13
Media Law
Free Speech and
Fairness
The Development of the Free
Press
• The First Amendment: “Congress Shall Make No
Law:”
 does not just protect popular or conventional ideas
 protects all forms of expression, including offensive
ideas
 even some level of false expression is allowed
 free speech is the most basic guaranteed right
 First Amendment also protects freedom of assembly
and freedom of religion
The roots of American media law:
 Colonial newspapers were licensed by British
government.
 “Published by Authority” was printed at the top of
each edition.
The Zenger Case (1733):
 involved colonial newspaper publishers John Peter
Zenger and Anna Catherine Zenger
 Zengers in trouble for publishing story about governor
Zenger argued
he printed the
truth, and jury
found him not
guilty
case established
truth as a
defense against
libel
Limits on free speech:
• Alien and Sedition Acts (1798):
 punished anyone who published “false, scandalous,
or malicious writings against the U.S. government,
Congress, or the President
 during World War I, 1,900 prosecuted under the acts
 following the war, some of the free speech provisions
were repealed
Protection of Individuals
• Libel—any published statement that unjustifiably
exposes someone to ridicule or contempt
• A libelous statement must contain three elements:
 defamation
 identification
 publication
Media defenses against libel suits:
• truth
• privilege:
 government meetings, court proceedings, or
government documents cannot be used as the basis
for a libel suit
• opinions:
 neither true nor false
 editorial cartoons, parodies, and reviews
• Gertz v. Robert Welch, Inc. (1974):
 Private individuals deserve more protection:
• They have not voluntarily submitted themselves
for public attention.
• They are less able to defend themselves than
public figures are.
Invasion of Privacy:
• There is no explicit protection of privacy in the
Constitution.
• The right to privacy is derived from:
 “Freedom to associate” clause of the First
Amendment:
• protects individual right to possess any type of literature
in the privacy of his or her own home
 The Fourth Amendment limitation on searches and
seizures
 Fourteenth Amendment limitation on disclosure of
personal information
• Four types of legal
protection against
invasion of privacy:
 intrusion—invasion of
privacy by physical
trespass
• embarrassment—information
so embarrassing and private
that a person has reason to
expect that it will not be
published
false light—
publishing untrue
statements that
alter an
individual’s public
image in a way
that he or she
cannot control
Winslet libel
win strikes
blow for
normal
women
Kate Winslet has
accepted damages from
the Daily Mail for an
article that suggested she
lied about her exercise
regime
Misappropriation—using a person’s name or
image for commercial purposes without
permission
Privacy Law in Europe:
France has relatively strict
privacy laws:
invasion of
privacy, by its
very nature, is
damaging.
In 2000 British Parliament
passed the Human Rights
Act:
requires the
press to
observe a
“proper
balance”
between
privacy and
publicity
 Spain and Germany have no laws governing the
actions of the press regarding the private lives of
public officials and celebrities.
 Italy has limited privacy laws, with significant
penalties.
Free Press/Fair Trial:
The case of Dr. Sam
Sheppard (1954):
Case involved a
prominent Cleveland
doctor accused of
murdering his wife.
Papers ran
headlines like “Why
Isn’t Sam Sheppard
in Jail?”
 Cleveland newspapers printed the names,
addresses, and pictures of prospective jurors.
 Jurors were allowed to view the media during the trial.
 Sheppard was convicted, and later acquitted in a
retrial.
• The Supreme Court suggestions to ensure a fair
trial:





put a gag order on participants in the trial
sequester the jury
postpone the trial until the publicity dies down
change the venue for the trial
order a new trial
Outside OJ Simpson Trial
Cameras in the courtroom:
 The courts have held
that a trial belongs to
the public, not to the
participants in the trial.
 Initially, cameras were
seen as too loud and
obtrusive to be
brought in a
courtroom.
 Newer technology has
allowed for greater
acceptance of filmed
court proceedings.
• United States v. Noriega
(1990):
 Restraining order issued
against CNN to prevent
broadcast of tapes of
Noriega talking with legal
council.
 CNN played one tape, held
in contempt of court.
 Order eventually lifted.
Food Lion v. ABC (1992)
ABC’s Prime Time Live show had two undercover reporters apply and
pose as Food Lion employees.
Reporters found unsanitary meat handling, reported on it.
Food Lion sued for resume fraud and trespass.
Eventually, Food Lion only awarded $2.
Court recognized that Food Lion’s suit was a libel case in disguise.
• Prior restraint—a judicial order that stops a
media organization from publishing a story or
image
 Near v. Minnesota (1931):
• established a major precedent—even offensive
material is protected by First Amendment
• The Pentagon Papers (1971):
 Daniel Ellsberg leaked military report about Viet Nam
debacle to the media.
 June 13, 1971, New York Times published the story:
• On June 15, Justice Department obtained restraining
order against the New York Times.
 On June 18, Washington Post prints story
• On June 19, restraining order filed to stop the Post.
 On June 26, Supreme Court allowed publishing
• No “grave and immediate danger as to justify prior
restraint.”
•
Obscenity


Obscene—describes sexually explicit material that
is legally prohibited from being published
Roth v. United States (1957):
•
•
The courts could regulate obscenity.
Obscenity is not protected by the First Amendment.
Recommendations for defining obscenity:
1. Standard for obscenity is set by individual
“community standards.”
2. The work must be “taken as a whole.”
3. The work must appeal to “prurient interests:”
• an “exacerbated, morbid or perverted” interest
in nudity, sex, or excretory functions.
United States v. Larry Flynt
Jerry Falwell
Larry Flynt
• Miller v. California:
 States have used the obscenity standard to ban child
pornography
 Material with “serious literary, artistic, political, or
scientific value” cannot be banned.
• Obscenity in the Information Age:
 Web site owners have no control of where information
goes/is downloaded.
 Pay-per-view cable and satellite television have the
same problem.
Regulation of the Media
Industry
• First U.S. copyright law was passed in 1790:
 provided fourteen years of protection, renewable for
fourteen more.
 extended to foreign authors/artists in the 1890s.
 recently grew from twenty years to ninety-five years
for a corporate copyright:
• eighty years after creator’s death for an individual
copyright
• The rise and fall of broadcast regulation:
 Radio Act of 1912:
• regulated ship-to-shore communications
 The Radio Act of 1927:
• created the Federal Radio Commission
• charged broadcast stations with acting in the “public
interest, convenience, and necessity”
 Communications Act of 1934:
• Radio Commission evolved into the Federal
Communication Commission (FCC)
• brought all electronic communication under FCC control
• Mandating fairness on the air
 The Equal Time Provision:
• requires equal amounts of broadcast time to all
candidates running for public office
• does not require providing air time, simply equal time
 Fairness doctrine (1949): stations were required to
cover controversial issues of public interest and to
present contrasting views on those issues
• FCC ceased enforcement in 1985
• The Telecommunications Act of 1996:
 creation of the V-chip
 relaxed limits on broadcast station ownership
• Regulation of the Internet:
 difficult to define it as a media
 no central authority controlling content
 the Communications Decency Act failed