THE
DYNAMICS
OF MASS
COMMUNCATION
Joseph R. Dominick
University of Georgia--Athens
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Regulation of the
Mass Media
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Chapter 15
Formal
Controls:
Laws,
Rules,
Regulations
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Chapter Outline
The Press, the Law, and the Courts
Protecting News Sources
Covering the Courts
A Reporter’s Access to Information
Defamation
Invasion of Privacy
Copyright
Obscenity and Pornography
Regulating Broadcasting
Regulating Cable TV
The Telecommunications Act of 1996
Regulating Advertising
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The Press the Law and the
Courts
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 First Amendment to the Constitution of the United States
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The Press the Law and the Courts
• Prior Restraint: the government attempts to
censor the press before something is published
• Two cases
– Near vs. Minnesota (1920s)
– The Pentagon Papers (1970s)
• Secretary McNamara’s study of the Vietnam War
• U.S. Attorney Mitchell asks for prior restraint
• Newspapers published portions in turns
• Supreme Court rules in favor of papers (1971)
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Protecting News Sources
• The Reporter’s Privilege
• Paul Branzburg of the Louisville CourierJournal (1969)
• U.S. Supreme Court: 1st Amendment does
not prevent questions about a criminal
investigation
• Shield laws protect news-source
• Reporter Judith Miller served jail time for
not revealing source
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Protecting News Sources
• Search and seizure
an unannounced court-issued warrant to search
for and seize a reporter’s notes
• Stanford Daily (1971)
– Clash between police and demonstrators
– Police with search warrant for photos of incident
– Search ruled legal in 1978
• Reporters Committee for Freedom of the
Press v. AT&T (1974)
• N. Y. Times and Myron Farber (1976)
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Covering the Courts
• Free Press (1st) vs. Fair Trial (6th)
• Publicity before and during a trial
– Jury contamination
– Case of Dr. Sam Sheppard (1954)
– Case of Leslie Irvin (1961)
• Supreme Court’s 6 safeguards include
– Sequestering the jury
Change of venue
– Injunctions against divulging information by
• Lawyers Witnesses Others
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Covering the Courts
• Gag Rules
– Nebraska Press Association (1976)
– 1980s: jury selection open to the public
• Cameras & Microphones in Courtroom
– 1930s Hauptmann / Lindbergh trial
– ABA passes Canon 35 of Code of Professional
Ethics
– Estes case of 1965
– Canon 3A(7) supersedes 35 (1972)
– 1981 Supreme Court decision
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A Reporter’s Access to
Information
• Freedom of Information Act (1966)
• Electronic Freedom of Information Act
(1996)
• Sunshine Laws
• Patriot Act (2001)
– Government has more access to email and
telephone records
– Easier to restrict access to official records
– Press cannot find out about FBI searches of
book buying and borrowing records
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Defamation
• Defamation law protects a person’s reputation
• Libel: Written defamation that tends to injure a
person’s reputation or good name or diminish
the esteem, respect, or goodwill due a person
• Slander: Spoken defamation
• Libel per se: Automatically libelous expressions
such as “swindler”
• Libel per quod: Utterances that are not blatantly
libelous, but libelous nevertheless
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Defamation
Proving that you’ve been defamed by the media
1) You have been identified, not necessarily by name
2) The statements have been published
3) The media were at fault; fault or carelessness
required
4) What was published or broadcast was false
5) You’ve been defamed and harmed by the
statements
•
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Burden of proof on the one who sues, if private person;
quoting another is not sufficient
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Defamation
• Three defenses against libel
– Truth
• If true, no libel
• Difficult to prove
– Privilege
• Public’s right to know takes precedence
• Judicial proceedings, arrest warrants, grand jury
indictments, legislative proceedings, public city council
sessions
– Fair comment and criticism
• Invitation of public attention
• Opinion and criticism
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Defamation
• Public Officials and Actual Malice
• New York Times v. Sullivan (1964)
– Editorial advertising is protected by the 1st
Amendment
– Even false statements may be protected if
they concern a public official’s public conduct
– Public officials must prove that defamatory
statements were made with actual malice
• Actual malice – publishing a statement in
“reckless disregard” or knowing it is false
• Firestone divorce in 1976
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Defamation
• Damages awarded in defamation suits
• Actual damages: the amount of money lost as
a result of the defamation
• Punitive damages: awarded by juries with the
intent of punishing media behavior
– Can be substantial ($20M against NBC)
– Must show the media acted with actual malice
• Internet defamation
– Carrier is not liable
– Publisher liable everywhere downloads are possible
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Invasion of Privacy
• Right to Privacy
– Libel laws protect a person's reputation
– Libel involves publication of false material
– Right of privacy protects a person's peace
of mind and feelings
– Invasion of privacy might be triggered by
disclosing the truth.
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Invasion of Privacy
• Ways mass media invade privacy:
– Intruding upon a person's solitude or
seclusion
– Unauthorized release of private information
– Publicizing people in a false light or creating
a false impression of them
– Appropriation of a person's name or likeness
for commercial purposes
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Invasion of Privacy
• Trespass and the Press
– Unauthorized entry
– No special First Amendment privilege for journalists
– Cases include
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•
•
•
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Reporters entering with permission of a police officer
Reporters accompanying the police into a private home
Reporters following demonstrators onto company property
Reporters accompanying police serving a search warrant
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Copyright
• Copyright laws protect authors against unfair
appropriation of their work
• For works created after January 1978, copyrights
last life of author plus 70 years
• Works created before then are protected for a period
of 95 years
• Copyright laws protect literary and dramatic
manuscripts, music works, sound recordings,
motion pictures, and TV programs
• Not protected are ideas, news, discoveries, or
procedures
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Copyright
• Fair use: someone can copy work for
teaching, research, news reporting, etc.
• Qualifying factors
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–
–
–
Purpose of the use (profit vs. non-profit)
Nature of the work
Percentage of work copied
Effect of use on potential market value of
copyrighted work
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Copyright
•
•
•
•
•
1995: Internet materials covered by copyright laws
1999: Napster sued by recording industry
KaZaA and Grokster take up the Napster torch
Industry sues 250+ individuals
Recording industry joined movie industry in suing
peer-to-peer services who illegally download
copyrighted material
• 2005 – The Supreme Court ruled that file-sharing
services can be sued for copyright infringement
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Obscenity and Pornography
• Obscenity not protected by 1st Amendment
• What is obscene?
• Hicklin Rule (1860s): a work is obscene if
isolated passages tend to deprave or corrupt
the mind of the most susceptible person
• Roth vs. United States (1957)
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Obscenity and Pornography
• Roth proved problematic
• Later decisions added
– “patently offensive”
– “utterly without redeeming social value”
– variable obscenity (1969)
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Obscenity and Pornography
• Miller vs. California (1973)
an average person, applying contemporary
community standards, finds the work as a whole
appeals to prurient interest
the work depicts or describes in a patently
offensive way certain sexual conduct that is
specifically spelled out by state law
the whole work lacks serious literary, artistic,
political, or scientific value
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Obscenity and Pornography
• 1988 – Child Protection and Obscenity
Enforcement Act
– Specifically mentions computers
• 1996 – Communications Decency Act
– Ruled unconstitutional
• Child Online Protection Act
– Blocked by appeals court
• Children’s Internet Protection Act
– Affects libraries that receive federal funds
– Ruled constitutional by U.S. Supreme Court (2003)
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Regulating Broadcasting
• Radio Act of 1927
– Airwaves belong to the public
– Broadcasters must be licensed
– Scarcity of the resource means more regulations
• Federal Communications Commission
– Doesn’t make laws; interprets them
– Operates within the public interest
• Children’s Television Act
– Requires educational programming
– Limits commercial time during children’s programming
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Regulating Broadcasting
• FCC Punitive Actions
– Fine a station up to $250,000
– Renew a license on probation, usually a
year
– Revoke or fail to renew a license
• 99.8% of all licenses are renewed
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Regulating Broadcasting
• FCC Issues of Continuing Concern
• Indecent content banned between 6 a.m. 10 p.m.
• Equal Opportunities Rule
– Bona fide candidates for public office
– 1 min  1 min
– x $/min  x $/min
• Fairness Doctrine
– Not currently in force
– Broadcasters must present opposing viewpoints
on controversial public matters
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Regulating Cable TV
•
•
•
•
1950s: FCC says it has no say over cable
1960-1972: FCC writes series of regulations
1980s: Almost all regulations dropped
Cable Communications Act of 1984
– Operators decide rates and channels
– State and local governments grant franchises
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Regulating Cable TV
• Cable TV Act of 1992
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–
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FCC regulates cable fees
Cable must carry broadcast stations
Broadcast can waive right if cable pays them
Cable rates dropped by 17%
Broadcast rights challenged in court
• 1994/1997: Supreme Court upholds “must
carry”
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The Telecommunications Act of 1996
• No limit on radio stations owned by one entity;
up to 8 in one market
• No limit on TV stations owned by one entity, but
it must be less than 39% of nation’s TV homes
• Telephone companies can do cable TV
• Cable TV companies can do telephone
• Deregulation of cable rates
• V-chip
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and ratings system
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Regulating Advertising
• Deceptive advertising
• Until 1900s, caveat emptor
• FTC created in 1914 to clean up business
practices
• 1938 Wheeler-Lea Act
• FTC enforcement
– Trade regulations suggested guidelines
– Consent order – advertiser agrees to stop practice
without admitting wrongdoing
– Cease-and-desist order – if company doesn’t
comply, FTC can fine
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Regulating Advertising
Is your commercial speech protected
by the 1st ?
Use the Supreme
Court’s 4-part test!
 Does the government have substantial interest in regulating the speech?
 Does it involve unlawful activity or advertising that’s false or misleading?
 Does the state’s regulation actually advance the government’s interest?
 Are the state’s regulations only as broad as necessary to promote the
state’s interest?
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