Media Law

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 The First Amendment to the U.S. 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.

 

 

 

Are there limits on the First Amendment? Yes.

1. You cannot create a clear and present danger

In 1919, Justice Oliver Wendell Holmes developed the "clear and present danger test" to determine what kind of speech was not protected by the First Amendment. Falsely shouting fire in a crowded theatre, for example, is not protected speech.

2. You cannot endanger national security or cause a national emergency

The Court has ruled that information on troop movements and other sensitive information in time of war could be restrained if there was a "clear and present danger." In the Pentagon papers case (1971), when Daniel Ellsberg photocopied a secret study on U.S. policy in Vietnam and gave it to the New York Times, the Supreme Court said the government's claim of national security was too weak. So the claim of national security has to be specific.

The Supreme Court ruled in Near v. Minnesota (1927) that the government may not prohibit expression before it is made, except in a case such as a national emergency. You can't stop a paper or a publication from being produced because of what it might say in the next issue. This is called prior restraint.

3.You cannot lie in a way that will harm someone's reputation

The press is not free to say anything about anyone. Falsely accusing someone is libelous. Winning a libel case today is difficult, but it does happen.

What is libel? Defamation -- harming someone's reputation. There is written defamation, called libel, and spoken defamation, called slander.

 

Defamation is a statement that harms the reputation of someone else. The important point is *reputation*: for a statement to defame, it must either lower the victim's standing in the eyes of the community, or tend to make others refrain from associating with the victim. Some examples that are NOT libelous:

• I send an email to my boss and accuse him of cheating on his taxes: Whether true or not, this is not libel: it was not a statement made to someone else. Since it is not made to someone else, it doesn't harm the reputation of my boss.
  
• I post a message on a BBS stating that Sarah has blue eyes, when in fact I know she has brown eyes: This too is not libel, since whether she has blue or brown eyes (probably) doesn't affect her reputation.
  
• I send an email to a friend of John, and say that John cheats at golf. John's friend tells no one this, and doesn't believe it, since John doesn't play golf: No libel, even though the statement is false and likely to harm reputation, if the friend doesn't believe that John plays golf, then there has been no harm to John's reputation.

From: Libel and Defamation: Cyberspace Law for Nonlawyers

New York Times v. Sullivan

This was a key court decision made in 1964 that helped define standards of libel.

Facts of the case are found in the following:

The advertisement / Text / Defamatory content

(Courtesy of Jean Goodwin, Assistant Professor, Northwestern University)

To win a libel case, the Supreme Court ruled that public officials needed to prove that damaging statements were uttered or printed with the knowledge that they were false. The question was whether the Times was guilty of "reckless disregard" of the truth. In later cases, the definition of public official has been expanded to include "public figures."

Defenses for libel:

• Truth -- You can prove that the statement is false. If you are a public figure, you have to prove that it was published with a reckless disregard for the truth
• Absolute immunity -- You are testifying in court
• Privilege -- You are a reporter reporting what someone said publicly
• Fair comment and criticism:

The Court has established a right to allow the press and others to evaluate and criticize the performances of actors and others who perform for the public. First established in a case involving the Cherry Sisters in 1901. This does not allow the media to comment on the private lives of public performers; Carol Burnett successfully sued the National Enquirer for a story that described her as obnoxiously drunk at a restaurant.

Another recent, as yet undecided case, is that of Richard Jewell, the man accused of planting a bomb in Centennial Park during the Atlanta Olympics. Article 25 in Annual Editions has a good summary of the case, as do the following Web sites:

• Richard Jewel Box
• Article in Columbia Journalism Review
• Panel discussion sponsored by the Media Studies Center  

4. You cannot unreasonably invade someone's privacy

The Court has recognized a right to be left alone, even though there is nothing in the Constitution which guarantees a "right to privacy." In general, permission is not needed from individuals to report on them in the media, but there are some limits: less freedom in private places (such as in a hospital room) than in public places; and aggressive harassment.

Laws protecting journalists and journalism

1. Shield laws

Judge quashes subpoena for reporter's interview with murder suspect

Nevada's shield law says: "No employee of any ... television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person's professional capacity in gathering, receiving or processing such information for communication to the public … in any ... trial ... before any court."

2. Sunshine laws

These include open meeting laws, open record laws and the Freedom of Information Act.

Regulations governing the content of media

• Advertisements are regulated by the Federal Trade Commission (FTC)
• Radio and television on-air "indecency" is regulated by the Federal Communications Commission. (See Pacifica Foundation v. FCC)
• Time, manner and place restrictions are the most common forms of media regulation.

Internet law