Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P21 pptx

It directs programs designed to protect workers and the general public from exposure to hazardous substances and their adverse health effects; collects, analyzes, and disseminates data r

improve the outcomes and quality of health-care, reduce its costs, address patient safety and medical errors, and broaden access to effective services The research sponsored, conducted, and disseminated by AHRQ provides informa-tion that helps people make better decisions about health care

Agency for Toxic Substances and Disease Registry

The Agency for Toxic Substances and Disease Registry was established on April 19, 1983, by the secretary of HHS The agency is charged with carrying out the health-related responsibil-ities of the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (42 U.S.C.A § 9601 et seq.) and other federal laws concerned with the release of toxic substances into the environment It directs programs designed to protect workers and the general public from exposure to hazardous substances and their adverse health effects;

collects, analyzes, and disseminates data relating

to serious diseases resulting from exposure to toxic or hazardous substances; establishes and maintains listings of areas either closed to the public or restricted in use because of toxic substance contamination; and helps the ENVIRONMENTAL PROTECTION AGENCY (EPA) identify hazardous waste substances requiring regulation It also works with private and public healthcare organizations to provide medical care and testing to individuals who may have been exposed to hazardous substances

Centers for Disease Control and Prevention

The Centers for Disease Control and Prevention (CDC) was established as an operating health agency within the Public Health Service by the secretary of health, education, and welfare (the predecessor agency of HHS) on July 1, 1973

The CDC is responsible for providing leader-ship in the prevention and control of diseases and for responding to public health emergen-cies In consultation with state and local healthcare authorities, the CDC develops and administers national programs to help prevent and control the spread of communicable and preventable diseases and to prevent chronic diseases The agency also directs and enforces foreign quarantine activities and provides

consultation to other nations on the control of preventable diseases Since the early 1980s the CDC has been at the forefront of the federal government’s efforts to control the spread of AIDS, uncovering vital information about the disease, discovering effective treatments, and working toward a cure

Food and Drug Administration The FOOD AND DRUG ADMINISTRATION (FDA), in existence under various other titles since 1907, is one of the oldest and most influential health-related agencies within the U.S Public Health Service The FDA is charged with protecting the health of people in the United States against unsafe foods, drugs, medical devices, and cosmetics The FDA carries out its mission through a number of centers and offices that perform a large variety of tasks, including testing and evaluating drug products for safety and effectiveness; developing standards; ensuring the quality and nutritional value of foods; and testing and labeling medical devices before they are made available for use by the public

Health Resources and Services Administration

The Health Resources and Services Administra-tion is responsible for addressing, within the Public Health Service, issues related to the access, quality, and cost of healthcare The administra-tion works with states and communities to help deliver health care to underserved areas and groups with special needs, including migrant workers, mothers and children, homeless people, immigrant populations, and individuals living in rural areas In addition, the administration plays a key role in the federal government’s campaign againstAIDS, administering provisions of the Ryan White Comprehensive AIDS Research Emer-gency Act of 1990 (Ryan White CARE Act) (Pub L No 101-381, 104 Stat 576[codified in scattered sections of 42 U.S.C.A.]) Through the act, the administration funds the establishment of centers to train health service professionals caring for people with AIDS and supports the renova-tion of health facilities serving AIDS patients The administration also administers the National Organ Transplant Act, 42 U.S.C.A §§201 note,

273, 274, 274a to 274e, serving as a resource for individuals seeking information about the

188 PUBLIC HEALTH SERVICE

availability and procurement of donor organs and

bone marrow

A number of bureaus within the Health

Resources and Services Administration provide

additional services The Bureau of Primary

Health Care administers a variety of programs

related to the recruitment and training of health

professionals to work in areas traditionally

underserved by doctors, nurses, and other

medical personnel For example, the bureau

administers the National Health Service Corps

Scholarship and Loan Repayment programs,

which provide financial assistance to medical,

dental, and nursing students in exchange for

service in areas where there is a shortage of

health professionals The Maternal and Child

Health Bureau (MCH) develops and

coordi-nates federal policies to improve healthcare

delivery and services for mothers and children

MCH also administers grants to implement

maternal and child health service programs on

the state level, as well as other programs to help

reduce infant mortality

Indian Health Service

The health status of American Indians and

Alaska Natives is the concern of the Indian

Health Service, which is the principal federal

healthcare advocate for these groups The

Indian Health Service administers a

compre-hensive healthcare delivery system for these

groups, developing and managing programs to

meet their health needs The service also helps

Native American tribes obtain and use

health-care through other federal, state, and local

programs

National Institutes of Health

The National Institutes of Health (NIH) is the

principal biomedical research agency of the

federal government Within the NIH, a number

of institutes conduct research in specific areas

The National Cancer Institute was created to

carry out the objectives of the National Cancer

Act, 42 U.S.C.A §§ 201 note, 218, 241, 281

note, 282 to 284, 286 note, 286a to 286g, which

made the conquest of cancer a national goal

The laboratories of the Cancer Institute conduct

research directed toward finding effective

methods for the prevention, treatment, and

eventual cure of all types of cancers The

National Heart, Lung, and Blood Institute

conducts research into the uses of blood and the management of blood resources, in addition

to administering programs related to the prevention and treatment of hypertension, stroke, respiratory illnesses, and sickle cell anemia Other institutes conduct research in the areas of alcohol and drug abuse, mental health, communication and neurological dis-orders, and aging The National Library of Medicine is the chief source of medical information in the United States The library makes medical research databases such as MEDLINE and TOXLINE, as well as other resources, available to public and private agencies, organizations, and individuals

Substance Abuse and Mental Health Services Administration

TheSUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION (SAMHSA) works to improve the quality of and availability of prevention, treatment, and rehabilitative services in order to reduce illness, disability, and death, and cost to society resulting from substance abuse and mental illnesses

Emergency Response Activities

of the PHS Public health officials employed by the PHS have been called on to respond to many health emergencies Since 2001, such events include theSEPTEMBER11TH ATTACKS(2001), the anthrax attacks (2001), the tsunami in Indonesia (2004), hurricanes Katrina and Rita (2005), the earthquake in Hawaii (2006), and the swine flu (2009)

FURTHER READINGS Kraut, Alan M 2003 Goldberger’s War: The Life and Work of

a Public Health Crusader New York: Hill and Wang.

Mullan, Fitzhugh 1989 Plagues and Politics: The History

of the United States Public Health Service New York:

Basic.

Palley, Howard A 2009 Community-Based Programs and Policies: Contributions to Social Policy Development in Health Care and Health Care Related Services New York: Routledge.

U.S Government Manual Website Available online at www.

gpoaccess.gov/gmanual (accessed November 10, 2003).

CROSS REFERENCES Acquired Immune Deficiency Syndrome; Disaster Relief;

Drugs and Narcotics; Environmental Law; Health and Human Services Department; Health Care Law; Immuniza-tion Programs.

PUBLIC HEALTH SERVICE 189

PUBLIC INTEREST Anything affecting the rights, health, or finances of the public at large

Public interest is a common concern among citizens in the management and affairs of local, state, and national government It does not mean mere curiosity but is a broad term that refers to the body politic and the public weal A public interest is something that the public as a whole has a stake; esp., an interest that justifies governmental regulation A public utility is regulated in the public interest because private individuals rely on such a company for vital services

CROSS REFERENCE Business Affected With a Public Interest.

PUBLIC LANDS Land that is owned by the United States government

Public land refers to the PUBLIC DOMAIN, unappropriated land belonging to the federal government that is subject to sale or other disposal under general laws and is not reserved for any particular governmental or public purpose

Much of this land was acquired early in the history of the United States as a result of purchases, wars, or treaties made with foreign countries The federal government used this land

to encourage growth, settlement, and economic development Land that was not developed, homesteaded, or sold remained in federal ownership as public land In the early twenty-first century, the federal government employs principles of land use planning and environmen-tal protection to preserve the natural resources and scenic beauty found on public land

Control of the public lands has been placed

by statute under the Secretary of the Interior

43 U.S.C.A § 2 To attend to the tremendous amount of detail incident to their administra-tion, a General Land Office was created and headed by an officer known as the Commis-sioner of the General Land Office To this office

as a special tribunal, Congress confided the execution of the laws in relation to surveying, selling, taking proof as to rights to a convey-ance, issuance ofPATENTS, and every matter not specifically reserved pertaining to the

administration of the public lands of the United States In 1946, after a major reorganization, the General Land Office became a part of the Bureau of Land Management within the

INTERIOR DEPARTMENT

CROSS REFERENCES Common Lands; Dedication; Interior Department.

PUBLIC LAW

A general classification of law concerned with the political and sovereign capacity of a state Public law is that area of constitutional, administrative, criminal, andINTERNATIONAL LAW

that focuses on the organization of the govern-ment, the relations between the state and its citizens, the responsibilities of government officials, and the relations between sister states

It is concerned with political matters, including the powers, rights, capacities, and duties of various levels of government and government officials

Public law refers to an act that applies to the public at large, as opposed to aPRIVATE LAWthat concerns private individual rights, duties, and liabilities

Public law is the citation given to the original form of federal and some state laws For example, the citation for the Economic Recovery Tax Act of 1981 is Pub L 97–34, Aug

13, 1981, 95 Stat 1720 (26 U.S.C.A § 1 et seq.)

CROSS REFERENCE Private Law.

PUBLIC OFFERING

A public offering is an issue of securities offered for sale to the public

A business can raise capital for its enterprise through the sale of SECURITIES, which include stocks, bonds, notes, debentures, or other documents that represent a share in the company or a debt owed by the company When a company proceeds to issue the securi-ties, it is called an offering

There are two types of offering: private and public A private offering is made to a limited number of persons who are so well-informed about the affairs of the company that the company does not need to file a registration statement with the state or federal government

190 PUBLIC INTEREST

In contrast, a public offering is made to the

public at large and is governed by federal and

state regulations

Until the 1930s, the public offering of

securities was subject to minimal regulation

Investors had no reliable way of knowing

whether the information they received about a

public offering was correct and complete

Because of the lack of regulation, fraudulent

public offerings were common, leading to the

sale of worthless stock

The Securities Act of 1933 (15 U.S.C.A

§ 77a et seq.), enacted after the STOCK MARKET

crash of 1929 and the resulting Great

Depres-sion, set in place rules and regulations for public

offerings of securities in interstate commerce or

through the mails Before a public offering can

be made, a company must file with the

SECURITIES AND EXCHANGE COMMISSION a

registra-tion statement containing financial and other

data, including the price at which shares will be

offered to the public, commissions paid to those

who underwrite the security, and any options to

purchase that have been issued

In addition to requiring the filing of a

registration statement, the Securities Act of

1933 makes it unlawful to mail or transmit in

interstate commerce any security for the

purpose of sale or delivery unless it is preceded

or accompanied by a prospectus (a written

statement of information about the public

offering) that fully discloses all material facts

regarding the investment, including the

finan-cial status of the enterprise Material facts are

those that are necessary to enable a purchaser to

weigh the advantages and disadvantages of the

investment The balance sheet contained in the

prospectus must accurately reflect the financial

status of the issuing company and should

include its assets and liabilities

Unless a company files a registration

statement that is then approved by the

commis-sion, it cannot legally make the public offering

Registration of the securities does not imply that

the commission has approved the issue or that it

has found the registration disclosures to be

accurate It does mean that persons filing false

or incomplete information with the

commis-sion subject themselves to the risk of fine or

imprisonment or both Additionally, those

persons connected with making a false or

incomplete registration statement or prospectus may be liable for damages to purchasers of the securities

The collapse of such companies as Enron, Tyco International, and WorldCom led to the enactment of the SARBANES-OXLEY ACT OF 2002 (Pub L No 107-204, 116 Stat 745) This wide-ranging act established new standards that apply to corporations and accounting boards The act created more stringent stan-dards that apply to initial public offerings

Some members of Congress, including Con-gressman Ron Paul (R-TX) and Senator Charles Schumer (D-NY), have argued that Sarbanes-Oxley has discouraged foreign companies and individuals from investing in U.S companies

These and other critics have also suggested that Sarbanes-Oxley has been responsible for a reduction in a lower number of initial public offerings during the latter part of the decade of the 2000s Efforts to repeal Sarbanes-Oxley, however, have failed, as of 2009

Intrastate securities (those not publicly offered in interstate commerce) are governed

by the laws of the state in which the stock is traded State control of intrastate securities traffic does not conflict with federal regulation

of interstate transactions Most states have enacted blue sky laws, which regulate public offerings in a manner similar to federal securi-ties legislation These state laws get their name from their attempt to stop the sale of stock in fraudulent and speculative enterprises that have nothing to offer but blue sky Many states require registration of securities before a public offering can be made If the business seems likely to commit fraudulent acts involving prospective purchasers of its securities, state registration will be denied, and the public offering will not be allowed to go forward

FURTHER READINGS Bartos, Jim 2006 United States Securities Law: A Practical Guide 3d ed Frederick, Md.: Aspen.

Hazen, Thomas Lee, and David L Ratner 2006 Securities Regulation in a Nutshell 9th ed St Paul, Minn.:

Thomson/West.

Palmiter, Alan R 2008 Securities Regulation: Examples and Explanations New York: Aspen.

CROSS REFERENCE Corporate Fraud.

PUBLIC OFFERING 191

PUBLIC POLICY Principles and standards deemed by the legislature

or by the courts as being of fundamental concern

to the state and society as a whole Also, a principle that no person or government official can legally perform an act that tends to injure the public

Public policy manifests the common sense and common conscience of the citizens as a whole that extends throughout the state and is applied to matters of public health, safety, and welfare It is general, well-settled public opinion relating to the duties of citizens to their fellow citizens It imports something that fluctuates with the changing economic needs, social customs, and moral aspirations of the people

Public policy enters into, and influences, the enactment, execution, and interpretation of legislation Courts sometimes use the term to validate their decisions, as when declaring a contract unlawful because it is contrary to public policy

PUBLIC UTILITIES Businesses that provide the public with necessities, such as water, electricity, natural gas, and telephone and telegraph services

A public utility is a business that furnishes

an everyday necessity to the public at large

Public utilities provide water, electricity, natural gas, telephone service, and other essentials

Utilities may be publicly or privately owned, but most are operated as private businesses

Typically, a public utility has a monopoly

on the service it provides It is more economi-cally efficient to have only one business provide the service because the infrastructure necessary

to produce and deliver a resource such as electricity or water is very expensive to build and maintain One consequence of this mo-nopoly is that federal, state, and local govern-ments regulate public utilities to ensure that they provide a reasonable level of service at a fair price

A public utility is entitled to charge reason-able rates for its product or service Rates are generally established according to statutes and regulations The utility usually files a proposed rate schedule with the state public utility commission for approval The commission

holds public hearings to help decide whether the proposed schedule is fair The commission may also require increased levels of service from the utility in order to meet public demand Until the 1930s public utilities were sub-jected to minimal regulation The enactment of the Public UtilityHOLDING COMPANYAct of 1935 (49 Stat 803 [15 U.S.C.A §§ 79–92z-6]) signaled a change A holding company is one that owns stock in, and supervises management

of, other companies The law regulates the purchase and sale ofSECURITIESand assets by gas and electric utility holding companies and limits holding companies to a single coordinated utility system The law ended abuses that allowed a small number of public utilities to control large segments of the gas and electricity market and to set higher utility rates

Public regulation of utilities has declined since the late 1970s.PUBLIC POLICYis now based

on the idea that competition, rather than regulation, is a better way to manage this sector

of the economy Telephone deregulation is one

of the most prominent examples of this shift in philosophy Telephone deregulation was en-abled by a 1982 agreement between American Telephone and Telegraph Company (AT&T) and the federal government The federal government had sued AT&T, alleging that its monopoly on virtually all telephone service in the United States was illegal AT&T agreed to divest itself of all local telephone companies, while retaining control of its long-distance, research, and manufacturing activities This resulted in the creation of seven regional telephone companies with responsibility for local telephone service Other companies now compete with AT&T for long-distance service Beginning in the mid 1990s, a number of states introduced choice initiatives for electricity customers; whereas the established regional power-generation company would still distrib-ute the electricity, customers could choose from among several companies, based on such factors

as cost and convenience

At the federal level, numerous commissions oversee particular types of public utilities These include the Federal Energy Commission, the

NUCLEAR REGULATORY COMMISSION, the FEDERAL COMMUNICATIONS COMMISSION, and the SECURITIES AND EXCHANGE COMMISSION

192 PUBLIC POLICY

CROSS REFERENCES

Nuclear Power; Telecommunications.

PUBLICATION

Making something known to the community at

large, exhibiting, displaying, disclosing, or revealing

Publication is the act of offering something

for the general public to inspect or scrutinize It

means to convey knowledge or give notice

Copyright Law

In COPYRIGHT law, publication is the act of

making a book or other written material

available to anyone interested by distributing

or offering it for sale In the law of LIBEL AND

SLANDER, publication means communicating the

statement in issue to a third person other than

the PLAINTIFF (the individual whom the alleged

defamatory statement concerns)

Testamentary Law

Publication of a will refers to the testator’s

informing the witnesses to the document of

his or her intent to have the instrument operate

as a will

Civil Procedure

In the procedural rules governing the PRACTICE

OF LAW, publication of a summons is the process

of publishing it in a newspaper, when required

by law, in order to notify a DEFENDANT of the

lawsuit

PUBLISH

To circulate, distribute, or print information for

the public at large

InLIBEL AND SLANDER law, to utter to a third

person or to make public a defamatory statement;

inCOMMERCIAL PAPERlaw, to present an instrument

for payment or declare or assert that a forged

instrument is genuine

The meaning of the term publish differs

according to the context in which it is used In

its broadest sense, the term publishing describes

the act of making something known to the

general public A publication can be

accom-plished by speaking in a public place, printing

information on paper and distributing it on the

street, buying or otherwise securing time on

television, placing information in a circulated

newspaper or magazine, or other similar methods

Laws can mandate specific forms of publi-cation of certain information For example, federal administrative agencies are required

to publish their rules in the FEDERAL REGISTER

5 U.S.C.A sect; 552 (1996) These rules are later published in a subject-matter arrangement in the CODE OF FEDERAL REGULATIONS Similarly, federal law requires that administrative agencies under the EXECUTIVE BRANCHpublish a notice in the Commerce Business Daily before entering into a contract worth more than $25,000 with a private business 41 U.S.C.A § 416 (1997) The notice must contain information that is re-levant to the proposed job and give all qualified private businesses an opportunity to compete for the contract with the agency An agency may use additional sources of publication, such as trade journals, magazines, newspapers of gen-eral circulation, and other mass communication media to advertise its intention to enter into a contract with a private business

Publication of information is required by law in other areas as well State laws require a mortgagee who has foreclosed a mortgage on real property to publish a notice in a local newspaper before conducting a sale of the property Both state and federal laws require administrative agencies to publish notices of public hearings that will be held by the agencies

Before taking action that affects legal rights, administrative agencies hold public hearings to give members of the public an opportunity to

be heard

In libel law, a defamatory statement can give rise to civil liability if the statement is made public To be libelous, a statement must appear

in print, in a picture, or in a sign To be considered published, the statement must be received by at least one other person apart from the speaker and the defamed person In the law

of slander, the term publish refers to defamatory statements that are spoken in the presence of at least one other person A transitory, humiliating gesture that is defamatory also constitutes slander if it is published, or understood, by a third party

The term publish has another meaning in the law of commercial paper Commercial paper law relates to negotiable instruments such

PUBLISH 193

as bills of exchange, promissory notes, bank checks, and similar documents In the law of commercial paper, publishing occurs when a check or other negotiable instrument is pre-sented Publication also occurs when a person vouches that a forged instrument is in fact genuine By publishing a negotiable instrument, the publisher declares that the instrument is valid

RESOURCES Jones B 1997 Manuscripts, Books, and Maps: The Printing Press and a Changing World Available online at http://

communication.ucsd.edu/bjones/Books/printech.html;

website home page: http://communication.ucsd.edu (accessed September 7, 2009).

Kunz, Christina L., et al 2008 The Process of Legal Research.

7th ed New York: Wolters Kluwer Law & Business.

Nayyer, K 2001 “Globalization of Information: Digital Information, and Intellectual Property Law ” Available online at http://firstmonday.org/issues/issue7_1/nayyer/

#n3; website home page: http://firstmonday.org (accessed September 7, 2009).

CROSS REFERENCES Defamation; Libel and Slander.

PUBLISHING LAW The body of law relating to the publication

of books, magazines, newspapers, electronic materials, and other artistic works

Publishing law is not a discrete legal topic with its own laws It is a collection of often disparate legal areas, such as contracts, INTELLEC-TUAL PROPERTY,TORTS, and theFIRST AMENDMENT Publishing is the act of distributing or otherwise making public a visual or literary work The key players in publishing are publishers and authors Publishers are those persons or organizations that dispense informa-tion to the public The term author commonly describes writers and journalists, but where publishing is concerned, the term also describes photographers, filmmakers, video artists, and other artists whose work is published Most publishers designate a lawyer to review a publishable work and identify its potential legal pitfalls This person, called a legal liaison, may confer with outside legal counsel to ensure that the publication does not ensnare the publisher

or author in legal conflict A legal liaison should

be familiar with the many legal issues peculiar

to publishing, including COPYRIGHT and

TRADEMARKinfringement, sales, advertising, dis-tribution policies, subscription agreements, special sales arrangements, insurance, free speech, tax matters, and antitrust concerns stemming from the publisher’s membership in trade associations Other employees of publish-ers, such as editors, also should be trained to spot potential legal problems with a publishable work and bring them to the attention of the legal liaison before publication

Publishers may be held liable for omissions, mistakes, and transgressions of their authors, as well as their own omissions, mistakes, and transgressions One of the first and foremost concerns of publishers is copyright and trade-mark issues Publishers should conduct thor-ough research on copyright and trademark issues before publishing a work Among other things, publishers should ensure that copyrights are properly registered; the appropriate copy-right notice is placed in each work; copycopy-rights for work published prior to the effective date of the most recent federal copyright act, the Copyright Amendments Act of 1992 (2 U.S.C

A § 179 et seq.), are renewed; the work does not violate the copyrights or trademark rights of another publisher or author; all copyrights are duly affixed to the work; all copyrights from source materials have been released or paid for; the work does not defame anyone; the work does not invade a person’s right of privacy; all obligations to authors, creators, and illustrators under the contract are being met; information from sources can be verified or has been confirmed; and any material derived from a dialogue between real people that is placed in quotation marks correctly sets forth the actual words spoken

Failure to confirm quotations can lead to lengthy litigation if the quotations defame the speaker In Masson v New Yorker Magazine Inc.,

686 F Supp 1396 (N.D Cal 1987), aff’d, 881 F.2d 1452 (9th Cir 1989), and superseded, 895 F.2d 1535 (9th Cir 1990), and rev’d, 501 U.S

496, 111 S Ct 2419, 115 L Ed 2d 447 (1991),

on remand 832 F Supp 1350 (N.D Cal 1993),

85 F.3d 1394 (9th Cir 1996), psychoanalyst Jeffrey M Masson sued New Yorker magazine, its publisher Alfred A Knopf, Inc., and freelance writer Janet Malcolm after Malcolm wrote a quite unflattering article about Masson for the New Yorker that included quotations by

194 PUBLISHING LAW

Masson that Malcolm could not substantiate.

The defendants ultimately prevailed but only

after more than a decade of litigation

Some publishable works run the risk of

invading a person’s right of privacy A person

whose privacy is invaded may recover damages

for the loss of privacy, for mental and emotional

distress suffered as a result of the intrusion, and

for any specific injuries or financial losses

stemming from the intrusion The four basic

types of privacy invasion are public disclosure of

private and embarrassing facts, publicity that

places an individual in a false light, intrusion into

seclusion, and misappropriation of a person’s

name or likeness for commercial advantage

Generally, public figures do not receive as much

privacy protection as do private individuals

Publishers also must ensure that a work

does not infringe upon a person’s right of

publicity The right of publicity protects a

person’s exclusive right to control the exploitation

of his name, likeness, or persona for commercial

purposes Generally, to qualify for this protection,

the person must have commercially exploited his

persona A publisher violates a person’s right of

publicity by publishing, without consent, the

person’s performance, name, or likeness for

advertising or trade purposes

Several other torts may be committed in the

publication of a work Among other torts,

publishers should be on guard for intentional or

negligent infliction of emotional distress,

incite-ment and negligent publication, breach of

confidentiality, TRESPASS, assault, and BATTERY

Trespass, assault, and battery are most common

in news-gathering situations, where the

compe-tition to break stories can lead writers,

photo-graphers, and video artists to engage in

questionable behavior Battery, for example,

can occur if a photographer or interviewer

intentionally touches a subject in an offensive

way An assault occurs if a person puts another

person in reasonable fear of a harmful or

offensive physical contact, and a person

com-mits trespass by entering on land without

permission of the legal occupant

Infliction of emotional distress is tortious

conduct that causes severe emotional distress to

the subject of a work For example, a publisher

could be held liable under this theory of recovery

for printing a photograph in a pornographic

magazine and incorrectly identifying the person

in the picture if the identified person experi-ences work interruptions, nightmares, terror, humiliation, or other emotional distress as a result A plaintiff in such an action may recover for both physical and mental harm resulting from the tort A subject need not suffer physical

or bodily injury to recover damages for this tort;

emotional damage is sufficient The main issue

in such torts is whether the conduct by the author or publisher was so extreme and outra-geous as to permit recovery for the subject’s emotional distress

The tort of incitement is speech directed to inciting or producing imminent lawless action that is likely to incite or produce such action

Such speech must be explicit to constitute incitement Publishers generally will not be held liable if warnings are included in the work

or the publication does not produce aCLEAR AND PRESENT DANGER of imminent injury Negligent publication is the unintentional publication of incorrect facts that results in injury This tort requires that the publisher owe a specific duty

of care toward the injured party This duty is difficult, but not impossible, to establish If, for example, a publisher markets a flight manual to airplane pilots and the manual contains errors, the publisher may be liable for injuries if an airplane crashes because its pilot followed the faulty information

Breach of confidentiality generally arises from an individual’s assertion that the pub-lisher had a duty not to disclose certain information about her The duty may be expressed in a written or oral agreement between the parties It also may be implied or required by law Such statutes are designed to protect an individual’s general privacy interest, protect certain sensitive information, or shield certain government information or functions from public knowledge For example, some states maintain statutes that prohibit the publication of the full name of a juvenile accused of a crime Another example is the federal statute that creates a CAUSE OF ACTION

against persons who tape conversations with-out consent for criminal or tortious purposes (title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A § 2520[1997]) If

a publisher or author breaches confidentiality, she may be liable to the exposed party for

PUBLISHING LAW 195

injuries and financial losses stemming from the publication In some states breach of confi-dentiality does not itself constitute a cause of action, but aggrieved plaintiffs may seek

recovery under a breach of contract or invasion

of privacy action

The First Amendment guarantee of free speech, and free press is a frequent refuge for

“I Can’t Get No”: The Publisher Satisfaction Clause

Of all the provisions in a book

contract, the satisfaction clause is

the most controversial Under the

satis-faction clause, a publisher may refuse to

publish an author’s work and demand

reimbursement for any advance

pay-ments if the publisher is not satisfied

with the final product

Publishers insist on including a

satisfaction clause in book contracts to

protect their own interests A publishing

company typically uses the clause when it

has signed a deal with an author for a

book that has not been completed Such

speculative deals are common in the

world of book publishing Many authors

do not write books unless they receive an

advance payment, and few publishers

receive completed books that need no

additional work from the author

If a publisher is interested in a book

or an idea for a book, it may seek

an agreement with the author to gain

the copyrights to the final product The

agreement may include an advance

payment for the expected final product

When the publisher makes an advance

payment, it must have a way out of the

contract if the author submits a final

product that is unsatisfactory Without a

satisfaction clause, authors would have

less incentive to submit quality work,

and publishers could be faced with

manuscripts requiring an unreasonable

amount of editing and rewriting

For authors, the satisfaction clause is

a potential trap Some authors have

argued that a publisher may use the

clause as camouflage to reject a book for

an invalid reason For example, a

pub-lisher might reject a manuscript and

claim it was unsatisfactory when the real

reason for the publisher’s rejection was that another publisher had beaten it to press with a book on the same subject

Such a rejection would be a bad faith rejection and would give the author a cause of action against the publisher

However, bad faith is notoriously diffi-cult to prove in court

For decades, courts refused to exam-ine the motives of publishers when they invoked the satisfaction clause to termi-nate a book contract The first sign of a more stringent standard of review came

in 1979 in Random House v Gold, 464 F

Supp 1306 (S.D.N.Y 1979) In Gold, Random House rejected author Herbert Gold’s novel Swiftie the Magician after learning that Gold’s first two books had fallen short of commercial expectations

Gold had agreed to write four books for Random House in exchange for advance payments against royalties

When Random House offered to renegotiate Gold’s contract, Gold sold Swiftie the Magician to McGraw-Hill

Random House sued and won back the advance payments to Swiftie the Magi-cian, but in its opinion the court observed that broad discretion for pub-lishers in their predictions of commercial success “may permit overreaching by publishers attempting to extricate them-selves from bad deals.”

The case of Harcourt Brace Jovanovich

v Goldwater, 532 F Supp 619 (S.D.N.Y

1982), created a new approach to author-publisher contracts In Goldwater, author Stephen Shadegg and politician Barry M

Goldwater contracted with Harcourt Brace Jovanovich to publish Goldwater’s memoirs In return for the book rights, Harcourt paid to Shadegg and Goldwater

a $65,000 advance Harcourt rejected the final manuscript nineteen months after the agreement was reached without giving the authors an opportunity to make revisions and without giving them edito-rial assistance Harcourt demanded a return of the advance Shadegg and Goldwater refused, and Harcourt sued The court acknowledged that the law must afford a publisher “very considerable discretion,” but it also noted that a publisher does not have

an “absolutely unfettered license to act

or not to act in any way it wishes and to accept or reject a book for any reason whatever.” The Gold court had said nearly as much, but the Goldwater court made new law when it declared that

“there is an implied obligation in a contract of this kind for the publisher to engage in appropriate editorial work with the author.” Goldwater therefore created a publisher’s duty to provide editorial assistance to prevent its wanton use of the satisfaction clause An addi-tional duty, the duty to give an author the opportunity to make a revision, was established shortly thereafter in Dell Publishing v Whedon, 577 F Supp

1459 (S.D.N.Y 1984)

The satisfaction clause is likely to remain a standard provision in author-publisher contracts Under the clause, authors will be held to their obligation

to produce a satisfactory manuscript— that is, one the publisher can publish Publishers, on the other hand, must be fair in their use of the clause against an author Courts will no longer allow publishers to walk away from any author agreement just by reciting the word“unsatisfactory.”

196 PUBLISHING LAW

publishers Publishers assert the First

Amend-ment as a defense to claims for invasion of

privacy, breach of confidentiality, intentional or

negligent infliction of emotional distress,

incite-ment and negligent publication, breach of

confidentiality, and right of publicity claims

In some situations the First Amendment

also provides members of the press a right of

access to information If the press has

historically been granted access to a certain

proceeding, and if press access would further

societal interests, journalists may have a right

to be present at a proceeding or to gain access

to certain information (Richmond Newspapers

v Virginia, 448 U.S 555, 100 S Ct 2814, 65

L Ed 2d 973 [1980]) In Richmond, the

Supreme Court held that a First Amendment

right of access prohibited trial courts from excluding journalists and the public from criminal trials

The Supreme Court has recognized a journalist’s right to access judicial documents, but it has yet to recognize a constitutional right

to access all government records However, most states, as well as the federal government, have enacted so-called sunshine laws, which, with some exceptions, give the general public access to public records

Most publishers maintain insurance against risks of loss In-house or outside insurance specialists may negotiate coverage for an assortment of risks, ranging from personal injury and property damage to media perils such as invasion of privacy, copyright and

Starstruck Strikes Out

O

B

n September 7, 1977, actor Tony Curtis,

inspired by the success of his first novel, Kid

Cody, agreed with Doubleday & Company to write a

“rags to riches story of a lascivious Hollywood

starlet” called Starstruck (Doubleday & Company v

Curtis, 763 F.2d 495[2d Cir 1985], rev’g, 599 F Supp

779[S.D.N.Y 1984], and cert denied, 474 U.S 912,

106 S Ct 282, 88 L Ed 2d 247 [1985]) On the

strength of negotiations by his agent, Irving Paul

(“Swifty”) Lazar, Curtis received an advance of

$50,000, which would be offset against the future

royalties expected from sales of the Starstruck

novel The contract specified that Curtis should

submit a satisfactory manuscript by October 1, 1978,

but Curtis submitted nothing until April 1980, when

he delivered a partial first draft

In August 1981, Doubleday editor Elizabeth Drew

concluded that the Starstruck manuscript was

“junk, pure and simple,” and concurred with editor

Adrian Zackheim, who was “appalled at the

product,” that Curtis’s contract should be

termi-nated under the contract’s satisfaction clause

Doubleday asked Curtis to return the advance, but

Curtis refused Doubleday then sued for recovery in

the Southern District of New York, and Curtis

counterclaimed for third-party payments that Doubleday had received for Kid Cody

At trial, Curtis argued that Doubleday had breached the contract in bad faith According to Curtis, Doubleday had provided inadequate editorial assistance, and it had canceled the contract to avoid the terms of a related printing contract The trial court dismissed Doubleday’s claim on the theory that it had waived its right to reject the manuscript under the satisfaction clause by waiving deadlines The trial court also dismissed Curtis’s counterclaims

On appeal, the Second Circuit Court of Appeals reversed the dismissal of Doubleday’s claim The appeals court examined the case history and found that Curtis had refused editorial assistance offered by Doubleday, including the suggestion that Curtis consult a “novel doctor.” The court also held that Doubleday had not waived its rights under the satisfaction clause, that Doubleday’s editors, “who were forced to harmonize an inferior manuscript, a lucrative reprint agreement and a recalcitrant author,” had acted in good faith, and that Doubleday was entitled to a return of its $50,000 advance, plus interest Curtis appealed to the United States Supreme Court, but the High Court refused to hear the appeal

PUBLISHING LAW 197