Media Law: Understanding Freedom of Expression

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Chapter OutlineHistoryToday’s Media LawControversies

What are the 5 clauses of the first amendment?

Name the different types of mass media that exist in our society

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The Development of the Philosophy of Free Speech Freedom to protest was important to the founders U.S.

colonies ▪ After breaking away from the Roman Catholic Church

Protestants chaffed under England’s licensing laws▪ Not allowed to express religious views for more than a 100 years.

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The First Amendment to the U.S. Constitution guaranteed citizens of the new country five essential and related freedoms:

▪ Religion

▪ Speech

▪ Press

▪ Assembly

▪ Petition The First Amendment ignited a sometimes bitter debate about

free speech that continues to this day.

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In 1798, The Alien and Sedition Acts, Illegal to criticize the government, through Congress. Aimed at publishers supporting Thomas Jefferson, Lasted two years, helped Jefferson win the presidency in 1800

The Comstock Act, passed in 1873, Banned all sex education, birth control, and abortion information, Made it illegal to send these materials through the mail.

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Investigative journalists influenced passage of laws such as ▪ the Sherman Antitrust Act of 1890▪ the Pure Food and Drug Act of 1906, ▪ Lead to restrictions in what and how the media could advertise.

In 1917, the Espionage Act upheld the censorship of ideas considered injurious to the war effort.

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Clear and Present Danger doctrine Justice Oliver Wendell Holmes wrote the in 1919 “The question in every case is whether the words used are used in such

circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent.”

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Regulating Broadcasting FCC regulated more than placement of radio stations on the

frequency spectrum.▪ The Equal Opportunity Rule ▪ Stations must give equal opportunity for other candidates of same office.

▪ The Fairness Doctrine (1949-1987) ▪ Required broadcasters to give time for discussion of big public issues.

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Telecommunications Act of 1996, ▪ Removed many of the restrictions on a wide range of communications

industries▪ Allowing cable TV, long distance carriers, local phone companies, information

services and Internet service providers to merge at will.

▪ What are some mergers or companies that grew as a result of this that you know of

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In 1957, the Supreme Court decreed that a work could be declared obscene ▪ If, according to the perceptions of the average person applying

contemporary community standards, the dominant theme of the material taken as a whole appealed to the prurient (lustfully depraved) interest of the consumer.

▪ This definition tended to confuse rather than clarify.

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In 1964 Justice Potter Stewart expressed frustration at the difficulties of defining obscenity ▪ When he famously said “I can’t define it, but I know it when I see it”.

A new category, indecency, was created for broadcast controls. ▪ The FCC considers material indecent if it is “offensive to community

standards for broadcasting.”

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Concentration of Ownership Large legal settlements have encouraged the concentration of

media ownership ▪ Because only large corporations can afford such settlements.

Concentration of ownership has caused many of these large settlements.▪ In 1997, a jury awarded $223 million to a brokerage firm

that said it had been libeled by Dow Jones’ The Wall Street Journal.

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New Technology In 1996, Congress passed the Communications Decency Act, Which made it a crime to transmit indecent material over the

Internet if minors had access to it ▪ But the Supreme Court found it unconstitutional

▪ Why would this be unconstitutional

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New Technology Other laws had to be written for crimes that did not exist

before the Internet.

▪ A 1996 law made computer espionage illegal.

▪ In the 1990s, federal law made the development and purposeful transmission of computer viruses illegal.

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The Legal System and Types of Law In the U.S. there are 52 different court systems: one for each state, one

for Washington, D.C. and one for the federal government.▪ In criminal law ▪ Criminal acts.

▪ In civil law ▪ Disputes between private parties

▪ Constitutional law ▪ The U.S. Constitution prevails, ▪ Any state or local law that contradicts the First Amendment cannot be legally

implemented.

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Statutory law Collection of laws written by legislative bodies, such as the U.S. Congress,

Administrative law Made up of the rules and regulations of governmental agencies such as the

FCC, FTC, and the Federal Election Commission (FEC). Common law

Made up of judges’ rulings which become precedents for future cases.

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Protection of Rights Personal Rights: ▪ An individual’s right to be left alone, especially in

one’s home, ▪ established through common law.▪ Privacy law is always changing with the times.

▪ After September 11th attacks, Congress passed the USA PATRIOT Act ▪ Act gives govt expanded rights to access personal and

private communications and examine books Americans buy or check out of the library.

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Defamation Communication that is false and injures the reputation of an individual.

Slander Defamation that appears in transitory form, such as speech.

Libel Published or broadcast defamation. In most cases, truth is the absolute defense against a charge of libel.

A public figure must prove actual malice▪ Either knew it was false or had a reckless disregard for the truth,.

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Intellectual Property Rights Copyright law grants the author right to make and distribute

copies of that work for a specified period.▪ First-sale doctrine ▪ Allows purchasers of copies of a copyrighted work to resell it or rent it

out.

▪ Copyright does not protect ideas, ▪ Only the expression of ideas, such as a screenplay or novel.

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▪ The copyright sign does not have to appear in a work for it to be protected.

▪ Fair use allows copying of a work for noncommercial use as long as it does not exploit the copyright holder.

▪ Congress passed the Digital Millennium Copyright Act in 1998 ▪ Made it a crime to break through any technology intended to secure

digital copies of software, literary works, videos, and music.

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Trademarks are any Word, symbol, or device - or combination of the three – That identify one seller’s goods and distinguishes them from

goods sold by others. ▪ Names like Jell-O, Walkman and Xerox, and symbols such as

Microsoft’s Windows logo and Playboy’s bunny are registered trademarks.

Trademarks as generic terms Fair use of trademarks▪ Word or common symbol can be used by others

Expressions as trademarks

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Newsgathering Rights Sunshine laws, or open meeting laws, ▪ Ensure that public meetings are conducted in open sessions where the

press can report on them.

The Freedom of Information Act (FOIA) ▪ A federal law to ensure pen documents.

▪ Requires federal agencies to list all their documents and provide them for news agencies on request.

▪ “Top secret” documents or documents that would violate privacy laws are exempt from FOIA.

Shield law ▪ Designed to ensure confidentiality of news sources.

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Some forms of speech are more protected than others.▪ Political speech ▪ Ideas and facts that backup the ideas about the meaning and correct

course of government is the most protected.

▪ Artistic speech ▪ Including creative work such as painting, dance and literature.

▪ Commercial speech ▪ includes advertising.

▪ Indecent speech ▪ Enjoys the least protection.

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