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Media Law & Ethics RU COMS 400 Fall 2016 T-Th 12:30 – 1:15 Russell 033 Prof. Bill Kovarik, [email protected] / Ph: 831 6033Office hours: before and after classOffice location: 2126 CHBS
Class web site: revolutionsincommunication.com/law Also see: www.billkovarik.com INTRODUCTION
Section 1.2
This lecture: 1. Distinguishing media law 2. Sources of law 3. Structure of the courts 4. Course of a case 5. Legal terms 6. Jurisprudence in media law 7. Research notes
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Overlapping areas of media law
Regulatory
Entertainment
Constitutional
Copyright, Anti-trust,
Broadcasting,
advertising
Copyright, music
licensing, business law
First Amendment (religion, speech, press, assembly); Right to reputation (libel); Right to privacy; Right to gather news and information; Right to advertise
Distinguishing media law Media law involves both structural
issues and content issues Structural issues usually involve
statutory law and regulatory law. ◦Example: Controversy over cross ownership
Content issues involve libel, privacy, obscenity, false advertising, etc ◦Sometimes these present
Constitutional questions
What distinguishes media law?Usually civil, not criminal Often Constitutional issues Often First Amendment issues
directly Not always about media
◦Ex religion, symbolic speech Not always about First Amendment
◦Ex: reporter privilege, access to courts, broadcasting ownership regulation and so on.
What distinguishes media law? 2 Content issues
◦ are usually between a plaintiff and a respondent.
◦ -- In the US, content issues usually involve Constitutional law and common law.
Prior restraint, libel, invasion of privacy, and obscenity are content issues tried in civil courts .
Copyright and some broadcasting content issues are governed by statutory and regulatory law.
US media content regulation Type Content Resolved by … All media Sedition, criticism
govt, leaking documents
Mostly legal - High burden of proof
All media except bcast
Obscenity No longer illegal (but not protected by 1st A)
All media Libel, slander Private civil lawsuits All media Privacy, intrusion, Private civil lawsuits
All media Copyright Private lawsuits, Bern Convention, US LofC
Advertising Products & services FTC, FDA, FCC
Broadcasting
Obscenity, indecency
FCC
Broadcasting
Ads aimed at children
FCC
US media structural regulation Type Structure Resolved by … Print ownership Antitrust laws Legislation (Congress)
Radio, TV ownership
Bcast ownership rules, Antitrust laws
FCC, Legislation (Congress)
Broadcast cable satellite TV
Technical standards
FCC, ITU (international)
Satellites Technical standards
ITU (MPEG, JPEG, others)
Internet and web Domain names, technical issues
ICANN, ITU
3) Sources of law Common (historical foundation, precedent, stare decisis)
◦ Anglo Saxon historical (US, UK, Canada, NZ, Oz) ◦ As opposed to Civil Code (France, Europe, L. Am.,
Asia) Equity (injunctions, divorce, probate)
◦ Chancery Court, redress of Common Law complaints
Constitutional Statutory (Congress, state legislatures) Regulatory (Executive agencies)
Common Law ◦Common law = customary law
Developed over centuries, before there were any written laws, and continuing to be applied by courts after there were written laws
Jury, proving, ordeal Historical precedent, stare decisis
◦ Normans forced by Saxons to adopt in England Cornerstone is Magna Carta
Historical sources of law
Historical sources of law (2)
Civil Law ◦Based on Roman Law, esp. Corpus Juris
Civilis of Emperor Justinian (Statutory law) ◦Developed in Middle Ages / becomes
common in Europe (except England, Scotland, Ireland, colonies
◦Nationalism results in new codes in the 17th century ( Napoleonic Code, German and Swiss codes) Known for presumption of guilt, inquisitorial courts (not adversarial), no jury
◦Ideas associated with Enlightenment
Equity Law ◦When an English citizen did not agree
with Common Law court decision, could go to Kings High Court (Chancery Court)
◦Common and Equity Law systems were two of three court systems in competition in English history (Ecclesiastical courts were 3rd). Dickens’ Bleak House is about this
competition ◦Kings Court also used for unfair
purposes Star Chamber 1487 – 1641
Historical sources of law (3)
US Constitution 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.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
United Nations Declaration of Human Rights, Article 19,
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Structure of the courts State trial courts:
Circuit – Superior / District – Lower State courts of appeals State supreme courts
Federal trial courts Federal appeals courts US Supreme Court
The U.S. Supreme CourtGranting Review
◦writ of certiorariOral arguments Opinions of the court (end of terms) ◦Majority opinion is the law ◦Often accompanied by dissents or
separate concurrances
Federal court districts
The course of a lawsuitSmith v. Jones suit is filed by Smith Preliminary motions (demurrer, summary
judgment) Discovery, trial date set Trial evidence weighed by judge or jury Smith wins, Jones appeals, now Jones v.
Smith Appeals court reads briefs, hears oral
arguments, Jones wins Decision could stand as a weak federal
district precedent, BUT Smith appeals to Supreme Court. SC
grants cert in Smith v. Jones. Supreme Court decides case on basis of majority, writes decision. Minority members may also write dissents
Case citation styleRosemont Entrp. v. Random House, 366
F.2d 303 New York Times v. Sullivan, 376 US 254,
1964 ◦ Parallel citations for Sullivan are:
84 S. Ct. 710 (Vol. 84 Supreme Court Reports p. 710) 11 L. Ed. 2d 686 (Vol. 11 Lawyers Edition Second
Edition page 686) 1964 U.S. LEXIS 1655 (Lexis database case citation) 95 A.L.R.2d 1412 (Vol. 95 Alabama Reports Second
Edition page 1412). 1 Media L. Rep. 1527 (Bureau of National Affiars
private database system)
Legal citation systemThe citation system was originally
based on paper libraries with book volumes and page numbers. There were Supreme Court (US) Federal District. Sometimes there are editions noted, as in the Rosemont case, because the numbering system was changed twice. (We are now on the 3rd edition since 1993). Later some systems used database numbers.
Virginia uses a straight up case numbering system along with a traditional volume and page number system.
Jurisprudence A broad term for the history, theory and philosophy of law, includes:
• Internal principles of the law and legal systems, especially equal justice under law, stare decisis, and due process.
• External issues involving the interaction between the law and social institutions within a larger context.
Should the law … ? … balance a variety of rights and interests, or
should it leave individuals absolutely free in crucial areas? ◦ For instance, should the government regulate
political speech (and money) in elections, or should anyone be allowed to participate in any way they like? Is spending money in itself a form of free speech?
… protect national symbols (eg, the American flag), or should the law protect deeper principles
… protect the reputations of public people, or should the law protect the ability to criticize public people?
… boost civic virtue (and how can we be sure what that is), or should the law facilitate individualism (and what limits, if any, should there be)?
… enhance copyright protections or should it enlarge the public domain?
Philosophies of Constitutional interpretation
1. Originalist (very conservative) 2. Literalist (conservative) 3. Modernist (liberal) 4. Instrumentalist (very liberal)
Originalist / Original Intent Interpret the Constitution to mean what
the framers intended it to mean at the time. The Constitution is a legal document, they argue. It's a contract. Originalists often refer to the Federalist Papers and other contemporary writings to understand the original meaning of the Constitution. (Antonin Scalia and Clarence Thomas)
Philosophies of Constitutional interpretation 1
Literalist / Strict Constructionist Strict constructionists read the law
according to the literal definitions of the words involved. They do not try to infer the Framers' intent behind the words, but stick to the meanings of the actual words used. ( John Roberts, William Rehnquist)
Philosophies of Constitutional interpretation 2
Modernist / Living Constitution The Constitution is a "living" document. As civilization changes, the Constitution may also need to change with times. The Framers had no ability to foresee the needs of the future. Judges have the responsibility to "fill in the gaps." Courts may strike down laws that restrict fundamental human rights.
Philosophies of Constitutional interpretation 3
Instrumentalist / Living Constitution
Apply the Constitution in the way that is most practical for contemporary society, regardless of the original intent of the document or strict definitions of its words.
(John Paul Stevens, David Hackett Souter, Ruth Bader Ginsburg and Stephen Breyer)
Philosophies of Constitutional interpretation 4
Legal concepts (1) Equal Justice and the Rule of Law
Due Process of the law
Constitutionality
Federal supremacy — Federal law is superior to state law:
Fourteenth Amendment (passed in 1868) makes the US Bill of Rights applicable to the states.
Stare decisis
Legal concepts (2) Scrutiny (examination) Content specific – Strict scrutiny Content neutral – intermediate
scrutiny (time place manner restrictions
OK) Routine regulation - Rational basis
review Overbreadth, vagueness Forum analysis – public and non-
public Tests are often given in cases to
show how scrutiny should work (Central Hudson)
Legal terms - civil law
Action, brief, certiorari, concur, demurrer, discovery, dissent, distinguish, diversity jurisdiction, ex parte, injunction, interrogatories, motion, opinion, petitioner (plaintiff), quash, remand, reverse, respondent, subpoena duces tecum, summary judgment, stare decisis, tort, uphold, venue, voir dire
Zechariah Chafee – Balancing Chafee wrote his foundational book
Freedom of Speech (1920) in the context of the WWI Sedition Act, the anti-Red “Palmer Raids” by the attorney general and especially the Schenck v US ‘clear and present danger’ decision of 1919, which he found ill-advised.
Chafee’s scholarship led Justice Oliver Wendell Holmes to dissent from the ‘clear and present danger’ finding in the 1919 Abrams case.
Alex. Meiklejohn – Absolute freedom
Absolutism — Argued that nothing is more important to a democracy than freedom of speech. Ex Free Speech and its Relation to Self-Government, 1948.
Meikeljohn’s idea was that the First Amendment protected all political speech under any circumstances, but not commercial speech. (The absolutist ideal has been extended into advertising and the electoral process, as noted by McChesney).
Thomas Emerson – Libertarian The underlying theory of the First
Amendment should distinguish between action and expression.
Also, freedom of expression includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium, along with the right to hear the opinions of others, and the right to inquire, to have reasonable freedom of access to information.
Toward a General Theory of the First Amendment The System of Freedom of ExpressionFreedom of Association and Freedom of Expression
(1964)
Haiman believed there was no balance between action and speech
Ex: The remedy for libel was to ensure that plaintiff had equal access to media
State laws that ensured access have been struck down
Franklin S. Haiman – Contextualism
Robert McChesney - Social JusticeWe’ve extended First Amendment too
far EX: Citizens United Rights belong to citizens Corporate rights undermine ability of
citizens to exercise rights “To the extent that commercial
activities are given First Amendment protection, it makes the rule of capital increasingly off-limits to political debate and government regulation…”
THANK YOU
