13 Media Law

Free Speech and Fairness

The Development of the Free Press

• The First Amendment: “Congress Shall Make No Law:” does not just protect popular or conventional ideas protects all forms of expression, including offensive

ideas even some level of false expression is allowed free speech is the most basic guaranteed right First Amendment also protects freedom of assembly

and freedom of religion

The roots of American media law: Colonial newspapers were licensed by British

government. “Published by Authority” was printed at the top of

each edition.

The Zenger Case (1733): involved colonial newspaper publishers John Peter

Zenger and Anna Catherine Zenger Zengers in trouble for publishing story about governor

Zenger argued he printed the truth, and jury found him not guilty

case established truth as a defense against libel

Limits on free speech:

• Alien and Sedition Acts (1798): punished anyone who published “false, scandalous,

or malicious writings against the U.S. government, Congress, or the President

during World War I, 1,900 prosecuted under the acts following the war, some of the free speech provisions

were repealed

Protection of Individuals

• Libel—any published statement that unjustifiably exposes someone to ridicule or contempt

• A libelous statement must contain three elements: defamation identification publication

Media defenses against libel suits:

• truth

• privilege: government meetings, court proceedings, or

government documents cannot be used as the basis for a libel suit

• opinions: neither true nor false editorial cartoons, parodies, and reviews

• Gertz v. Robert Welch, Inc. (1974): Private individuals deserve more protection:

• They have not voluntarily submitted themselves for public attention.

• They are less able to defend themselves than public figures are.

Invasion of Privacy:

• There is no explicit protection of privacy in the Constitution.

• The right to privacy is derived from: “Freedom to associate” clause of the First

Amendment:• protects individual right to possess any type of literature

in the privacy of his or her own home

The Fourth Amendment limitation on searches and seizures

Fourteenth Amendment limitation on disclosure of personal information

• Four types of legal protection against invasion of privacy: intrusion—invasion of

privacy by physical trespass

• embarrassment—information so embarrassing and private that a person has reason to expect that it will not be published

false light—publishing untrue statements that alter an individual’s public image in a way that he or she cannot control

Winslet libel win strikes blow for normal womenKate Winslet has accepted damages from the Daily Mail for an article that suggested she lied about her exercise regime

Misappropriation—using a person’s name or image for commercial purposes without

permission

Privacy Law in Europe:

France has relatively strict privacy laws:

invasion of privacy, by its very nature, is damaging.

In 2000 British Parliament passed the Human Rights Act:

requires the press to observe a “proper balance” between privacy and publicity

Spain and Germany have no laws governing the actions of the press regarding the private lives of public officials and celebrities.

Italy has limited privacy laws, with significant penalties.

Free Press/Fair Trial:

The case of Dr. Sam Sheppard (1954):

Case involved a prominent Cleveland doctor accused of murdering his wife.

Papers ran headlines like “Why Isn’t Sam Sheppard in Jail?”

Cleveland newspapers printed the names, addresses, and pictures of prospective jurors.

Jurors were allowed to view the media during the trial. Sheppard was convicted, and later acquitted in a

retrial.

• The Supreme Court suggestions to ensure a fair trial: put a gag order on participants in the trial sequester the jury postpone the trial until the publicity dies down change the venue for the trial order a new trial

Outside OJ Simpson Trial

Cameras in the courtroom:

The courts have held that a trial belongs to the public, not to the participants in the trial.

Initially, cameras were seen as too loud and obtrusive to be brought in a courtroom.

Newer technology has allowed for greater acceptance of filmed court proceedings.

• United States v. Noriega (1990): Restraining order issued

against CNN to prevent broadcast of tapes of Noriega talking with legal council.

CNN played one tape, held in contempt of court.

Order eventually lifted.

Food Lion v. ABC (1992)ABC’s Prime Time Live show had two undercover reporters apply and pose as Food Lion employees.

Reporters found unsanitary meat handling, reported on it.

Food Lion sued for resume fraud and trespass.

Eventually, Food Lion only awarded $2.

Court recognized that Food Lion’s suit was a libel case in disguise.

• Prior restraint—a judicial order that stops a media organization from publishing a story or image Near v. Minnesota (1931):

• established a major precedent—even offensive material is protected by First Amendment

• The Pentagon Papers (1971): Daniel Ellsberg leaked military report about Viet Nam

debacle to the media. June 13, 1971, New York Times published the story:

• On June 15, Justice Department obtained restraining order against the New York Times.

On June 18, Washington Post prints story• On June 19, restraining order filed to stop the Post.

On June 26, Supreme Court allowed publishing• No “grave and immediate danger as to justify prior

restraint.”

• Obscenity Obscene—describes sexually explicit material that

is legally prohibited from being published Roth v. United States (1957):

• The courts could regulate obscenity.• Obscenity is not protected by the First Amendment.

Recommendations for defining obscenity:1. Standard for obscenity is set by individual

“community standards.”

2. The work must be “taken as a whole.”

3. The work must appeal to “prurient interests:” • an “exacerbated, morbid or perverted” interest

in nudity, sex, or excretory functions.

United States v. Larry Flynt

Jerry Falwell Larry Flynt

• Miller v. California: States have used the obscenity standard to ban child

pornography Material with “serious literary, artistic, political, or

scientific value” cannot be banned.

• Obscenity in the Information Age: Web site owners have no control of where information

goes/is downloaded. Pay-per-view cable and satellite television have the

same problem.

Regulation of the Media Industry

• First U.S. copyright law was passed in 1790: provided fourteen years of protection, renewable for

fourteen more. extended to foreign authors/artists in the 1890s. recently grew from twenty years to ninety-five years

for a corporate copyright:• eighty years after creator’s death for an individual

copyright

• The rise and fall of broadcast regulation: Radio Act of 1912:

• regulated ship-to-shore communications

The Radio Act of 1927:• created the Federal Radio Commission• charged broadcast stations with acting in the “public

interest, convenience, and necessity”

Communications Act of 1934:• Radio Commission evolved into the Federal

Communication Commission (FCC) • brought all electronic communication under FCC control

• Mandating fairness on the air The Equal Time Provision:

• requires equal amounts of broadcast time to all candidates running for public office

• does not require providing air time, simply equal time

Fairness doctrine (1949): stations were required to cover controversial issues of public interest and to present contrasting views on those issues

• FCC ceased enforcement in 1985

• The Telecommunications Act of 1996: creation of the V-chip relaxed limits on broadcast station ownership

• Regulation of the Internet: difficult to define it as a media no central authority controlling content the Communications Decency Act failed