Mass Media: Law & Regulation

Mass Media: Law & Regulation • Media has a special status under the U.S. Constitution • The First Amendment • 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. • The press acts as a Fourth Estate • Fourth branch of government • Keeps power of government manageable and accountable • Media are businesses • Operated to make a profit • Legal and regulatory issues require a balance • Interest of the individual • Interest of government

Attempts to Restrict the Press • Alien and Sedition Laws of 1798 • Writing false, scandalous and malicious statements against the government, Congress or the President • Eleven people were tried for violation of the law • Law expired in 1801 • The Espionage Act of 1918 • Forbade statements against the war effort during World War I • Eugene V. Debs and 886 others were convicted of violating the law • Smith Act of 1940 • Press required to submit stories for official censorship during WW II • House Un-American Activities Committee • McCarthy Committee hunted for Communists in the mass media • Established a restrictive atmosphere in television and the movies

Near v. Minnesota • Prior Restraint • Censoring information before the information appears or is published • Saturday Press • Published by J.M. Near • Printed name of people who violated the prohibition laws • Minnesota authorities obtained a court order to stop the publication of the Saturday Press • U.S. Supreme Court overturned the state court • The court said that prior restraint was allowable only under specific conditions • Limit information about troop movement during war • Control of obscenity • Incitement to acts of violence • Overthrow of government

The Pentagon Papers • The New York Times • Published History of U.S. Decision-Making on Vietnam Policy • Given to the Times by one of the authors, Daniel Ellsberg • Justice Department went to court to stop the publication • The New York Times Co. v. United States • Court found that the government had failed to prove that prior restraint was necessary • Held up publication for two weeks • Cost legal fees of $270,000

Grenada • Reagan administration’s invasion of the island of Grenada • Prevent the communist government of Grenada from building an international airport • The Pentagon was worried that the airport could be used by Soviet bombers • Blackout of press • The press was not officially barred from covering the invasion • Pentagon refused to transport press • Turned back reporters who had come on private yachts and airplanes • Took reporters 5 days to reach Grenada • When reporters arrived they discovered that a hospital had been hit by an air strike; no television crews were allowed

The Gulf War • Three weeks into the Gulf War the Pentagon issued a twenty-four hour total news blackout • Pentagon argued that Iraq military could monitor U.S. troops by watching CNN. Pentagon issued no statements about action of coalition troops • Pentagon rules for war coverage • Pool reporting • Press had to travel in groups escorted by a public affairs officer • Pentagon could promote some subjects while avoiding coverage of others • Public favored limitations on the press (79% of those polled) • Similar circumstances have occurred in the War on Terror in Afghanistan

Censorship • The practice of suppressing material that is considered morally, politically, or otherwise objectionable • In U.S., censorship has generally been after the fact • Media has imposed self-censorship • Self-regulation • To avoid possible government censorship

Roth v. United States • Samuel Roth was found guilty in New York court of sending obscene material through the mail • Supreme Court upheld the guilty verdict • Obscenity not protected by the First Amendment • Obscenity is defined as “utterly without redeeming social importance” • Sex and obscenity are not synonymous • Appeals to prurient interest • Roth test • Test for obscenity • Whether the average person, applying community standards, finds that as a whole it appeals to prurient interest

Miller v. California • California court found Marvin Miller guilty of sending obscene unsolicited advertising material through the mail • Supreme Court ruled that state court could censor material that met three a part test for obscenity • The average person, applying contemporary community standards would find the work taken as a whole appeals to prurient interests • Work describes sexual conduct in offensive way specifically defined by state law • Lack of serious literary, artistic, political or scientific value • This is called the LAPS test

School Boards As Censors • School board in New York removed 11 books from school libraries • Slaughterhouse Five by Kurt Vonnegut • Black Boy by Richard Wright • The Naked Ape by Desmond Morris • A work of popular anthropology • California school district requires parental permission to read Ms. • Minnesota school board banned 4 books by Judy Blume • State of Alabama ordered 45 textbooks banned after they were ruled to promote secular humanism • One third of all censorship involves libraries and school curriculum

Libel Law • Defamation • Statement which is untrue that would expose a private person to ridicule or contempt • Libel • Written defamation • Slander • Spoken defamation

New York Times v. Sullivan • Committee to Defend Dr. Martin Luther King, Jr. bought a full page ad in the New York Times • In early 1960, Dr. King was arrested for perjury on his income tax • Charges were politically motivated harassment by officials of Montgomery, Alabama • He was acquitted of all charges • Times sued by L. B. Sullivan, supervisor of police and fire department in Montgomery, Alabama • U.S. Supreme Court held • Times did not act with actual malice • Public official must show the defendant acted with knowledge of statement’s falsity or with reckless disregard • Times did not libel Sullivan

Defining the Sullivan Decision • Gertz v. Robert Welch • Expand definition of public official to include public figures • Private persons must only show that the statement was false • Public fugues must prove actual malice • Herbert v. Lando • Court may explore a reporter’s state of mind while writing a story • Use the pretrial discovery process • Reporters must surrender notes and identify sources • Masson v. New Yorker Magazine • Reporter had misquoted psychoanalyst Jeffery Masson • Court held that changes in the quote did not libel Masson

To Prove Libel • Statement communicated to a third party • Statement injured a person’s reputation • Loss of income or caused mental anguish • Identify the person • Journalist, print or broadcast organization is at fault

Defense for Libel • Truth • Truth is the best defense against libel • Andrew Hamilton’s defense of John Peter Zenger • Privileged • Report what was said during legislative and court proceedings • Even if what a witness says is not true • Qualified privilege • Fair comment • Movie, theatre and restaurant criticism • Opinion can not be proven true or false

Today’s Libel Laws • Carol Burnett • Nation Inquirer reported she got drunk and threw a drink on Secretary of State Henry Kissinger • Report was untrue • Jury awarded $1.6 million reduced on appeal to $150,000 • Most libel judgements are reversed or reduced on appeal • Only 10% of libel cases are won • High cost of legal fees has produced self-censorshipby the media

Libel Law Reform • Attorney Floyd Abrams has proposed three reforms for libel law • Print corrections quickly • When timely corrections are made no lawsuit would be allowed • Damage should be limited to amount lost • Emotional injury limited to $100,000 • Court should require the losing side pay legal fees of the winning side • Discourage frivolous libel suits

Privacy Law • Public believes that invasion of privacy is one of the media’s worst faults • Privacy from the press is ethical as well as legal • Media invades privacy in four ways • Intruding on a person’s solitude • Media may not take a photo in a private place without permission • Disclosure of embarrassing personal facts • Placing a person in a false light • Fictional version of actual events • Right of Publicity • Using someone’s name or picture for commercial benefit

Intruding on a Person’s Solitude • Media can photograph or question a person in a public place • On a public street • Media may not take a photo in a private place without permission • Media may not pursue a person unnecessarily • Galella v. Onassis • Jacqueline Onassis, widow of assassinated President John F. Kennedy • Sued photographer Ron Galella for pursuing her and her children • Galella ordered to stay 25 feed away from Mrs. Onassis and 30 feet away form the Kennedy children

Disclosure of Embarrassing Facts • Facts used in a story should be newsworthy • A public official caught travailing with his/her paramour in public • Information about the paramour is important to the story • A public official discovered to have caught AIDS from his/her paramour • Information about the paramour is not essential to the story • Identity of the paramour could be protected by privacy law • Public records are not considered private • Court proceedings and congressional debates • Privacy laws give little protection to public figures • Bartnicki v. Vopper • Information gathered through illegal condescend means and given to the media by a third party • Media has the right to report information in the public’s interest

Right of Publicity • Using someone’s name or picture for commercial benefit • Important in advertising and public relations • “Here’s Johnny Portable Toilets” • Advertised the portable toilets with the phrase “The World's Foremost Commodian” • Violated Johnny Carson’s right of publicity • Did not have permission and was not paid to use his name • Michigan court held that the company misappropriated Carson’s name • This right continues even after a person dies • Family of well known entertainer’s control how their likeness and name may be used

Fair Trial and Right of Access • Fair Trial • Press coverage can interfere with the right to a fair trial • Sheppard v. Maxwell • Trial of Dr. Sam Sheppard for murdering his wife • Media coverage biased the jury • Courtroom Access • A judge excludes the press from the courtroom • Gag orders on press coverage • Courts have overturned most limitations on press coverage • Camera in the courtroom • Court TV broadcast of the entire trial of O.J. Simpson • Media can disrupt court proceedings • State by state decision • Federal courts do not permit cameras in the court room

Regulating Broadcasting • Regulation as an attempt to organize the airwaves • Based on the concept that broadcasters are trustees operating in the public interest • U.S. broadcast stations must be licensed to operate • Government has more control over broadcast media than print media • Federal Communication Commission • Oversees broadcasting • Has five members appointed by the president • Approved by the Senate • Five year terms • Established by the Radio Act of 1912 • Originally named the Federal Radio Commission • Federal Trade Commission • Regulates advertising

Advertising Regulations • Central Hudson Case • Central Hudson Gas & Electric Corp. v. Public Service Commission • New York public utility commission prohibited advertising that promoted the use of electricity • Supreme Court held that government could not regulate commercial speech • If an advertisement does not mislead and concerns lawful activity • Federal Trade Commission (FTC) • Five members for seven year terms • To stop deceptive advertising staff may seek • Letter of compliance from advertiser • Consent agreement written by an administrative law judge • Cease and desist order issued by the Commission

Mass Media: Law & Regulation