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

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 Substa nces 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 against AIDS, 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 f or individuals seeking information about the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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 recruitme nt 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 biom edical 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 laborat ories of the Cancer Institute condu ct 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 resear ch 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 The SUBSTANCE 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 the SEPTEMBER 11TH 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; H ealth and Human Services Department; Health Care Law; Immuniza- tion Programs. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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 bod y 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 a s 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 of PATENTS, 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, and INTERNATIONAL 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 a PRIVATE LAW that 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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 of fering 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 commi s- 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. ThecollapseofsuchcompaniesasEnron, 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. T he act created more stringent stan- dards that apply to initial public offerings. Some members of Congress, including Con- gr essman 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 securit ies 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 purchas ers 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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 enac tment of the Public Utility HOLDING COMPANY Act 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 of SECURITIES and 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 POLICY is 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 telep hone 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 co mpanies 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 REGUL ATORY COMMISSION, the FEDERAL COMMUNICATIONS COMMISSION , and the SECURITIES AND EXCHANGE COMMISSION . GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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 issu e 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. In LIBEL AND SLANDER law, to utter to a third person or to make public a defamatory statement; in COMMERCIAL PAPER law, 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 examp le, 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 BRANCH publish 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 pictu re, 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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/Book s/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 the FIRST 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 TRADEMARK infringement, 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; copyrights 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; infor mation 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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 i nfringe upon a person’srightof 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’srightof 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. Amo ng other torts, publishers should be on guard for intentional or negligent infliction of emotional distress, incite- ment and negligent publication, bre ach 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 in terviewer 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 emotion al distress to the subject of a work. For example, a publisher could be held liable under thistheory 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 nee d 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 a CLEAR 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. I t 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 c riminal 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PUBLISHING LAW 195 injuries and fin ancial los ses 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 O f 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 a uthor to gain the copyrights to the final product. The agreement may include an advance payment for the expected final product. When the publish er makes an advance payment, it must have a way out of the contract if the author su bmits a final productthatisunsatisfactory.Withouta satisfaction clause, authors would have less incentive to submit qua lity work, and publishers could be fac ed 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.” ThecaseofHarcourt 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 “thereisanimpliedobligationina contract of this kind for the publisher to engage in appropriate editorial work with the author.” Goldwater therefore created a publisher’sdutytoprovide editorial assistance to pr event its wanton use of the satisfaction clau se. A n addi- tional duty, the duty to give an author the opportunity to make a revision, was established shortly thereafter in Dell Publishi ng 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. Unde r the clause, authors will be held to their obligation to produce a satisfactory manuscript— that is, one the publisher can publish. Publishers, o n the other hand, must be fair in their use of the clause against an author. Courts will no longe r allow publishe rs to wa lk away from any author agreement just by reciting the word “unsatisfactory.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 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, bre ach 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 t rial 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 l oss. In-house or outside insurance specialists may negotiate coverage for an assortment of risks, ranging from personal injury and p roperty 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 hi s first novel, Kid Cody, agreed with Dou bleday & 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],andcert. 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 advan ce, but Curtis refused. Doubleday then sued for recovery in the Southern District of N ew York, and Curtis counterclaimed for third-party paymen ts 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PUBLISHING LAW 197 . seeking information about the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 188 PUBLIC HEALTH SERVICE availability and procurement of donor organs and bone marrow. A number of bureaus within the Health Resources. another meaning in the law of commercial paper. Commercial paper law relates to negotiable instruments such GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PUBLISH 193 as bills of exchange, promissory. Narcotics; Environmental Law; H ealth and Human Services Department; Health Care Law; Immuniza- tion Programs. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PUBLIC HEALTH SERVICE 189 PUBLIC INTEREST Anything