The Dynamics of
Mass Communication
Seventh Edition
Joseph R. Dominick
Part 5
Regulation of
the Mass Media
Chapter 15
Formal Controls: Laws,
Rules, and Regulations
THE PRESS, THE LAW, AND THE COURTS
The First Amendment to the United States Constitution is at
the heart of five vital democratic freedoms. It states:
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.
As simple and straightforward as it sounds,
the people and the courts have been arguing
over its interpretation for over 200 years.
Prior Restraint
When the government attempts to censor the press by
restraining the media before something is published or
broadcast, that's called prior restraint. Two precedentsetting cases have helped define the limits of prior restraint
•
Near v Minnesota case circa 1920s
•
The Pentagon Papers case
circa 1970s
Protecting News Sources
The press argues that if they are forced to disclose confidential
sources, those sources will dry up and the public's right to know
will be adversely affected. Government counters by citing it has
a greater need to administer justice and to protect the rights of
an individual to a fair trial.
shield laws
state laws that provide news-source protection
search and seizure an unannounced court-issued warrant
to search for and seize a reporter’s notes. In 1980 Congress
mandates government must first obtain a subpoena, which
allows the press to challenge a warrant before it’s executed.
Covering the Courts
•
the Free Press vs. Fair Trial issue
•
pretrial publicity
how judges can address fair trial concerns
without infringing on First Amendment rights
•
•
•
•
sequestering
change of venue
injunctions
gag orders
Cameras in the Courtroom
Obtrusive photographic, movie camera, and radio equipment
invade courtrooms in1930s with the Bruno Hauptmann trial.
American Bar Association passes Cannon35 which suggests
barring cameras and electronic equipment; many states soon
pass similar laws.
By 1970s, better technology and a more open court environment
make electronic court proceedings palatable; still, many states
continue heavy restrictions, and two states, along with all
federal courts, still disallow any audio-visual coverage.
A Reporter’s Access to Information
Getting information from the government
•
problems with government secrecy following WW II
•
Freedom of Information Act, 1966
•
Electronic Freedom of Information Act, 1996
•
Sunshine Laws, or Open Meetings Acts
•
press rights to access news scenes: limitations and
interpretations vary from state to state
DEFAMATION
The right of free speech and the rights of a free press sometimes
come into conflict with the right of an individual to protect his or
her reputation. These conflicts are dealt with under defamation
law, which can be broken down into several areas
•
libel
•
slander
•
libel per se
•
libel per quod
Proving that You’ve Been Defamed
Though each state has its own set of defamation laws, the same
general rules apply. For example, in order for you to win a libel
suit against the media, you must prove five things:
•
you’ve been defamed and harmed by the statements
•
you’ve been identified, though not necessarily by name
•
the defamatory statements have been published
•
the media were at fault
•
what was published or broadcast was false
Common Defenses against a Libel Suit
•
truth
•
privilege
•
fair comment and criticism
Public Officials and Actual Malice
In the 1964 New York Times vs. Sullivan case, the Supreme
Court established several new precedents concerning
defamation in general:
•
editorial advertising is protected by the First Amendment
•
even false statements could qualify for legal protection if
they concern a public official’s public conduct
•
public officials must prove that defamatory statements
were made with actual malice
Defamation and Damages
Damages awarded in defamation suits can come in one or
both of two forms:
• actual damages, equal to the amount of money you
can prove you lost as a result of the defamation
• punitive damages, awarded by juries with the intent of
punishing media performance. With punitive
damages, however, even private citizens must show
the media acted with actual malice
Invasion of Privacy
The difference between libel and privacy laws is that
while libel laws protect a person's reputation, the
right of privacy protects a person's peace of mind
and feelings. Second, libel involves publication of
false material; invasion of privacy might be triggered
by disclosing the truth.
Invasion of Privacy
Four ways the media can 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
Trespass and the Press
Trespass is unauthorized entry onto somebody
else's territory. If the question is, “Do journalists
have a special First Amendment privilege to break
the law in pursuit of a legitimate news story that will
advance the public interest?” recent court rulings
suggest that the answer is “no.”
COPYRIGHT LAW
Copyright laws protect authors against unfair appropriation of
their work. For works created after January 1978, copyrights
last for the life of the author plus 70 years; works created
before then are protected for a period of 95 years. New laws
enacted in 1976, already somewhat obsolete with current
technological advances, protect such things as literary and
dramatic manuscripts, music works, sound recordings, motion
pictures, and TV programs. Not covered are such things as
ideas, news, discoveries, or procedures
Fair Use and Copyright Laws
Someone can, however, use portions of a copyrighted work
under the law's fair use provisions; such uses might include
teaching purposes, research, news reporting, and critical
reviews. To qualify for protection under fair use laws, these
four factors are considered:
•
the purpose of the use (profit vs. non-profit)
•
the nature of the copyrighted work
•
amount reproduced in proportion to entire copyrighted work
•
effect of use on potential market value of copyrighted work
OBSCENITY AND PORNOGRAPHY LAWS
These laws revolve around the First Amendment right of free
speech when it comes into conflict with the right of society to
protect itself from what it considers harmful messages. The
primary problem is to accurately define what pornography is.
Hicklin Rule 1860s-1957 a work was obscene if isolated
passages had a tendency to deprave or corrupt the mind of
the most susceptible person
Roth v. United States ruling, 1957: something is obscene
if, “to the average person, applying contemporary standards,
the dominate theme of the material taken as a whole
appeals to prurient interests”
OBSCENITY AND PORNOGRAPHY LAWS
Later decisions added that the material had to be
“patently offensive” and “utterly without redeeming
social value” to be obscene.
In 1969, the idea of variable obscenity said that
some works were obscene when sold to minors but
not obscene when sold to adults.
OBSCENITY AND PORNOGRAPHY LAWS
The Court further refined what would constitute
obscenity when it ruled in the 1973 Miller v. California
case that something was obscene if . . .
an average person, applying contemporary community
standards, finds the work appeals to prurient interest
the work depicts in a patently offensive way certain sexual
conduct that is specifically spelled out by state law
it lacks serious literary, artistic, political, or scientific value
Regulating Broadcasting
Because we the public own the airwaves, our government
acts on our behalf to decide who gets a license to broadcast
over certain frequencies, and whether or not, after a time,
they can renew that license.
The governing body, the FCC, doesn’t make laws but rather
interprets them, and one of its biggest jobs is to continually
interpret the concept of “operating within the public interest”
in both the technical and overall programming areas.
In 1960 the FCC introduced the idea of localism, which said
programs with local talent, aimed at local self-expression, are
necessary elements in serving the public interest.
FCC Regulatory Powers
If a radio or TV station violates FCC regulations, the
agency has several ways to help enforce the rules:
•
fine a station up to $250,000
•
put a license renewal on probation, usually a year
•
revoke or fail to renew a license
FCC Issues of Continuing Concern
•
Indecent content, permissible now, but not between
6 a.m. to 10 p.m.
•
The Equal Opportunities Rule, granting equal air time
to qualifying political parties
•
The Fairness Doctrine, though no longer a rule,
politicians are continually tempted to reinstate the
doctrine that says broadcasters should seek out and
present opposing viewpoints on matters of public
importance
Regulating Cable TV
Cable TV has had a history of on-again, off-again regulations,
but the latest regulations arose due to widespread consumer
complaints against rising fees and poor service; in response,
Congress passed the Cable TV Act of 1992, which re-instated
the FCC’s power to regulate cable fees and services, of which
there were two important consequences:
1. Most consumers saw their monthly cable rates go down.
2. The Supreme Court held Congress could pass laws which
guaranteed a free flow of information couldn’t be restricted
by a private firm that controlled the means of transmission.
1996 TELECOMMUNICATIONS ACT
First major overhaul of communication laws in 60 years, and it
affected every industry regulated by the FCC. Key provisions:
• no limit on the number of stations that can be owned by one
company, except that they couldn’t own more than eight
stations within one market
• no limit on number of TV stations that can be owned as long
as they don’t reach more than 35% of nation’s TV homes
• extended the term of broadcast licenses to eight years
1996 TELECOMMUNICATIONS ACT
• allowed phone companies to enter cable field, vice versa
• deregulated the rates of many cable systems
• mandated new TV sets be able to block programs with
strong sexual or violent content (the so-called V-Chip)
• ordered TV industry to come up with a voluntary system to
rate programs with violent, sexual, or indecent content
Regulating Advertising
The Federal Trade Commission (FTC) is charged with protecting
consumer rights
It can issue advertising guidelines for businesses to follow, and if
they don’t, the FTC can issue:
• consent order -- advertiser agrees to stop practice without
admitting wrongdoing
• cease-and-desist order -- if company doesn’t comply at this
stage, the FTC an also levy fines against them
• corrective advertising order – mandates misleading ads be
clarified with revised advertisements
Commercial Free Speech
Under the First Amendment
Recent court cases suggest that in many instances commercial
speech falls under constitutional protection, and in 1980 the
Court outlined a four-part test for determining that protection:
1. not protected: any commercial speech involving unlawful
activity or advertising that is false or misleading
2. government must have substantial interest in regulating the
commercial speech
3. government’s regulation must advance interests of the state
4. state’s regulations may be only as broad as necessary to
promote the state’s interests
End of Chapter 15
Formal Controls:
Laws, Rules, and
Regulations