2. 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.”
3. Prior Restraint
• Prior restraint: when the government censors the press
by restraining it from publishing or broadcasting material
• Attempts to exercise prior restraint are rare
• Proving that restraint is justified is difficult
– Example: During war, preventing newspapers from
publishing information on the specific locations of troops.
– Video: Prior Restraint explained
4. Prior Restraint
• The Near Case: 1920’s, Minnesota passes a law that allows any
newspaper considered to be a public nuisance to have an
injunction (court order that requires someone to do
something, or to stop doing something) imposed against them.
• Originally designed to prevent attacks on minority groups
• In the case against J.M. Near (publisher of the Saturday Press),
an injunction was filed on the grounds the paper had printed
malicious statements about city officials.
• 1931: Supreme Court ruled that the law was unconstitutional
5. Prior Restraint
• The Pentagon Papers: Government study on the Vietnam
War was leaked to the press. The New York Times was
ready to publish the information. (1971)
• The US Justice Department asked a judge to stop
publication of the story, on the grounds that it would
“cause irreparable injury to the defense department of the
United States.”
• Supreme Court ruled in favor of the press. However, the
court did not outlaw prior restraint. The court pointed out
the heavy burden government must go through to justify
such an action.
6. Prior Restraint
• Prior restraint also includes websites
• 1999: The creator of a site for news about Ford Motor Co.
published documents sent to Ford employees
• Case was eventually ruled in favor of website creator and
set precedent for prior restraint on the internet
7. Prior Restraint
• Principal of a high school in Hazelwood, Missouri, kept
school newspaper from publishing two articles – one about
teen pregnancy and one about divorce – due to
inappropriateness
• Three student journalists claimed violation of First
Amendment rights
• Did they have a case?
8. Protecting News
Sources
• Shield laws: Congress and the states can further define the rights of a
reporter to protect sources by enacting legislation
• Search & Seizure: protecting notes and other records that disclose
sources or other information relevant to an investigation
• Electronic Communication Privacy Act: protection for computer-
stored messages and emails. Requires the government to obtain a
search warrant before examining online or stored messages intended
to be private.
• A reporter’s privilege in protecting sources and notes is not absolute.
Decided on a case-by-case basis.
• Video: Federal Shield Law?, Freedom of the Press after 9/11
9. Reporters’ access to
information
• Freedom of Information Act (1966): Gives the public the right to discover what
the federal government is up to -- with some exceptions. The law states every
federal execultive-branch agency must publish instructions on what methods a
member of the public should follow to get information.
• Some information does not have to be made public: trade secrets, files of law
enforcement investigations, maps of oil wells.
• Electronic Freedom of Information Act (1996): passed to make more
information available on the web.
• Patriot Act (2001): passed October 2001, gives the government more power
to access telephone and email records. Makes it easier for the gov’t to restrict
access to official records. Also prevents the press from learning about specific
FBI search criteria: i.e. books bought or borrowed by suspected terrorists.
10. Defamation
• Defamation: protection for a person’s reputation
• Libel: WRITTEN defamation that tends to injure a person’s
reputation or good name, or that diminishes the esteem, respect,
good-will due a person
• Slander: SPOKEN defamation. Usually less penalties than libel.
• Libel per se: Some words are always libelous. Falsely written
accusations -- e.g., labeling someone a thief.
• Libel per quod: Words that seem innocent that can become
libelous under certain circumstances. E.G. “Mr. Smith was kissing
a blonde woman outside of City Hall last night,” if Mr. Smith was
married to a brunette!
11. Libel suits
• For someone to win a libel suit, that person must prove 5 things:
1. he or she has actually been defamed and harmed by the
statements
2. he or she has been identified (though not necessarily by name)
3. the defamatory statements have been published
4. the media were at fault
5. (in most instances) what was broadcast or printed was false
Family Guy – Luke Perry episode
12. Actual Malice
• can apply to a defamation case
• Publishing something that is known to be
false
• publishing something with reckless disregard
about its truth or falsity
• applies to public figures/officials
14. Defense against libel
• Three defenses against libel suits:
• 1. Truth: if what was reported is proved to be true, there is NO
libel (though in court, the burden of proof in proving falsity falls
on the person bringing the libel suit)
• 2. Privilege: in some instances, the courts have held that the
public’s right to know comes before a person’s right to protect
their reputation
• 3. Fair comment & Criticism: public figure is expected to be open
to criticism
15. Opinions
• opinions that contain an assertion of fact,
that can be proved false, could trigger a libel
suit
16. Defamation and the
internet
• Communications Decency Act of 1996: ISPs are not liable for the
content they carry, unless they are the actual authors of the
content
• Jurisdiction (where a crime takes place). Defamation laws vary by
state.
17. Invasion of Privacy
• Right to Privacy: protects a person’s peace of mind and feelings;
unlike libel, the invasion of privacy might be triggered by
exposing the truth.
• Intrusion upon Solitude: when reporters wrongfully use
microphones, surveillance cameras, or any other eavesdroppping
method to record someone’s private activities.
• 1999, California Supreme Court ruled in favor of a psychic
hotline worker, who had been secretly taped by an undercover
reporter for ABC, posing as a worker for the hotline. The Court
said that the co-worker had a reasonable expectation of privacy
at work.
18. Invasion of Privacy
• Unauthorized Release of Private Information: e.g., a newspaper’s
publishing of private medical records.
• Creation of a False Impression: publicizing people in a false light,
or creating a false impression of them. Most closely related to
libel; e.g., TV news re-recording a new narration over previously
shot stock footage.
• A Chicago TV station was sued when it ran stock footage from 3
years earlier of a doctor performing a gynecological exam, with a
story describing how another doctor allegedly used an AIDS-
infected swab during a similar exam. The face of the doctor in
the footage wasn’t the same person, and she was easily
identifiable. The case was settled out of court.
19. Invasion of Privacy
• Appropriation of Identity: Using someone else’s name or likeness
for commercial purposes. For example, Christy Brinkley sued a
poster store for selling unauthorized images of her.
• The not-famous are protected as well. One man sued a camera
company after using his picture in their instruction manuals
without permission, or compensation.
20. Invasion of Privacy
• Trespass: Do journalists have a special 1st Amendment privilege
to break the law in pursuit of a legitimate news story, that serves
public interest?
• Several recent court cases say, NO.
• In a Wisconsin court, a TV journalist who had entered private
property with permission of a police officer (but not the
homeowner) was found guilty of trespassing.
21. Obscenity & 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)
• Opie & Anthony Sex For Sam
22. Obscenity & Pornography
• Communications Decency Act and Child Online Protection
Act
– Ruled unconstitutional
– Found that the Internet should have the highest level of
First Amendment protection
23. Obscenity &
Pornography
Hicklin Rule: standard that judged a book by whether
isolated passages had a tendency to deprave or
corrupt the mind of the most susceptible person
Roth test: whether the average person, applying
contemporary community standards, the dominant
theme of the material taken as a whole appealed to
prurient interests
Variable obscenity: standards are different among
different communities; some material may be offensive
for children and OK for adults
24. The Miller Test
Whether the average person, applying
contemporary community standards, would find
that the work as a whole appealed to prurient
interests
Whether the work depicted or described in a
patently offensive way certain sexual conduct that
was specifically spelled out by a state law
Whether the work lacked serious political, literary,
artistic, or scientific value
Should Obscenity Be Illegal?
25. •
The FCC
The FCC interprets law; it doesn’t make law
• 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
26. Indecent Content
• Protecting children from accidental
exposure to indecent content
• Safe harbor (10:00 pm to 6 am)
• Congress has passed stiffer regulations
(Nipplegate)
• FCC crackdown on indecency (Dirty Words
)
• FCC also making effort to crack down on
violent content
27. 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
28. Fairness Doctrine
• The Fairness Doctrine is no longer in
existence (1949-1987), 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
29. 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
• Help consumers to avoid indecent content
30. 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
31. Copyright
Copyright term extension act (CTEA) 1998
Aka: Sonny Bono Copyright Act, Mickey Mouse Protection
Act
• extended copyright by 20 years
• life of the author plus 70 years, and for works of corporate
authorship to 120 years after creation or 95 years after
publication, whichever endpoint is earlier
• Copyright protection for works published prior to January 1,
1978 was increased by 20 years to a total of 95 years from
their publication date
Steamboat Willie 1928 (Video)
32. Copyright
• Protects an author against unfair appropriation
of his or her work.
• Covers literary, dramatic, musical works,
motion pictures, TV programs and sound
recordings.
• To obtain copyright, you must register with the
Register of Copyrights.
• Copyright fees
33. Copyright
• Copyright extends only to copying the work, if
a person independently creates a similar work,
there is no copyright violation.
• As a result, one who brings a copyright suit
against another must prove the other person
had access to the work under consideration.
However, you don’t have to prove the other
person intentionally copied your work.
• Vanilla Ice vs. Queen
34. Copyright
• Coldplay & Joe Satriani
• Tom Petty & Red Hot Chili Peppers
35. Fair Use:
Fair use: copies of a protected work can be made for such legitimate purposes
as teaching, research, news reporting and criticism without penalty.
Four factors are taken into consideration:
1. the purpose of the use (whether for profit or non-profit education,
2. the nature of the copyrighted work,
3. the amount reproduced in proportion to the copyrighted work,
4. the effect of the use on the potential market value of the copyrighted work.
36. Piracy
• 1998 Digital Millennium Copyright Act:
unlawful to create services that are used to
circumvent measures that control access to
copyrighted works. E.g., Napster, BitTorrent,
Kazaa, YouTube.
• In mid 2005, the Supreme Court ruled that
file-sharing services could be sued for
copyright infringement based on the
sharing habits of their users.
• 2007 Viacom and NBC sued YouTube for
$1 billion, claiming that the site hosted
copyrighted material. Settled with a joint-
marketing agreement. Later, NBC creates
HULU
37. REGULATING
ADVERTISING
• Advertising is both regulated and protected
38. 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 (example)
39. 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
40. Commercial Free Speech
Under the First Amendment
1. Commercial speech that involves an unlawful
activity, or advertising that is false and misleading is
not protected
2. government must have a substantial interest in
regulating commercial speech
3. State’s regulation must actually advance the
government interest involved
4. State’s regulation may only be as broad as necessary
to promote the state’s interest
