# Presentation: 234226

## Legal Issuesfor thePublic Affairs Officer

**Legal Issues****for the****Public Affairs Officer**

- Gordon W. Odell, Jr.
- General Counsel
- 6 August 2008

**Notes:**
References in the notes to “Nutshell” refer to Carter, T. Barton, et al., Mass Communication law in a Nutshell, 6th ed Published by Thompson/West, St. Paul, MN 55164.
CAPR refers to CAP Regulation
CAPM refers to CAP Manual

## Desired Learning Outcomes

**Desired Learning Outcomes**

- Understand legal issues sufficient to meet duties and honor rights.
- Be acquainted with legal issues associated with mass communications.

## Desired Learning Outcomes (Continued.)

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

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

## Desired Learning Outcomes (Continued.)

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

- In other words, we’re here to help you know how to:
- Avoid the minefield(s),
- And if you can’t, to avoid the mines,
- And know when to ask for help!

**Notes:**
PAO’s are spokespersons of CAP to present information to the press AND they can serve as “the press” also through internal & external publications.

CAPR 190-1, Civil Air Patrol Public Affairs Program, 4 June 2007, para 2 provides the objectives as :
	“a.  Increase public awareness of CAP, its local, state, and national missions and its contributions to the nation. 
	“b.  Develop and conduct a comprehensive internal and external public relations plan.
	“c.  Promote cooperation between CAP and other aviation organizations, the military, business, industry, and civic groups.”
CAPR 190-1 goes on to describe the duties & responsibilities of the PAO:
“The PAO is supervised by the commander.  The commander and the PAO, as the commander’s delegate, are the official spokespersons for their unit.  The higher headquarters PAOs serve as advisors, mentors, and resources for the development and implementation of an effective public affairs program.
	“a  Squadron and flight PAOs are the backbone of the national public affairs program and are primarily responsible for implementation of the program.
	“b.  Group PAOs advise, mentor, and support subordinate PAOs in their group on public affairs matters and conduct an active PA program in support of the unit.
	“c.  The wing PAO is the primary resource in conducting a wing-wide public affairs program.  Together with the wing commander, the wing PAO develops goals and objectives for the wing public affairs program and advises, mentors, and ensures the national, region, and wing objectives are implemented.
	“d.  The region PAO serves as a field representative for National Headquarters/PA and as a liaison among the wing/group/squadron/flight PAOs.  He/she assists the wing PAOs in developing and/or conducting the national public affairs missions and goals.  Region PAOs serve as advisors and supervisors and consult frequently with subordinate wing PAOs and unit PAOs when needed or requested.
	“e.  PAOs at all levels advise and assist their unit commander.  PAOs are authorized to advise other commanders, if requested, on controversies that have the potential to affect CAP’s professional image, or other such matters relating to CAP and the public.
	“f.  CAP PAOs and commanders are authorized to work directly with military base public affairs officers in support of CAP activities.”
CAPR 20-1, Organization of Civil Air Patrol, 29 May 2000, p39 provides a description of the Squadron PAO:
“Advises and assists the commander on all media relations, internal information and community relations matters.  Plans, develops and implements a Public Affairs program.  They shall:
“Release information on unit activities to news media.
“Publish unit newsletter or bulletin.
“Coordinate participation of unit members in community activities.
“Coordinate with other organizations and agencies as required.
“Supervise all pubic affairs activities of subordinate units.
“The public affairs officer, to be effective, must be familiar with CAPP 201, CAPP 190-1, CAPP 3, current policies and activities of his/her unit.

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

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

- 1.  First, the law:
- Congress shall make no law. . . abridging the freedom of speech, or of the press. . . .
- U.S. Const. Amendment 1
- 2.  So, can you say or print anything you want?

**Notes:**
You know better.  Can you come up with some examples?
Well here’s a few.

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

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

- 3.  What “exceptions” permit legal action upon the following:
- a.  Shouting “FIRE!” in a crowded theater?
- 		Unlawful because you have a duty to _____.
- b.  Selling copies of your favorite DVD?
- 		Unlawful because the author has a right: _____.

**Notes:**
a. Use reasonable care.  (I.e. not be “negligent.”)  & Do not misrepresent “fraud.”
b.  A copyright.

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

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

- c.  Telling all “Harry has AIDS”? (Untrue.)
- 		Unlawful because you would be ______ing Harry.
- d.  Telling all “Harry has AIDS”? (True.)
- 		Unlawful because Harry has a right  to _____.
- e.  “Harry received a positive AIDS test?” (Without acknowledging he is a physician.)
- 		Unlawful because you have a duty to _____.

**Notes:**
Defaming  - slander vs libel later
Privacy
This is a violation of privacy as in “false light.”

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

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

- f.  Publishing photographs of unlawful acts to children
- 		Unlawful because government has a duty to ________.
- g.  Publishing plans to make an atomic bomb
- 		Unlawful because the government has a duty to_______..

**Notes:**
Protect the public – obscenity & protect the public – the rights and interests of children.
Protect the public.

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

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

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

**Notes:**
Government has the authority to regulate licensees (here, lawyers) to prevent misleading of/misrepresentation to the public.

## B.  Discussion – The Law Its Application

**B.  Discussion – The Law Its Application**

- To whom does the law apply?
_**Congress**_ shall make no law. . . abridging the freedom of speech, or of the press. . . .
- 		Amendment I of the U.S. Constitution
- State and local _**governments**_, too.
- 		Amendment XIV of the U.S. Constitution

**Notes:**
US Congress, yes, but it has been extended to state and local governments through US Constitution, Amendment XIV.
Court decisions have applied it to court decisions

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

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

- Is CAP part of the government?
- No.
- 1.  We’re _an_ AF auxiliary when we’re providing services to the Federal Government (10 USC §9442(a).)
- 2. We’re “deemed to be” _an_ instrumentality of the U.S. with regard to our acts or omissions when performing a mission assigned by SAF (10 USC §9442(b)(2).)

**Notes:**
10 USC §9442. Status as volunteer civilian auxiliary of the Air Force
	(a) VOLUNTEER CIVILIAN AUXILIARY- The Civil Air Patrol is a volunteer civilian auxiliary of the Air Force when the services of the Civil Air Patrol are used by any department or agency in any branch of the Federal Government.
	(b) USE BY AIR FORCE- (1) The Secretary of the Air Force may use the services of the Civil Air Patrol to fulfill the noncombat programs and missions of the Department of the Air Force.
	(2) The Civil Air Patrol shall be deemed to be an instrumentality of the United States with respect to any act or omission of the Civil Air Patrol, including any member of the Civil Air Patrol, in carrying out a mission assigned by the Secretary of the Air Force.

There may be exceptions in some states, such as Colorado and Iowa.

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

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

- Who does it protect?
- 	“Persons”
- 	What’s a person?
- What does it protect?
- “[T]he freedom of speech”
- 	Which means what?
- “[The freedom] of the press”
- 	Which means what?

**Notes:**
What’s a person?  Natural persons vs “unnatural persons.”  CAP is a corporation, a “person” in the eyes of the law.
	All persons have at least some Constitutional rights, even corporations..

Freedom of speech refers to a person’s freedom of expression – beyond mere words, spoken, written, or otherwise.
	 Corporations have a right of free speech, although we’ll talk more about “commercial” speech later
Freedom of the press relates to the right of the public to know and applies to print and other mass media.
	The right for something to put in a CAP Newspaper is CAP’s right, not that of the writer, personally.

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

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

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

**Notes:**
Under “negligence law,” one has a duty to use reasonable care to prevent others from being harmed by your conduct.
“Fraud” is when one reasonably relies on another to his detriment.

Shouting “FIRE!” when there is none, is fraud and negligence.  If someone is hurt, you can be held liable.

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

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

- Whose rights are violated by selling commercial DVDs?
- What right?
- Does the law require that we have Harry’s permission to use his likeness in a commercial?

**Notes:**
Copyright:  defined & explained
“Fair use” doctrine
Obtain permission.

Use of Harry’s likeness or his personal story leads us to the next slide-

## Discussion – The Law... (Continued.)3:  Saying Bad Things About Harry.

**Discussion – The Law...**** (Continued.)****3:  Saying Bad Things About Harry.**

- Harry has a right to his reputation.
- ___ is when you damage his reputation.
- Harry has a ___ right to not be presented in a “false light.”

**Notes:**
Nutshell, p45 et seq.
Defamation refers to the damage to one’s reputation
	Slander – ephemeral communication, e.g. gestures & spoken words
	Libel – communication in a more permanent medium, e.g. print
Why different?
	Permanence, risk of ongoing harm.
Libel per se (actionable as damage is presumed)
Libel per quod (information outside the document is required to establish defamation.  E.g. Mrs. Harry Homebody gave birth to twins today.  (Those who know her know she’s only been married a week.)

Common Elements:
	1.  D makes a defamatory statement
	2.  Published to at least one other than P
	3.  ID of P as the one defamed

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

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

- Harry has a right to _______. There are 4 ways that right can be violated:
- Appropriation
- Intrusion
- False light
- Public disclosure of private facts

**Notes:**
Not all of the legal theories under “privacy” were presented in hypotheticals.

Appropriation – refers to one’s right to control the commercial use of his likeness and story.  Permission is required.
	However, this doesn’t apply to photographs taken in public and about events that are newsworthy.
	“Newsworthy” vs “commercial use”
	Nevertheless, it’s a good idea to secure Harry’s permission/release because you may wish to use the photographs later for something that is ARGUABLY commercial.  (e.g. recruiting or fund raising.)
	Local law may have additional requirements in order to protect minors generally, and others from identity theft problems

Intrusion- 

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

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

- About the need for permission. . . .

**Notes:**
Newsworthiness
Public photo/place
Commercial use
Minors?

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

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

- About avoiding d_______ (s & l)
- 	“allegedly”
- 	“we have received reports”
- Stick to the facts.

**Notes:**
Defamation
Slander
Libel

NY Times v Sullivan?

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

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

- 2 exceptions to “Freedom of Speech” empower the government to prohibit making or possessing photographs.  They are-
- 			The authority to regulate ____. (Hint: I can’t define it, “but I know it when I see it...”)  and

## B.  Discussion – The Law... (Continued.) 6.  Publishing Bomb-Making Instructions

**B.  Discussion – The Law...**** (Continued.)**** ****6.  Publishing Bomb-Making Instructions**

- The government can regulate, control, & prohibit those “expressions” that are a danger or safety risk to the public.
- Consider: _National Socialist Party v Skokie_, 432 U.S. 43 (1977)

## Discussion – The Law... (Continued.) 7.  Advertising/Commercial Speech

**Discussion – The Law...**** (Continued.)**** ****7.  Advertising/Commercial Speech**

## C.  As a Practical Matter  

**C.  As a Practical Matter  **

- Confine yourself to the facts.  Consider:
- 		a.  The aircraft was seen at. . .
- 		b.  We have reports of a sighting of the aircraft at. . .
- 		c.  We have unconfirmed reports that the aircraft was seen at. . .

## As a Practical Matter (Continued.)

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

- 2.  Avoid speculation

## As a Practical Matter (Continued.)

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

- Why should you do these things?
- 	a.  Preserve security/limit access
- 	b.  Shred documents
- 	c.  Correct wrong/inaccurate info

**Notes:**
Inapproriate/ accidental sharing of information can (1) cause needless grief, (2) provoke folk into getting into t heir own searches and interefere with work in progress.

Family members in the briefing room.

Maximize integrity.

## As a Practical Matter (Continued.)

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

- Why NOT do these things?
- 	a.  Speculate
- 	b.  Name people on board
- 	c.  Name participants (individuals) involved in the search
- 	d.  Allude to criminal activities
- 	e. Discuss potential legal issues
- 	f.  Share search data

**Notes:**
You have no crystal ball
You can be wrong about SOBs
Nosey reporters (and others) may disrupt searchers’ private lives
Criminals run when they know they’re being sought
Stirs the pot unneessarily.
Invites interference with the search.  Also, we take the position that the AF owns the information

## As a Practical Matter (Continued.)

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

- Specific Problems
- We don’t discuss personnel matters & anticipated/ pending litigation.

## d.  Takeaways

**d.  Takeaways**

- Use reasonable care – don’t defame or misrepresent
- When you speak/write for CAP, it’s CAP’s freedoms that we’re protecting here.
- Use other folks’ materials with care.
- Permission – copyright
- Appropriation
- Privacy
- False light