Slide 1
Joseph R. Dominick
University of Georgia--Athens
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 2
Part IV
Regulation of the
Mass Media
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 3
Chapter 15
Formal
Controls:
Laws,
Rules,
Regulations
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 4
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 5
The Press the Law and the Courts
 Prior Restraint
the government attempts to censor the press
before something is published
 Two cases
Near v. 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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Slide 6
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 provide news-source protection
 Freelance Vanessa Leggett jailed for 168 days
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 7
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)
 New York Times and Myron Farber (1976)
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Slide 8
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 9
Covering the Courts
 Gag Rules
Nebraska Press Association (1976)
1980s: jury selection open to the public
2002-2003: Philadelphia Inquirer’s post-trial
interviews of jury
 Cameras and Microphones in the 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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 10
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 11
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 12
Defamation
Proving that you’ve been defamed by the media
1)
2)
3)
4)
You’ve been defamed and harmed by the statements
You have been identified, not necessarily by name
The statements have been published
The media were at fault
 Fault or carelessness required
5) What was published or broadcast was false
 Burden of proof on the one who sues, if private person
 Quoting another is not sufficient defense
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Slide 13
Defamation
 Three defenses against a libel suit
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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Slide 14
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 15
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 16
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.
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 17
Invasion of Privacy
 Ways in which mass media invade
someone's 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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 18
Invasion of Privacy
 Trespass and the Press
Unauthorized entry onto somebody else's territory
No special First Amendment privilege for journalists
Cases include
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
Food Lion v. ABC (1996)
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 19
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 20
Copyright
 Fair use means someone can copy work for
teaching, research, news reporting, etc.
 Qualifying factors
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 21
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
 Digital Millennium Copyright Act stipulates that
royalty obligation applies to Internet stations
 2002 bill allows stations to negotiate fees with
artists and recording companies
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 22
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 v. United States (1957)
Average person
Contemporary standards
Dominant theme
Prurient interests
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 23
Obscenity and Pornography
 Roth proved problematic
 Later decisions added
“patently offensive”
“utterly without redeeming social value”
variable obscenity (1969)
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 24
Obscenity and Pornography
 Miller v. 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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 25
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)
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 26
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
“…operating within the public interest…”
 Children’s Television Act
Requires educational programming
Limits commercial time during children’s programming
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 27
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 28
Regulating Broadcasting
 FCC Issues of Continuing Concern
 Indecent content banned between 6 AM and
10 PM
 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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 29
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
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 30
Regulating Cable TV
 Cable TV Act of 1992
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”
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 31
The Telecommunications Act of 1996
 No limit on radio stations that can be owned by
one entity, up to 8 in one market
 No limit on TV stations that can be owned by one
entity, but less than 35% of nation’s TV homes
 Telephone companies can do cable TV
 Cable TV companies can do telephone
 Deregulation of cable rates
 V-chip and ratings system
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 32
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 that suggest guidelines
Consent order – advertiser agrees to stop practice
without admitting wrongdoing
Cease-and-desist order – if company doesn’t comply
at this stage, the FTC can also fine them
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.
Slide 33
Regulating Advertising
Is your commercial speech protected
by the 1st ?
Use the Supreme Court’s
4-part test!
 Are
Doesthe
Does
it involve
the
the
state’s
government
state’s
regulations
unlawful
regulation
haveonly
actually
as
activityasor
substantial
advance
broad
the
necessary
advertising
interest
government’s
in
to regulating
promote
that’sinterest?
false
the
or misleading?
the
state’s
speech?
interest?
© 2005 The McGraw-Hill Companies, Inc. All rights reserved.