Media Law

study guide for media law and ethics 

Sources of the law 

• Five sources: Common law, Equity, statutory, constitutional, executive orders and administrative rules  

• Judicial systems: There is not one American judicial system instead, there are 52 different judicial systems. One for each state, federal government, and Washington, D.C. Each system is divided into trial courts and appellate courts. Each Judicial system is established by a federal or state constitution, and each act as the third branch of government 

• Types of courts:  

1. Trial courts- fact-finding courts, the place where nearly all cases begin, juries with one judge, consider both facts and law in a case 

2. Appellate courts – law reviewing courts, no juries usually a panel of judges, consider only the law 

• Federal court system: The constitution calls for a single federal court, the supreme court. They also give congress the right to establish other courts if necessary 

• Supreme Court and specifics: established in 1789 with 6 justices and is the older federal court in the US. Since 1869 the supreme court has been a chief justice and eight associate justices. Congress decides how many judges sit on the supreme court. FDR tried to have it increased to 15, but congress did not pursue this. The supreme court is not as interested in making certain justice has been served as it is in making certain the law is developing properly. 

• Federal and state courts: special courts (U.S.. Court of Military Appeals), District courts 94 in all (one for every state and some states have more than one), Circuit courts of U.S. court appeals 13 in all (these are appellate courts that hear appeals only from lower courts. ARKANSAS IS 8 

• Federal judges: appointed by the president and must be confirmed by the senate. Judges are appointed for life and the only way a judge is removed from the position is by impeachment, which is very rare.  

• State courts: Every state has a constitution that establishes a court system. This is the Arkansas justice building in Little Rock. Our judges are elected by voters.  

• Trial courts: The base of every judicial system. Limited Jurisdiction are the lowest level trial courts that handle things such as traffic court and small claims court. General Jurisdiction are trial courts that handle nearly all criminal and civil suits. These courts usually have jury trials. Many media-related issues go to trial courts.  

• Appeals: whatever the outcome of a trial, the verdict may be appealed. In nearly all states there is a court for cases that may go higher. Cases not involving federal questions go no higher than the highest court in a state.  

• Judicial review: Because the first amendment prohibits laws that abridge freedom of the press and freedom of speech, each new law passed by Congress, state, and even city must be measured by the yardstick of the first amendment. Any city, state, or federal court can exercise judicial review and say that a law or government action is unconstitutional. If this happens, the law or action is overturned.  

• Lawsuits:  

1. Civil and criminal 

• Civil is private parties while criminal is government initiates action against someone committing a criminal act 

First Amendment 

• First newspaper in Colonies: Publick Occurrences, both foreign and Domestick 

• First newspaper with approval from the crown : The Boston News-Letter 

• Zenger trial: Printed the New York Weekly Journal that published stories and Zenger was charged with seditious libel and jailed. Attorney convinced the jury of colonists that no man should be imprisoned or fined for publishing what was truth and fair. This was not a defense for a British seditious libel trial. The jurors ignored the British law and acquitted Zenger of all charges. 

• Articles of Confederation: 1781 when the federal government had little power so no federal bill of rights of any kind. Each state provided its own guarantee of freedom of expression 

• U.S. Constitution: 1789 still did not include any federal bill of rights. After passed, several states asked for a bill of rights to be added 

• Bill of rights: 1791 10 Amendments to the constitution: First Amendment says Congress shall make no law respecting an establishment of religion, or prohibiting the free excercise thereof; of abridging the freedom of speech of the press; or the right of the poeple peaceably to assemble, and to petition the government for a redress of grievances 

• First amendment theories (not cases):  absolutist theory, ad hoc balancing theory, preferred position balancing theory, Meiklejohnian theory, marketplace of ideas, access theory, self-fulfillment/self-realization 

• First amendment cases 10:  

1. Schenck v united states (1919)  

2. Evans v. Seima Union High school district of Fresno County  

3. Gitlow V. New York (1925) 

4. Whitney v. California (1927) 

5. Chaplinsky V. New Hampshire (1942)  

6. West Virginia State Board of Education v. Barnette (1943)  

7. Rosenberg v. Board of Education of City of New York (1949) 

8. Brandenburg v. Ohio (1969) 

9. Board of Education, Island Trees Union school district v. Pico (1982) 

10. Texas V. Johnson (1989) 

Prior Restraint  

• Prior review: When item to be published/broadcast/posted is read over for errors (grammatical or factual) 

• prior restraint: When content approval is required before publishing/broadcasting/posting when publication/broadcast/post is banned or censored 

• Prior restraint of student press: Student journalists do not have absolute freedom to say or do anything they want, bt do have many of the reedoms as professional journalists. Since the school, principal or faculty adviser do not “own” student media, student media outlets do not have a publisher or owner as do professional media; therfore, students can legally decide what to publish/broadcast. College parallels society in general, and college campuses are considered public forums with free speech zone. College media can also be considered public forums for their campus.  

• Public and private school right to expression: The first amendment tells government not to interfere with citizens expressive rights. The first amendment, therefore, only applies to schools that are public. Students private high schools or colleges may still be given the rights to express themselves, depending on the discretion of their administration and board of trustees. 

• Famous prior restraint cases in high school: 

1.  Near v. Minnesota (1931) 

2. Organization for a better Austin v Keefe (1971) 

3. New York Times V. U.S (1971)  

4. U.S. v. progressive Inc (1979) 

5. U.S. v. Bell (2005) 

Public Forums 

• Definition: a place that is, by tradition or practice, used as an area by the public for free speech, public debate, and assembly.  

• Types of public forums: traditional, designated, non-public  

• Non-public forum: The government closes these areas to all speech activities. Restrictions must be viewpoint neutral. This includes public schools, prisons, post offices, airports  

• Private property and public forums: There is no first amendment right to use private property for free speech as these areas are not governed by the constitution. This includes malls, private schools or colleges, or land owned by an individual or business. However, the sidewalk or street on the edge of the private property may be a public forum.  

Libel 

• Libel : Written defamation of character with the publication of any statement that injures someone's reputation or lowers that person's esteem in the community 

• Defamation: damaging someone's reputation with false statements  

• Slander: Spoken defamation of character through the broadcasting of any statement that injures someone's reputation or lowers that persons esteem in the community 

• What law protects: it protects non-malicious statements of opinion about matter of public interest. It must be fair and often courts say that means the opinion must have a factual basis, either provided, generally known, readily available to the public.  

• Who can and cannot file for libel: any living person, a corporation, an unincorporated association, organization or society, including a labor union, charitable foundation, non-profit and fraternal organization 

• Burden of proof – 5 things 

1. The defendant published the statement 

2. The statement is about the plaintiff 

3. The statement harmed the reputation of the plaintiff 

4. The statement was published with some level of fault 

5. The statement was published without any applicable privilege 

• Publication rule: The bearer of tales is as guilty as the teller of tales. Each person who participates in the re-publication of a libelous statement can be held leagally liable.  

• New York Times v. Sullivan:  the U.S supreme court established a fault requirement for public officials prior to this case libel did not require fault to be proven. In 1960 Civil Rights movement was gaining strength. Civil rights leaders ran a full-page ad in the New York times to raise funds to help civil rights leaders, including Martin Luther King jr. The ad described police actions against peaceful college demonstrators in Montgomery. The times did not write the information, but they did publish the ad.  

• Public figures: 

1.  All purpose public figures: an individual with widespread fame or notoriety or special prominence in society, one who has persuasive power and influence or occupies a position of continuing news values.  

2. Limited-purpose public figure: individuals who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved or gained prominence in a field. Considered a public figure as long as the public as an interest in them.  

• Libel defenses:  

1. Truth is the statement can be proven to be true 

2. Statement of opinion was merely someone stating their opinion and cannot be taken as a fact 

3. Absolute privilege is the person who has the right to make the statement at that time, even if it is defamatory 

4. Qualified privilege is the person may have had some right to make the statement  

5. Fair report or reporters privilege is when a reporter has the right to report information provided by a government official or document 

6. Consent to publication of the statement is the person may have given permission that the statement could be published 

• Fair comment: Protects non-malicious statements of opinion about matters of public interest. This can mean the opinion is either provided, generally known, readily available to the public. 

Privacy 

• Four areas of privacy law:  

1. Appropriation of name or likeness for trade purposes 

2. Intrusion upon an individual’s solitude 

3. Publication of private information about an individual 

4. Publishing material that puts an individual in a false light 

• Two rights under appropriation: Right to privacy and publicity 

• Use of name or likeness: Can be a name, pen name, stage name, nickname, sketch, drawing, or photo. Example : Oklahoma city bombing photo 

• Public places: A person is entitled to an expectation of seclusion when it is reasonable under the circumstances to expect that others will not interfere. You can eavesdrop in a public place. Courts say it is up to people in conversation otmake private. You can record anything you see, but you can't harass, use electronic equipment to enhance vision, or have hidden microphone or video camera in someone else's private space.  

• Giving consent: 

1. Written consent is a solid defense against a privacy lawsuit, if the person says they didn’t understand what they were signing.  

2. Written consent like a contract is now required by many media for photos, videos or interviews, depending on the situation.  

• Cases: Roberson V. Rochester Folding Box Co.  

1. Appropriation  

2. Taking a name, picture, photo, likeness and using it for commercial gain without permission 

3. New yorks first privacy law enacted from case where young woman's picture was placed on posters advertising a brand of flour. Picture was used without permission or knowledge 

• Jacqueline Kennedy Onassis v. Ron Galella  

• Carpenter v. U.S. 

FOIA  

• Why meetings and records should be open:  

1. Providing information of what it does for the public is the primary function of the government.  

2. The public needs to know what its government is doing if democracy is to work 

3. Members of the public may have good ideas that could help in the early stages of decision-making by the government.  

• Arkansas FOIA and public meetings: Also called the sunshine law. It was passed by akrnasas in 1967 and updated every few years. It is regarded as a peoples law rather than a special statute for the media. Without the arkanas freedom of information act, the government officials could conduct state and local business virtually in secret. The 2 parts include: It guarantees open governmental records to the public/open governmental meetings to the public. If a government body knowingly violates the FOIA, they can be found guilty of a class C misdemeanor. Punishable by a fine of up to $500, imprisonment for up to 30 days or both.  

Fair Trial  

• Where supreme court stands on 1^st and 6^th amendments: The SC has adopted a balancing approach in dealing iwth free press-fair trial conflicts and htye have steadfastly refsed to declare one set of rights more important than the other. They have instructed judges to protect the rights of defendants without limiting the rights of journalists 

• 3 types of fair trial conflict: Pretrial publicity, During trial Publicity, presence of journalists in the courtroom  

• Media coverage:  

• fair trial: The right to a fair trial is where all people have the right to a fair trial 

• Remedies of pretrial publicity: Voir Dire, Change of Venure, Change of veniremen, continuance, admonition, sequestration 

• Murphy test: A 2 part test to decide if defendants had been given fair trials. 1. Prejudice will be presumed if there was uncontrolled media access to the entire trial process, which could cause jury bias. 2. whether there were any indications that the trial was not fundamentally fair and would cause jury prejudice.   

Source Protection  

• Types of information: Off-the-record, Background, Deep Background (exceptions: even eighth confidentiality, some situations like crime or in certain international jurisdictions) may force disclosure 

• Reason for confidential sources: you could learn something about someone with inside information that would give you more thorough knowledge or deep background. The person may ask you to not reveal their identity to protect them in some way (job, reputation, death threat) it is up to the individual reporter and their editor to decide if this confidentiality is worth keeping to get the information. The tower has used anonymous sources for stories on online dating pornography addiction and other controversial topics.  

• Reasons others want to know the identity of a source: Law enforcement wants to kno the identity of a criminal suspect interviewed for an in-depth story. Polce might want a video/photos of someone who was part of a criminal act so they could make an arrest. A business owner might want to know what employee is leaking financial information to the media. After a story that runs in the Tower, President Langley might want the name of a faculty member who served alcohol to CBC students at his home. 

• Consequence for journalists if the judge says must reveal source: They could be jailed until they reveal the source or the subpoena is cancelled or “quashed” by the court.  

• Shield laws: there is no federal shield law: However, 49 states and Washington have shield laws that offer reports some protection against being forced to reveal the identities of sources. State shield laws usually are of limited scope and structure and protect only certain journalists or types of information from being revealed. Freelancers and bloggers are often not included in the definition of a journalist and sometimes have not been granted the privlege. Many laws include broad exceptions for certain types of information such as criminal defense cases.  

• Arkansas shield law: Before any editor, reporter, or other riter for any newspaper, periodical, or radio station, or publisher of any newspaper or periodical, or manager or owner of any radio station shall be required to disclose to any grand jury or to any other authority the source of information used as the basis for any article he may have written, published, or broadcast, it must be shown that the article was written published, or broadcast in bad faith, with malice, and not in the interest of the public welfare 

Obscenity 

• Common terms:  

1. Obscenity: Material that is obscene is not protected at all by the first amendment 

2. Indecent material: Offensive but protected by the first amendment  

3.  Pornography: material that is labeled as pornographic is recognized as good or bas and has no legal significance  

• Four cases: Roth V. US, Miller v. California,  

• Definitions with miller test: An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to the prurient interest. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. The work in question lacks serious literary, artistic, political, or scientific value.  

• Obscenity: A state can have two standards for this. One for adults and minors. Material sold to adults may be purchased by those under 18. Those selling adult only must take steps to limit those under 18 from being able to see them or they can be convicted of providing obscenity to minors.  

• Community standards: All communities within the same state share the same standards.  

• Child pornography: The production, distribution and possession of child Pornography is not protected by the First amendment. Federal statutes outlaw images of minors engaged in sexually explicit conduct. Images of minors do no have to meet the miller test and can include computer-generated AI images. Each state has its own statute child porn is illegal in every state in the US.  

• Movies and first amendment protection: They are not granted first amendment protection until 1952. The motion picture association of america film rating system with established rigid guidelines. To be found obscene, the US government must prove a film is not protected under the first amendment.  

Copyright 

• Plagiarism: an ethical concept when someone takes the ideas, thoughts or words from another and passes them off as his or her own.  

• Trademarks: Protects words, phrases, symbols or designs identifying the source of the goods or services of one party and distinguishing them from those of others.  

• What may be copyrighted: the author has the right to reproduce the work in any form for any reason before a copyrighted work can be printed, broadcast, dramatized or translated; the consent of the owner must first be obtained. This includes Paintings, photographs, drawings, music, choreography, sculptures, films, literary works 

• Image and music copyright: photos, drawings and other images are protected by copyright unless placed in creative commons. Music includes lyrics, music composition, and recording rights. Copyright fees must be paid to the owner who allowed the music to be broadcast or performed. Social Media is in an area of its own. Someone may use the disclaimer “I do not own the nights to this music” but that doesn’t protect the person from copyright infringement. 

• Duration of copyright:  

1. Works created after Jan 1. 1978: The life of the creator plus 70 years.  

2. Works created by more than one person: The life of the last living creator plus 70 years 

3. Works created before Jan 1, 1978: 95 years 

• Fair use: Permits limited copying of an original creation that has been properly copyrighted and has not yet fallen into public domain