1. Chapter 13 – The Writer & the Law
MMC 2100 – Thursday April 5, 2012
Chapter 13 – The Writer & the Law

2. Chapter 13 Learning Objective
How the First Amendment protects you as a journalist
Defamation
Libel
How far can a journalist go in pursuing a story (privacy violation)
What is considered copyright material
How does advertising figure into First Amendment protection

3. Chapter 13
5 freedoms guaranteed in First Amendment?

4. Chapter 13 U.S. Constitution:
First Amendment (James Madison): gives you right to free expression, speech & press
“Congress cannot abridge free speech.”
Overrides all government (at any level) laws (including state universities)
Strongest protection for speech involving politics, religion, culture

5. First Amendment Freedom of the Press
Can you as a journalist say or publish anything?

6. Chapter 13 Prior Restraint: Government censoring speech, press
First Amendment violation
Can be justified if protects public or national security
Patriot Act
These forms of speech are generally not protected (“low value”):
Obscenity
Criminal threats

7. Chapter 13 Defamation: harming someone’s reputation
U.S. courts: reputation like property
Libel: written word – more serious: primary means of suing journalists
Newspaper
Radio/TV
Usually involves civil suit
Libelous words –
Slander: spoken word

8. Chapter 13 Libel suit: (plaintiff must prove all these)
Publication: statement was published
Identification: they were identified – even if implied
Individuals and small groups
Defamation: statement/story harmed reputation
Political beliefs
Illnesses
Business practices/ethics
Criminal activity
Fault: writer was at fault
Actual malice – publish statement knowing it’s false
Damages: harmed in some way

9. Chapter 13 (Defendant need only disprove one of the above)
Libel defenses:
Truth – must prove report is true.
Qualified Privilege – journalists protected if reporting from an official capacity
Statute of limitations – suit must be filed w/i specific time frame

10. Chapter 13 Constitutional privilege (Reckless Disregard)
Difficult for public figures to win libel cases – must prove actual malice
Lose some libel protection if you are a public figure
NY Times v. Sullivan (1964): public figures must prove actual malice
Alabama civil rights advertisement in NY Times
Supreme Court: free debate outweighs minor factual errors – public officials must prove writer knew:
Statement was false
Had reckless disregard for truth (still published statement)
Definition: Who is a “public official” vs. “public figure”
Public official: Hold public office
Public figure: Hold non-elected public office w/ significant influence (principal) or willingly brings oneself into public spotlight

11. Chapter 13 Privacy Law (areas of private invasion)
Publication of private facts: publish private facts – even if true
Intrusion into seclusion – need not be published
Personal right to be left alone
What’s off limits
Reporters free to pursue stories in public places and in private places as long as they are invited
False light: an inappropriate depiction of someone (inaccurate portrayal of someone)
Appropriation (advertising, PR) – individual’s right of publicity: unauthorized use of person’s name or any type of likeness for commercial reasons

12. Chapter 13
Copyright Law: allow individual to financially benefit from their original works – makes individual owner of their work
Writers, composers, graphic artists, sculptors
Intellectual Property Law (trademarks, patents)
Work must be in a permanent state (“fixed in a tangible medium)
Work must have minimal degree of creativity – talent not an issue
General ideas, events cannot be copyrighted
Copyright not infinite (“public domain” – open for anyone to use)
Span: (Individual) Author’s life + 70 years
(Corporation): 120 years from date of creation or 95 years from date of publication
Employer (not employee) owns copyright

13. Chapter 13
Copyright Law
Fair use: monopoly on copyright ownership – courts use FOUR factors to determine fair use:
Nature of copyrighted material – length, creativity, availability: more creative works get more protection
Nature of use – works used for educational purposes have more protection than those for commercial uses
Extent of use
Quantity: how much of work is being borrowed?
Quality: which part of work was borrowed?
Commercial infringement (economics) – does borrowed work affect economic worth of original work

14. Chapter 13
Trademark Law: prevent consumer confusion & protect business relationship between company & its customers
Box – p. 288
Includes names, logos, symbols, catch-phrases & anything else representing a service or product
MORAL: BE CAREFUL AND VERY SPECIFIC

15. Chapter 13

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17. Chapter 13
Advertising – last 30 years more First Amend. Protection – these are factors in determining if an advertisement receives First Amend. protection:
Ad must be truthful & not misleading
Ad must relate to a legal product or service
If BOTH are met, then … legal analysis test … then First Amend. protection

18. Chapter 13
Federal Trade Commission (FTC): federal agency regulating (misleading) advertising – FTC uses this criteria to determine if ad is misleading:
If ad is likely to mislead
Reasonable consumer: does average person w/ reasonable judgment find ad misleading
Material statement or omission: does that misrepresent ad
Got cancer? Get none?

19. Chapter 13 Broadcast regulation Most regulated of all media
WHY? Uses public airways for transmission
Cable TV less regulated – WHY?
Federal Communications Commission (FCC): federal government agency regulating TV, radio, phone, cable TV & other communication outlets
Limited use of “indecent material”
10 a.m. – 6 p.m. – “safe harbor”
Howard Stern – WHY did he leave regular radio?
Payola: paid to play certain songs/ music
Plugola: paid to pitch certain products