McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. THE DYNAMICS OF MASS COMMUNCATION Joseph R. Dominick University of Georgia--Athens

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Regulation of the Mass Media

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Chapter 15 Formal Controls: Laws, Rules, Regulations  The Press, the Law, and the Courts The Press, the Law, and the Courts  Protecting News Sources Protecting News Sources  Covering the Courts Covering the Courts  A Reporter’s Access to Information A Reporter’s Access to Information  Defamation Defamation  Invasion of Privacy Invasion of Privacy  Copyright Copyright  Obscenity and Pornography Obscenity and Pornography  Regulating Broadcasting Regulating Broadcasting  Regulating Cable TV Regulating Cable TV  The Telecommunications Act of 1996 The Telecommunications Act of 1996  Regulating Advertising Regulating Advertising Chapter Outline

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. The Press the Law and the Courts 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 First Amendment to the Constitution of the United States

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Prior Restraint: the government attempts to censor the press before something is published Two cases –Near vs. Minnesota (1920s) –The Pentagon Papers (1970s) Secretary McNamara’s study of the Vietnam War U.S. Attorney Mitchell asks for prior restraint Newspapers published portions in turns Supreme Court rules in favor of papers (1971) The Press the Law and the Courts

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. The Reporter’s Privilege Paul Branzburg of the Louisville Courier- Journal (1969) U.S. Supreme Court: 1 st Amendment does not prevent questions about a criminal investigation Shield laws protect news-source Reporter Judith Miller served jail time for not revealing source Protecting News Sources

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Search and seizure an unannounced court-issued warrant to search for and seize a reporter’s notes Stanford Daily (1971) –Clash between police and demonstrators –Police with search warrant for photos of incident –Search ruled legal in 1978 Reporters Committee for Freedom of the Press v. AT&T (1974) N. Y. Times and Myron Farber (1976) Protecting News Sources

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Free Press (1 st ) vs. Fair Trial (6 th ) Publicity before and during a trial –Jury contamination –Case of Dr. Sam Sheppard (1954) –Case of Leslie Irvin (1961) Supreme Court’s 6 safeguards include –Sequestering the jury  Change of venue –Injunctions against divulging information by Lawyers  Witnesses  Others Covering the Courts

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Gag Rules –Nebraska Press Association (1976) –1980s: jury selection open to the public Cameras & Microphones in Courtroom –1930s Hauptmann / Lindbergh trial –ABA passes Canon 35 of Code of Professional Ethics –Estes case of 1965 –Canon 3A(7) supersedes 35 (1972) –1981 Supreme Court decision Covering the Courts

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Freedom of Information Act (1966) Electronic Freedom of Information Act (1996) Sunshine Laws Patriot Act (2001) –Government has more access to and telephone records –Easier to restrict access to official records –Press cannot find out about FBI searches of book buying and borrowing records A Reporter’s Access to Information

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Defamation law protects a person’s reputation Libel: Written defamation that tends to injure a person’s reputation or good name or diminish the esteem, respect, or goodwill due a person Slander: Spoken defamation Libel per se: Automatically libelous expressions such as “swindler” Libel per quod: Utterances that are not blatantly libelous, but libelous nevertheless Defamation

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Proving that you’ve been defamed by the media 1)You have been identified, not necessarily by name 2)The statements have been published 3)The media were at fault; fault or carelessness required 4)What was published or broadcast was false 5)You’ve been defamed and harmed by the statements Burden of proof on the one who sues, if private person; quoting another is not sufficient Defamation

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Three defenses against libel –Truth If true, no libel Difficult to prove –Privilege Public’s right to know takes precedence Judicial proceedings, arrest warrants, grand jury indictments, legislative proceedings, public city council sessions –Fair comment and criticism Invitation of public attention Opinion and criticism Defamation

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Public Officials and Actual Malice New York Times v. Sullivan (1964) –Editorial advertising is protected by the 1 st Amendment –Even false statements may be protected if they concern a public official’s public conduct –Public officials must prove that defamatory statements were made with actual malice Actual malice – publishing a statement in “reckless disregard” or knowing it is false Firestone divorce in 1976 Defamation

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Damages awarded in defamation suits Actual damages: the amount of money lost as a result of the defamation Punitive damages: awarded by juries with the intent of punishing media behavior –Can be substantial ($20M against NBC) –Must show the media acted with actual malice Internet defamation –Carrier is not liable –Publisher liable everywhere downloads are possible Defamation

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Right to Privacy –Libel laws protect a person's reputation –Libel involves publication of false material –Right of privacy protects a person's peace of mind and feelings –Invasion of privacy might be triggered by disclosing the truth. Invasion of Privacy

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Ways mass media invade privacy: –Intruding upon a person's solitude or seclusion –Unauthorized release of private information –Publicizing people in a false light or creating a false impression of them –Appropriation of a person's name or likeness for commercial purposes Invasion of Privacy

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Trespass and the Press –Unauthorized entry –No special First Amendment privilege for journalists –Cases include Reporters entering with permission of a police officer Reporters accompanying the police into a private home Reporters following demonstrators onto company property Reporters accompanying police serving a search warrant Invasion of Privacy

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Copyright laws protect authors against unfair appropriation of their work For works created after January 1978, copyrights last life of author plus 70 years Works created before then are protected for a period of 95 years Copyright laws protect literary and dramatic manuscripts, music works, sound recordings, motion pictures, and TV programs Not protected are ideas, news, discoveries, or procedures Copyright

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Fair use: someone can copy work for teaching, research, news reporting, etc. Qualifying factors –Purpose of the use (profit vs. non-profit) –Nature of the work –Percentage of work copied –Effect of use on potential market value of copyrighted work Copyright

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. 1995: Internet materials covered by copyright laws 1999: Napster sued by recording industry KaZaA and Grokster take up the Napster torch Industry sues 250+ individuals Recording industry joined movie industry in suing peer-to-peer services who illegally download copyrighted material 2005 – The Supreme Court ruled that file-sharing services can be sued for copyright infringement Copyright

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Obscenity not protected by 1 st Amendment What is obscene? Hicklin Rule (1860s): a work is obscene if isolated passages tend to deprave or corrupt the mind of the most susceptible person Roth vs. United States (1957) Obscenity and Pornography

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Roth proved problematic Later decisions added –“patently offensive” –“utterly without redeeming social value” –variable obscenity (1969) Obscenity and Pornography

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Miller vs. California (1973)  an average person, applying contemporary community standards, finds the work as a whole appeals to prurient interest  the work depicts or describes in a patently offensive way certain sexual conduct that is specifically spelled out by state law  the whole work lacks serious literary, artistic, political, or scientific value Obscenity and Pornography

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved – Child Protection and Obscenity Enforcement Act –Specifically mentions computers 1996 – Communications Decency Act –Ruled unconstitutional Child Online Protection Act –Blocked by appeals court Children’s Internet Protection Act –Affects libraries that receive federal funds –Ruled constitutional by U.S. Supreme Court (2003) Obscenity and Pornography

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Radio Act of 1927 –Airwaves belong to the public –Broadcasters must be licensed –Scarcity of the resource means more regulations Federal Communications Commission –Doesn’t make laws; interprets them –Operates within the public interest Children’s Television Act –Requires educational programming –Limits commercial time during children’s programming Regulating Broadcasting

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. FCC Punitive Actions –Fine a station up to $250,000 –Renew a license on probation, usually a year –Revoke or fail to renew a license 99.8% of all licenses are renewed Regulating Broadcasting

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. FCC Issues of Continuing Concern Indecent content banned between 6 a.m p.m. Equal Opportunities Rule –Bona fide candidates for public office –1 min  1 min –x $/min  x $/min Fairness Doctrine –Not currently in force –Broadcasters must present opposing viewpoints on controversial public matters Regulating Broadcasting

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Regulating Cable TV 1950s: FCC says it has no say over cable : FCC writes series of regulations 1980s: Almost all regulations dropped Cable Communications Act of 1984 –Operators decide rates and channels –State and local governments grant franchises

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Regulating Cable TV Cable TV Act of 1992 –FCC regulates cable fees –Cable must carry broadcast stations –Broadcast can waive right if cable pays them –Cable rates dropped by 17% –Broadcast rights challenged in court 1994/1997: Supreme Court upholds “must carry”

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. No limit on radio stations owned by one entity; up to 8 in one market No limit on TV stations owned by one entity, but it must be less than 39% of nation’s TV homes Telephone companies can do cable TV Cable TV companies can do telephone Deregulation of cable rates V-chip and ratings system The Telecommunications Act of 1996

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Deceptive advertising Until 1900s, caveat emptor FTC created in 1914 to clean up business practices 1938 Wheeler-Lea Act FTC enforcement –Trade regulations suggested guidelines –Consent order – advertiser agrees to stop practice without admitting wrongdoing –Cease-and-desist order – if company doesn’t comply, FTC can fine Regulating Advertising

McGraw-Hill © 2007 The McGraw-Hill Companies, Inc. All Rights reserved. Regulating Advertising Is your commercial speech protected by the 1 st ? Use the Supreme Court’s 4-part test!  Does it involve unlawful activity or advertising that’s false or misleading?  Does the government have substantial interest in regulating the speech?  Does the state’s regulation actually advance the government’s interest?  Are the state’s regulations only as broad as necessary to promote the state’s interest?