Media Law Overview

THE PRESS, THE LAW, AND THE COURTS

A Free Press

Partially as a result of their colonial experiences, but also as a hedge against potential future abuses, the Constitution's framers enacted a specific Bill of Rights. In it, the First Amendment says in part, "Congress shall make no law . . . abridging the freedom of speech, or of the press." As simple and straightforward as that may sound, people and the courts have been arguing over its interpretation for nearly 225 years.

Prior Restraint

When the government attempts to censor the press by restraining the media before something is printed or broadcast, that's called prior restraint. Though attempts to do so have been rare, the courts have held that the First Amendment is not absolute; the government can, under certain circumstances, restrain speech and the press, but the task of proving the necessity to do so is extremely difficult. In most cases, the Supreme Court has sided firmly with the press.

The Near Case
In the 1920s, the Minnesota legislature passed a law under which newspapers that were considered public nuisances could be curtailed by means of an injunction (an order from a court that requires somebody to do something or refrain from doing something). Even though the Minnesota law was designed, in part, to prevent press abuses against minorities, the Supreme Court held that good intentions did not supersede the greater danger of prior restraint.

The Pentagon Papers
In the early 1970s the Nixon administration attempted to suppress a story set to run in the New York Times. The nine-part series, illegally leaked to the press, described a top secret Defense Department study which had been commissioned to research the roots of the Vietnam conflict. Citing that the report would "cause irreparable injury to [our] defense interests," the Nixon administration successfully received an injunction against the Times to temporarily prohibit publishing that story. For the first time in history, a U.S. newspaper had been ordered to suppress a news story. Other papers (who by now also had copies of the report) began publishing the series; the administration countered with more injunctions, but very quickly the number of papers outpaced the administration's ability to keep up with injunction orders.

The Supreme Court, with unprecedented haste, heard the case only 17 days after the initial story appeared in the Times. In a 9-0 vote, the Court said the government had not proven a sufficient and significant danger to national security that would justify the need for prior restraint. On the other hand, the Court didn't rule that prior restraint could never be applied, simply that this time the government had not shown sufficient cause to merit that action.

Subsequent cases involving the CIA successfully getting parts of a book deleted because it contained classified information, restrictions on news coverage during the Gulf War, and an attempt to ban a Business Week article because the material for that article came from sealed court documents, have collectively shown the gray issue areas surrounding the First Amendment. Although there is a strong constitutional case against prior restraint of the press, significant unclear issues still exist wherein censorship might still be considered legal.


PROTECTING NEWS SOURCES

The press argues that if they are forced to disclose confidential sources, those sources will dry up and the public's right to know will be adversely affected. Government counters by citing it has a greater need to administer justice and to protect the rights of an individual to a fair trial.

The Reporter's Privilege

In the early 1970s the Supreme Court ruled that the First Amendment did not necessarily protect reporters from their obligation to testify before grand juries and to answer questions concerning a criminal investigation. The Court said that there were instances in which a reporter's claim to privilege could be valid. They also suggested that the states further define reporter rights by passing shield laws (legislation protecting a reporter from revealing his or her news sources). So far, 31 states have passed shield laws, but the differences between them and the variations in their interpretations have left these issues clouded and confused.

Search and Seizure

The ability to protect a reporter's notes and a newsroom's records from revealing a news source is also in a legal limbo. Here, the courts have offered even less protection. In response to the wide "fishing" net of a search warrant, Congress passed legislation in 1980 that required government to obtain a subpoena (an order to appear or present evidence) in order to obtain press records. A subpoena is more limited in focus than a warrant, and, more importantly, it can be challenged in the courts before being executed. These challenges suggest that reporters need to carefully consider potential problems before promising confidentiality to a news source.


COVERING THE COURTS

The Sixth Amendment guarantees a defendant the right to a trial before an impartial jury; on the other hand, the First Amendment guarantees freedom of the press. Trial judges are responsible for the administration of justice while reporters are responsible for informing the public about the workings of the legal system. Sometimes these responsibilities clash.

Publicity before and during a Trial

If a potential jury member has read, seen, or heard stories in the news media about a defendant that appears to indicate that person's guilt, it is possible that the defendant will not receive a fair trial. That's called pretrial publicity. In an effort to soften the conflict between the First and Sixth Amendment rights (sometimes called the Free Press/Fair Trial issue), the Supreme Court outlined safeguards which judges could use to protect a defendant's rights. Among them:

. sequestering the jury (physically isolating them from the public outside the courtroom)
. change of venue (moving the trial to another, presumably more objective, location)
. injunctions (prohibitions against making any potentially damaging statements made by
trial participants)

Gag Rules

Some judges have invoked restrictive orders, or gag orders, which restrain trial participants from giving out information to the media or restrain media coverage of events that occur in court. Press access to pre-trial proceedings, pre-trial evidence, jury selection, and even the ac-tual trial proceedings themselves has had a see-saw history of restriction and openness. In the 1980s, the Supreme Court reaffirmed the press’ right to open court access, but the Court also ruled that that judges theoretically could--using strict guidelines laid down by the Court--restrict press access if the situation warranted it.

Cameras and Microphones in the Courtroom

Still cameras, newsreel film, and radios first invaded the courts in the 1930s. Due in various part to the clumsiness and size of the equipment, the zeal of the reporters, and the inexperience of both the courts and the press with these communication systems, film and broadcast coverage became reminiscent of a circus. As a result, the American Bar Association adopted Canon 35 of its Canons of Professional Ethics, which suggested that courts bar film and broadcast in covering court proceedings. Soon after, most states did just that. Later, other court cases objected to the potential prejudice that TV coverage might produce, and it too became a court outcast.

Slowly, however, state-by-state, courtroom restrictions of AV materials have relaxed. By 1970, advances in technology and greater media experience re-opened the doors to the possibility of allowing video and audio court coverage. By 2000, only two states still prohibit film or broad-cast coverage under any circumstances. Broadcast coverage is, however, still prohibited in all federal criminal courts and in the Supreme Court of the United States.


REPORTER'S ACCESS TO INFORMATION

Government Information

After World War II, members of the press complained that government secrecy was becoming a major problem. Reporters were being restricted from official meetings, and access to govern-ment documents was often difficult to obtain. In response, Congress passed the 1966 Freedom of Information Act (FOIA), which gave the public the right--with some restrictions--to find out what the federal government was up to.

The law states that every federal executive-branch agency must publish instructions on what methods a member of the public should follow to get information. If information is improperly withheld, a court can force the agency to disclose what is sought. There are nine areas of exempted material such as trade secrets, criminal investigations, oil well maps, and IRS files.

In 1996, the Electronic Freedom of Information Act (EFOIA) was also passed to make more government information available on the Internet, although agencies have been slow to implement all the requirements of the EFOIA.

Journalists, however, have not made extensive use of this law since getting the information is often a cumbersome and time-consuming process. But the FOIA has been used effectively in some investigative series where time wasn't an issue. Sunshine Acts, allowing press access to most government meetings--again, with some restrictions--have also helped further public access to government proceedings. As is usually the case, most states have adopted similar FOIA and Sunshine Acts to cover state and local government proceedings.

Access to News Scenes

A reporter's right to access a news scene, above and beyond the public's right to the same access, is still in the evolutionary stage of definitive court decisions. The Supreme Court has suggested the press has no more of an inherent right to news scenes or public facilities than does the public at large, or to put in another way, when the public is not admitted, neither is the press. State laws themselves vary widely in the interpretation of what are a reporter’s access limits.


DEFAMATION

The right of free speech and the rights of a free press sometimes come into conflict with the right of an individual to protect his or her reputation. These conflicts are dealt with under defamation law, which can be broken down into several areas:

. libel written defamation that tends to injure a person's reputation or good
name or that diminishes the esteem, respect, or goodwill due a person

. slander spoken defamation; broadcast defamation is often considered libelous
because the defamation usually has broader impact than a typical slander
case; libel is also considered a more serious offense than slander

. libel per se some words are always libelous; falsely written accusations, such as
labeling a person a "thief" or a "swindler" automatically constitutes libel

. libel per quod normally innocent words could be libelous under certain circumstances

Though each state has its own defamation definitions, the same general rules apply. For example, in order for someone to win a libel suit against the media, that person must prove five things:

1. that he or she has actually been defamed and harmed by the statements
2. that he or she has been identified (although not necessarily by name)
3. that the defamatory statements have been published
4. that the media were at fault
5. in most instances, that what was published or broadcast was false

In proving that the media is at fault, people suing for libel must generally also prove that the purported defamatory statement is indeed false, so that virtually anyone who brings a libel suit must show the wrongfulness of what was published. But the media are responsible for whatever they report, and thus can’t hide behind the fact that they were only repeating what someone else said.

Defenses against Libel Suits

1. truth If what's been reported is true, defamation, by definition, has not occurred.

2. privilege The courts have held that in some situations, the public's right to know takes
precedence over a person's right to preserve a reputation. In common cases, like government or public proceedings, the press is protected as long as the reporter gives a fair and accurate report of those events, even if what’s reported contains a libelous statement.

3. fair comment Any person who voluntarily puts himself into the public eye or is at the
and criticism center of public attention is open to fair criticism. This applies only to fair
criticism, not misrepresentations of fact.

In 1964, the Supreme Court significantly loosened the potential restrictions on comments concerning public officials or public figures in the New York Times vs. Sullivan case. A civil rights group published an ad in the Times concerning a protest in Montgomery that Sullivan, an Alabama police official, claimed libeled him. Evidence revealed that several statements in the ad were indeed false. An Alabama court found in favor of Sullivan and awarded him $500,000; shortly thereafter, however, the Supreme Court overturned the decision and enumerated three major principles that would affect all future defamation decisions:

1. Editorial advertising is protected by the First Amendment.

2. Even false statements might qualify for First Amendment protection if they concern a
public official’s public conduct.

3. Public officials must prove that defamatory statements were made with actual malice.

Actual malice means publishing a statement with the knowledge that it was false or publishing a statement in "reckless disregard" of whether it was false or not. The Court noted the fact that being involved in a newsworthy event doesn't necessarily make a person a public figure. Private citizens however still need to show some degree of fault or negligence by the media. In many states this simply means showing that the media did not exercise ordinary care in carrying a story. People suing for defamation collect awards in one or both of two forms: actual damages (dollar damages the defamation  actually cost them), and/or punitive damages, in which juries tend to award big fines with the intent of punishing media performance. With punitive damages, however, even a private citizen must show the media acted with actual malice.

Defamation and the Internet

A whole new medium often brings whole new problems. For example, should defamation on the Internet be treated as libel or slander? If someone sues you for defamation, should your ISP also be held liable for carrying your message? The answer to the first question rests largely on your own state’s laws; the answer to the second question and the courts have ruled "no, your ISP is not responsible for carrying the message." If, for example, someone posts a libelous statement about you on his blog, you may sue him for damages, but not, say Time-Warner or Comcast (the company providing you Internet access).

This same idea applies to social media sites like Facebook. If someone libels you there, you can sue the author, but not Facebook (you agreed to such when you signed up, by the way). There's nothing to stop you from suing Facebook, of course, (and they get sued all the time) but you're probably not going to win-- unless you can show that Facebook employees knowingly published false, defamatory statements about you with a reckless disregard.


INVASION OF PRIVACY

The Right to Privacy

A single defamation publication might often prompt two suits: libel and invasion of privacy. The difference between the two is that while libel protects a person's reputation, the right of privacy protects a person's peace of mind and feelings. Second, libel involves publication of false material; invasion of privacy might be triggered by disclosing the truth. There are four ways the mass media can invade someone's privacy:

1. intruding upon a person's solitude or seclusion
2. unauthorized release of private information
3. publicizing people in a false light or creating a false impression of them
4. appropriation of a person's name or likeness for commercial purposes

Trespass

Trespassing is unauthorized entry onto somebody else's territory. If the question is, “Do journalists have a special First Amendment privilege to break the law in pursuit of a legitimate news story that will advance the public interest?” recent court rulings suggest that the answer is “no.”

In respect to the media, this area of the law has usually focused on the tactics of some reporters to gain entry onto private property using fraudulent methods, e.g., going undercover and pretending to be somebody they really weren't in order to get pictures or story background.

COPYRIGHT

Copyright laws protect authors against unfair appropriation of their work. First enacted in 1909, the copyright laws were fundamentally amended in 1976 in response to emerging communication technologies.

The new laws protect such things as literary and dramatic manuscripts, music works, sound recordings, motion pictures, and TV programs. The law also specifies what is not covered, such as ideas, news, a discovery, or a procedure. For works created after January 1978, copyrights last for the life of the author plus 70 years; works created before then are protected for a period of 95 years. Copyright protection extends only to copying the work in question; works that are similar, though not copied or based on the original, are not copyright infringements.

(Thanks to lots and lots of lobbying, corporations have successfully helped to "extend" copyright laws for "works made for hire"-- that is, works owned by corporations. This does not apply to individual works, whose copyrights expire earlier).

Specifically, the U.S. Copyright Office (http://copyright.gov) explains the length of copyright protection like this:

A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

Someone can, however, use portions of a copyrighted work under the law's fair use provisions; such uses might include teaching purposes, research, news reporting, and critical reviews. To qualify for protection under fair use laws, these four factors are considered:

1. the purpose of the use (profit vs. non-profit)
2. the nature of the copyrighted work
3. the amount reproduced in proportion to the copyrighted work as a whole
4. the effect of the use on the potential market value of the copyrighted work

In the famous Betamax case, the Supreme Court ruled that viewers who owned VCRs could copy programs off the air for later viewing (timeshifting) since it constituted fair use of the material.

Copyright law does apply to the Internet, a 1995 presidential task force concluding that copying materials from the Internet is a form of reproduction that is protected by current copyright laws.


OBSCENITY AND PORNOGRAPHY

This area of the law revolves around the rights of free speech under the First Amendment when they come into conflict with the right of society to protect itself from what it considers harmful messages. Although obscenity is clearly not protected by the law, the courts have been unable to adequately define what actually constitutes obscenity.

Obscenity laws began with the 1860’s Hicklin Rule, in which its guidelines judged a book to be obscene by whether isolated passages had a tendency to deprave or corrupt the mind of the most susceptible person.

In 1957 the Supreme Court attempted to redefine the definition of obscenity in its Roth v. United States ruling. Those guidelines mandated that something was obscene if,

1) “to the average person, applying contemporary standards, the dominate theme of the material taken as a whole appeals to prurient interests.”

Unfortunately, the court did not define "average person," "contemporary community standards," or "prurient interests." This daunting task was left up to different regions of the country. Consequently, there is no consistent understanding. In many cases, some films are considered "obscene" in some cities (and therefore you can be charged with a crime for possessing, producing, viewing, or disseminating the material) and win film festival awards in others. Two of the most culturally conservative areas (when it comes to materials being deemed obscene) are Oklahoma City, Oklahoma and Cincinnati, Ohio. Two of the most culturally liberal areas (again, when it comes to materials being deemed obscene) are San Francisco, California and New York, New York.

Later, other decisions added refinements by saying that the material had to be

2) “patently offensive” and

3) “utterly without redeeming social value” to be obscene.

A 1969 ruling came up with the concept of variable obscenity when it stated that certain magazines were obscene when sold to minors but not obscene when sold to adults.

In 1973 the Court tried to close up the obscenity loophole when it adjudicated the Miller v. California case. The new test added these new principles:

1. whether the average person, applying contemporary community standards, would find that
the work as a whole appeals to prurient interest

2. whether the work depicts or describes in a patently offensive way certain sexual conduct
that is specifically spelled out by state law

3. whether the work as a whole lacks serious literary, artistic, political, or scientific value.

Despite the attempts at clarification, and the indirect suggestion that obscenity problems be handled on a local level, the problem of defining pornography to everyone’s satisfaction continues. The Internet, of course, brings on a whole new set of legal issues in terms of creating, defining, and distributing pornographic materials.

While the Court agrees that child pornography is not something protected under the First Amendment, it’s also ruled that the Internet should be given the highest level of first Amendment protection, similar to that given to books and newspapers, rather than the more limited rights of broadcasting and cable where regulation is more common.


REGULATING BROADCASTS

Because the public owns the airwaves, the government decides who gets a license to broadcast over certain frequencies on behalf of the public interest, and whether or not, after a time, they can renew that license. The broadcast media, therefore, are subject to more regulations than the print media.

The Federal Communication Commission

The governing body, the FCC, does not make the laws but rather interprets them. One of its biggest jobs is to continually interpret the concept of “operating within the public interest.” One of its responsibilities is to examine programming and determine whether public interest is being served, not just from a technical standpoint, but also from perspective of a well-rounded program lineup. The Federal Radio Commission, forerunner to the FCC, ruled in its 1929 Great Lakes decision that the broadcasting of programs that tended to injure the public--fraudulent advertising, attacks on ethnic groups, attacks on religion--would not be considered in the public interest.

A 1960 FCC policy introduced the idea of localism, contending that programs featuring local talent and aimed at local self-expression are necessary elements in serving the public interest.

In regulating stations, the FCC can make its influence felt in a number of ways. From the mildest to the most severe levels it can, for example:

. fine a station up to $250,000
. put a license renewal on probation, usually a year
. revoke or fail to renew a license

The last step is rarely taken; from 1934 to 1978, only 142 licenses were revoked. Some 99.8 percent of all licenses are renewed.

While rules relaxed during the deregulatory period of the 1980s, regulations began to increase in the 1990s. For example, Congress passed the Children’s Television Act, which among other things limits the amount of commercial time for children’s programs and also mandates that TV stations devote at least three hours of informational and educational programming for children each week.

Indecent Content

Congress, the courts, and the FCC have had a difficult time trying to find a compromise between protecting the principles of the First Amendment while also protecting children from accidental exposure to indecent content aired on radio and television. Several time periods that banned indecent content were tried, but the one that stuck is the one that now bans broadcasters from airing potentially indecent content between 6 a.m. to 10 p.m. They are allowed to offer indecent programming between the hours of 10 p.m. and 6 a.m. (overnight, when children are-- or should be-- asleep).

During the past 10 years, the FCC has taken unprecedented steps to enforce the "indecency" rule on broadcast TV. They have upped the fine so that now if someone, even during a live show, drops an "F bomb," then the fine is $32,500-- per utterance-- multiplied by the number of stations airing the program. The major television networks have about 200 affiliates across the country. This means that if ONE person drops an F bomb during a live event, the producers can get fined a total of $6.5 million. And if someone were to have the audacity to drop three f bombs? Well, then, that fine jumps to $19.5 million.


The Equal Opportunities Rule

The Equal Opportunities rule states that if a station permits one candidate for a specific office to appear on the air, it must offer the same opportunity to all other candidates for that office. If a station gives one person or party free time, other qualifying persons or parties must also get the same amount of free time.  The single exception, which creates the loophole for presidential debates, is that networks can cover debates limited to leading candidates because it’s defined as a “news” event.

The Fairness Doctrine

Now void, the Fairness Doctrine nonetheless continues to pop up for serious reinstatement consideration from time to time. When it was in effect, it said that broadcasters had to seek out, and make a good faith effort at presenting, opposing viewpoints on matters of public importance.


REGULATING CABLE TV

Congress and a few presidential administrations have demanded on-again, off-again regulations to govern the TV cable industry. The latest regulations arose because of widespread consumer complaints against rising fees and poor service; in response, Congress passed the Cable TV Act of 1992, which re-instated the FCC’s power to regulate cable fees and services. Two provisions of this act had important consequences.

First, most consumers saw their monthly cable rates go down. The second effect was in response to an industry challenge to overturn the rule that required it to carry the signals of local broadcast stations. The Supreme Court held that Congress could pass laws which guaranteed that the free flow of information not be restricted by a private firm that controlled the means of transmission.

THE TELECOMMUNICATIONS ACT OF 1996

The Telecommunications Act of 1996 was the first major overhaul of communication laws in more than 60 years, and it affected every industry regulated by the FCC. Some of the law’s key provisions are:

. no limit on total number of radio or TV stations that can be owned by one person or company, provided that no more than eight stations may be owned in a single market

. no limit on the number of TV stations that can be owned as long as that number doesn’t
reach more than 35 percent of the nation’s TV households

. extended the term of broadcast licenses to eight years

. allowed telephone companies to enter the cable field

. allowed cable companies to enter the telephone business

. deregulated the rates of many cable systems

. mandated that new TV sets come with the ability to block programs with strong sexual or
violent content (the so-called V-Chip)

. mandated that the TV industry to come up with a voluntary system to rate programs with
violent, sexual, or indecent content

Though the TV and cable industries created a rating system, and then amended it later because of public pressure, the new system is confusing and applied sporadically, if at all.


REGULATING ADVERTISING

When the Federal Trade Commission was started in 1914, its first mission was to curtail questionable business practices such as bribery, false advertising, and product mislabeling. Protecting consumer rights came later in 1938 with the passage of the Wheeler-Lea Act which gave the FTC the power to prevent deceptive advertising that harmed the public, reversing the long-held market place concept of caveat emptor, or “let the buyer beware”.

The FTC can issue trade regulations, which outline guidelines for an industry to follow. It can also use consent orders, in which the advertiser agrees to halt a certain advertising practice, although without admitting any violation of the law. Somewhat stronger, a cease-and-desist order arises from a formal FTC hearing in which it’s determined that a particular advertising practice does indeed violate the law. Failing to stop that practice can lead to FTC imposed fines.

The FTC has also occasionally required companies to issue corrective advertising, in which potentially misleading claims need to be clarified. The FTC also stopped advertisements that targeted children when the products advertised were deemed harmful to children, the R. J. Reynolds’ “Joe Camel” campaign being one of the more recent examples.

Commercial Free Speech Under the First Amendment

For many years the Supreme Court did not view advertising (a.k.a. commercial speech) as having any First Amendment protection. The 1964 New York Times vs. Sullivan case extended a new protection, however, to advertising that dealt with important social matters. More recent cases suggest that in many instances commercial speech falls under the constitutional protection, and in 1980 the Court outlined a four-part test for determining that protection:

1. Not protected is any commercial speech that involves an unlawful activity or advertising that is false or misleading.

2. The government must have a substantial interest in regulating the commercial speech.

3. The government’s regulation must actually advance the involved interests of the state.

4. The state’s regulations may be only as broad as necessary to promote the state’s interests.

And that, in effect, is an overview of Media Law in the United States.

Obviously, you can earn several advanced degrees on the subject, but-- in a nutshell-- those are the major points...