Media Law FREE SPEECH, FAIRNESS & DEFINING PRINCIPLES

Transcription

1 Media Law FREE SPEECH, FAIRNESS & DEFINING PRINCIPLES

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3 What is copyright? The exclusive legal right, given to the originator or an assignee to print, publish, perform, film or record literary, artistic or musical material, and to authorize others to do the same. - DICTIONARY.COM WHICH MEANS You can t present or use work that belongs to someone else and: 1) pass it off as yours 2) present it publicly without permission

4 Consider Sam Smith

5 Consider these folks

6 Actions TOM PETTY VS. SAM SMITH Songwriting royalties awarded to Petty (and coauthors) Petty gets money for every time it s played (and Grammy credits) ROBIN THICKE/PHARRELL VS. MARVIN GAYE Had to pay $7.3 million to Marvin Gaye s estate (Gaye is dead) Family had originally asked for $25 million

7 SO HOW DID WE GET HERE?

8 Barbara Ringer & Copyright It s likely you know her contributions to copyright law more than her name. Began working at Copyright Office in the Library of Congress out of law school in 1949 Brought much influence, as many regulations hadn t changed since 1909 Modern was no longer modern, ideas had to be changed

9 Barbara Ringer & Copyright Her work: Helped author Copyright Act of 1976 Extended copyright to what was then new media, but also added provision to move end date 50 years beyond author s death (was previously 28 years only) Established concept of fair use, where authors could briefly quote works without permission Worked to protect original authors, even if they didn t file first

10 Copyright only skims surface Particularly since copyright is ever- changing Digital Millennium Copyright Act now has provisions for Internet- related content, while recognizing that we may never have a law that covers everything All roads in media, though, lead back to one thing

11 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 the redress of grievances. - FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION

12 Journalists the First Amendment It is, essentially, how we re given permission to do our jobs. It s cited near daily: Invoked when interference in reporting occurs (often) Helps to promote more, not less, communication Encourages transparency Protects not just the press, but other areas (religion) as well

13 Not always the case Publications once had permission of authority or something similar in the masthead. Many British newspapers required pre- publication approval. This mostly wasn t the case in the United States, but the government did take actions against certain publishers or writers by claiming works were against the government.

14 Zenger s New York Journal United States freedoms sparked by specific case involving John Peter Zenger: Zenger s New York Journal accused New York governor William Cosby of corruption Zenger thrown in jail for seditious libel, which is writing that criticized the government Zenger s defense was that his statements were true, shocked the judge He was found not guilty, established truth as a defense to libel

15 Limits to free speech In 1791, the states ratified the first ten amendments (the Bill of Rights). That didn t guarantee free speech or press: Alien and Sedition Act of 1798 made it a crime to criticize government in the U.S., Thomas Jefferson later pardoned everyone charged World Wars I and II, sedition became a crime, which helped suppress dissent. Smith Act (1940) made it a crime to advocate violent overthrow of the government.

16 Effects of Sept. 11 attacks Not much happened in terms of media law in more than 200 years. All that changed on Sept. 11, Congress later passed the USA PATRIOT* Act: Permits more wiretaps and domestic surveillance Widens definition of what is terrorism Allows FBI to examine individual use Critics said it would change the way we communicate because we would limit ourselves *Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (Seriously)

17 Effects of Sept. 11 attacks USA PATRIOT Act actually expired on June 1, It has since been replaced with the USA FREEDOM Act, which runs June 2, 2015 to June 2019 USA FREEDOM Act: Stands for Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection and Online Monitoring Puts controls on how much NSA can get Specifically the metadata that can be collected

18 Main Issues in Media Law Libel Invasion of privacy Free press / fair trial Honesty & the press Prior restraint Free speech & students Shield laws Obscenity Copyright & fair use Broadcast Regulation Telecommunications Act of 1996

19 Libel DEFINITION: A published statement that unjustifiable exposes someone to ridicule or contempt; for a statement to be libel, it must satisfy the three elements of defamation, identification, and publication. - Hanson, page 332

20 Three elements to libel DEFAMATION: Damaging a person s reputation in some way IDENTIFICATION: Can other people recognize person in story, even if name isn t used? PUBLICATION: Story is published or broadcast/seen by a third party

21 Three defenses against libel TRUTH: Based on Zenger defense. But what is truth? Can one s definition be different than another s? PRIVILEDGE: Statements made in government meetings, in court, or in government documents is protected. Strong defense. OPINION: Opinions neither true nor false so can t be libelous.

22 Case study: New York Times vs. Sullivan Ad placed in the New York Times in 1960 hoping to solicit funds for the defense of Dr. Martin Luther King Jr. The era was one of much racial unrest in the country. The ad ran on March 29, It included the names of very prominent African American individuals aiding the cause already. A single passage of it would come into question, later, though.

23 Case study: New York Times vs. Sullivan The passage in question: In Montgomery, Alabama, after students sang My Country Tis of Thee on the State Capitol steps, truck- loads of police armed with shotguns and teargas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission. The problem: The students didn t sing that song. The police didn t literally surround the building.

24 Case Study: New York Times vs. Sullivan TIMELINE OF EVENTS Montgomery Police Commissioner L.B. Sullivan, who was in charge at the time, wasn t mentioned by name but felt the accusations were against him The ad had an error, which he called out He claimed he was libeled by error, asked for a retraction New York Times refused on grounds it was NOT editorial content, and he was NOT mentioned by name Alabama courts ruled he WAS libeled, even though his name wasn t mentioned and the ad had nothing to do with him, awarded him $500,000

25 Wait, WHAT? How did that happen?

26 Case study: New York Times vs. Sullivan Times were different, the lower level court may have been ruling less on the legality, more on WHO was involved In 1964, the Supreme Court (Brennan led), reversed the ruling, said errors were inevitable Also said truth must be open to public debate, asked questions about public officials as well, ruled that false statements, made in good faith, against a public official could be protected Also established precedent of actual malice

27 After New York Times vs. Sullivan LIBELS & PUBLIC FIGURES In 1967, Supreme Court extends actual malice standard to apply to public figures/public officials these people put themselves in those positions In 1974 with Gertz vs. Robert Welch, Inc. court rules that private individuals deserve more protection (Elmer Gertz had been called a communist by John Birth Society Magazine) LIBEL AND SOCIAL MEDIA Few differences exist between legacy media and social media Legacy media often has gatekeepers, social media does not Consider Courtney Love case involving tweet saying lawyer had been bought off Judge ruled in favor of Love, saying she didn t know info was false at the time (not precedent)

28 Future of Libel law There was an unwillingness on the part of the courts to take a significant stand on the Love Twitter case. But we may be getting to a point where a court WILL have to make a decision, especially in light of the prevalence of social media. BUT it takes awhile for a precedent setting case such as New York Times vs. Sullivan to work its way through the juridical system.

29 Invasion of privacy Constitution provides no explicit protection of privacy, but right is implied: First Amendment: Freedom to associate, prevents government from releasing membership list, protects right for people to have whatever literature they want in home Fourth Amendment: Limits search and seizures Fourteenth Amendment: Limits disclosure of personal information

30 Four types of invasion INTRUSION: Trespass into a space surrounding a person or property under his/her control Reporters/photographers not allowed to enter private property without permission of owner California reporter sued for pretending to be a patient at clinic operated by a plumber, even though story won awards EMBARRASMENT: True but embarrassing facts that are not newsworthy Some details not newsworthy, shouldn t be included Oliver Bill Sipple knocked Sara Jane Moore s gun aside when she was trying to kill President Gerald R. Ford, San Francisco Chronicle columnist then outed him to the public, court ruled it was news

31 Four types of invasion FALSE LIGHT: Untrue statements that change a person s public image Publishing of untrue statements that alter public image Hanson cites Cleveland Plain Dealer s Joe Eszterhas reporting on a woman he d never met before Broadcast shots of a street frequented by hookers showing randoms MISAPPROPRIATION: Right to commercial use of name / image Using a person s name or image without permission, particularly for commercial use Consider, though, that you have no right to privacy in a public place, including this college campus

32 Free press & fair trial Right to a free press conflicts with right to a fair trial. Sixth Amendment guarantees accused right to be tried by an impartial jury Fourteenth Amendment requires criminals be tried fairly before an unprejudiced jury Both cited before big cases media feels the compelling need to cover, such as the O.J. Simpson case.

33 Free press & fair trial DR. SAM SHEPPARD Murder trial movie The Fugitive was based on Convicted of the 1954 murder of his wife, later overturned when U.S. Supreme Court ruled the trial had a carnival atmosphere He was then acquitted NORIEGA VS. CNN Court orders a temporary restraining order against CNN to not run tapes with Panamanian leader Manual Noriega Supreme Court decides it s government s job, not press to protect right to fair trial CNN ran a tape anyway, was found guilty of contempt

34 Lessons from Sheppard case The U.S. Supreme Court suggested the following: Gag orders on participants to keep them from talking to the press Sequestered juries Postponement of trials until media storm over Change of venue Ordering of a new trial

35 Cameras in the courtroom First brought into courtroom in 1917 Popularity grew in 1935 for being disruptive during trial for man who abducted and killed Charles Lindbergh s baby Banned in 1937, cited cameras as bulky and distracting New technology makes still/tv cameras less intrusive Allowed in many courts on a case- by- case basis

36 Honesty and the press COHEN VS. COWLES MEDIA 1982 case of local PR flack releasing info involving release of former minor theft charge involving Democratic candidate Dan Cohen, the flack, asked his name not be leaked Four stations got the story: One didn t run it, another didn t identify him, two others did FOOD LION VS. ABC Newsmagazine Primetime sends undercover reporters to store to gain employment and data Store had been accused of repackaging food Reporters documented misconduct and reported on it

37 Honesty and the press results COHEN VS. COWLES MEDIA Cohen sued after being fired by employer (who wanted information outed) He argued newspapers entered verbal contract Trial court awarded Cohen $200,000 in damages and $500,000 in punitive damages U.S. Supreme Court upheld ruling 5-4, not First Amendment covered FOOD LION VS. ABC Food Lion sued for fraud and trespass Story was mostly true, no libel case Food Lion initially awarded $5.5 million in damages, judge reduced award to $316,402 U.S. Appeals court took down judgment to $2

38 Prior restraint A judicial order that stops a media organization from publishing or broadcasting a story or image, according to Hanson. The landmark prior restraint case is the 1931 s Near vs. Minnesota: Jay Near was the publisher of Saturday Press, an anti- Semitic newspaper Used newspaper to charge police were controlled by a Jewish gangster, so the force wasn t going after gamblers or bootleggers Minnesota court stopped publishing of paper U.S. Supreme Court ruled government DID NOT have the authority to suppress publication no matter how offensive, except in times of war, or with obscenity

39 Prior restraint: Pentagon papers Second major case of prior restraint Involved leaking original reports on Vietnam policy Minor report writer Daniel Ellsberg leaked reports to hopefully end war sooner Ellsberg gave New York Times 7,000 pages from report Stories began publishing June 13, 1971 after three months of reporting

40 Prior restraint: Pentagon papers By June 15, the Justice department obtained a restraining order against The New York Times No additional stories, it said, could be printed Ellsberg began looking for another news organization to publish Washington Post obtained copies, by June 18 was publishing stories, editor Ben Bradlee said not publishing was unthinkable

41 Prior restraint: Pentagon papers U.S. Supreme Court heard arguments on Saturday, June 26 Voted 6-3 to allow newspapers to resume publishing the stories In judgment, Justice Potter Stewart said: The only effective restraint upon executive policy and power may lie in an informed and enlightened citizenry Precedent stands

42 Free speech & students HAZELWOOD VS. KUHLMEIER In 1988, high school newspaper cited as a classroom exercise, not a vehicle for free speech Stories about teen pregnancy, divorce censored Administrators could censor publications for any content reasonably related to legitimate pedagogical concerns MORSE VS. FREDERICK In 2002, Joseph Frederick puts up banner saying BONG HiTS 4 JESUS across the street from school Suspended for two weeks Supreme Court said principal could punish speech reasonably be viewed as promoting illegal drugs Frederick supported by ACLU, gay rights groups, and Christian Legal Society

43 Shield laws Laws that give journalists protection from testifying in court about stories and sources Many states have shield laws, but no current federal law California has a shield law Question as to whether shield laws protect bloggers

44 The case of Josh Wolf Freelance journalist and filmmaker sent to Federal prison in 2006 for refusing to turn over video tapes when ordered to. The tapes included footage of San Francisco police officers choking and threatening protestors during a July 2005 anti G8 rally.

45 The case of Josh Wolf Wolf was imprisoned for 226 days in a Federal facility. He was only released AFTER be posted the footage online. His time in jail is the longest any journalist has served for protecting content.

46 The case of Josh Wolf CENTRAL ISSUES IN THE CASE Can a journalist refuse to comply with a Grand Jury subpoena? If so, under what circumstances? Wolf argued he could because the summons was not in good faith He thought the tapes would be used to jail protestors What is the definition of a journalist? Was Josh Wolf a journalist? Does the Federal government have a standing in a California Shield Law case? Wolf argued the case was ONLY brought to a Federal court because there was a need to circumvent the state s Shield Law

47 Obscenity Obscenity describes sexually explicit material legally prohibited from being published, according to Hanson. The concept raises questions as to what can be considered obscene. Consider that some people are not as easily offended as others.

48 Obscenity ROTH VS. UNITED STATES: U.S. Supreme Court decided what constitutes obscenity in 1957 ruling. Samuel Roth ran a business selling sexually explicit magazines books, photos and magazines. He d been convicted of sending obscene material through mail. He appealed case to the higher court. The case established standards for what could be considered obscene and reaffirmed that courts could regulate obscenity, which was NOT protected by the First Amendment. Justices, though, cautioned sex and obscenity are not synonymous. Roth established a three- part test to determine obscenity.

49 Obscenity: Three- part test Standard for obscenity set by community standards of an average person, meaning neither the most liberal or conservative views could be national standard Work must be taken as a whole, it s not enough to say all of something explicit because of one part Work must appeal to prurient interests, meaning it must be exacerbated, morbid, or perverted in its nature

50 Obscenity: Information age Internet and cable/satellite television make it difficult to define whose community standards apply Courts have yet to definitively rule on issue, meaning a precedent setting case could be years, if not decades off Problem of indecency v. obscenity Issues of being desensitized: Have we seen too much? Do we even care anymore?

51 Copyright & fair use 1790: First U.S. copyright law, protects works for 14 years + can be extended 14 more 1890s: International works protected by copyright 1976: U.S. copyright law heavily revised, creates concept of fair use 1998: Copyright Extension Act extends copyright length, protects Mickey Mouse 1998: Digital Millennium Copyright Act extends protections on digital media 2002: Creative Commons creates middle ground between full copyright and public domain

52 Regulation of broadcast Radio Act of 1912 passed immediately after the Titanic sunk, but only for point- to- point broadcast, made it where all stations could be licensed by Federal government (and ships had to monitor frequencies for distress signals) Commercial broadcast got its start in 1920 with the streaming of KDKA in Pittsburgh By 1925, regulators were calling for stability in what was aired

53 Regulation of broadcast Radio Act of 1927 was created soon after, making broadcast stations act in public interest, convenience, and necessity The Communications Act of 1934 brought all electronic communications under one umbrella, with basic tenets of 1927 Act Airwaves are licensed to broadcasters, but not owned by them FCC has power to regulate broadcasters to ensure public interest FCC can tell broadcasters which frequencies/power to use, where transmitters can be located

54 Regulation: Broadcast Federal Communications Commission has also regulated broadcasters handling of political campaigns and controversial issues with: EQUAL TIME PROVISION: FCC policy that requires broadcast stations to make equivalent amounts of time available to all candidates running for public office FAIRNESS DOCTRINE: 1949 rule, now defunct FCC policy requiring broadcast stations to afford reasonable opportunity for the discussion of conflicting views, repealed in 1987 but language remained in rule until 2011

55 Telecommunications Act of 1996 Called the biggest reform of broadcast regulation since the formation of the FCC in Required V- chip in television sets, Bill Clinton once said of it: "If every parent uses this chip wisely, it can become a powerful voice against teen violence, teen pregnancy, teen drug use, and for both learning and entertainment Relaxed ownership rules on broadcast stations Attempted to regulated content on Internet with Communications Decency Act portion of law

56 Net neutrality Requiring Internet providers to provide equal access to content from all providers Levels of communication make it difficult to regulate the Internet

57 Communications Decency Act Communications Decency Act attempted to ban Internet messages that are obscene, lewd, lascivious, filthy, or indecent CDA struck down by the U.S. Supreme Court in 1997, saying it was unconstitutional to limit free speech on adults Since then, legislation has been introduced to regulate content on web, which not much success Child Online Protection Act biggest one, shut down by litigation in 2009