The Dynamics of Mass Communication Joseph R. Dominick Seventh Edition

Part 5 Regulation of the Mass Media

Chapter 15 Formal Controls: Laws, Rules, and Regulations

THE PRESS, THE LAW, AND THE COURTS The First Amendment to the United States Constitution is at the heart of five vital democratic freedoms. It states: 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.

As simple and straightforward as it sounds, the people and the courts have been arguing over its interpretation for over 200 years.

Prior Restraint When the government attempts to censor the press by restraining the media before something is published or broadcast, that's called prior restraint. Two precedent- setting cases have helped define the limits of prior restraint Near v Minnesota case circa 1920s The Pentagon Papers case circa 1970s

Protecting News Sources The press argues that if they are forced to disclose confidential sources, those sources will dry up and the public's right to know will be adversely affected. Government counters by citing it has a greater need to administer justice and to protect the rights of an individual to a fair trial. shield laws shield laws state laws that provide news-source protection search and seizure warrant subpoena search and seizure an unannounced court-issued warrant to search for and seize a reporter’s notes. In 1980 Congress mandates government must first obtain a subpoena, which allows the press to challenge a warrant before it’s executed.

Covering the Courts the Free Press vs. Fair Trial issue pretrial publicity how judges can address fair trial concerns without infringing on First Amendment rights sequestering sequestering change of venue change of venue injunctions injunctions gag orders gag orders

Cameras in the Courtroom Obtrusive photographic, movie camera, and radio equipment invade courtrooms in1930s with the Bruno Hauptmann trial. American Bar Association passes Cannon35 which suggests barring cameras and electronic equipment; many states soon pass similar laws. By 1970s, better technology and a more open court environment make electronic court proceedings palatable; still, many states continue heavy restrictions, and two states, along with all federal courts, still disallow any audio-visual coverage.

A Reporter’s Access to Information Getting information from the government problems with government secrecy following WW II Freedom of Information Act Freedom of Information Act, 1966 Electronic Freedom of Information Act Electronic Freedom of Information Act, 1996 Sunshine Laws Sunshine Laws, or Open Meetings Acts press rights to access news scenes: limitations and interpretations vary from state to state

DEFAMATION The right of free speech and the rights of a free press sometimes come into conflict with the right of an individual to protect his or her reputation. These conflicts are dealt with under defamation law, which can be broken down into several areas libel libel slander slander libel per se libel per se libel per quod libel per quod

Proving that You’ve Been Defamed Though each state has its own set of defamation laws, the same general rules apply. For example, in order for you to win a libel suit against the media, you must prove five things: you’ve been defamed and harmed by the statements you’ve been identified, though not necessarily by name the defamatory statements have been published the media were at fault what was published or broadcast was false

Common Defenses against a Libel Suit truth truth privilege privilege fair comment and criticism fair comment and criticism

Public Officials and Actual Malice In the 1964 New York Times vs. Sullivan case, the Supreme Court established several new precedents concerning defamation in general: editorial advertising is protected by the First Amendment even false statements could qualify for legal protection if they concern a public official’s public conduct actual malice public officials must prove that defamatory statements were made with actual malice

Defamation and Damages Damages awarded in defamation suits can come in one or both of two forms: actual damages actual damages, equal to the amount of money you can prove you lost as a result of the defamation punitive damages punitive damages, awarded by juries with the intent of punishing media performance. With punitive damages, however, even private citizens must show the media acted with actual malice

Invasion of Privacy The difference between libel and privacy laws is that while libel laws protect a person's reputation, the right of privacy protects a person's peace of mind and feelings. Second, libel involves publication of false material; invasion of privacy might be triggered by disclosing the truth.

Invasion of Privacy Four ways the media can 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

Trespass and the Press Trespass Trespass is unauthorized entry onto somebody else's territory. If the question is, “Do journalists have a special First Amendment privilege to break the law in pursuit of a legitimate news story that will advance the public interest?” recent court rulings suggest that the answer is “no.”

COPYRIGHT LAW Copyright laws protect authors against unfair appropriation of their work. For works created after January 1978, copyrights last for the life of the author plus 70 years; works created before then are protected for a period of 95 years. New laws enacted in 1976, already somewhat obsolete with current technological advances, protect such things as literary and dramatic manuscripts, music works, sound recordings, motion pictures, and TV programs. Not covered are such things as ideas, news, discoveries, or procedures

Fair Use and Copyright Laws fair use Someone can, however, use portions of a copyrighted work under the law's fair use provisions; such uses might include teaching purposes, research, news reporting, and critical reviews. To qualify for protection under fair use laws, these four factors are considered: the purpose of the use (profit vs. non-profit) the nature of the copyrighted work amount reproduced in proportion to entire copyrighted work effect of use on potential market value of copyrighted work

OBSCENITY AND PORNOGRAPHY LAWS These laws revolve around the First Amendment right of free speech when it comes into conflict with the right of society to protect itself from what it considers harmful messages. The primary problem is to accurately define what pornography is. Hicklin Rule Hicklin Rule 1860s-1957 a work was obscene if isolated passages had a tendency to deprave or corrupt the mind of the most susceptible person Roth v. United States Roth v. United States ruling, 1957: something is obscene if, “to the average person, applying contemporary standards, the dominate theme of the material taken as a whole appeals to prurient interests”

OBSCENITY AND PORNOGRAPHY LAWS Later decisions added that the material had to be “patently offensive” and “utterly without redeeming social value” to be obscene. variable obscenity In 1969, the idea of variable obscenity said that some works were obscene when sold to minors but not obscene when sold to adults.

OBSCENITY AND PORNOGRAPHY LAWS Miller v. California The Court further refined what would constitute obscenity when it ruled in the 1973 Miller v. California case that something was obscene if... an average person, applying contemporary community standards, finds the work appeals to prurient interest the work depicts in a patently offensive way certain sexual conduct that is specifically spelled out by state law it lacks serious literary, artistic, political, or scientific value

Regulating Broadcasting Because we the public own the airwaves, our government acts on our behalf to decide who gets a license to broadcast over certain frequencies, and whether or not, after a time, they can renew that license. The governing body, the FCC, doesn’t make laws but rather interprets them, and one of its biggest jobs is to continually interpret the concept of “operating within the public interest” in both the technical and overall programming areas. localism In 1960 the FCC introduced the idea of localism, which said programs with local talent, aimed at local self-expression, are necessary elements in serving the public interest.

FCC Regulatory Powers If a radio or TV station violates FCC regulations, the agency has several ways to help enforce the rules: fine a station up to $250,000 put a license renewal on probation, usually a year revoke or fail to renew a license

FCC Issues of Continuing Concern Indecent content, permissible now, but not between 6 a.m. to 10 p.m. The Equal Opportunities Rule, granting equal air time to qualifying political parties The Fairness Doctrine, though no longer a rule, politicians are continually tempted to reinstate the doctrine that says broadcasters should seek out and present opposing viewpoints on matters of public importance

Regulating Cable TV Cable TV Act of 1992, Cable TV has had a history of on-again, off-again regulations, but the latest regulations arose due to widespread consumer complaints against rising fees and poor service; in response, Congress passed the Cable TV Act of 1992, which re-instated the FCC’s power to regulate cable fees and services, of which there were two important consequences: 1. Most consumers saw their monthly cable rates go down. 2. The Supreme Court held Congress could pass laws which guaranteed a free flow of information couldn’t be restricted by a private firm that controlled the means of transmission.

1996 TELECOMMUNICATIONS ACT First major overhaul of communication laws in 60 years, and it affected every industry regulated by the FCC. Key provisions: no limit on the number of stations that can be owned by one company, except that they couldn’t own more than eight stations within one market no limit on number of TV stations that can be owned as long as they don’t reach more than 35% of nation’s TV homes extended the term of broadcast licenses to eight years

1996 TELECOMMUNICATIONS ACT allowed phone companies to enter cable field, vice versa deregulated the rates of many cable systems mandated new TV sets be able to block programs with strong sexual or violent content (the so-called V-Chip) ordered TV industry to come up with a voluntary system to rate programs with violent, sexual, or indecent content

Regulating Advertising The Federal Trade Commission (FTC) is charged with protecting consumer rights It can issue advertising guidelines for businesses to follow, and if they don’t, the FTC can issue: consent order consent order -- advertiser agrees to stop practice without admitting wrongdoing cease-and-desist order cease-and-desist order -- if company doesn’t comply at this stage, the FTC an also levy fines against them corrective advertising order corrective advertising order – mandates misleading ads be clarified with revised advertisements

Commercial Free Speech Under the First Amendment Recent court cases suggest that in many instances commercial speech falls under constitutional protection, and in 1980 the Court outlined a four-part test for determining that protection: not protected: any commercial speech involving unlawful activity or advertising that is false or misleading government must have substantial interest in regulating the commercial speech government’s regulation must advance interests of the state state’s regulations may be only as broad as necessary to promote the state’s interests

Formal Controls: Laws, Rules, and Regulations End of Chapter 15 Formal Controls: Laws, Rules, and Regulations