited purposes is permitted
under the "Fair Use doctrine;" news reporting is one of those
limited purposes.
March
5, 2001
Question:
The
newspaper has previously identified a juvenile offender by name. Now
that the matter is before the court, the court identifies the juvenile
by initials. May the newspaper continue to identify the juvenile by
name?
Answer:
Yes.
The United States Supreme Court has held that a newspaper may print any
information it lawfully obtains. So long as the newspapers can confirm
that the juvenile identified by initials is the same individual it
previously identified by name it may continue to use the name.
January
15, 2001
Question:
A
member of the governing body resigned and was immediately appointed
prosecutor. Is this permitted or is there a waiting period before the
individual can be appointed?
Answer:
Pursuant
to the Local Government Ethics Law, NJSA 40A:9-22.1, there is a one year
waiting period for a "independent local authority" to appoint
a member of the authority to a salaried position. This same waiting
period does not however apply to members of the governing body. Thus it
appears the appointment as prosecutor was not subject to the waiting
period.
October
12, 2000
Question:
Are
sales of firearm safes subject to state sales tax?
Answer:
No.
NJSA 54:32B-8.51 exempts firearm vaults from sales tax. NJSA 54:32B-8.50
similarly exempts trigger locks from sales tax.
September
25, 2000
Question:
Can
a newspaper refuse to run one paragraph in an ad?
Answer:
The
paper has an absolute right to refuse to print the paragraph in
question. Clearly, the paragraph isn't telling all the facts in the
courtroom proceedings it describes and the paper wouldn't have time to
check out all the allegations of the brothers suing each other, whether
or not they had debts that had to be settled, whether or not the orders,
if any, by the Chancery Division say what is said in the article.
Clearly, the writer is not fully aware of the court proceedings and the
salient facts regarding same. To allow that paragraph in might be to
invite a suit in libel from the landlord brothers, or one of them.
August
4, 2000
Question:
I
received a call posing the question as to the validity of a condem-nation
proceeding by Hillsborough municipality wherein the purpose of taking of
a piece of real estate was listed in the enabling ordinance as being for
use as a "community center," and where the municipality now
has changed its mind to indicate that the purpose of taking this
property is to use it for a "park." This reporter wondered if
this change in the purported use would affect the validity of the
procedure.
Answer:
Initially,
I advised that this was more a question for a municipality attorney,
rather than an NJPA Hotline question, but I advised that I would deal
with it as best I could.
Initially,
there is no question but that an enabling ordinance must first be passed
by a municipality before it can proceed to condemnation. See NJSA
40A:12-5. This statute enables a municipality to acquire real property
(by many different means, one of which is condemnation), but only after
passing an ordinance of enablement. Certainly, after the ordinance is
passed the municipality may proceed to a condemnation proceeding for
acquisition. The condemnation complaint should contain a description of
the public use intended inasmuch as that is the pertinent issue
(although rarely successfully contended by the condemnee).
There
is no question but that if the condemnation purpose of taking is the
same as the enabling ordinance, the condemnation proceeding may proceed
without a hitch. And then after acquisition, the use of the property may
be changed. See Millburn Tp. v. Pitt, 68 N.J. 424 (1975); see, too,
Village of So. Orange v. Alden Corp., 71 N.J. 362, 366 (1976).
However,
there appears to be no cases on the point as to whether or not the
purpose of taking, the description of public use, in the condemnation
action may differ from the purpose of use as stated in the enabling
ordinance. My opinion is that a court would not allow a condemnation
proceeding to proceed with a differing statement as to the intended
public use of the property to be acquired in the enabling ordinance and
the condemnation complaint. Who knows, the court may reason that the
enabling ordinance might not have passed if the statement of intended
public use were changed to that as stated in the condemnation complaint.
But I cant be sure -- there being no decision I could find on point.
I
also expressed my opinion that a careful municipal attorney would advise
re-enacting an enabling ordinance that differs from the purpose of use
in a follow-up condemnation procedure, the re-enactment to make the
purpose of acquisition identical in both documents.
August
1, 2000
Question:
Is
it customary for a brief to the court to end with a request for the
court to dismiss the action?
Answer:
The
conclusion at the end of a brief will ask the court to grant whatever
relief the party submitting the brief is requesting. Generally briefs
contain a statement of facts, an argument in support of the party's
position and a conclusion asking for a remedy.
July
21, 2000
Question:
A
newspaper has received copies of correspondence related to an allegation
of consumer fraud and has obtained an interview from the individual who
claims to have been the victim. The business, however, has not responded
to calls for comment. May the newspaper print an article setting forth
the allegations?
Answer:
Yes.
As long as the newspaper presents a fair and accurate description of the
allegations it will be protected in any potential libel action. The
business, were it to sue, would have to prove actual malice.
June
13, 2000
Question:
May
the newspaper print photographs obtained from a source even where it is
questionable how the source obtained the photos and whether the source
is authorized to release the photos?
Answer:
Yes.
The United States Supreme Court had held that a newspaper may print
information it receives so long as the newspaper itself did not act
illegally to obtain the information or entice or coerce the source into
improperly obtaining the information.
May
30, 2000
Question:
If
a potential advertiser offers to execute a hold harmless agreement to
indemnify the newspaper against libel actions, can the newspaper still
be sued in libel?
Answer:
Yes.
The hold harmless permits the newspaper to seek reimbursement for costs
and expenses from the advertiser but does not immunize the newspaper.
May
16, 2000
Question:
May
a reporter tape record a telephone call or must he or she obtain the
permission of the person they are talking to?
Answer:
Calls
within New Jersey may be recorded with the permission of one of the
parties to the call. Thus the reporter could tape record the
conversation without the permission of the other person. Interstate
calls however are governed by federal law which requires the permission
of both/all of the parties to the call.
May
5, 2000
Question:
What
qualifications must a newspaper meet to be designated an official
newspaper for publication of official municipal or county notices?
Answer:
The
newspaper must "be a newspaper of general paid circulation
possessing an average news content of not less than 35%, shall have been
published continuously in the municipality where its publication office
is situate for not less than 2 years and shall have been entered for 2
years as second-class mail matter under the postal laws and regulations
of the United States." N.J.S.A. 35:1-22.
March
22, 2000
Question:
We
received a call regarding Megan's Law and the consequences of any
publications regarding notices of a registered offender in the
neighborhood. Specifically, a flier had been received at this reporter's
home indicating a Tier 3 registered offender in the area. The flier
contained words of cautioning the discussion of the contents of the
notice/flier with anyone.
This
reporter had attended in the past a seminar regarding Megan's Law and
its procedures at which Megan's mother spoke and representatives of the
County Prosecutor's Office spoke. They all urged those who received
fliers and those who learned of the fliers' contents from others not
spread it or publish it to other persons. The Prosecutor's Office
indicated that if they found someone publishing the contents outside of
the immediate block in which they lived, they were under direction to
prosecute that person for violation of law.
This reporter wanted to know if the newspaper could publish the fact
that there was a registered offender within a particular area. The paper
would only print it as a blurb -- not as a full-blown article or as part
of an editorial.
Answer:
We
advised that the Attorney General had, in the past, indicated that
anyone publishing the contents of a flier would be subject to legal
consequences; that presumably when the Prosecutor's Office went before a
court for permission to register the person in question as an offender,
the court issued an order. It may be that that order had language in it
restricting persons receiving the notice from discussing it with anyone
else.
On the other hand, it would be hard to see how any action by the
Prosecutor's Office toward prosecution or how any such terminology in a
court order, would withstand constitutional scrutiny. In the first
instance, it's a prior restraint and I wouldn't think that the
circumstances here would, or could, substantiate same (it's not
obscenities; nor is it a matter of national security). Too, it would be
hard to see how a court order could be enforced against either the
newspaper or this reporter when neither were given the opportunity to
address the court or contest its order of non-publication.
However, on the practical side, I advised that it would be a fair
assumption that should the newspaper choose to publish a description of
the flier's contents, the newspaper would be in for an expensive
lawsuit. One could easily envision this as going to the New Jersey
Supreme Court -- if not the U.S. Supreme Court -- with attendant heavy
legal expenses.
Moreover, given the previous arguments on the constitutionality of
Megan's Law before the New Jersey Supreme Court and the Federal Courts,
a possible scenario in the event of the newspaper's successful challenge
against the gag provision would be an endangerment of Megan's Law's
continued existence (if memory serves, one of the main arguments for its
passing constitutional muster was that publication regarding the
registered offender would not be obtrusive). And I'm not sure that the
newspaper would want that result; and it's fairly surmisable that the
public wouldn't either.
The
bottom line is whether or not the newspaper would feel that the small
publication they have in mind would be worth risking the above-stated
results. In other words, there's a decent possibility that the newspaper
could successfully strike down the confidentiality requirement. But the
question then arises whether or not the newspaper would desire that, in
light of the very possible ultimate invalidation of Megan's Law and the
public's reaction to it.
March
10, 2000
Question:
Must
a newspaper seek permission to use a photograph of a local building in
an advertisement for the newspaper?
Answer:
Yes.
Although the newspaper could use such a photograph for editorial
purposes without permission, the use of the photo to promote the
newspaper would require permission.
March
6, 2000
Question:
Are
there any laws prohibiting an employee of a local newspaper from running
for local school Board?
Answer:
No.
As long as the individual meets the statutory requirements for school
board membership, employment at a newspaper will not prevent his/her
serving on the Board.
January
6, 2000
Question:
Is
there a general definition of "resident" under the law?
Answer:
There
are several definitions of resident; for example, under the education
statutes "residence" is defined in relation to a students
eligibility for enrollment. Perhaps the most general definition is found
in the election laws: "'resident' means a person having a place of
abode, which has not been adopted for any mere special or temporary
purpose, but is his ordinary and permanent domicile."
October
29, 1999
Question:
May
a newspaper publish its circulation numbers and the numbers of its
competition to promote its newspaper?
Answer:
Provided
the numbers are correct there is no legal prohibition on the use of the
numbers in an ad.
August
27, 1999
Question:
If
a newspaper receives unsolicited information regarding a matter of
public interest and it is later revealed that the information was
improperly obtained by the source, is the newspaper subject to suit for
useof the information?
Answer:
The
United States Supreme Court has held that a newspaper may publish any
information it lawfully obtains. So long as the newspaper did not assist
in procuring the information or encourage the source to illegally obtain
information for the newspaper, the newspaper should not be held
responsible for the violation arising from obtaining the information or
for publishing the information.
July
28, 1999
Question:
May
the police make random stops of motor vehicles?
Answer:
No.
The United States Supreme Courts has declared such a practice to be an
unconstitutional search. The police may stop a vehicle where they have
probable cause or they may set up a program where it is decided in
advance how the vehicles will be stopped (such as in DWI checkpoints).
July
22, 1999
Question:
For
how long should reporters keep their notes?
Answer:
If
at all possible, they should be kept for at least one (1) year after
publication of the article(s) to which they referred or formed a basis.
This is because that's the statute of limitations. If, for any reason,
that becomes too cumbersome or difficult for the paper, perhaps some
standard time for keeping the notes be established. In the event of any
article on which litigation is expected -- or at least a good
possibility of same -- notes should be kept for at least one (1) year.
Reporters' notes are not subject to discovery, except in the case where
a defendant in a criminal trial claims the need for same and meets the
tests of Boiardo I and II.
June
18, 1999
Question:
When
a newspaper gives out an affidavit verifying publication of legals and
the affidavit is that of the publisher in person, must the publisher
personally sign it, or does a stamped signature or an electronically
produced signature suffice?
Answer:
A
personal signature is necessary for an affidavit. Another way to do it
would be to have someone authorized to sign for the purchaser, acting
with a power of attorney. In that case, the power of attorney would have
to be added on with the publisher's individual signature. A complication
that would be more trouble to effect than simply having the publisher
personally sign each affidavit.
June
14, 1999
Question:
A
gentleman was taken to court by his former employer for writing
complaints against said former employer on the internet to
clients/customers of said former employer. Apparently, ex-employee had
agreed earlier to a consent order not to contact such clients/customers
&emdash; why, we don't know.
The
Superior Court in this instance told the ex-employee he was breaking the
terms of the order by going on the Internet-- i.e., still forbidden
contact/speech anticipated by first consent order. Again, he agreed not
to make such contact on the internet as well and an order was entered as
to that.
The question was whether or not these consent orders can be overturned.
Answer:
We
don't have enough facts to give a definitive answer. Maybe the
ex-employee had earlier agreed not to contact customers of his former
employer in return for a full release by his former employer for
language in his prior contacts of the customers (which prior contacts
might have been the subject of causes of action for defamation, etc.).
It would seem to us that such an agreement would be enforceable and
legitimate (assuming no duress, uneven bargaining position, or bad faith
on the part of the employer).
It
is true, however, that prior restraints will not be valid except in
cases of obscenity or for purposes of national security. But it would
seem that there are no bars to a party entering into a consent order to
voluntarily restrain himself in return for consideration.
November
17, 1998
Question:
Must
a photographer obtain permission for every photo he takes for use in the
newspaper or in a new magazine?
Answer:
No.
The photographer may use photos taken in public places, for example of
children at play in a public park. The law grants permission under the
theory that any person passing by could observe the same thing, there is
no expectation of privacy.
October
19, 1998
Question:
May
a public body bar a citizen from video recording a public meeting?
Answer:
No. In a 1984 case the appellate Division held that there was no
"per se constitutional, statutory or common law impediments to the
use of a video camera to tape and record the public proceedings" of
a Board of Education. Maurice River Tp. Bd. Of Educ. v. Maurice river Tp.
Teachers Ass'n, 193 N.J. Super. 488,492 (App. Div. 1984). The court did
permit the public body to adopt reasonable guidelines for the
videotaping of the proceedings. The guidelines "should include the
number and type of cameras permitted, the positioning of the cameras,
the activity and location of the operator, lighting and other items
deemed necessary to maintain order and to prevent unnecessary intrusion
into the proceedings." Id at 493
October
19, 1998
Question:
May
a public body bar a citizen from video recording a public meeting?
Answer:
No. In a 1984 case the appellate Division held that there was no
"per se constitutional, statutory or common law impediments to the
use of a video camera to tape and record the public proceedings" of
a Board of Education. Maurice River Tp. Bd. Of Educ. v. Maurice river
Tp. Teachers Ass'n, 193 N.J. Super. 488,492 (App. Div. 1984). The
court did permit the public body to adopt reasonable guidelines for the
videotaping of the proceedings. The guidelines "should include the
number and type of cameras permitted, the positioning of the cameras,
the activity and location of the operator, lighting and other items
deemed necessary to maintain order and to prevent unnecessary intrusion
into the proceedings." Id at 493
October
13, 1998
Question:
A
newspaper conducted an undercover investigation of the willingness of
local stores to sell tobacco products to minors. In doing this
investigation, the paper utilized a minor to go in and purchase tobacco
products and is now going to detail how many stores sold products to the
minor. The newspaper raised some questions in connection with the
utilization of the minor.
Answer:
The newspaper was advised that there were several levels of concern.
First had the minorâs parents consented to the minorâs use?
Parenthetically, the paper also proposed to run a photograph of the
minor. The paper was advised that the minor cannot consent to the
running of his photographs; only his parents can.
The paper was further advised that if the parents have not consented to
the minorâs participation in this project, there may be civil liability
questions concerning the utilization of the minor without the parentsâ
consent. The paper asked some questions about statutes regulating the
sale of tobacco products to a minor. The paper was advised that NJSA
2A:170-51 prohibits, inter alia, any person from selling, giving or
furnishing to a minor under the age of 18 years any cigarettes. The
penalty is a civil penalty of $250 for the first violation and $500 for
the second violation and $1,000 for the third and each subsequent
violation.
The paper was advised that while the statute is primarily aimed at the
retailer who sells to a minor, it may be broad enough to include the
activities of the paper since the paper gave the money to the minor to
purchase the cigarettes although the paper confiscated the cigarettes
from the minor after any purchase was made. The paper was further
advised that another statute, NJSA 2A:170-51.1, makes it a petty
disorderly offense for any person 18 year of age or older to purchase a
tobacco product for a person who is under 18 years of age. It was
indicated that that statute could also be construed to state that the
paper, in effect, purchased the product by giving the minor the funds.
Finally, the paper was advised that the minor may also be exposed to
some charge of juvenile delinquency and the paper for contributing to
the delinquency of a minor by having the minor purchase such a
prohibited product.
August
31, 1998
Question:
Can
you provide a short definition of "eminent domain?"
Answer:
Black's Law Dictionary defines "eminent domain" as: The power
to take private property for public use by the state, municipalities,
and private persons or corporations authorized to exercise functions of
public character. In the United States, the power of eminent domain is
founded in both the federal (Fifth Amend.) and state constitutions. The
Constitution limits the power to taking for a public purpose and
prohibits the exercise of the power of eminent domain without just
compensation to the owners of the property which is taken. The process
of exercising the power of eminent domain is commonly referred to as
"condemnation," or, "expropriation."
August
26, 1998
Question:
What
does the term "amicus curiae" mean?
Answer:
Literally,
it means "friend of the court." Black's Law Dictionary
provides an explanation: A person with strong interest in or views on
the subject matter of an action, but not a party to the action, may
petition the court for permission to file a brief, ostensibly on behalf
of a party but actually to suggest a rationale consistent with its own
views. Such amicus curiae briefs are commonly filed in appeals
concerning matters of a broad public interest; e.g. civil rights cases.
Such may be filed by private persons or the government.
For
example, the NJPA has often sought to file "friend of the
court" briefs where the outcome of pending litigation may affect
news gathering or dissemination, or the rights of the media generally.
August
20, 1998
Question:
What
are the standards for a municipality wishing to enact regulations as to
the location of newsracks?
Answer:
A
municipality may impose reasonable time, place, and manner regulations
where the regulations are content neutral, where the regulation serves a
significant governmental interest by the least restrictive means, and
where the regulation leaves open ample alternative channels of
communication. Thus the municipality may not ban newsracks or impose
regulations so severe as to essentially prohibit newsracks.
August
6, 1998
Question:
In
a commission form of government, where there are three (3)
commissioners, can two (2) of the three (3) commissioners be the same
members of a planning board and/or a zoning board of adjustment? The
municipal governing body in question has three (3) commissioners, one of
whom is the Mayor.
Answer:
(A)
For a planning board, two (2) of the commissioners may be members of the
planning board. See NJSA 40:55D-23. The Mayor is a Class I member and
another commissioner can be appointed as a Class III member. Of
interest, prior to a 1991 amendment, it was specifically held that a
Class III member (additional member of the governing body) could not be
appointed in a three (3) commissioner form of government; but, as noted,
that requirement was deleted in the recent amendment. Thus, the answer
is that two (2) of the commissioners could be appointed to the planning
board of this municipality. (B) As to the zoning board of adjustment,
none of the commissioners could be appointed to that. See NJSA
40:55D-69. That provides that, "no member may hold any elective
office or position under the municipality." Obviously,
commissioners are elected officers. Thus, the answer is that no member
of the commission could hold a position on the board of adjustment.
September
22, 1998
Question:
Where
the newspaper obtains, from a copy of the police report, the name of a
juvenile charged with a traffic offense, may it print the name?
Answer:
Yes. The United States Supreme Court has repeatedly held that a
newspaper may print information it lawfully obtains, even where the
information was not intended for release, but was provided in error.
July
13, 1998
Question:
We
have researched the law with regard to a question posed to us last week:
can reporters record telephone conversations legally and, if so, what
are the conditions necessary.
Answer:
With
respect to New Jersey law, reporters may tape record intra-state
conversations they are having with another party - including on the
telephone, of course; NJSA 2A:156A-4 provides that it is not unlawful to
record a telephone conversation where the reporter is a party to the
communication or one of the parties to the communication is given prior
consent. With respect to federal law, addressing inter-state phone
calls, generally it is required that all parties to the conversation
consent to the recording for it to be legal (there is an FCC regulation
to that effect, 47 USC §605, 47 CFR §15.11).
From
a practical standpoint, however, recording of conversations where the
other party is unaware of it could backfire. Even though it is perfectly
legal, juries resent such a practice (if you end up going to trial).
They somehow seem to have that gut feeling that such a practice is
deceptive and they get a negative feeling about the practitioner.
July
9, 1998
Question:
If
the newspaper wants to hire a movie/restaurant/theater reviewer as an
independent contractor, can the newspaper still pay the individual on a
weekly basis?
Answer:
Yes.
The fact that an independent contractor is paid weekly as opposed to by
the piece does not automatically render the individual an employee. The
contract with the reviewer should provide for the reviewer to supply a
minimum number of reviews per week for the agreed upon amount.
June
25, 1998
Question:
Received
a call from a daily newspaper that publishes several products. The daily
paper and the other products are treated as separate entities by the
Corporate parent but they are not separate corporations. If a regular
hourly staff member of the daily paper does work for the smaller
product, is that staff member treated as an independent contractor for
the purpose of the Wage and Hour laws and the payment of overtime?
Answer:
Since
the employer is one and the same in all instances, the Department of
Labor and the applicable statutes would lead to the conclusion that the
management cannot separate the hours worked for determination of the
obligation of the employer to pay overtime. Accordingly, once the
employee worked 40 or more hours regardless of for which paper (since
the work was performed for the same employer) overtime pay would be
applicable.
March
13, 1998
Question:
How
long does copyright protection last?
Answer:
Generally,
copyright protection extends for the author's life plus 50 years. If the
work is made for hire, or is an anonymous or pseudonymous work, the
duration of copyright will be 75 years from publication or 100 years
from creation, whichever is shorter.
March
12, 1998
Question:
Must
the newspaper pay sales tax when it buys a story from a stringer?
Answer:
No.
A stringer is an independent contractor who provides a service in the
form of an article for publication. Professional services are not
subject to sales tax.
March
4, 1998
Question:
A
newspaper planned to enter into a barter situation by trading
advertising space to a carpet installer in return for the installation
of carpets in the newspaper quarters. Would a sales tax be imposed in
this transaction on the value of the carpeting?
Answer:
Sales
tax is imposed on every retail sale and the statute defines retail sale
in, N.J.S.A. 54:32B-2, to include a barter situation. Thus, there would
be a sales tax imposed on the value of the carpeting the paper is
receiving.
The Hotline is operated by
NJPA's
General Counsel, Tom Cafferty of Gibbons P.C.
Cafferty has served in this capacity for more than 30 years and has
extensive First Amendment and communication law expertise. The Hotline
is available to all publications that are active members of the New Jersey
Press Association.
To reach the Hotline:
Call
(973) 596-4863 The regular hours are 9 a.m. to 5 p.m. Monday through
Friday, but callers may leave a recorded message 24 hours per day on a
dedicated voice-mail line. The Hotline attorneys will return all calls
as soon as possible.
Fax:
(973) 639-6267
Write:
NJPA Legal Hotline, c/o Gibbons P.C., One Gateway Center, Newark, NJ
07102-5310
E-mail:
tcafferty@gibbonslaw.com
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