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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

- Recent Questions - Legal Newspaper Qualifications
- Access to Public Records - Miscellaneous
- Advertising - Open Public Meetings Act
- Defamation - Public Notice
- Cameras in the Courtroom - Shield Law
- Invasion of Privacy  


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