Law and Regulation

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					        Mass Media: Law & Regulation
• Media has a special status under the U.S.
   – 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
• 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
• 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
       •   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
• Justice Department went to court to stop the
  – 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
• 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
      • 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
                      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
         – 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

• The practice of suppressing material that is
  considered morally, politically, or otherwise
• 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
      • 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
• 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
• 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
• 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
     • 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
• 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
  – 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
• Most libel judgements are reversed or
  reduced on appeal
  – Only 10% of libel cases are won
• High cost of legal fees has produced self-
  censorship by the media
             Libel Law Reform

• Attorney Floyd Abrams has proposed three
  reforms for libel law
  1. Print corrections quickly
     • When timely corrections are made no
       lawsuit would be allowed
  2. Damage should be limited to amount lost
     • Emotional injury limited to $100,000
  3. 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
  1. Intruding on a person’s solitude
     • Media may not take a photo in a private place without
  2. Disclosure of embarrassing personal facts
  3. Placing a person in a false light
     • Fictional version of actual events
  4. 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
  – Galella v. Onassis
     • Jacqueline Onassis, widow of assassinated President
       John F. Kennedy
     • Sued photographer Ron Galella for pursuing her and her
     • 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
      • Information about the paramour is important to the story
   – A public official discovered to have caught AIDS from his/her
      • 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
                   Right of Publicity

• Using someone’s name or picture for commercial
   – 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
• 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
  – 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
• 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