© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 1 Joseph R. Dominick University of Georgia--Athens

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 2 Part IV Regulation of the Mass Media

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 3 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 4 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 5  Prior Restraint the government attempts to censor the press before something is published  Two cases  Near v. 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 6  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 provide news-source protection  Freelance Vanessa Leggett jailed for 168 days Protecting News Sources

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 7  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)  New York Times and Myron Farber (1976) Protecting News Sources

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 8  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 9  Gag Rules  Nebraska Press Association (1976)  1980s: jury selection open to the public  : Philadelphia Inquirer’s post-trial interviews of jury  Cameras and Microphones in the 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 10  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 11  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 12 Proving that you’ve been defamed by the media 1)You’ve been defamed and harmed by the statements 2)You have been identified, not necessarily by name 3)The statements have been published 4)The media were at fault  Fault or carelessness required 5)What was published or broadcast was false  Burden of proof on the one who sues, if private person  Quoting another is not sufficient defense Defamation

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 13  Three defenses against a libel suit  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 14  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 15  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 16  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 17  Ways in which mass media invade someone's 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 18  Trespass and the Press  Unauthorized entry onto somebody else's territory  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  Food Lion v. ABC (1996) Invasion of Privacy

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 19  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 20  Fair use means 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 21  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  Digital Millennium Copyright Act stipulates that royalty obligation applies to Internet stations  2002 bill allows stations to negotiate fees with artists and recording companies Copyright

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 22  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 v. United States (1957)  Average person  Contemporary standards  Dominant theme  Prurient interests Obscenity and Pornography

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 23  Roth proved problematic  Later decisions added  “patently offensive”  “utterly without redeeming social value”  variable obscenity (1969) Obscenity and Pornography

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 24  Miller v. 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 25  1988 – 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 26  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  “…operating within the public interest…”  Children’s Television Act  Requires educational programming  Limits commercial time during children’s programming Regulating Broadcasting

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 27  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 28  FCC Issues of Continuing Concern  Indecent content banned between 6 AM and 10 PM  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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 29 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 30 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”

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 31  No limit on radio stations that can be owned by one entity, up to 8 in one market  No limit on TV stations that can be owned by one entity, but less than 35% 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

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 32  Deceptive advertising  Until 1900s, caveat emptor  FTC created in 1914 to clean up business practices  1938 Wheeler-Lea Act  FTC enforcement  Trade regulations that suggest guidelines  Consent order – advertiser agrees to stop practice without admitting wrongdoing  Cease-and-desist order – if company doesn’t comply at this stage, the FTC can also fine them Regulating Advertising

© 2005 The McGraw-Hill Companies, Inc. All rights reserved. Slide 33 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?