Government regulation of the media

There is no direct regulation of newspapers, magazines, and the Internet

Broadcasters (radio, television) are regulated by the Federal Communications Commission

Must have licenses renewed every five years

Rules: decency – language, nudity subject to fines, revocation of license

Right of Rebuttal (or right of reply) – individuals must be given the opportunity to respond to personal attacks (assuming they were not part of normal news coverage)

Equal Time Rule – If station sells time to one candidate it must be willing to sell equal time to opposing candidate

Fairness Doctrine – broadcasters who air controversial issues must give time to the opposing side (stopped being enforced in 1985)

Prior Restraint

The government halting of publication of material before it can enter the Marketplace of Ideas

Near v. Minnesota (1931)

Minnesota legislature responds to burgeoning yellow journalism by passing a law allowing injunctions against “an obscene, lewd, and lascivious newspapers, magazine or other periodical, or a malicious scandalous and defamatory newspaper, magazine or other periodical.” In 1927 a county AG seeks an injunction against the Saturday Press, arguing that the paper had a practice of publishing material that was largely devoted to malicious, scandalous and defamatory material. Specifically, an article alleging that gangsters were running unchecked by law enforcement. A district court issued a permanent injunction and the Minnesota Supreme Court upheld its constitutionality.

In a 5-4 decision the Supreme Court rules that except in extraordinary circumstances (decency, national security, community safety), the 1^st amendment prohibits the government from preventing newspapers and magazines from publishing whatever they wish

New York Times v United States (1971) “The Pentagon Papers”

Secretary of Defense Robert McNamara commissions in 1967 a study on the history of the US role in Vietnam. Its contents are so candid and sensitive that it is labeled top secret. Only 15 copies are made. One of the authors, Daniel Ellsburg, becomes so disenchanted with US policy that he decides to leak portions of it to the New York Times. The Times plans to publish them, even after Nixon asks them not to. The federal government gets an temporary injunction against publication and the case goes to the US Supreme Court. The government argued that publishing the Pentagon Papers posed a threat to national security. Court rules against prior restraint noting that “any system of prior restraint of expression comes to this court bearing a heavy presumption against its constitutional validity”

CNN v Noriega (1990) – recorded conversations between Noriega and his attorney could be suppressed until after the trial court listened to the tapes and determined their impact of Noriega’s ability to get a fair trial –

Hazelwood School District v Kuhlmeier (1988) – student publications can be censored by school officials

Libel/ Slander

A civil action arguing that someone’s reputation was harmed by either the publication or an utterance –

Zenger decision (1735) – John Peter Zenger was a printer who criticized a newly appointed governor, William Crosby, as wanting to plunge them into slavery and deprive them of their rights. The articles went on to portray Crosby as an “idiot,” a “rogue” and a “lawbreaker.” Though the charges were overstated, they did have a basis in fact because Crosby had replaced judges that ruled against him and had received questionable payments. Zenger was arrested under seditious libel, an English criminal law that prohibited publishing anything, even if true, if it aroused public sentiment against the government. Zenger’s first attorneys were disbarred when they angered the trial judge. The new attorney was Andrew Hamilton. The only issue in the case was whether Zenger had published the material, which Hamilton admitted he did. But Hamilton then also argued to the jury that the common law in England was no longer the common law in the colonies and that the colonists should consider whether the material was true.

I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right -- and liberty -- both of exposing and opposing arbitrary power ... by speaking and writing truth....

Zenger was subsequently acquitted and truth starts becoming a defense for libel

New York Times v. Sullivan (1964)

(Much of the material on this case has been gathered from freedomforum.org)

In Montgomery, Ala., a city commissioner in charge of the police department, sued The New York Times' parent company for libel over a full-page editorial advertisement in 1960. The ad described civil rights abuses committed by Southern officials against African-American students.

The ad contained factual inaccuracies. For example, the ad said that "Southern violators" had arrested Dr. Martin Luther King, Jr. "seven times" when he had been arrested four times. The ad also inaccurately stated that police had padlocked the Alabama State College campus dining hall, which was never done.

The commissioner sued the paper in Alabama state court for libel and recovered $500,000 from an all-white jury. Attorneys in Alabama had realized that state libel laws provided them with a vehicle under which to "suppress aggressive reporting about the civil rights movement.”

On March 9, 1964, the U.S. Supreme Court reversed the jury verdict, writing that "the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First Amendment." In his opinion for the high court, Justice William J. Brennan recognized that "libel can claim no talismanic immunity" and that "erroneous statement is inevitable in free debate." For this reason, the court established a rule that public officials suing for a defamatory falsehood relating to official conduct can recover damages only under certain circumstances. They can recover damages only if they prove the statements were made with "actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Hustler Magazine v. Falwell (1988)

The Supreme Court found that an ad parody in Hustler Magazine was so outrageous that no one could actually believe its assertions. Because no one could believe its assertions, there was no damage to Mr. Falwell’s reputation. This 9-0 ruling was seen as a broad ruling for free speech and satire.

Miscellaneous media legal issues

Confidentiality of sources – Courts have ordered reporters to reveal anonymous sources – some journalists go to jail rather than reveal their sources – Shield laws – some states pass protections to protect the notes and sources of reporters

Use of anonymous sources – used widely in Lewinsky scandal

Why be an anonymous source?

Trial balloon – to test an idea to see reaction

Kill an idea – leak news to try and kill an idea

Take credit for idea or shift blame

So you want to be an anonymous source? Here’s the code:

On the record: the person is quoted by name (“John Smith said”)

Off the record: what the person said cannot be quoted (“”)

On background: The information can be used but the source not named (“ A source high in the administration said”)

On deep background: the information can be used but the reporter must say it on his or her own authority (“I believe that”)

Privacy – the media may publish or broadcast images or information about you if it is of some conceivable public interest