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Mass Media Law 20th Edition

Clay Calvert University of Florida

Dan V. Kozlowski Saint Louis University

Derigan Silver University of Denver

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MASS MEDIA LAW, TWENTIETH EDITION

Published by McGraw-Hill Education, 2 Penn Plaza, New York, NY 10121. Copyright © 2018 by McGraw-Hill Education. All rights reserved. Printed in the United States of America. Previous editions © 2015, 2013, and 2011. No part of this publication may be reproduced or distributed in any form or by any means, or stored in a database or retrieval system, without the prior written consent of McGraw-Hill Education, including, but not limited to, in any network or other electronic storage or transmission, or broadcast for distance learning.

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CONTENTS

Preface

The American Legal System

Sources of the Law Common Law The Role of Precedent Finding Common-Law Cases Equity Law Statutory Law Constitutional Law Executive Orders and Administrative Rules SUMMARY

The Judicial System Facts Versus the Law The Federal Court System The Supreme Court Other Federal Courts Federal Judges The State Court System Judicial Review SUMMARY

Lawsuits SUMMARY

Bibliography

The First Amendment: The Meaning of Freedom

Historical Development Freedom of the Press in England Freedom of the Press in Colonial America Community Censorship, Then and Now SUMMARY

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The First Amendment The New Constitution Freedom of Expression in the 18th Century Freedom of Expression Today SUMMARY

The Meaning of Freedom Seditious Libel and the Right to Criticize the Government Alien and Sedition Acts Sedition in World War I The Smith Act Defining the Limits of Freedom of Expression Real-Life Violence: Blaming Movies, Video Games and Books The Gitlow Ruling and the Incorporation Doctrine SUMMARY

Prior Restraint Near v. Minnesota Pentagon Papers Case Progressive Magazine Case United States v. Bell SUMMARY

Bibliography

The First Amendment: Contemporary Problems

The First Amendment in Schools Censorship of Expression in Public High Schools The Hazelwood Case The Bethel Case The Morse Case

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Censorship of College Newspapers Problems for College Journalists Alcohol Advertisements and the College Press Book Banning SUMMARY

Time, Place and Manner Restrictions

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Forum Analysis SUMMARY

Other Prior Restraints Son of Sam Laws Prior Restraint and Protests SUMMARY

Hate Speech/Fighting Words SUMMARY

The First Amendment and Election Campaigns SUMMARY

The First Amendment and the Information Superhighway Net Neutrality

Bibliography

Libel: Establishing a Case

The Libel Landscape

Damage Claims Time and Money Time and the Law The Lawsuit as a Weapon Resolving the Problem SUMMARY

Law of Defamation

Elements of Libel Publication Libel on the Internet Identification Group Identification Defamation Crime Sexual References Personal Habits Ridicule Business Reputation

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Criticism of a Product Falsity SUMMARY

Bibliography

Libel: Proof of Fault New York Times Co. v. Sullivan The Rationale for the Ruling

Public Persons Versus Private Persons Who is a Public Official? Job Description SUMMARY

The Nature of the Story All-Purpose Public Figures Limited-Purpose Public Figures Lower-Court Rulings The Nature of the Controversy The Plaintiff ’s Role Businesses as Public Figures Public Persons Over Time Involuntary Public Figures Private Persons SUMMARY

The Meaning of Fault Negligence Actual Malice Knowledge of Falsity Reckless Disregard for the Truth Applying the Actual Malice Standard SUMMARY

Intentional Infliction of Emotional Distress SUMMARY

Bibliography v

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Libel: Defenses and Damages

Summary Judgment/Statute of Limitations Statute of Limitations Jurisdiction Jurisdiction and the Internet SUMMARY

Truth Privileged Communications Absolute Privilege Qualified Privilege Neutral Reportage Abuse of Privilege SUMMARY

Protection of Opinion Rhetorical Hyperbole The First Amendment The Ollman Test Fair Comment and Criticism SUMMARY

Defenses and Damages Consent Right of Reply/Self-Defense Damages Compensatory Damages General or Actual Damages Special Damages Presumed Damages Punitive Damages Retraction Statutes SUMMARY

Criminal Libel

Bibliography

Invasion of Privacy: Appropriation and Intrusion

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Conceptions and Sources of Privacy in the United States Invasion of Privacy The Growth of Privacy Laws

Appropriation Right of Publicity Use of Name or Likeness Advertising and Trade Purposes News and Public Interest Exception Other Exceptions Booth Rule Consent as a Defense When Consent Might Not Work Life After Death: Post-Mortem Publicity Rights SUMMARY

Intrusion Intrusion and the Press No Privacy in Public The Use of Hidden Recording Devices Intrusion by Drones Intrusion and the Publication of Information Obtained Illegally SUMMARY

Bibliography

Invasion of Privacy: Publication of Private Information and False Light

Public Disclosure of Private Facts Publicity Private Facts Naming Rape Victims Highly Offensive Publicity Legitimate Public Concern and Newsworthiness Ethics and Privacy Recounting the Past SUMMARY

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False-Light Invasion of Privacy Fictionalization Other Falsehoods Highly Offensive Material The Fault Requirement SUMMARY

Bibliography

Gathering Information: Records and Meetings

News Gathering and the Law The Constitution and News Gathering Access to Government Officials: A Right to Interview? The First Amendment Protection of News Gathering SUMMARY

The Freedom of Information Act Recent FOIA Reforms Agency Records What Is an Agency? What Is a Record? What Is an Agency Record? FOIA Exemptions National Security Housekeeping Practices Statutory Exemption Trade Secrets Working Papers/Discovery Personal Privacy Law Enforcement Financial Records Geological Data Handling FOIA Requests Federal Open-Meetings Law SUMMARY

State Laws on Meetings and Records State Open-Meetings Laws

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State Open-Records Laws The Privatization of Public Government SUMMARY

Laws That Restrict Access to Information School Records Health and Medical Records The Federal Privacy Law Criminal History Privacy Laws State Statutes that Limit Access to Information SUMMARY

Bibliography

Protection of News Sources/Contempt Power

Journalists, Jail and Confidential Sources

News and News Sources The Failure to Keep a Promise

Constitutional Protection of News Sources Lower-Court Rulings Civil Cases Criminal Cases Grand Jury Proceedings Nonconfidential Information and Waiver of the Privilege Who is a Journalist? Telephone Records SUMMARY

Legislative and Executive Protection of News Sources Shield Laws Federal Guidelines Newsroom Searches How to Respond to a Subpoena SUMMARY

The Contempt Power Kinds of Contempt Contempt and the Press

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Collateral Bar Rule SUMMARY

Bibliography vii

Free Press–Fair Trial: Trial-Level Remedies and Restrictive Orders

Prejudicial Crime Reporting Impact on Jurors The Law and Prejudicial News SUMMARY

Traditional Judicial Remedies Voir Dire Change of Venue Continuance Admonition to the Jury Sequestration of the Jury SUMMARY

Restrictive Orders to Control Publicity Restrictive Orders Aimed at the Press Restrictive Orders Aimed at Trial Participants

Contact With Jurors SUMMARY

Bibliography

Free Press–Fair Trial: Closed Judicial Proceedings

Closed Proceedings and Sealed Documents Open Courts and the Constitution Open and Closed Trials SUMMARY

Closure of Other Hearings Accessible and Inaccessible Documents Access and the Broadcast Journalist Access to Evidence Recording and Televising Judicial Proceedings SUMMARY

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Bench-Bar-Press Guidelines SUMMARY

Bibliography

Regulation of Obscene and Other Erotic Material

The Law of Obscenity Early Obscenity Law Defining Obscenity SUMMARY

Contemporary Obscenity Law The Miller Test An Average Person Community Standards Patent Offensiveness Serious Value Other Standards Variable Obscenity Child Pornography Children as Child Pornographers and Sexting Obscenity and Women SUMMARY

Regulation of Nonobscene Erotic Material Sexually Oriented Businesses Attacks on the Arts and Popular Culture Erotic Materials in Cyberspace The Communications Decency Act The Child Online Protection Act The Children’s Internet Protection Act Online Speech Rights of Sex Offenders: The Packingham Case SUMMARY

Bibliography viii

Copyright and Trademark

Intellectual Property Law

Patents Trademarks

Roots of Copyright What May Be Copyrighted Copyright and Facts Telephone Books and Databases News Events Research Findings and History Misappropriation Duration of Copyright Protection SUMMARY

Fair Use Purpose and Character of Use Nature of the Copyrighted Work The Portion or Percentage of a Work Used Effect of Use on Market Application of the Criteria SUMMARY

Copyright Protection and Infringement Copyright Notice Registration Infringement Originality of the Plaintiff ’s Work Access Copying and Substantial Similarity Copyright Infringement and the Internet Digital Millennium Copyright Act File Sharing Film and Television SUMMARY

Freelancing and Copyright

Damages

Bibliography

15 Regulation of Advertising

Advertising and the First Amendment Commercial Speech Doctrine Compelled Advertising Subsidies and Government Speech SUMMARY

The Regulation of Advertising Self-Regulation Lawsuits by Competitors and Consumers State and Local Laws Federal Regulation Telemarketing Regulating Junk E-Mail and Spam SUMMARY

Federal Trade Commission False Advertising Defined Means to Police Deceptive Advertising Guides and the Children’s Online Privacy Protection Act Voluntary Compliance Consent Agreement Litigated Order Substantiation Corrective Advertising Injunctions Trade Regulation Rules SUMMARY

The Regulatory Process Procedures

Special Cases of Deceptive Advertising Testimonials Bait-and-Switch Advertising Defenses Advertising Agency/Publisher Liability SUMMARY

Bibliography

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Telecommunications Regulation

A Prologue to the Present History of Regulation

The Changing Philosophy of Broadcast Regulation The Prometheus Decision and Continuing Fallout SUMMARY

Basic Broadcast Regulation Federal Communications Commission Powers Censorship Powers Licensing Multiple Ownership Rules License Renewal The Public’s Role and Online Public Inspection Files SUMMARY

Regulation of Program Content Sanctions Regulation of Children’s Programming Obscene, Indecent and Profane Material Violence on Television SUMMARY

Regulation of Political Programming Candidate Access Rule Equal Opportunity/Equal Time Rule Use of the Airwaves Legally Qualified Candidates SUMMARY

News and Public Affairs Video News Releases, Sponsorship Identification and the FCC The First Amendment SUMMARY

Regulation of New Technology

Satellite Radio Internet and Broadband Cable Television Federal Legislation Regulating Cable Television Purpose of the Law Jurisdiction and Franchises Must-Carry Rules Programming and Freedom of Expression SUMMARY

Bibliography

Glossary Index

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PREFACE

Today, perhaps more than ever, it is vital for college students in the United States to understand the principles of media law and the First Amendment freedoms of speech, press and assembly. Shortly before this preface was drafted, the nation’s president labeled journalists at ABC, CBS, NBC, CNN and The New York Times “the enemy of the American people.” What’s more, terms such as “fake news” and “alternative facts” were taking on controversial lives of their own. And at least 15 states had bills pending in their legislatures in 2017 that threatened to reduce the ability of citizens to engage in protests, thus not only jeopardizing free speech but also “the right of the people peaceably to assemble.”

It thus is fitting that the 20th edition of this textbook sees two new co-authors who bring fresh perspectives, renewed energy and scholarly expertise to the topics spanning all 16 chapters. It simply wouldn’t be possible for any one person alone to replace outgoing author Don Pember. This edition thus brings with it both Dan Kozlowski of Saint Louis University and Derigan Silver of the University of Denver. They have extensive backgrounds in teaching and writing about a wide range of media law topics. Their new voices, coupled with the continuing guidance and authorship of Clay Calvert, hopefully make the 20th edition of Mass Media Law timely, relevant and helpful to undergraduates across the communication fields of advertising, journalism, media studies, public relations and telecommunications.

Although updating this edition began as an attempt to keep real-life examples fresh and lively, it quickly became apparent that so much had happened in media law (and continues to happen) that a more thorough rewrite was needed. First, the text changes its approach to Internet and new(er) communication law. Rather than continually devoting separate sections to address media law and the Internet, chapters now generally integrate discussions of how the law applies to the Internet throughout the book. So much of media law today involves the Web—meaning that so much of each chapter in this book now necessarily involves the Web.

In addition, the 20th edition has updated information, examples and cases in every chapter. The last few years of media law have been very active, with courts regularly facing new cases and issues. In addition to a wide number of new examples, such as the recent privacy case involving Hulk Hogan and the defamation suit against Rolling Stone magazine filed by a dean at the University of Virginia, the book features new material on the right to record police officers in public settings, on net neutrality, on the FCC’s regulation of indecency, on laws concerning information gathering with drones, a new section on Internet defamation by anonymous third-party posters, updates on recent changes to the Freedom of Information Act (FOIA) and new information about trademark law in our chapter on intellectual property, among other updates.

In light of the lack of recent obscenity prosecutions in the United States, as well as comments from some reviewers and users of the book that they don’t cover obscenity during class and to reduce pages where possible, we have significantly streamlined

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Chapter 13. The key rules and tests regarding obscenity, child pornography and the zoning of sexually oriented businesses, however, remain and have been updated where needed.

The 20th edition of Mass Media Law is now available online with Connect, McGraw-Hill Education’s integrated assignment and assessment platform. Connect also offers SmartBook for the new edition, which is the first adaptive reading experience proven to improve grades and help students study more effectively. All of the title’s Web site and ancillary content is also available through Connect, including:

A full Test Bank of multiple-choice questions that test students on central concepts and ideas in each chapter. An Instructor’s Manual for each chapter with full chapter outlines, sample test questions and discussion topics. Lecture Slides for instructor use in class and downloadable RAP forms.

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ACKNOWLEDGMENTS

Clay Calvert thanks both Dan Kozlowski and Derigan Silver for enthusiastically and energetically taking on the massive endeavor that it is co-authoring a textbook. He also thanks his undergraduates in the College of Journalism and Communications at the University of Florida for their feedback on the book. Finally, Clay Calvert thanks Berl Brechner for his continuing support of the Marion B. Brechner First Amendment Project and other initiatives in the College of Journalism and Communications.

Dan Kozlowski is grateful that Clay Calvert invited him to join the book as a co-author. Clay is a giant in the field of media law, and Dan appreciates the guidance Clay has provided both throughout the writing of this edition and also throughout Dan’s academic career in general. Dan also thanks Derigan Silver for his feedback and his sense of humor as they worked together on this project. And Dan thanks his wife and two daughters for being awesome and for helping to keep him level-headed.

Derigan Silver thanks Clay Calvert for inviting him to be a co-author of the book and for providing mentorship and advice for a number of years. He also thanks Dan for his feedback and inspiration throughout this project. He would also like to thank his students at the University of Denver for their interesting and engaging questions, comments and concerns. Finally, he thanks his wife, Alison, for putting up with him.

We would also like to thank those instructors who reviewed our book and gave us their valuable input. It is much appreciated. They are: Betsy Emmons, Samford University; Dr. Felisa B. Kaplan, NY Institute of Technology; and David Shipley, Samford University.

Finally, all three authors greatly appreciate the support of McGraw-Hill and the multiple individuals there who assisted with the publishing of this book.

IMPORTANT NEW, EXPANDED OR UPDATED MATERIAL Chapter 1

New examples of equity law, including a restraining order against a South Carolina reporter and an injunction barring speakers from repeating defamatory comments New case illustrating the void for vagueness doctrine Discussion of a 2016 North Carolina Supreme Court decision striking down a cyberbullying statute as overbroad

Chapter 2 New examples of self-censorship, including major U.S. news outlets not publishing cartoons depicting the Prophet Muhammad in 2015 and ESPN’s firing of Curt Schilling in 2016 New discussion about Milo Yiannopoulos’ college campus visits and community censorship

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Chapter 3 Multiple new examples of high school censorship involving newspapers, T-shirts and Confederate flag imagery New discussion of the 2015 case Bell v. Itawamba County School Board involving punishment of a student for posting a profanity-laced rap recording online New examples of efforts to ban books in public schools and libraries New discussion of a 2016 appellate court case striking down a state law banning “ballot selfies” because the law failed intermediate scrutiny New content on the U.S. Supreme Court’s McCullen v. Coakley decision regarding abortion protests New discussion of the U.S. Supreme Court’s Elonis v. United States decision regarding social media, rap music and true threats New section on net neutrality, with a particular focus on the FCC’s 2015 Open Internet Order

Chapter 4 New discussion of Communications Decency Act Section 230 and libel by anonymous third- party posters New section about defamation on social media sites such as Twitter and Facebook

Chapter 5 New section on “involuntary limited-purpose public figures” New material on the Consumer Review Fairness Act affecting “gag clauses” in contracts

Chapter 6 New material on the “self-defense privilege” New discussion of criminal libel

Chapter 7 New discussion of Lindsay Lohan’s lawsuit against Rockstar Games and Take Two Interactive over a character in “Grand Theft Auto V” New section on intrusion by drones New section on an appropriation case involving the videogame “Madden NFL”

Chapter 8 Discussion of The New York Times’ publication of part of Donald Trump’s 1995 income tax returns Discussion of Hulk Hogan v. Gawker New material on secret-recording cases

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Chapter 9 Updates on media access to executions and information about execution drugs

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New section on journalists arrested for covering Dakota Access Pipeline protests and the inauguration of President Donald Trump New section on government officials using private text messages and e-mail accounts

Chapter 10 New discussion of the appellate court decision in U.S. v. Sterling Updated discussion of Convertino v. U.S. Department of Justice, where an appellate court ruling seemed to give journalists another weapon to protect source confidentiality New section addressing the Department of Justice’s revised guidelines for when and how a federal prosecuting attorney can subpoena a reporter

Chapter 11 New discussion of the U.S. Supreme Court’s decision in U.S. v. Skilling and when a change of venue is appropriate New discussion about importance of news media intervening when judges close courtrooms

Chapter 12 New section on social media use by lawyers, reporters, jurors and others Updates on state and federal rules dealing with microblogging from courtrooms New material about the U.S. Judicial Conference’s pilot project evaluating effects of cameras in trial courtrooms

Chapter 13 New examples of convictions for distributing and possessing child pornography via the Internet and smartphones New content on the U.S. Supreme Court’s 2017 Packingham v. North Carolina decision regarding the online speech rights of sex offenders

Chapter 14 Expanded discussion of trademark law New content on the Trademark Dilution Revision Act of 2006 New section on the U.S. Supreme Court case Lee v. Tam dealing with disparaging trademarks New section on the copyright case of Star Athletica v. Varsity Brands New material on parody, satire and trademark law focusing on Cariou v. Prince

Chapter 15 New discussion of the FTC’s antitrust case against the Staples, Inc., and Office Depot merger

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Updated material on controversies involving Backpage.com, including whether the site should have immunity under the Communications Decency Act Section 230

Chapter 16 New discussion of the 2016 appellate court ruling in Prometheus Radio Project v. FCC regarding ownership restrictions New content regarding the U.S. Supreme Court’s ruling against Aereo in ABC, Inc. v. Aereo Updated discussion of the FCC’s regulation of broadcast indecency, including its $325,000 fine against a Virginia TV station in 2015

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http://Backpage.com
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CHAPTER 1

The American Legal System

©McGraw-Hill Education/Jill Braaten

Sources of the Law Common Law The Role of Precedent Finding Common-Law Cases Equity Law Statutory Law Constitutional Law Executive Orders and Administrative Rules Summary

The Judicial System Facts versus the Law The Federal Court System The Supreme Court Other Federal Courts Federal Judges The State Court System Judicial Review Summary

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Lawsuits Summary

Bibliography

Before studying media law, one needs a general background in law and the judicial system. In the United States, as in most societies, law is a basic part of existence, as necessary for the survival of civilization as are economic and political systems, the mass media, cultural achievement and the family.

This chapter has two purposes: to acquaint you with the law and to outline the legal system in the United States. While not designed to be a comprehensive course in law and the judicial system, it provides a sufficient introduction to understand the next 15 chapters.

The chapter opens with a discussion of the law, considering the most important sources of the law in the United States, and it moves on to the judicial system, including both the federal and state court systems. A summary of judicial review and a brief outline of how both criminal and civil lawsuits start and proceed through the courts are included in the discussion of the judicial system. 2

FIVE SOURCES OF LAW Common law Equity law Statutory law Constitutional law (federal and state) Executive orders and administrative rules

SOURCES OF THE LAW There are many definitions of law. Some say law is any social norm or any organized method of settling disputes. Most writers insist it is more complex, that some system of sanctions and remedies is required for a genuine legal system. John Austin, a 19th-century English jurist, defined law as definite rules of human conduct with appropriate sanctions for their enforcement. He added that both the rules and the sanctions must be prescribed by duly constituted human authority.1 Roscoe Pound, an American legal scholar, suggested that law is social engineering—the attempt to order the way people behave. For the purposes of this book, it is helpful to consider law to be a set of rules that attempt to guide human conduct and a set of formal, governmental sanctions that are applied when those rules are violated.

What is the source of American law? There are several major sources of the law in the United States: the U.S. Constitution and state constitutions; common law; the law of equity; statutory law; and the rulings of various executives, such as the president and mayors and governors, and administrative bodies and agencies. Historically, we trace American law to Great Britain. As colonizers of much of the North American continent, the British supplied Americans with an outline for both a legal system and a judicial system. In fact, because of the many similarities between British and American law, many people consider the Anglo-American legal system to be a single entity. Today, our federal Constitution is the supreme law of the land. Yet when each of these sources of law is considered separately, it is more useful to begin with the earliest source of Anglo-American law, the common law.