Chapter 16Formal Controls: Laws, Rules, Regulations

The First Amendment

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and

to petition the Government for a redress of grievances.”

Prior Restraint

• Prior restraint: when the government censors the press by restraining it from publishing or broadcasting material

• Attempts to exercise prior restraint are rare

• Proving that restraint is justified is difficult

– Example: During war, preventing newspapers from publishing information on the specific locations of troops.

– Video: Prior Restraint explained

Prior Restraint• The Near Case: 1920’s, Minnesota passes a law

that allows any newspaper considered to be a public nuisance to have an injunction (court order that requires someone to do something, or to stop doing something) imposed against them.

• Originally designed to prevent attacks on minority groups

• In the case against J.M. Near (publisher of the Saturday Press), an injunction was filed on the grounds the paper had printed malicious statements about city officials.

• 1931: Supreme Court ruled that the law was unconstitutional

Prior Restraint• The Pentagon Papers: Government study on the

Vietnam War was leaked to the press. The New York Times was ready to publish the information. (1971)

• The US Justice Department asked a judge to stop publication of the story, on the grounds that it would “cause irreparable injury to the defense department of the United States.”

• Supreme Court ruled in favor of the press. However, the court did not outlaw prior restraint. The court pointed out the heavy burden government must go through to justify such an action.

Prior Restraint

• Prior restraint also includes websites

• 1999: The creator of a site for news about Ford Motor Co. published documents sent to Ford employees

• Case was eventually ruled in favor of website creator and set precedent for prior restraint on the internet

Prior Restraint

• Principal of a high school in Hazelwood, Missouri, kept school newspaper from publishing two articles – one about teen pregnancy and one about divorce – due to inappropriateness

• Three student journalists claimed violation of First Amendment rights

• Did they have a case?

Protecting News Sources• Shield laws: Congress and the states can further define

the rights of a reporter to protect sources by enacting legislation

• Search & Seizure: protecting notes and other records that disclose sources or other information relevant to an investigation

• Electronic Communication Privacy Act: protection for computer-stored messages and emails. Requires the government to obtain a search warrant before examining online or stored messages intended to be private.

• A reporter’s privilege in protecting sources and notes is not absolute. Decided on a case-by-case basis.

• Video: Federal Shield Law?, Freedom of the Press after 9/11

Reporters’ access to information

• Freedom of Information Act (1966): Gives the public the right to discover what the federal government is up to -- with some exceptions. The law states every federal execultive-branch agency must publish instructions on what methods a member of the public should follow to get information.

• Some information does not have to be made public: trade secrets, files of law enforcement investigations, maps of oil wells.

• Electronic Freedom of Information Act (1996): passed to make more information available on the web.

• Patriot Act (2001): passed October 2001, gives the government more power to access telephone and email records. Makes it easier for the gov’t to restrict access to official records. Also prevents the press from learning about specific FBI search criteria: i.e. books bought or borrowed by suspected terrorists.

Defamation• Defamation: protection for a person’s reputation

• Libel: WRITTEN defamation that tends to injure a person’s reputation or good name, or that diminishes the esteem, respect, good-will due a person

• Slander: SPOKEN defamation. Usually less penalties than libel.

• Libel per se: Some words are always libelous. Falsely written accusations -- e.g., labeling someone a thief.

• Libel per quod: Words that seem innocent that can become libelous under certain circumstances. E.G. “Mr. Smith was kissing a blonde woman outside of City Hall last night,” if Mr. Smith was married to a brunette!

Libel suits• For someone to win a libel suit, that person must

prove 5 things:

1. he or she has actually been defamed and harmed by the statements

2. he or she has been identified (though not necessarily by name)

3. the defamatory statements have been published

4. the media were at fault

5. (in most instances) what was broadcast or printed was false

Family Guy – Luke Perry episode

Actual Malice

• can apply to a defamation case

• Publishing something that is known to be false

• publishing something with reckless disregard about its truth or falsity

• applies to public figures/officials

RED FLAG WORDS

• bankrupt

• intemperate

• unprofessional

• communistic

• incompetent

• morally deliquint

• unethical

• corrupt

• dishonest

• amoral

• cheating

• fool

• hypocritical

• sneak

Defense against libel

• Three defenses against libel suits:

• 1. Truth: if what was reported is proved to be true, there is NO libel (though in court, the burden of proof in proving falsity falls on the person bringing the libel suit)

• 2. Privilege: in some instances, the courts have held that the public’s right to know comes before a person’s right to protect their reputation

• 3. Fair comment & Criticism: public figure is expected to be open to criticism

Opinions

• opinions that contain an assertion of fact, that can be proved false, could trigger a libel suit

Defamation and the internet

• Communications Decency Act of 1996: ISPs are not liable for the content they carry, unless they are the actual authors of the content

• Jurisdiction (where a crime takes place). Defamation laws vary by state.

Invasion of Privacy• Right to Privacy: protects a person’s peace of mind

and feelings; unlike libel, the invasion of privacy might be triggered by exposing the truth.

• Intrusion upon Solitude: when reporters wrongfully use microphones, surveillance cameras, or any other eavesdroppping method to record someone’s private activities.

• 1999, California Supreme Court ruled in favor of a psychic hotline worker, who had been secretly taped by an undercover reporter for ABC, posing as a worker for the hotline. The Court said that the co-worker had a reasonable expectation of privacy at work.

Invasion of Privacy• Unauthorized Release of Private Information: e.g., a

newspaper’s publishing of private medical records.

• Creation of a False Impression: publicizing people in a false light, or creating a false impression of them. Most closely related to libel; e.g., TV news re-recording a new narration over previously shot stock footage.

• A Chicago TV station was sued when it ran stock footage from 3 years earlier of a doctor performing a gynecological exam, with a story describing how another doctor allegedly used an AIDS-infected swab during a similar exam. The face of the doctor in the footage wasn’t the same person, and she was easily identifiable. The case was settled out of court.

Invasion of Privacy

• Appropriation of Identity: Using someone else’s name or likeness for commercial purposes. For example, Christy Brinkley sued a poster store for selling unauthorized images of her.

• The not-famous are protected as well. One man sued a camera company after using his picture in their instruction manuals without permission, or compensation.

Invasion of Privacy

• Trespass: Do journalists have a special 1st Amendment privilege to break the law in pursuit of a legitimate news story, that serves public interest?

• Several recent court cases say, NO.

• In a Wisconsin court, a TV journalist who had entered private property with permission of a police officer (but not the homeowner) was found guilty of trespassing.

Obscenity & Pornography

• Obscenity is not protected under the First Amendment, but the courts have been unable to adequately define obscenity.

• Hicklin Rule (1860s)

• Roth test (1957)

• Variable obscenity (1969)

• Miller test (1973)

• Opie & Anthony Sex For Sam

Obscenity & Pornography

• Communications Decency Act and Child Online Protection Act

– Ruled unconstitutional

– Found that the Internet should have the highest level of First Amendment protection

Obscenity & Pornography

Hicklin Rule: standard that judged a book by whether isolated passages had a tendency to deprave or corrupt the mind of the most susceptible person

Roth test: whether the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appealed to prurient interests

Variable obscenity: standards are different among different communities; some material may be offensive for children and OK for adults

The Miller TestWhether the average person, applying

contemporary community standards, would find that the work as a whole appealed to prurient interests

Whether the work depicted or described in a patently offensive way certain sexual conduct that was specifically spelled out by a state law

Whether the work lacked serious political, literary, artistic, or scientific value

Should Obscenity Be Illegal?

The FCC• The FCC interprets law; it doesn’t make law

• Determines whether broadcasters are serving the “public interest”

• FCC can invoke fines; issue probationary license renewals; revoke or not renew license

• After deregulation of 1980s, regulation began to increase in 1990s

• Children’s Television Act

• Office of Strategic Planning and Policy Analysis

• FCC does not control the Internet or Internet service providers

• Internet neutrality

Indecent Content• Protecting children from accidental

exposure to indecent content

• Safe harbor (10:00 pm to 6 am)

• Congress has passed stiffer regulations (Nipplegate)

• FCC crackdown on indecency (Dirty Words)

• FCC also making effort to crack down on violent content

Equal Opportunities Rule

• Section 315 of Communications Act

• If a station allows one candidate for a specific office to access its airwaves, it must allow all candidates for that office the same access

• Even if free time

• Exceptions include legitimate newscasts and on-the-scene coverage of authentic news events

Fairness Doctrine

• The Fairness Doctrine is no longer in existence (1949-1987), but attempts to revive it reappear from time to time

• Required broadcasters to seek out, and make good faith effort to present, opposing viewpoints on matters of public importance

Regulating Cable TV

Regulation of cable has fluctuated:

• Cable systems are not licensed by FCC; they are franchised by state and local governments

• Cable TV Act of 1992 re-instated the FCC’s right to regulate cable fees and services

• Courts have ruled that cable operators have more First Amendment rights than broadcasters, but less than newspapers and magazines

• Help consumers to avoid indecent content

Telecommunications Act of 1996

First major overhaul of communication laws in more than 60 years.

• Removed ownership caps (with some restrictions); allowed telephone companies to enter cable field and vice versa; mandated TV content rating system (V-chip resulted)

Impacts:

• Consolidation; cable fee increases; after some time, competition between telephone and cable

CopyrightCopyright term extension act (CTEA) 1998

Aka: Sonny Bono Copyright Act, Mickey Mouse Protection Act

• extended copyright by 20 years

• life of the author plus 70 years, and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier

• Copyright protection for works published prior to January 1, 1978 was increased by 20 years to a total of 95 years from their publication date

Steamboat Willie 1928 (Video)

Copyright

• Protects an author against unfair appropriation of his or her work.

• Covers literary, dramatic, musical works, motion pictures, TV programs and sound recordings.

• To obtain copyright, you must register with the Register of Copyrights.

• Copyright fees

Copyright• Copyright extends only to copying the

work, if a person independently creates a similar work, there is no copyright violation.

• As a result, one who brings a copyright suit against another must prove the other person had access to the work under consideration. However, you don’t have to prove the other person intentionally copied your work.

• Vanilla Ice vs. Queen

Copyright

• Coldplay & Joe Satriani

• Tom Petty & Red Hot Chili Peppers

Fair Use:Fair use: copies of a protected work can be made for such

legitimate purposes as teaching, research, news reporting and criticism without penalty.

Four factors are taken into consideration:

1. the purpose of the use (whether for profit or non-profit education,

2. the nature of the copyrighted work,

3. the amount reproduced in proportion to the copyrighted work,

4. the effect of the use on the potential market value of the copyrighted work.

Piracy• 1998 Digital Millennium Copyright

Act: unlawful to create services that are used to circumvent measures that control access to copyrighted works. E.g., Napster, BitTorrent, Kazaa, YouTube.

• In mid 2005, the Supreme Court ruled that file-sharing services could be sued for copyright infringement based on the sharing habits of their users.

• 2007 Viacom and NBC sued YouTube for $1 billion, claiming that the site hosted copyrighted material. Settled with a joint-marketing agreement. Later, NBC creates HULU

REGULATING ADVERTISING

• Advertising is both regulated and protected

Deceptive Advertising

• Federal Trade Commission

• Bribery, false advertising, product mislabeling

• Powers expanded to prevent deceptive advertising

• FTC enforcement mechanisms include

• Trade regulations (industry guidelines)

• Consent orders

• Cease-and-desist order

• Fines

• Corrective advertising (example)

Commercial Free Speech Under the First

Amendment• Initially, commercial speech

(advertising) did not have First Amendment protection

• New York times v. Sullivan case provided some protection

• Later cases extended protection for commercial speech, and in 1980 the courts presented a four-part test for determining protection

Commercial Free Speech Under the First

Amendment1. Commercial speech that involves an

unlawful activity, or advertising that is false and misleading is not protected

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

3. State’s regulation must actually advance the government interest involved

4. State’s regulation may only be as broad as necessary to promote the state’s interest