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Formal Controls: Laws, Rules, Regulations

Chapter 16

© 2009, The McGraw-Hill Companies, Inc. All rights reserved.

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CHAPTER OUTLINE

• The Press, The Law, and the Courts• Protecting News Sources• Covering the Courts• Reporters’ Access to Information• Defamation• Invasion of Privacy• Copyright• Obscenity and Pornography• Regulating Broadcasting• Regulating Cable TV• The Telecommunications Act of 1996• Regulating Advertising

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THE PRESS, THE LAW, AND THE COURTS

• Formal controls over the media include laws, court decisions, and governmental regulations

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A Free Press

• The First Amendment of the Constitution– “Congress shall make no law . . . Abridging

the freedom of speech, or of the press.”– It sounds simple, but the meaning has long

been debated.

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Prior Restraint

• Government attempts at censorship before something is printed or broadcast

• Prior restraint is rare, but the First Amendment is not absolute– The Near Case– The Pentagon Papers– More Recent Cases

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PROTECTING NEWS SOURCES

• Reporters believe their sources will dry up if confidentiality is not guaranteed.

• The government believes disclosing the sources will help administer justice and protect people’s rights to fair trial

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The Reporter’s Privilege

• 1970s Supreme Court: First Amendment does not necessarily protect reporters from obligations to testify– Reporters’ claims to privilege can be valid in

some instances

• Shield Laws: state laws protecting reporters from revealing sources– Vary by state; not all states have shield laws

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Search and Seizure

• Courts have offered even less protection of a reporter’s notes and a newsroom’s records– Accessing these documents requires

subpoena

• Reporters must consider these issues carefully before promising confidentiality to a news source

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COVERING THE COURTS

• Sixth Amendment: defendant’s right to free trial before impartial jury

• First Amendment: freedom of the press

• A potential clash of responsibilities– Trial judges responsible for administration of

justice– Reporters responsible for informing public

about the workings of the legal system

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Publicity Before and During a Trial

• Pre-trial publicity could interfere with a defendant’s right to a fair trial– Sensationalized coverage can be very

prejudicial

• Supreme Court outlined safeguards to prevent undue influence of publicity– Sequestration– Change of venue– Restrict statements of participants in trial

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Gag Rules

• Restrictive orders – Trial participants restrained from giving

information to media– Restraining media coverage of court events

• Pre-trial proceedings, pre-trial evidence, jury selection, actual trial

• 1980s: Supreme Court reaffirmed press rights to open court access– But access can be limited, under strict

guidelines, depending on the situation

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Cameras and Microphones in the Courtroom

• 1930s: Still cameras, newsreel film, radio• Canon 35, American Bar Association

– Suggested that courts ban film and broadcast in court proceedings. TV coverage later added.

• Slowly, audio-visual coverage restrictions relaxed– Rules vary by state, but all states allow some form of

coverage– Cameras not allowed in federal district courts, or US

Supreme Court

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REPORTERS’ ACCESS TO INFORMATION

• Regulations affect reporters’ access to information and news scenes

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Government Information

• Freedom of Information Act (FOIA)

• Electronic Freedom of Information Act (EFOIA)

• Sunshine Acts

• The Patriot Act

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Access to News Scenes

• Reporters’ rights to access news scenes are still evolving– Supreme Court suggests that the press has

no more right to enter news scenes or public facilities than does the public at large

– Variation across states

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DEFAMATION

• Defamation laws– Libel– Slander– Libel per se– Libel per quod

• Libel suits against media must prove– Defamation– Identification– Publication– Media at fault– Statement was false

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Defenses Against Libel Suits

• Defenses against libel include– Truth, privilege, fair comment and criticism

• Public figures/officials– Editorial advertising protected by First amendment– Even false statements may be protected if they

concern public official’s public conduct– Statements must be made with actual malice

• Private citizens still must prove some fault or negligence

• Actual damages and punitive damages

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Defamation and the Internet

• Only the author of a defamatory statement is held liable– Internet service provider not held liable

(unless the service is the author)

• Jurisdiction of Internet lawsuits is less clearly defined– Where can lawsuits be filed?

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INVASION OF PRIVACY

• This section will cover the right to privacy, and trespass

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The Right to Privacy

• A defamatory publication may result in two lawsuits: Libel and invasion of privacy– Libel protects person’s reputation; privacy protects

their peace of mind and feelings– Libel involves false material; privacy can involve truth

• Four ways the media can invade privacy– Intrusion upon solitude– Unauthorized release of private information– Creating a false impression– Appropriation of identity

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Trespass

• Trespass is unauthorized entry into someone else’s territory– Journalists do not have rights to break the law

while pursing important news story

• Trespass focuses on tactics journalists use to gain entry– Going undercover; pretending to be someone

they’re not

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COPYRIGHT

• 1909 Copyright laws (amended in 1976) protect authors against unfair appropriation of their work– Cover emerging communication technologies– Do not cover ideas, discoveries, procedures

• Fair use protection– Betamax case: Timeshifting is fair use

• 1998 Digital Millennium Copyright Act (DMCA)– Illegal to create services designed to get around

measures controlling access to copyrighted works– Internet service providers, search engines, hosts

generally immune from copyright infringement• Napster Case

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OBSCENITY AND PORNOGRAPHY

• Obscenity is not protected under the First Amendment, but the courts have been unable to adequately define obscenity.– Hicklin Rule (1860s)– Roth test (1957)– Variable obscenity (1969)– Miller test (1973)

• Communications Decency Act & Child Online Protection Act not upheld in court– The Internet has high level of First Amendment

protection

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REGULATING BROADCASTING

• Public ownership of the airwaves– Government decides who has license to

broadcast– Broadcast media subject to more regulations

than print media

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The Federal Communications Commission

• The FCC interprets law; it doesn’t make law– FCC determines whether broadcasters are serving

the “public interest”– FCC can invoke fines; issue probationary license

renewals; revoke or not renew license• After deregulation of 1980s, regulation began to

increase in 1990s– Children’s Television Act

• Office of Strategic Planning and Policy Analysis• FCC does not control the Internet or Internet

service providers– Internet neutrality

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Indecent Content

• Protecting children from accidental exposure to indecent content– Safe harbor (6:00 a.m. to 10:00 p.m.)

• Congress has passed stiffer regulations

• FCC crackdown on indecency– FCC also making effort to crack down on

violent content

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The Equal Opportunities Rule

• Equal Opportunities rule– Section 315 of Communications Act

• If a station allows one candidate for a specific office to access its airwaves, it must allow all candidates for that office the same access

– Even if free time

• Exceptions include legitimate newscasts and on-the-scene coverage of authentic news events

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The Fairness Doctrine

• The Fairness Doctrine is no longer in existence, but attempts to revive it reappear from time to time

• Required broadcasters to seek out, and make good faith effort to present, opposing viewpoints on matters of public importance

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REGULATING CABLE TV

• Regulation of cable has fluctuated– Cable systems are not licensed by FCC; they are

franchised by state and local governments• Cable TV Act of 1992 re-instated the FCC’s right

to regulate cable fees and services– Courts have ruled that cable operators have more

First Amendment rights than broadcasters, but less than newspapers and magazines

• “Must carry” provision upheld

• FCC Chair proposal: consumers be given “al la carte” option rather than “bundling/tiering”– Help consumers to avoid indecent content

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THE TELECOMMUNICATIONS ACT OF 1996

• First major overhaul of communication laws in more than 60 years.– Removed ownership caps (with some restrictions);

allowed telephone companies to enter cable field and vice versa; mandated TV content rating system (V-chip resulted)

• Impacts– Consolidation; cable fee increases; after some time,

competition between telephone and cable

• Changing environment has led Congress to re-examine the 1996 Act.

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REGULATING ADVERTISING

• Advertising is both regulated and protected

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Deceptive Advertising

• Federal Trade Commission– Bribery, false advertising, product mislabeling– Powers expanded to prevent deceptive advertising

• FTC enforcement mechanisms include– Trade regulations (industry guidelines)– Consent orders– Cease-and-desist order– Fines– Corrective advertising

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Commercial Free Speech Under the First Amendment

• Initially, commercial speech (advertising) did not have First Amendment protection

• New York times v. Sullivan case provided some protection

• Later cases extended protection for commercial speech, and in 1980 the courts presented a four-part test for determining protection