1 Formal Controls: Laws, Rules, Regulations Chapter 16 © 2009, The McGraw-Hill Companies, Inc. All rights reserved.

2 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

3 THE PRESS, THE LAW, AND THE COURTS Formal controls over the media include laws, court decisions, and governmental regulations

4 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.

5 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

6 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

7 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

8 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

9 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

10 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

11 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

12 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

13 REPORTERS’ ACCESS TO INFORMATION Regulations affect reporters’ access to information and news scenes

14 Government Information Freedom of Information Act (FOIA) Electronic Freedom of Information Act (EFOIA) Sunshine Acts The Patriot Act

15 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

16 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

17 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

18 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?

19 INVASION OF PRIVACY This section will cover the right to privacy, and trespass

20 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

21 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

22 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

23 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

24 REGULATING BROADCASTING Public ownership of the airwaves –Government decides who has license to broadcast –Broadcast media subject to more regulations than print media

25 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

26 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

27 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

28 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

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

30 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.

31 REGULATING ADVERTISING Advertising is both regulated and protected

32 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

33 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