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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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ISBN 978-1-259-91390-7 MHID 1-259-91390-2

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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.