Media Law
The First Amendment provides great freedom, but media must exercise responsibility
"Restriction of free thought
and free speech is the most dangerous
of all subversions.
It is the one un-American act that could most easily defeat us."
Supreme Court Justice William O. Douglas
• What does a "free press" mean? The First Amendment says Congress shall make no law limiting freedom of speech or of the press. Essentially, this means no prior restraint.
• What does this say about Censorship?
• How is censorship defined? Usually, censorship, or prior restraint, is by a governmental entity. What if your editor or publisher tells you, a reporter, not to write a story? Is that censorship?
• 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. 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.
But limits on First Amendment freedom we refer to as media law.
• 1. Libel is defamation which is published or broadcast and injures a person's reputation enough to cause him economic (job or career) or social (relationships with others) harm. If a person's reputation is damaged unjustly, he may recover damages in a civil suit, using procedure much like for accident damages. A publisher has defenses of truth, privilege, fair comment and consent. These must be proven. Public figures have much less protection than other persons under recent libel decisions.
• 2. Copyright protects the right of a person to creative expression. Again, it is a matter of damages. This applies to stories, photographs, poetry, song lyrics and other creative expressions.
• 3. Right of government to protect itself. The classification of military and diplomatic information. "Clear and present danger" during war. Doesn't apply to civil problems.
• 4. Right of society to protect itself from influence which could lead to antisocial behavior. Obscenity and pornography laws are a very gray area. The Supreme Court has allowed community standards to be the final measure of what may be considered.
• 5. Right of privacy the right to be left alone when not in public places or taking part in action (crime, for example) in which there is not an overriding public interest.
• 6. Right to a fair trial is guaranteed by the 6th amendment. The amendment guarantees a trial by impartial jury. Pretrial publicity may be suppressed by judges to secure this right.
• 7. Right to regulate the public airwaves to see that the public interest is served. FCC regulations are involved here.
• 8. Right to protect public health through advertising limitations, such as the recent flap about the use of the label "fat-free" on products.
In the United States, governments usually regulate people and organizations for five reasons:
1. When people or organizations interfere with the workings of the economic market system. This is Martha Stewart's problem with the government, and Bill Gates and Microsoft had a problem as well.
2. When the use of a product or an industry or company's behavior has a negative impact on society as a whole. How about the tobacco industry?
3. When a product or behavior has a negative impact on individuals that outweighs its contribution to society as a whole. This includes libel and slander.
4. During time of war. Because the Vietnam conflict was never declared a war, formal censorship was never invoked. However, conflicts in Granada and elsewhere since that time have seen the interference of government to limit press coverage.
5. To preserve its own security and power. During the 1970s, President Richard Nixon used government secrecy acts to hide information that would have exposed criminal activity in the White House. His efforts failed. Another example was when the Pentagon Papers were held to be secret until the Supreme Court ruled otherwise.
Governments exercise three types of regulation over mass media.
• 1. Governments regulate the economic behavior of media companies in the consumer and advertising markets -- for example, it was illegal for a newspaper company to own a television station in the same city.
• 2. Governments regulate certain internal business activities of media companies -- for example a media company must comply with federal laws that prohibit racial and gender discrimination in hiring.
• 3. Despite the existence of the First Amendment, governments regulate some content and information -- for example, a company cannot broadcast a deceptive advertisement that might harm consumers. The government has asked media to quit advertising products that make claims about weight loss without dieting or exercise.
• Regulation attempts to balance the information needs of society with the rights of media companies and individual citizens.
Sources of laws
Federal Constitution takes precedence over all other laws.
Look here for Supreme Court cases Federal Statutory: laws passed by the Congress of the United States.
Federal Administrative: laws established by federal administrative bodies such as FCC and FTC.
State Constitution
State Statutory: laws established by state legislatures.
State Administrative
State Common Law: laws created by judicial interpretation; few apply to communication law.
Click here for the First Amendment Handbook.
Click here for more information about media law.
Click here for Student Press Law Center for some interesting cases involving high school and college publications.
Back to Mass Media Stuff -- stuff I have collected over 28 1/2 years of teaching a beginning mass media course in journalism-photography at San Antonio College