Chapter 1. The First Amendment in Perspective 75 results (showing 5 best matches)
- However, technology does not exist in a vacuum. It operates in organized societies governed by laws. These societies may be open ones in which the members are relatively free to express themselves and to communicate with others by whatever means available, or they may be relatively closed, with the modes of communication tightly controlled by a very few persons. Gutenberg’s invention of moveable type gave promise of spreading both literacy and ideas to the masses, but in Elizabethan England and beyond, licensing acts severely limited access to the printing press to a few printers considered “safe” by the ruling authorities. It was this legal restriction on the utilization of the first technology of mass communication that led the great poet John Milton to make his stirring call for a free press in “Areopagitica.” In our own time the vast promise of cable television was retarded for years because of the complex of statutes and Federal Communications Commission regulations designed to...
- Thus, while technology is the necessary antecedent to mass communication, a society’s laws ultimately determine how the technology will be developed and how “mass” will be its reach.
- In our country the fountainhead of the law governing mass communication is the First Amendment to the Constitution which says in spare but sweeping language “Congress shall make no law … abridging the freedom of speech or of the press; …” The way this mandate is carried out tells us much about the kind of society we have. For as that giant of electronic journalism Edward R. Murrow once noted, what distinguishes a truly free society from all others is an independent judiciary and a free press.
- The development of mass communication throughout the western world and particularly in the United States in the twentieth and twenty-first centuries is a product of both science and law. Science has given us the technology by which individuals may communicate information, ideas and images across time and space to other individuals. For this we owe a debt of gratitude to scientists and inventors such as Edison, Bell, Marconi, DeForest, and Zworykin.
- The mode of transmission of speech is also used to determine the degree of First Amendment protection available. The Court has long held that differences in the characteristics of new media justify the application of different First Amendment standards. Thus, in Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) the Court declared unconstitutional a statute granting an individual attacked by a newspaper the right to have a response printed in that newspaper; yet the Court upheld a similar regulation applying to broadcasters in Red Lion Broadcasting Company v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The proliferation of new communication technologies is forcing the Court to address the issue more frequently. See Turner Broadcasting System v. Federal Communications Commission, 520 U.S. 180, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (Upholding the must-carry rules for cable); Reno v. A.C.L.U., 521 U.S. 844, 117 S.Ct. 2329, 138...
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Chapter 2. Defamation and Mass Communication 189 results (showing 5 best matches)
- The jury will consider many factors in attempting to determine reasonable and appropriate general damages. These are catalogued by a leading authority as including (1) the nature of the defamation (irrational name calling or insinuation of serious wrongdoing); (2) the form and permanency of the publication (oral conversations between individuals or communication by the mass print or electronic media); (3) the degree of dissemination; (4) the degree to which the defamatory communication is believed; (5) the nature of the plaintiff’s reputation; (6) in certain cases, the good faith of the defendant in publishing the defamatory matter and (7) the defendant’s subsequent conduct in retracting the complained of communication or in making apology. Dan Dobbs, Law of Remedies: Damages-Equity-Restitution 259–276 (1993).
- The media must also determine the reasonableness of their publishing procedures in every given case, depending on the standard of liability embodied in the relevant state law. For example, if the source of a media story is a wire service, the media may avail themselves of the “wire service defense” inspite of the republication rule, which would normally hold that a newspaper which repeats a libelous story is also liable for defamation. See Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 478 N.E.2d 721 (Mass.1985).
- Moreover, the defense must be as broad in its reach as the communication complained of. The defense will fail if only a portion of the allegation is verified. For example, a newspaper charge that X is a habitual vice law offender is not justified by the paper establishing one conviction of X for a gambling violation. This does not mean that defendants have to verify every detail of their communication, however. The defense is available if the substance of the communication can be established. An individual who publicly accuses his
- The courts have placed certain limitations on the scope or availability of the privilege to the media in reporting public proceedings. Most courts, for instance, led by Massachusetts, take the position that the privilege does not extend to reporting allegations or statements contained in complaints, affidavits or other pretrial papers unless and until such papers are brought before a judge or magistrate for official action. See Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 61 N.E.2d 5 (Mass.1945). Thus reporters must be alert to the laws of their states, and if the state law follows the majority view, must be wary of the content of court papers filed with the clerk of court but not yet acted upon by a judicial officer vested with discretionary authority. The minority view is that the report of the contents of papers properly filed and served on the required parties may be privileged because the filing and serving of pleadings or other papers authorized by the rules of...
- Once the plaintiff has provided sufficient evidence of the elements necessary to establish a prima facie case of defamation, the defendant is put to his or her defense. He or she may, of course, deny one or more elements of the plaintiff’s case such as the defamatory nature of the communication or the publication of the offending communication. In addition or alternatively, he or she may attempt to establish one or more of the complete common law affirmative defenses of truth, privilege and fair comment in order to defeat liability, or to attempt to establish certain incomplete defenses to reduce the award of damages. In resorting to these defenses, the defendant accepts the burden of pleading them in his or her answer and then proving them by a preponderance of the evidence at trial.
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Preface 4 results
- In this book we attempt to meet a continuing need for a basic text in communication law, not only for law students but journalism and communication students as well.
- To appreciate the interrelationship of law and mass communication, just check the news feed on your smart phone. Each day one is likely to find news of important court decisions, news of proposed legislation and news about the President’s executive orders. Even the sports page may contain as much news about lawsuits between team owners, unions and players as about team performance. Starting in the 1960s, there has been a veritable explosion in media coverage of legal issues. The media’s increasing influence resulted in more problems for them, especially in the areas of First Amendment protection and Federal Communications Commission regulation. With the emergence of the Internet and other new technologies, the legal questions multiplied, starting with deregulation and re-regulation.
- We wish to acknowledge our heavy debt to the following individuals and organizations in the preparation of this text: Professor Thomas I. Emerson, whose many writings greatly influenced our thinking on First Amendment issues, and the editorial board of Law and Contemporary Problems for permitting us to reprint material from Professor Emerson’s article “The Doctrine of Prior Restraint,” appearing in a symposium on Obscenity and the Arts in Law and Contemporary Problems (Vol. 20, No. 4, Autumn, 1955), published by Duke University School of Law, Durham, North Carolina, copyright 1955, by Duke University; the late Dean William L. Prosser, founding author of the Handbook of the Law of Torts, whose works greatly shaped our thinking in Chapters II and III on the law of defamation and privacy; Professor Dan B. Dobbs, author of the Handbook of the Law of Remedies (now in its second edition), for his guidance on the law of damages in defamation actions; the late Professor Melville B. Nimmer,...
- This edition has been reorganized to reflect these changes. Rather than a separate chapter on the Internet, we have incorporated Internet and other new technology issues into every chapter. We have also added two chapters to address areas of law that have become increasingly important as a result of the technological changes. The first is a chapter on liability for physical harm which includes issues like cyberbullying. The second is a chapter on copyright and trademark. Please note that this chapter is
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Chapter 12. Regulation of Broadcasting 264 results (showing 5 best matches)
- Diversification of Control of Mass Communications
- Justice Frankfurter in grounded the regulatory distinction between broadcasting and other media not upon numerical scarcity, but rather, upon the fact that broadcasting imposes a duty upon the government which it does not face in the print media—the duty of making choices between two or more potential broadcasters wishing to utilize the same broadcast space. Two newspapers can, without governmental intervention, physically operate in the same community at the same time; their survival would depend on competitive market forces. In broadcasting, however, if there is but one frequency available for use in a particular community, then, by the laws of physics, two stations cannot physically operate on it, for to do so would result in neither being heard. Broadcasting is unique because it is the only mass communications medium which requires some type of governmental intervention as a practical ...desiring to broadcast than there are frequencies available to accommodate them, a... ...a “...
- The federal criminal code generally prohibited any station from broadcasting any information concerning a lottery. 18 U.S.C.A. § 1304. Section 73.1211 of the Commission’s rules essentially followed this criminal code section. A lottery is any game or contest which contains the elements of prize, chance and “consideration.” These elements are construed in terms of a type of federal common law of lotteries followed by the Federal Communications Commission, the Post Office Department and the Department of Justice. See Federal Communications Commission v. American Broadcasting Co., 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699 (1954). This area of the law became quite complex particularly in determining whether “consideration” was present. The federal common law of “consideration” means a monetary or other detriment to the participant in the contest rather than merely a benefit to the contest operator. For example, the requirement of the listener mailing in a post card to a station would not...
- Having been delegated broad powers to make rules and regulations necessary to carry out the mandate of its enabling legislation, the Commission faces the task, first, of attempting to satisfy the differing demands for communications frequency space in a modern industrial (indeed, post-industrial) economy. Although most familiar to the public in the role of a regulator of commercial and “public” broadcasting, the Commission has the equally demanding responsibility of regulating non-broadcast use of communications facilities such as interstate common carrier systems, radio systems for industrial use such as truck-to-truck communications, taxi cab networks, communications between central plant and repairmen or servicemen, communications between hospital and doctor, marine and ship radio, aviation frequencies, citizen band radio, international “ham” communications, police and fire communications networks, computer-to-computer communications, and emerging technologies such as cable, pay...
- The Federal Radio Commission created by the Radio Act of 1927 to supervise broadcasting was, pursuant to the Communications Act of 1934, merged into what is today the Federal Communications Commission. The 1934 Act, modeled largely after the Interstate Commerce Commission Act, and embodying much of the law that had already been made by the 1927 Radio Act, remains the organic legislation which controls American commercial and non-commercial (“Public”) broadcasting. The Communications Act prescribes the basic task of the Federal Communications Commission to be that of “regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, nationwide and world-wide wire and radio communication service with adequate facilities at reasonable charges for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- © West, a Thomson business, 2000, 2007 © 2014 LEG, Inc. d/b/a West Academic
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Chapter 3. Privacy and the Mass Media 184 results (showing 5 best matches)
- Therefore, a journalist who uses a wiretap to record a phone conversation between two other people or “bugs” a room could be liable for violating the statute. The United States Attorney General is authorized to initiate civil actions in federal court to enjoin threatened felony violations. Law enforcement personnel authorized to engage in electronic surveillance or, as in the case of employees of the Federal Communications Commission, to monitor electronic communications, are generally exempted from the provisions of the legislation when acting within their proper authority.
- Like the New Jersey Supreme Court, the Massachusetts Supreme Judicial Court has ruled that law enforcement personnel must get a warrant to obtain cell phone location information. When prosecutors charged Shabazz Augustine with murdering his girlfriend in 2004, they had used his cell phone records to track his movements for two weeks, but did not have a warrant. Augustine argued that the prosecutors had violated his Fourth Amendment rights. Although the Massachusetts Supreme Judicial Court ruled that the prosecutors had acted appropriately in 2004 because at that time, no state or federal ruling had said a search warrant was necessary, the court held that in all future cases involving cell site location information (CSLI), law enforcement personnel would have to get a warrant. The court explained that “Even though restricted to telephone calls sent and received (answered or unanswered), the tracking of [Augustine’s] movements in the urban Boston area for two weeks was more than...
- Courts in Massachusetts did not at first grant a privilege for newsworthiness in Commonwealth v. Wiseman, 356 Mass. 251, 249 N.E.2d 610 (Mass.1969). This case involved producer Frederick Wiseman’s documentary film “Titicut Follies” about patients and conditions at the Bridgewater State Hospital for the criminally insane. The film showed identifiable patients naked, being force-fed, and involved in sexual activity. Although the court permitted mental health professionals to view the film, it upheld an injunction preventing the film’s commercial distribution in order to protect the patients’ privacy. In 1989 a judge permitted public exhibition of the film, provided that the inmates’ faces were blurred, and in 1991 the same judge lifted the 1969 injunction completely, permitting public exhibition of the film, provided that names and addresses of the individuals in the film remain confidential. “Follies Can Be Shown,” National Law Journal, August 19, 1991 at 6. Aside from cases such as...
- The use of concealed recording devices by both journalists and law enforcement officials has caused Congress to become increasingly concerned with government and private intrusions upon individual privacy. In 1968 Congress passed the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §§ 2510–2520. Congress later amended this as the “Electronic Communications Privacy Act of 1986,” also known as the Federal Wiretap Statute. This prohibits under criminal penalty the interception of any conversation carried over a wire or a non-wire conversation in a setting where one expects privacy. Congress amended the statute again in 1994 to include cellular and wireless communication within its protection.
- compelling in the case of communications involving truthful matters of a private and embarrassing or harmful nature. Without broad constitutional protection here, courts can require the media under existing tort law to pay damages for truthfully informing the public about certain matters which individual plaintiffs consider private. As with false light, the potential threat of damages could have a chilling effect on journalists’ enterprise in reporting news about individuals.
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Chapter 13. CABLE AND OTHER TECHNOLOGIES 135 results (showing 5 best matches)
- Unfortunately, communication technology changes far more rapidly than the law. The last major rewrite of the Communications Act was pre-broadband, long before Facebook and YouTube existed. It will be interesting to see how Congress, the FCC and state legislatures will address the need to reform communication law.
- Cable operators, represented by the National Cable Television Association (NCTA), and state and local authorities, represented by the National League of Cities (NLC), sought legislative relief. Eventually a compromise bill was drafted and, in late 1984, enacted into law as the Cable Communications Policy Act of 1984 (P.L. 98–549, 47 U.S.C.A. § 151 et seq.).
- As this new regulatory structure is being developed, one key issue is becoming a central focus. Net neutrality is the idea that all broadband networks should be legally required to keep their networks open to all content, services and equipment. Although much of the debate centers on telecommunication services and equipment, and is thus beyond the scope of this book, the potential for favoring some content providers over others does have serious implications for mass communication. Should an Internet Service Provider be able to discriminate against OTT providers that compete with one or more of its services? Should it be able to charge for more access or faster distribution? If so, would that inhibit the ability of new startup companies to compete with established ones, thus chilling innovation?
- In just a few short years the rapid growth of the Internet has raised numerous legal issues. However, far more difficult issues remain to be addressed. The central problem is that communication law has always been based on different rules for different media—different regulations, different jurisdictions,
- (a) Was cable television subject to FCC jurisdiction? It was not in existence when the Communications Act was passed, and might be considered merely a receiving rather than a transmitting unit, thus not “broadcasting.”
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Chapter 9. Freedom to Gather News and Information 169 results (showing 5 best matches)
- Parallel to the Federal Freedom of Information Act are federal and state “government in the sunshine” statutes which require federal, state and local governmental units to conduct their business in the open. In 1976 Congress passed the Government in the Sunshine Act, the federal open meetings law. P.L. 94–409, 5 U.S.C.A. § 552b. This statute affects about 50 federal boards, commissions and agencies that are required to conduct their business meetings in public. The law also prohibits informal communication between officials of an agency and representatives of companies with whom the agency does business unless this communication is recorded as part of the public record.
- Like Diana Asgeirsson, Boston City Council member Michael Flaherty had complained that Massachusetts’ open meetings law created a “chilling effect” on his freedom of speech, but he and other members of the Boston City Council tried to circumvent the open meetings law by rotating city councillors through a room so that they could discuss city business without a quorum (which would have comprised seven of the city council’s 13 members). When concerned citizens challenged the practice of “rotating councillors through a room,” the Massachusetts Court of Appeals rejected the councillors’ “strained interpretation of statutory language, asserted for the sole purpose of defeating [the spirit of the open meetings laws].” McCrea v. Flaherty, 71 Mass.App.Ct. 637 at 649, 885 N.E.2d 836 at 846 (Mass.App.Ct.2008).
- When the Senate doors swung shut during the 1999 impeachment proceedings, the Cable News Network (CNN) filed a brief requesting public access. CNN had no court to which to submit the brief, however, because the Senate makes its own rules on impeachment proceedings. Instead, CNN delivered its brief to all 100 Senators. In re Impeachment of William Jefferson Clinton, President of the United States, Application of Cable News Network for a Determination that the Closure of these Proceedings Violates the First Amendment to the United States Constitution, filed January 29, 1999; reprinted in Joseph Steinfeld and Robert Bertsche, “Recent Developments in the Law of Access—1999,” Communications Law 1999, Practising Law Institute 1999. Despite CNN’s arguments, the Senate kept its doors closed during the debate.
- Although the Supreme Court expanded Exemption 7(C) in Reporters Committee, it was somewhat more cautious in a case involving Exemption 7(D). In claiming Exemption 7(D), federal agencies must show that the information provided by confidential sources was given in confidence. If there is no provable express promise of confidentiality, then the government must demonstrate an implied assurance of confidentiality. In Department of Justice v. Landano, 508 U.S. 165, 113 S.Ct. 2014, 124 L.Ed.2d 84 (1993), the Supreme Court rejected the FBI’s argument that all sources who give information to federal agents during a criminal investigation are confidential sources. Rather than having an automatic right to withhold information on its sources, the FBI must consider such requests on a case-by-case basis. Justice Sandra Day O’Connor explained: “A source should be deemed confidential if the source furnished information with the understanding that the FBI would not divulge the communication, except...
- As part of an expanding cybersecurity program in 2013, the Department of Justice quietly gave some Internet service providers (ISPs), such as AT&T and CenturyLink, immunity from violations of wiretapping laws, allowing them to intercept communications in the name of protecting critical infrastructure. President Obama’s executive order expanded the Enhanced Cybersecurity Services (ECS). ECS is a voluntary information sharing program that assists critical infrastructure owners and operators as they improve the protection of their systems from unauthorized access, exploitation, or data exfiltration.
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Outline 86 results (showing 5 best matches)
Chapter 8. The Free Press-Fair Trial Conflict 61 results (showing 5 best matches)
- Courts do not automatically assume that massive trial and pretrial publicity always results in the denial of a fair trial. Otherwise, the more notorious the crime, the less would be the likelihood of obtaining a valid conviction in this age of mass communication. For example, had Lee Harvey Oswald lived, he could not have been convicted for the assassination of President Kennedy because a fair trial would have been impossible anywhere. However, the judicial system will not allow itself to be paralyzed. If the presumed prejudice is rebutted on voir dire examination of the prospective jurors and the circumstances surrounding the trial do not betray inflamed community sentiment, there is no denial of a fair trial merely because of the publicity. In Irvin v. Dowd, the judge excused 268 of the 430 veniremen, as compared with only 20 of the 78 potential jurors questioned in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In Murphy, unlike the Sheppard, Rideau and...
- Subsequent criminal punishment of the news media may be just as harmful to the media’s ability to inform the public about judicial matters as prior restraints or “gag orders.” In Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) the U.S. Supreme Court struck down as unduly restrictive of press freedom a Virginia statute making it a crime to divulge information regarding proceedings before a state judicial review commission that was hearing complaints alleging the incompetence or misconduct of sitting judges. In this case the Virginian Pilot was convicted of violating the statute when it accurately reported on a pending commission inquiry and identified the judge involved.
- The relative security that Nebraska Press Association had provided was called into question in Cable News Network, Inc. v. Manuel Noriega, 498 U.S. 976, 111 S.Ct. 451, 112 L.Ed.2d 432 (1990). After the U.S. invasion of Panama, the Panamanian dictator Manuel Noriega was captured and brought to Miami to stand trial for drug trafficking. Federal prison officials (violating their own policy against monitoring attorney-client conversations) recorded several of Noriega’s telephone calls to his attorneys. The Cable News Network (CNN) obtained seven of these tapes from an unidentified source and broadcast one of the tapes. A federal district court judge ordered CNN to turn over all the Noriega tapes so that he could determine whether anything in the tapes presented an immediate and irreparable danger to Noriega’s right to a fair trial. The judge also enjoined CNN from further broadcasting privileged communications in the tapes. The U.S. Court of Appeals for the Eleventh Circuit denied CNN...
- Once the news media obtain information about pending judicial proceedings which, if published, might seriously affect their conduct and outcome, the courts must choose between previously discussed procedural devices designed to minimize the impact of publicity and the issuance of restrictive or “gag” orders directly against the news media. In some cases journalists have refused to obey constitutionally invalid orders enjoining publication of the news. For example, in United States v. Dickinson, 465 F.2d 496 (5th Cir.1972), a black civil rights worker in Louisiana became the subject of an allegedly baseless prosecution for conspiracy in a murder. Two reporters were assigned by their news service to cover a federal hearing challenging the legality of prosecuting the civil rights worker on the grounds that law enforcement officials were trying to harass or frame him. When the reporters defied the judge’s order not to report details of evidence given in open court, the judge fined each...
- Proponents of cameras in the courtroom realized that the backlash against the media following O. J. Simpson’s criminal trial in 1995 would discourage the use of video cameras in courts. Indeed, after O. J. Simpson’s trial, California’s Judicial Council created a new rule which granted trial court judges more authority to ban video cameras from the courtroom. However, after Timothy McVeigh’s trial for the 1995 Oklahoma City bombing was moved to Denver, Congress voted to have McVeigh’s 1997 trial videotaped and sent back to the families of the victims in Oklahoma City via closed circuit television. Even though the public could not see it, at least the court permitted videotaping for the family members who could not travel to Denver for the trial. Later, when an Internet network asked to videotape McVeigh’s execution, a federal district court ruled that the law forbids the recording of federal executions. Entertainment Network Inc. v. Lappin, 134 F.Supp.2d 1002 (S.D.Ind.2001).
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Chapter 10. Newspersons’ Privilege, Subpoenas, Contempt Citations and Searches and Seizures 123 results (showing 5 best matches)
- Whereas New York Times reporter James Risen may face time in jail for contempt because there was no federal shield law to protect him, the New York state shield law proved effective in protecting a Fox News reporter. Public defenders for James Holmes, who massacred 12 people in a movie theatre in Aurora, Colorado in 2012, issued a subpoena to FoxNews.com reporter Jana Winter to learn the identity of two confidential sources who provided Winter with information about Holmes’ notebook. Holmes had sent the notebook, which contained violent drawings and details of the mass murder, to his psychiatrist several days before he committed the massacre. Colorado Judge Carlos Samour warned Winter that he could hold her in contempt of court and sentence her to six months in prison if she did not reveal who told her about Holmes’ notebook. Winter’s attorneys managed to move Winter’s case to New York, however, because it is the headquarters of FoxNews.com. In December 2013 the New York Court of...law
- In 2005 the Supreme Judicial Court of Massachusetts affirmed a default judgment against the Boston Globe after its reporter Richard Knox mistakenly reported that Dr. Lois Ayash had countersigned an order for an overdose of a highly toxic chemotherapy drug at the Dana-Farber Cancer Institute (Boston Globe reporter Betsy Lehman died as a result of the overdose). Although the Boston Globe published a correction three months later in which it apologized for Knox’s error, Knox refused to identify a confidential source who had provided him with information about an internal investigation within the hospital. Ayash suspected that Knox’s source was deliberately trying to make her a scapegoat, even though a different doctor had accidentally prescribed the overdose. Ayash could not proceed with her defamation case, however, without knowing who was trying to “scapegoat” her. After the court found the Boston Globe and its reporter Knox in contempt, a jury awarded Ayash more than $2 million in...
- The contrast in the fate of James Risen (possible jail term due to no federal shield law) compared with that of Jana Winter (protected by a state shield law) has once again led reporters to call for a federal shield law. As is mentioned above, the Senate Judiciary Committee approved the bill for a federal shield law in September 2013, but Congress has not acted on the bill since then.
- The common law, while recognizing testimonial privileges for the attorney-client, doctor-patient and marital relationships, has never accorded a like privilege to the newsperson-news source relationship or any other aspect of the newsgathering process. A strong policy argument can be made that a newsperson’s privilege is at least as necessary to the public welfare as the recognized privileges are because of its societal benefit in encouraging a freer flow of news and information to the public. The law has accepted the strong opposing policy, however, that the public, in the words of Dean Wigmore, “has a right to every man’s evidence.” The more testimonial privileges that are recognized, the less evidence will be available to those who must attempt to reconstruct the truth in a judicial proceeding or establish public policy in the halls of a legislature or in an executive office. Not surprisingly, then, the common law courts have consistently refused to expand the number of... ...in...
- Less than three years after the decision in Zurcher, a Congress less sanguine than Justice White about the dangers posed by searches and seizures in newsrooms enacted the Privacy Protection Act of 1980, P.L. 96–449, 42 U.S.C.A. § 2000aa–1 et seq. This act substantially restricts the situations in which a newsroom search and seizure may legally occur: generally law enforcement personnel must have a subpoena rather than merely a search warrant. In very limited circumstances the law allows searches and seizures of documentary materials such as photographs or videotapes with only a search warrant if 1) the person with the information is suspected of a crime, 2) law enforcement officers believe the materials must be seized immediately to prevent someone’s death or injury, 3) there is reason to believe that giving notice with a subpoena would result in the materials being destroyed, changed or hidden, or 4) the materials were not produced pursuant to a court order that has been affirmed...
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Chapter 5. Copyright and Trademark 86 results (showing 5 best matches)
- The legal concepts of American copyright law and the provisions of the Copyright Act of 1976, 17 U.S.C.A. § 101 et seq., 90 Stat. 2541 (1976) are summarized in another volume of the “Nutshell” series and will not be generally repeated here. It is enough to say that the Congress, pursuant to constitutional authority, can and does protect the owners of intellectual property in fixed form such as writings, photographs, and sight and sound recordings from having their creations copied and appropriated by others. Such copying and appropriation of copyrighted works constitutes infringement for which the copyright holder may seek civil remedies and the federal government may in certain cases seek criminal sanctions.
- The legal concepts of American trademark law and the provisions of the Lanham Act
- The most controversial aspect of the Act is its provision for in rem jurisdiction over the domain name if in personam jurisdiction over the registrant of the disputed name is unavailable or the registrant cannot be found through due diligence. In the case of in rem actions, the only remedy is a court order requiring the domain name registry to cancel the name or transfer it to the prevailing party. Critics argue that applying a U.S. statute to an international medium will place an undue burden on registrants residing in other countries. They also raise the question of conflict with the laws of other countries.
- The conflict between information rights and First Amendment values can take place within the framework of many different areas of the law: trademark law, trade secret law, and contract law. However, copyright law, trademark law and right of publicity (covered in Chapter III), are the most important of these.
- Domain name assignment has now been transferred to ICANN, which in turn licenses a number of companies including NSI to assign domain names. ICANN adopted a new Dispute Resolution Policy. The policy requires registration applicants to warrant that the registration will not “infringe upon or otherwise violate the rights of any third party,” is not being done for an unlawful purpose, and will not knowingly be used “in violation of any applicable laws or regulations.”
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Chapter 6. Restraint of Obscene and Indecent Expression 130 results (showing 5 best matches)
- Although concerns about pornography had traditionally been focused on adult books and NC-17-rated movies, in the 1980s the FCC became concerned with “dial-a-porn” telephone services, in which callers could listen to sexually explicit recorded phone messages or hold an indecent two-way conversation with someone for a fee. In 1988 Congress amended Sections 223(b) and (c) of the Communications Act of 1934 with the Telephone Decency Act. This amendment banned all dial-a-porn services, including indecent as well as obscene speech. Sable Communications, a dial-a-porn provider, filed suit, and the U.S. Supreme Court struck down the provision barring indecent telephone messages, although it upheld the provision barring obscene telephone messages. Sable Communications of California v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Congress then made another attempt at dial-a-porn legislation by deleting the ban on indecent speech and enacting a revised amendment in 1989. 47 U.S.C....
- When Fox and CBS challenged the Broadcast Decency Enforcement Act in the Second Circuit and ABC challenged it in the D.C. Circuit, the case was consolidated in the Second Circuit. The court held 2–1 that the “FCC’s new policy regarding ‘fleeting expletives’ fail[ed] to provide a reasoned analysis justifying its departure from the agency’s established practice” and thus was “arbitrary and capricious under the Administrative Procedure Act.” The Commission relied on the “first blow theory” originally advanced by the Supreme Court in Pacifica. However, the FCC did not provide an explanation for changing its position on “fleeting expletives” from allowing them at any time to prohibiting them in most situations outside of safe harbor hours. In addition, the Commission failed to explain why fleeting expletives falling within either the “bona fide news show” exception or the “artistic integrity exception” were any less harmful to children. The court did not decide the First Amendment issues...
- On remand, the Second Circuit held that the FCC’s policies were “impermissably vague” both in terms of the definition itself and the exceptions to the policy. This vagueness resulted both in a “profound chilling effect” and the risk that the standards would be “enforced in a discriminatory manner.” Fox Television Stations, Inc. v. Federal Communications Commission, 613 F.3d 317 (2nd Cir.2010).
- In 2004 the FCC issued a series of record fines against various group owners airing such shows as “The Howard Stern Show,” “Bubba the Love Sponge,” and “Mancow Morning Madness.” Clear Channel Communications, the largest group owner, responded by cancelling “Bubba the Love Sponge,” dropping “The Howard Stern Show” from the six Clear Channel stations that carried it, and reaching a $1.75 million consent decree with the FCC covering all outstanding indecency complaints. Clear Channel also agreed to an extensive compliance plan to prevent future airing of indecent material. Commissioner Michael Copps dissented, arguing that the FCC did not have a full record of Clear Channels’ violations and that until it did, the FCC should not eliminate the possibility of license revocation should the record warrant it. Clear Channel Communications, 2004 WL 1274412 (F.C.C. 2004).
- In compliance with these provisions of the 1992 Cable Act, the Commission adopted indecency rules for leased access and PEG channels. Cable Access Channels (Indecent Programming) (1993). An initially successful challenge on First Amendment grounds, Alliance for Community Media v. Federal Communications Commission, 10 F.3d 812 (D.C.Cir.1993), was reversed in a rehearing en banc.
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Chapter 7. Restraint of the Press for Purposes of National Security 67 results (showing 5 best matches)
- Eight years after the Pentagon Papers case, the Justice Department obtained an injunction to prohibit The Progressive magazine from publishing free-lancer Howard Morland’s article entitled “The H-Bomb Secret: How We Got It, Why We’re Telling It.” United States v. The Progressive, Inc., 467 F.Supp. 990 (W.D.Wis. 1979). Federal district court Judge Robert Wills Warren in Wisconsin issued a preliminary injunction against publication after concluding that some of the information would probably violate the Atomic Energy Act of 1954. The Justice Department contended that Morland’s manuscript contained “Restricted Data,” defined by the Atomic Energy Act of 1954 as “all data concerning the design, manufacture or utilization of atomic weapons.” 42 U.S.C.A. § 2104(y). This law specifically forbids anyone possessing “restricted data” about nuclear weaponry from disseminating it in a way that might be utilized “to injure the United States” or “secure an advantage to any foreign nation.” 42 U.S.C.A
- In addition to the per curiam opinion, the Pentagon Papers case is marked by six concurring and three dissenting opinions. Justice Hugo Black and Justice William O. Douglas observed in a concurring opinion that “The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to ‘make’ a law abridging freedom of the press….” In other words they pointed out that the New York Times and Washington Post had not violated any specific law, and for the courts to fashion a “law” after the fact would be to violate the separation of powers. A close analysis of the other opinions, especially that of Justice Byron White, however, must be considered generally discouraging to those favoring a free press. A majority of the Court did not rule that such prior restraint was unconstitutional—only that the government had not met the heavy burden of proving that such restraint was necessary
- the Pentagon, killing more than 3000 Americans. Congress responded six weeks later by passing a law entitled the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists Act of 2001 (USA PATRIOT Act, Public Law 107–86, 115 Stat. 272, October 26, 2001). Under Section 215 of the USA PATRIOT Act, the FBI can search a newsroom without having to prove that the owner of the documents in question is under criminal investigation. Section 215 amended the Foreign Intelligence Surveillance Act (FISA) by lowering the level of proof required for an FBI agent to search business records. The person receiving the order to search is forbidden from telling anyone that the FBI is engaged in the search. A secret FISA Court grants a type of administrative subpoena known as a “national security letter,” and it is essentially impossible to appeal this order. Unlike a regular subpoena, a national security letter cannot be challenged in court; in this...
- A number of citizens including Carolyn Jewel joined Tash Hepting to file a class action suit against the National Security Agency (NSA) and AT&T, charging that they had been subjects of warrantless surveillance. In 2008, however, Congress passed an amendment to FISA, Section 802, that provided immunity for AT&T and all the telephone companies that had cooperated with the NSA’s warrantless surveillance. The NSA invoked the state secrets privilege, refusing to confirm or deny whether Jewel, Hepting or the other plaintiffs had been the subjects of telephone surveillance. The U.S. Court of Appeals for the Ninth Circuit ultimately upheld Section 802 as constitutional; thus, AT&T and the other telephone companies were immune from suits by individual citizens. In re: National Security Agency Telecommunications Records Litigation v. Verizon Communications, Inc., 669 F.3d 928 (9th Cir.2011).
- In 2003 the Bush administration established the Department of Homeland Security, a new law enforcement and investigatory agency which consolidated 22 other federal agencies, including the Federal Emergency Management Agency (FEMA). The Homeland Security Act criminalized leaks of unclassified “critical infrastructure information” provided to the government by companies that in turn are promised immunity from prosecution if they share with Homeland Security what they know. This new law raises a host of new Freedom of Information Act (FOIA) questions, discussed further in Chapter IX.
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Chapter 11. Regulation of Commercial Speech 91 results (showing 5 best matches)
- The Federal Communications Commission licenses radio and television broadcasters to operate in the “public interest, convenience and necessity.” This includes broadcast advertising, but historically the FCC has relied on self-regulation by the broadcasters to avoid the specter of government censorship forbidden by Section 326 of the Federal Communications Act of 1934. For a long time there was an absence of any clear boundary between the FCC’s authority over advertising through commercial broadcasting facilities and the FTC’s general authority over advertising. This issue was finally resolved by agreement between the two agencies. The FCC has responsibility for assuring that commercials are neither objectionably loud nor excessive in number and that a separation is
- Thus, while the Constitution limits governmental regulation of commercial speech, there is no guarantee that it will be heard if the speaker is dependent on private means of communications controlled by others. The exception occurs where the media outlet in question has monopoly power and refuses advertising for the purpose of furthering that monopoly. For example, in Home Placement Service, Inc. v. Providence Journal Co., 682 F.2d 274 (1st Cir.1982), the Providence Journal refused to accept advertising for a rental referral service. Because the newspaper was the only daily newspaper in the city and Home Placement was a direct competitor for real estate advertising, the court held that the refusal to accept Home Placement’s advertising violated § 1 and § 2 of the Sherman Act.
- In contrast, in Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) the Court struck down Massachusetts regulations prohibiting outdoor advertising or inside advertising visible from outside of tobacco products within 1,000 feet of a school or playground and requiring all point of sale advertising in those areas to be a minimum of five feet from the floor. The Court found that the regulations, as applied to cigarettes, were preempted by the Federal Cigarette Labeling and Advertising Act. As applied to cigars and smokeless tobacco products, the Court held that the regulations failed the fourth part of the Central Hudson test. The areas where the advertising was prohibited constituted a substantial, and in some cases almost complete, portion of major metropolitan areas. In addition, the regulations even covered oral communications regarding these products. Thus, there was no evidence of narrow tailoring.
- As the legal profession began to change and develop new forms of delivery systems for legal services such as legal clinics for the less affluent in society, advertising became an important tool in achieving volume business to sustain lower fee schedules. The use of such a tool was in direct conflict with established law, however.
- In striking down the Virginia statute, Justice Blackmun, speaking for the Court, appeared to reject the balancing process when he said, “There is no claim … that the prohibition on prescription drug price advertising is a mere time, place, and manner restriction. We have often approved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information…. Whatever may be the proper bounds of time, place, and manner restrictions on commercial speech, they are plainly exceeded by this Virginia statute, which singles out speech of a particular content and seeks ...Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (local ordinance forbidding display of “for sale” signs in front of houses struck down); Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010,...
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Chapter 4. The First Amendment and Emotional and Physical Harm 80 results (showing 5 best matches)
- The case in which the Jenny Jones Show became the catalyst for Schmitz to murder Amedure is unusual in that it involved face-to-face interaction; in contrast, most media liability cases involve allegations that media content in a “fixed medium” such as a book, movie or musical recording has instigated copycat violence. In the past two decades, however, some psychologists have voiced concerns that violent video games might have a greater impact on behavior because the players are actively involved rather than passively watching a movie, for example. Fearing that first-person-shooter video games could be instigating school shootings such as Columbine, parents of school children have asked state legislators to limit children’s access to purchasing video games with extremely violent content such as Grand Theft Auto. A number of city councils and state legislatures passed laws that limited children’s access to video games with graphic sex and violence, but courts have held these laws to...
- the ones who murdered the three doctors. In order words, Judge Kozinski raised the question of whether in order to constitute a “true threat,” does the law require that the speaker or one of the speaker’s associates will cause the harm? Judge Kozinski and the other four dissenting judges made it clear that they did not believe that the ACLA’s “Wanted” posters had met the Brandenburg standard for incitement on the grounds that the ACLA had not given explicit instructions to murder abortion providers. In other words, Planned Parenthood could not directly prove incitement because it could not prove that the murderers of the three doctors had seen the “Wanted” posters for those doctors. Judge Kozinski further argued that based on case law, a “true threat” can occur in a “face-to-face confrontation, a telephone call, or a dead fish wrapped in newspaper;” however, “Coercive speech that is part of public discourse enjoys far greater protection than identical speech made in a purely... ...a...
- In contrast to Florida Star, Tribune Publishing, and Times Mirror in which newspapers caused emotional harm inadvertently, a group of picketers who traverse the United States to demonstrate at funerals has clearly intended to cause emotional harm to grieving families. In 2011 the U.S. Supreme Court had to balance a claim of intentional infliction of emotional distress against the First Amendment right to demonstrate. The late Fred Phelps was the pastor of the Westboro Baptist Church; he led the Westboro Baptists, comprised mostly of his children and grandchildren, to funerals throughout the United States where they stage protests against gay rights. In a bizarre twist of logic, Phelps believed that when our troops died in Iraq and Afghanistan, God was punishing the United States for its laws that uphold gay rights. Fred Phelps’ daughter Shirley Phelps-Roper has a law degree and is careful to obtain a permit from local authorities before the Westboro Baptists arrive with their picket...
- Finkel filed a defamation suit against Facebook for $3 million. She also sued the members of “90 Cents” and all of their parents; her complaint argued that the parents were guilty of negligent supervision of their children. The Supreme Court of New York in New York County held that Facebook had immunity from liability based on Section 230 of the Communications Decency Act of 1996; thus, the court dismissed the case against Facebook (Finkel v. Facebook, 2009 N.Y. Slip Opinion 32248(U), N.Y. Sup. Ct., filed Sept. 16, 2009).
- With the advent of social networking sites such as MySpace and Facebook, texting, Twitter and cell phone cameras, these new media that permit instantaneous communication have raised serious questions about what constitutes on-campus speech among junior high and high school students in cases of cyberharassment and cyberbullying. School districts and state legislatures have had to scramble to put new policies in place to deal with these problems. When students file suit claiming that school districts have abridged their First Amendment rights in such cases, the courts have relied on four U.S. Supreme Court decisions involving student speech; these four decisions have come to be known as the “quartet” of student speech cases.
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Index 56 results (showing 5 best matches)
Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: August 27th, 2014
- ISBN: 9780314280633
- Subject: Communication/Media Law
- Series: Nutshells
- Type: Overviews
- Description: Mass Communication Law in a Nutshell satisfies the need for a basic text in communication law, not only for law students but for journalism and communication students as well. Highlights of the Seventh Edition of the popular book include a discussion of the USA Patriot Act, the Critical Infrastructure Information Act exemption to the Freedom of Information Act, government initiatives such as warrantless eavesdropping on telephone calls following the terrorist attacks of September 11, 2001, and recent FCC regulations authorizing a low-power radio service, digital television (DTV), high-definition television (HDTV) and digital must-carry regulations. Further highlights include Congress' passage of the Broadcast Indecency Enforcement Act following Janet Jackson's "wardrobe malfunction," litigation involving filtering software and the Child Online Protection Act (COPA), Congress' attempts to control "spam" on the Internet.