14. Law and Regulation
Christopher Burnett
California State, Long Beach
A free press
• Free Press Precedent
– New York Times v.
Sullivan
– Media role defined as
• “Uninhibited, robust and
wide-open debate”
• Legal and regulatory
issues
• Interests of individuals
• Interest of government
AP/Wide World Photo
– Balancing press freedom
with
U.S. Constitution
• The First Amendment to the Constitution
– 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 “Fourth Estate”
– The press as “tribune of the people”
– An extra constitutional branch of government
– Exposes public mismanagement
Government Attempts to Restrict Press
• Alien and Sedition Laws, 1789
– Prohibited anti-government speech
– Expired in 1801
• The Espionage Act of 1918
– Prohibited anti-war speech in WWI
• The Smith Act of 1940
– WWII press censorship
Bettmann/Corbis
• HUAC and the Permanent
Subcommittee on Investigations
HUAC
– House Un-American Activities
Committee
– Cold War congressional hearings
– Hunting for communists
– Discredited by news media
Prior Restraint
• Near v. Minnesota
– Saturday Post, 1931
– Printed names of Prohibition violators
– State could not stop publication
• The Pentagon Papers
J.P. Laffont/CORBIS Sygma
– Time Magazine, 1971
– printed classified Vietnam War documents
– Temporarily halted by court order
• The Progressive Case
Daniel Ellsberg-Pentagon Papers
– The Progressive Magazine, 1979
– Article on how to make a hydrogen bomb
– Publication temporarily stopped
War Coverage
• Grenada Invasion
– 1983, Press blackout
– No access for 5 days
– 1991, Press pools
– Blackouts
• War in Afghanistan
– 2003, press pools
– Footage provided by the military
• Iraqi War
– 2003, “embedded” reporters
– More, but still limited access to the front lines
• The Patriot Act
– Access to library records
AP/Wide World Photos
• Gulf War
Obscenity & Censorship
• Obscenity issues
– Boston and H.L. Mencken’s The American Mercury, 1926
– “Salacious” content
– Magazine won the case
• Roth vs. United States, 1957
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Obscenity not protected by the 1st Amendment
Obscenity: “Material utterly without redeeming social importance”
Obscenity appeals to “prurient interest”
The “Roth Test” of contemporary community standards
Censorship
• Miller vs. California, 1973
– Local courts must determine:
• applying community
standards, whether a work
appeals to “prurient interest”
• Whether a work violates state
law with offensive sexual
depictions
• Whether a work lacks
Literary, Artistic, Political or
Social value - the LAPS test
• School Boards
– Banning library books
– Censoring curricula
Unpopular with school boards
Efforts to Control Free Speech
• Local school board censorship
– One-third of censorship incidents
involve attempts to censor library
books.
– Chilling free speech climate
Southernfried/morgeufile.com
• The Hazelwood Case 1988
– Hazelwood High School, Missouri
– Articles in school paper censored by
principal
– Upheld by U.S. Supreme Court
– Minors do not possess same extent
of freedom as adults
• Student Press Law Center
Libel Law
• The Sullivan Case, 1964
– Public officials must prove malice
– Gertz v. Robert Welch, 1974
• Editorial opinion is not libel
• Public figures
Bigfoto.com
– Herbert v. Lando, 1979
• Public figures may investigate
reporters’ sources
– Masson v. The New Yorker, 1991
• Grammatical changes not
necessarily libelous
• Media Law Recource Center
– Libel FAQ
Libel Defense
• To prove libel, must show that:
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Statement communicated to third party
Subject easily identifiable in the statement
Statement injured the subject’s reputation
Publisher of the statement is at fault
– Truth
• If it’s true, it’s not libel
– Qualified privilege
• Information obtained in court or legislature
– Fair comment
• Opinion/Commentary/Editorials are not libel
Ariadna/morguefile.com
• Defenses for libel
Famous Libel Cases
• Carol Burnett v. National Enquirer
– Sued for $10 million, 1983
– Awarded $150,000
• Gen. Westmoreland v. CBS
– Sued for $120 million, 1984
– Settled out of court
– $18 million in legal fees
• Graves v. Warner Bros. (Jenny Jones Show)
Michigan jury in 1999 said show was negligent.
$25 million judgment reversed, but show later cancelled
* Wayne Newton v. NBC
– Sued for $6 million, 1990
– Won, no damages awarded
Media Invasion of Privacy
• Intruding on physical or mental solitude
– Galella v. Onassis
– Photographers must maintain distance
• Publishing embarrassing personal facts
– Information not in the public record is private
– Bartnicki v. Vopper
• Cell phone conversations not protected if criminal in
nature
Jacqueline Onassis
• False Light
– Must portray subjects truthfully
• Right of Publicity
– May not use a celebrity’s name for promotion
without permission
Fair Trial, Access & Sources
• Fair Trial
– Sheppard v. Maxwell, 1954
– Jury access to media later ruled as
influence on a conviction (1966)
– Original verdict overturned
• Courtroom Access
– Gag orders
ABC News
• Limited press access
– Closed proceedings
Click on image to play video
• No press access
– Both rarely applied
• Shield Laws
– Protect source confidentiality
– No federal protection
Access to Courtrooms
Illustration 14.1
Regulating Broadcast and Cable
• Federal Communications Commission
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Regulates broadcasting
5 commissioners, 5-year terms
Appointed by President, approved by Senate
Licences all stations
• Federal Trade Commission
– Regulates advertising
• Airwaves are a “public trust”
• Broadcasters are “trustees operating in the public
interest”
Telecommunications Act of 1996
• Philosophy of Deregulation
– Competition improves choices
– Favors larger media companies
• Selling “The Bundle”
– Combination of services
– TV, telephone, cable, Internet
• Targeting “Power Users”
– People using a lot of media
– Spends three or more times what the average user spends
Effects of Deregulation
• Goal of Universal Service
– Access to all media for all people
• Deregulation of Free Media
– Radio & TV are “free media”
• Relaxed ownership/licensing rules
– Cross-ownership allowed
• TV and radio in the same market
• Local Phone Competition
– Phone companies allowed to offer video service
• Unregulated Cable Rates
– 1992 Cable Act removed
– Deregulated cable rates
Failed Regulation Attempts
• Communication Decency Act (CDA)
– Program Blocking
• Attempted to block adult programming
– Indecent Material on the Internet
• A felony to send indecent material over a
computer network
– Struck down by Federal Court, 1997
• Child Online Protection Act (COPA)
– Tried to prevent minors accessing explicit
material on public computers
– 2002, Supreme Court rules that Congress may
not limit Internet access
Filters and Chips
• U.S. v. American Library Association, 2003
– Congress may require Internet filters in publicly funded libraries
• TV ratings imposed (1997)
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TVY: ages two to six
TV7: seven and above
TVG: suitable for all ages
TVPG: unsuitable for young children
TV14: unsuitable under 14
TVMA: unsuitable under 17
– “Bubba the Love Sponge”
– Janet Jackson at the Super Bowl
– Howard Stern
AP/Wide World Photos
• Monitoring Broadcast Indecency
Network TV Ratings System
Illustration 14.2
Intellectual Property Rights
• Ownership of creative ideas
• Digital Millennium Copyright Act (DMCA)
– 1998, Ownership issues and the Internet
– World International Property Organization treaties (WIPO)
– Aimed at preventing illegal copy of Internet published
material
– Illegal to circumvent password protection technology
• New York Times v. Tasini
– Protects freelancer royalties, 2001
• MGM v. Grokster, 2005
– File-sharing software is liable
Advertising, Public Relations Law
and Regulation
• Central Hudson v. Public Service Commission
– 1980 Supreme Court ruling
– Government may not regulate commercial speech so long as
it is lawful and does not mislead
• The Texas Gulf Sulphur Case, 1960s
– U.S. Court of Appeals ruled that publicly owned companies
may not conceal information that may impact investment
options
Critical Discussion
1. Banning books in grade school libraries continues to be
a controversial issue. Should any books be forbidden to
certain age groups? What, if any, of the books on the list
in your text of top 10 challenged books are objectionable
to you?
2. Recent decisions of the FCC to enact fines on perceived
indecency have had a major impact on decisions in
radio and television. Should the FCC be monitoring
broadcast content in this fashion?