1
Legal Basics I
J676, Digital Media Law & Ethics
2
sources of law
common law
developed through
court decisions
New York Times v.
Sullivan 376 U.S. 254
(1964)
precedent
stare decisis
e.g., libel case
3
sources of law
equity law
rooted in fairness
judge only
principles establish
difference between
legal and equitable
claims
e.g., restraining order
4
sources of law
statutory law
generated by
legislative bodies
Congress, state
legislatures, city
councils, etc.
collected in codes and
law books
all criminal laws
wide effect
courts interpret
statute when
challenged
e.g., open records law
5
sources of law
constitutional law
precedence over all
other U.S. law
U.S. Constitution
supreme
incorporation
courts interpret
meaning of
constitutional
provisions
power of judicial
review
precedent
overbreadth doctrine
overbreadth doctrine
e.g., First Amendment
6
sources of law
administrative law
executive orders
agency rules and
regulations
technical and complex
issues
require expertise
e.g., FCC indecency
rules
7
court system
criminal vs. civil cases
state vs. federal courts
trial courts vs. appellate
courts
discretion in selection
of cases
communications law
8
first amendment
seditious libel
licensing and taxation
prior censorship
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
acts of government only
9
first amendment
absolutist theory
“no law” means no law
no censorship for any
reason
Supremes have never
had an absolutist
majority opinion
some speech forms
fall outside protection
10
first amendment
ad hoc balancing theory
free expression can
conflict with other
free expression can
conflict with other
important rights
press vs. national
security
balance speech
interests against other
interests case by case
new scale in every
case
theory?
chilling effect
not widely used
11
first amendment
preferred position
balancing theory
some rights outweigh
others
presumption in favor of
free expression
vs. fair trial
vs. privacy
more certainty than ad
hoc
12
first amendment
meiklejohnian theory
objective of free
expression is
successful selfgovernment
speech/press
protected to preserve
democracy
hierarchy of speech
absolutist protection
for speech related to
self-governing
lesser protection for
other speech
what pertains to selfgovernment?
13
first amendment
marketplace of ideas
theory
focused on truthseeking
competition of ideas
will reveal truth
dominates current
discussions
criticisms
dominates current
discussions
criticisms
worthless speech
speed of
communication
access to market
14
first amendment
access theory
“freedom of the press
belongs to the man
who owns one”
seek to level the
playing field
force access to means
of publication
rejected for print
media
applied to broadcast
what does www do to
this?
15
first amendment
sedition
led to early
interpretations in WWI
era
advocating use of
force to overthrow
government
clear and present
danger test
shouting fire in a
crowded theater
Brandenburg v. Ohio
(1969)
speech advocating
violation of law
cannot be abridged
unless it:
is directed at
inciting
imminent lawless
action
is likely to
produce that
action
16
first amendment
prior restraint
founding theory
pre-publication
restraint vs. post-
founding theory
pre-publication
restraint vs. postpublication remedies
prior restraint in
extraordinary cases
national security
Pentagon Papers
Progressive Magazine
17
first amendment
time, place & manner
restrictions
content neutral (as
written and applied)
cannot fully ban one
kind of
communication
gov’t identifies
substantial interest
law is narrowly
tailored to achieve
interest
covers only that
expression
no other solution
more protective of
speech
18
first amendment
hate speech
fighting words
face-to-face invective
likely to provoke
violent response
content neutral
19
libel
published false
defamatory statement
damaging to
reputation
plaintiff proves:
material published
material concerned
plaintiff
material is defamatory
material is false
defendant was at fault
20
libel
proof of fault
NYT v Sullivan
for media defendants
not result of innocent
for media defendants
not result of innocent
error
private vs. public
plaintiffs
public official
all-purpose public
figure
limited purpose
public figure
21
libel
negligence
failure to exercise
ordinary care
creates unreasonable
risk of harm
single untrustworthy
source
avoiding available
relevant documents
failure to check
obvious source
carelessness in editing
good faith effort to
determine truth or
falsity?
22
libel
actual malice
knowledge of falsity
or reckless disregard
for the truth
“high degree of
awareness of the
probable falsity of the
material”
time to story
source
probable or
farfetched
23
libel
privilege
absolute
qualified
neutral reportage
24
libel
damages
actual
special
presumed
punitive
25
Legal Basics I
punitive
25
Legal Basics I
J676, Digital Media Law & Ethics