1. Media Law: Free Speech and Fairness
Chapter 13

2. How Private is Your Smartphone?
Should the FBI be able to force Apple or Google to hack phones for them?
Should we have phones that can’t be read by police?
What would the consequences of having the U.S. government force Apple to hack an iPhone?

3. The First Amendment: “Congress Shall Make No Law”
“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 petitions the Government for a redress of
grievances.”

4. The Roots of American Free Speech
John Peter Zenger case (1700s)
Zenger’s New York Journal accused New York governor of corruption.
Governor had Zenger thrown in jail for seditious libel (criticizing the government).
Zenger defense: The charges were true.
Jury found Zenger “not guilty.” Established truth as defense against libel.

5. The Roots of American Free Speech
Limits on Free Speech
Alien and Sedition Acts (1798) Made it a crime to criticize government of the United States. Thomas Jefferson eventually pardoned everyone charged under it.
World Wars I & II During times of major wars, sedition became a crime; suppressed dissent.
Historically, there has always been a conflict between free speech and government control

6. Limits on Free Speech in the Post-9/11 Era
USA Patriot Act
Permits more wiretaps and domestic surveillance.
Widens definition of what is terrorism.
Allows government agencies to examine individuals’ media use.
Most contentious – section 215 of the act
2015’s USA FREEDOM Act put new limits in place, including on bulk collection of phone data.

7. Protection of Individuals
Libel
Invasion of privacy
Free press / fair trial
Honesty & the press
Prior restraint
Free speech & students
Shield laws
Obscenity
Copyright & fair use
Broadcast Regulation
Telecommunications Act of 1996

8. Libel Elements of Libel
Defamation Damaging a person’s reputation in some way
Identification Can other people recognize person in story, even if name isn’t used?
Publication Story is published or broadcast / seen by a third party.

9. Libel Defense against Libel Truth
Based on Zenger defense. But what is truth?
Privilege
Statements made in government meetings, in court, or in government documents are protected. Strong defense
Opinion
Opinions are neither true nor false so they can’t be libelous.

10. Libel New York Times Co. v. Sullivan
Sullivan was Montgomery, AL police commissioner.
Civil rights ad in NYT had error, Sullivan claimed he was libeled by errors.
Alabama courts ruled Sullivan was libeled, even though not identified and errors in ad had nothing to do with Sullivan.

11. Libel New York Times Co. v. Sullivan
Supreme Court reversed ruling; said errors were “inevitable.”
Truth must be open to public debate.
Ruled public officials must show “actual malice” to win libel suit.
Gertz v. Welch extends “actual malice” standard to public figures.

12. Invasion of Privacy
Intrusion Trespass into a space surrounding a person or property under his/her control
Embarrassment True but embarrassing facts that are not newsworthy
False light Untrue statements that change a person’s public image
Misappropriation Right to commercial use of name / image

13. Free Press / Fair Trial
1966: Sam Sheppard Fugitive case Judge’s job to get fair trial for defendant; can’t stop coverage of trial
1995: Oklahoma City Bombing Case
Bombing affected almost every family in city
Huge number of reporters produced thousands of stories
Trial moved to Denver, closed-closed circuit broadcast to Oklahoma City courtroom to let families view trial; tight control on courtroom by judge

14. Free Press / Fair Trial Cameras in the courtroom
Banned in 1935 for being disruptive
New technology makes still/TV cameras less intrusive
Allowed in many courts on a case-by-case basis

15. Honesty and the Press
Cohen v. Cowles Media Is a reporter legally obliged to keep a promise of confidentiality?
Food Lion v. ABC Producers for Prime Time Live lied to go undercover to investigate Food Lion. Court said producer’s behavior was wrong, but only awarded Food Lion $2 in damages.

16. Prior Restraint Near v. Minnesota
1931 case, newspaper publisher Jay Near made racist, anti-Semitic charges in paper.
Minnesota court stopped Near from publishing.
U.S. Supreme court ruled that prior restraint could only be used to suppress military information in time of war and obscenity.

17. Prior Restraint The Pentagon Papers
Daniel Ellsberg leaked report on Vietnam policy.
Said leaked documents were embarrassing but had no secrets.
Restraining order against NYT and other newspapers kept story from being published for two weeks.
Supreme Court ruled that the need for an “informed and enlightened citizenry” outweighed government desire for secrecy.

18. Prior Restraint The Progressive Case
Progressive magazine tried to get story about how nuclear weapons worked censored.
Story was all based on public information.
District court issued restraining order against magazine.
Other authors published same information as was in Progressive article.
Order was rendered moot and dismissed.

19. Free Speech and Students
Hazelwood v. Kuhlmeier
High school newspaper is a classroom exercise, not a vehicle for free speech.
Administrators could censor publications for any content “reasonably related to legitimate pedagogical concerns.”
Students increasingly have opportunity to publish online outside of school.
Several states have passed laws returning rights to students.

20. Free Speech and Students
Morse v. Frederick
Frederick puts up banner saying “BONG HiTS 4 JESUS” outside school.
Suspended for two weeks
Supreme Court said principal could punish speech that could “reasonably be viewed” as promoting illegal drugs.
Frederick supported in court by ACLU, gay rights groups, and Christian Legal Society.

21. Journalists Going to Jail
Shield Laws
Laws that give journalists special protection from testifying in court about their stories and sources.
Many states have shield laws, but no current federal law.
NYT reporter Judith Miller jailed for 85 days for refusing to testify in Libby case.
Question as to whether shield laws protect bloggers

22. Obscenity Roth v. United States Three-part test:
Whether to the average person it is obscene
Apply contemporary community standards
The dominant theme of the material taken as a whole appeals to prurient (obsessively sexual) interest

23. Obscenity Miller v. California Started with Roth test
States can ban specific types of content, such as child pornography.
Material that has “serious literary, artistic, political, or scientific value” cannot be banned (LAPS test).
Protects material such as sexual health information, explicit literature

24. Obscenity Obscenity in the Information Age
Internet and cable / satellite television make it difficult to define whose “community standards” apply.
Courts have yet to definitively rule on this issue.
Problem of “indecency” v. “obscenity”

25. Copyright and Fair Use
1790: First U.S. copyright law passed, protects works for 14 years and can be extended for 14 more.
1890s: International works protected by copyright.

26. Copyright and Fair Use
1976: U.S. copyright law heavily revised, creates concept of fair use.
1998: Copyright Extension Act extends copyright length, protects Mickey Mouse.
1998: Digital Millennium Copyright Act extends protections on digital media.
2002: Creative Commons creates middle ground between full copyright and public domain.

27. The Rise and Fall of Broadcast Regulation
1927: Federal Radio Commission created.
1937: Radio Commission becomes Federal Communication Commission (FCC), regulates all electronic communication.

28. Mandating Fairness on the Air
Equal time Provision FCC policy that requires broadcast stations to make equivalent amounts of time available to all candidates running for public office
Fairness Doctrine Former FCC policy requiring broadcast stations to “afford reasonable opportunity for the discussion of conflicting views”; repealed in 1987 but language remained in rule until 2011

29. Media Transformations: Who Owns Your Social Media Content?
Have you ever posted something to a social media site that could have commercial value? What was it? What did you do to protect it?
How have you made use of photos, artwork, or other content you’ve found on social media sites?
Why might legacy news outlets want to use materials that initially show up through social media channels?

30. The Telecommunications Act of 1996
Required V-chip in television sets.
Relaxed ownership rules on broadcast stations
Attempted to regulate content on Internet with Communications Decency Act portion of law
1997: Supreme Court strikes down CDA.

31. Net Neutrality Net neutrality
Rules that would require Internet providers to
provide equal access to content from all providers

32. Net Neutrality European Right to Be Forgotten Laws
In 2014, the European Union Court of Justice ruled that people who live in the EU have a right to purge search engine results they consider to be out of date or irrelevant.
As of February 2016, Google had received more than 380,000 “right to be forgotten requests.”
Europe and the United States have differing notions of a right to privacy.