SMAD 370 Mass Communication Law Notes

SMAD 370 Mass Communication Law

Course Information

  • Professor: Dr. Roger Soenksen
  • Schedule: Tuesdays and Thursdays, 2:00-3:15 PM
  • Syllabus covers:
    • Professor Information
    • Objectives
    • Format
    • Text
    • Course Grade
    • JMU Honor Code
    • Test ID
    • Attendance
    • Participation Points
    • Class Schedule/University Closing
    • Sample Brief

Sources of Law

  • Constitutional Law
  • Statutory Law
  • Administrative Law
  • Executive Actions
  • Common Law
  • Law of Equity

Constitutional Law

  • The "Supreme Law of the Land."
  • The U.S. Supreme Court has the final say on the Constitution's meaning.

Statutory Law

  • Deals with problems affecting society or large groups.
  • Can anticipate problems.
  • Found in Code Books like Statutes At Large or US Code.

Administrative Law

  • Rules and decisions made by administrative agencies (e.g., FCC, SEC, FTC).
  • Agencies have rule-making and adjudication powers.

Executive Actions

  • The President can issue Executive Orders.
  • The President has power over court appointments.

Common Law

  • Developed in England 200 years after the Norman conquest.
  • "Stare decisis" means to stand by past decisions.
Common Law Options
  • Accept the precedent as law and rule the same way.
  • Modify the precedent to be contemporary.
  • Distinguish the precedent.
  • Overrule the precedent.
  • Ignore the precedent.

Law of Equity

  • Developed in England for preventative action and remedial action other than monetary.
  • Individuals would petition the King to "Do the right for the love of God."
  • A temporary restraining order (TRO) is grounded in the law of equity.

Court Citation Example

  • Adderly v. Smith 385 U.S. 39 (1966)
    • Adderly (plaintiff) initiates the lawsuit.
    • Smith (defendant) responds to the lawsuit.
    • 385 is the volume number where the decision is found.
    • U.S. is the source where the decision is found.
    • 39 is the page where the decision begins.
    • 1966 is the year the case was decided.

Civil Citation Example

  • Smith v. Jones
    • Smith is the plaintiff.
    • Jones is the defendant.

Criminal Citation Example

  • Virginia v. Adderly
    • Adderly is the defendant.
    • Commonwealth of Virginia initiates the criminal litigation.

Classification of Crimes

  • Crimes against the person (murder/manslaughter)
  • Crimes against the habitation (burglary/arson)
  • Crimes against the property (thefts/larceny)
  • Crimes against morality & decency (vagrancy)
  • Crimes against the public peace (criminal libel)
  • Crimes against sovereignty, justice & authority (tax evasion)
  • Crimes against public safety, health & comfort (nuisance laws)

Federal Judicial System

  • US Supreme Court
  • US Court of Appeals (13 circuits, VA is in the 4th Circuit)
  • Federal District Court

Court Opinions

  • Majority Opinion
  • Concurring Opinion
  • Dissenting Opinion
  • Per Curiam
  • Memorandum

Federal Judicial Citations Examples

  • U.S., L.Ed., S.Ct., M.L.Rptr. - U.S. Supreme Court
  • F.2d (4th Cir. 1997) - Circuit Court of Appeals
  • F.Supp. (E.D. Va. 1997) - Federal District Court
  • VA - Virginia Supreme Court

Amendments Important for Mass Communication Law

  • First Amendment: Protects individual rights against the U.S. government.
  • Fifth Amendment: Protection against prior restraint & national security and Grand Jury.
  • Sixth Amendment: Right to a speedy public trial.
  • Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without the due process of law;"

Virginia Judicial System

  • Magistrates
  • General District Courts (32)
  • Juvenile & Family Relations Courts (32)
  • Circuit Courts - 31 circuits
  • Court of Appeals (10 judges)
  • Supreme Court of VA (7 justices, 12-year term)

Historical Influences

Legal Influences
  • England - Blackstone
  • John Peter Zenger 1733
  • Croswell's Trial 1800's
Philosophical Influences
  • Milton's "Aeropagetica"
  • Mill's "On Liberty"
  • Locke's "Self-Righting Process"
Historical Events
  • England’s restrictions - Stamp Act
  • Declaration of Independence
  • Articles of Confederation
  • Constitutional Convention
  • Madison v. Hamilton
  • Bill of Rights
  • Constitutional Ratified 1790
  • Alien & Sedition Act 1798
  • 14th & 15th Amendments
  • Gitlow v. New York (1925)

First Amendment Interpretation Continuum

  • More Freedom ---> Less Freedom
  • Absolutist ---> Clear & Present Danger ---> Evil Tendency
  • Absolutist Theory
  • Preferred Position
  • Black
  • Kovacs v. Cooper
  • Two-tiered
  • Chaplinsky v. N.H.
  • Clear & Present Danger
  • Schenck v. U.S.
  • Abrams v. U.S.
  • Whitney v. California
  • Brandenburg v. Ohio
  • Balancing
  • Ad Hoc
  • Definitional
  • American Com. Asso v. Douds
  • Bad Tendency
  • Gitlow v. NY
  • Evil Tendency
  • Dennis v. U.S.
  • Yates v. U.S.

Prior Restraint

  • Collateral Bar Rule: An injunction must be obeyed until dissolved or reversed, even if invalid. The defendant cannot claim the order was invalid in a contempt of court proceeding.
  • Reporters have a choice: violate the order and risk contempt or comply and seek reversal on appeal.
Near v. Minnesota (1931)
  • Facts: Jay Near published the Saturday Press, claiming Jews controlled organized crime. He was declared a nuisance and an injunction was issued prohibiting future “scandalous matter.”
  • Importance: The USSC declared a state’s prepublication statute unconstitutional, declaring all prior restraints as unconstitutional.
Grosjean v. American Press (1936)
  • Facts: Governor Huey Long imposed a 2% license tax on gross receipts of newspapers with circulation over 20,000 in Louisiana.
  • Importance: The USSC ruled a discriminatory state tax on newspapers of a certain size was a prior restraint and unconstitutional.
New York Times v. U.S. (1971)
  • Facts: The New York Times attempted to publish stories based on a secret Pentagon study on the Vietnam War (Pentagon Papers).
  • Importance: The US government filed an injunction against a newspaper for the first time. The USSC determined the government had not met its burden of proof to prior restrain the press.
Minneapolis Star & Tribune v. Minn. Commissioner of Revenue (1983)
  • Facts: Minnesota taxed newspapers that used large amounts of ink and paper.
  • Importance: The USSC determined the tax was discriminatory against large papers and a prior restraint.
Arkansas Writer’s Project, Inc. v. Ragland (1987)
  • Facts: Arkansas imposed a sales tax on general circulation magazines but not on religious, professional, trade, or sports journals.
  • Importance: The USSC ruled the tax was unconstitutionally discriminatory.
Cox Broadcasting v. Cohn (1971)
  • Facts: A television station reported the name of a rape victim, violating a Georgia statute. The victim's father brought a civil suit.
  • Importance: The USSC ruled a state does not have the right to punish the media if the information is obtained in an open courtroom.
Landmark Communication, Inc. v. Virginia (1978)
  • Facts: The Virginian Pilot published the name of a judge being investigated for misconduct, violating state law.
  • Importance: The USSC declared Virginia could not punish the media for publishing truthful information about a confidential judicial inquiry.
Smith v. Daily Mail Pub. Co. (1979)
  • Facts: Two newspapers identified a 14-year-old who killed a classmate. Reporters obtained the name from witnesses, police, and the prosecuting attorney, violating a WVA statute.
  • Importance: The USSC ruled the WVA statute was overbroad because it singled out only newspapers for punishment. The Court said a state can punish the media for truthful information “to further a [state’s] need of the highest order.”
U.S. v. Progressive (1979)
  • Facts: A federal judge stopped the Progressive from publishing an article describing how to build an H-bomb. It violated the Atomic Energy Act even though it was based on public information.
  • Importance: The federal government dropped its suit after similar information was published elsewhere. The government was successful in restraining publication and altering content.
Snepp v. U.S. (1980)
  • Facts: Frank Snepp published a book, Decent Interval, violating his CIA contract by publishing before submitting the manuscript to the CIA.
  • Importance: Nondisclosure employment contracts are not a prior restraint and are not unconstitutional. Snepp’s earnings from book, movies, speeches, etc., go to “constructive trust” to revert to the government.
Morison v. U.S. (1988)
  • Facts: Samuel Morison, a civilian Navy analyst, was convicted of violating the Espionage Act of 1917 for passing a secret satellite photo of a Soviet aircraft carrier to Jane’s Defense Weekly.
  • Importance: The government may punish an individual for leaking national security information to unauthorized persons in peacetime.
Florida Star v. BJF (1989)
  • Facts: A reporter-trainee for the Florida Star acquired B.J.F.’s name from a press release by the sheriff’s department. Her name was published, violating a state statute.
  • Importance: The USSC ruled a media defendant cannot be punished for lawfully gained information; however, if the statute was drawn more narrowly, then the media could be punished for publishing truthful information.
Texas v. Johnson (1989)
  • Facts: Gregory Lee Johnson burned an American flag at the 1984 Republican National Convention to protest the Reagan administration.
  • Importance: The USSC stated burning the U.S. flag is protected by the Constitution as a symbolic form of speech.
R.A.V. v. City of St. Paul (1992)
  • Facts: Robert A. Victoria was charged for burning a cross inside a fenced yard of the home of a black couple. He was charged under a city ordinance.
  • Importance: The USSC declared a city ordinance based on “race, color, creed, religion or gender” fighting words was unconstitutional content regulation.
Hazelwood School District v. Kuhlmeier (1988)
  • Facts: A principal censored an article about teen pregnancies and one about divorce from the student newspaper, Spectrum.
  • Importance: The USSC held that public high school principals can censor high school newspapers.
Miami Herald v. Tornillo (1974)
  • Facts: The Miami Herald refused to publish a reply to the paper’s criticism of Pat Tornillo, a candidate for the state legislature. The paper charged that Tornillo had led an illegal teachers’ strike.
  • Importance: The USSC held that newspapers have stronger First Amendment rights than electronic media.

National Security Issues

  • The government may punish media for publication:
    • of nationally secure information unlawfully obtained by the news media - criminal
    • of lawfully gained information so long as protection of national security is an “interest of the highest order” - criminal
    • of information which may fall in the national security area from the public domain - criminal
  • Florida Star v. B.J.F. (1989) - if a state establishes “a need to further a state interest of the highest order,” then media can be held for criminal or civil liability.