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The Law of Journalism and Mass Communication Sixth Edition

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The Law of Journalism and Mass Communication Sixth Edition

Robert Trager University of Colorado, Boulder

Susan Dente Ross Washington State University

Amy Reynolds Kent State University

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Library of Congress Cataloging-in-Publication Data

Names: Trager, Robert, author. | Ross, Susan Dente, author. | Reynolds, Amy, 1967- author.

Title: The law of journalism and mass communication / Robert Trager, University of Colorado, Boulder; Susan Dente Ross, Washington State University; Amy Reynolds, Kent State University.

Description: Sixth edition. | Washington, D.C. : CQ Press, a division of Sage, [2018] | Includes bibliographical references and index.

Identifiers: LCCN 2017032750 | ISBN 9781506363226 (pbk. : alk. paper)

Subjects: LCSH: Mass media — Law and legislation — United States. | Press law — United States. | Freedom of the press — United States.

Classification: LCC KF2750 .T73 2018 | DDC 343.7309/9—dc23 LC record available at https://lccn.loc.gov/2017032750

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https://lccn.loc.gov/2017032750
Brief Contents 1. List of Features 2. Preface 3. Acknowledgments 4. About the Authors 5. Chapter 1 • The Rule of Law 6. Chapter 2 • The First Amendment 7. Chapter 3 • Speech Distinctions 8. Chapter 4 • Libel and Emotional Distress 9. Chapter 5 • Libel 10. Chapter 6 • Protecting Privacy 11. Chapter 7 • Gathering Information 12. Chapter 8 • Overseeing the Courts 13. Chapter 9 • Electronic Media Regulation 14. Chapter 10 • Obscenity and Indecency 15. Chapter 11 • Intellectual Property 16. Chapter 12 • Advertising 17. Endnotes 18. Glossary 19. Case Index 20. Subject Index

Detailed Contents List of Features Preface Acknowledgments About the Authors Chapter 1 • The Rule of Law Law in a Changing Communication Environment

Body of the Law Constitutions Statutes Common Law Equity Law Administrative Rules Executive Orders

Structure of the Judicial System Jurisdiction Trial Courts Courts of Appeal The U.S. Supreme Court

Processes of the Law Civil Suits Summary Judgment

Finding the Law Reading Case Law

Briefing Cases Analyzing Marbury v. Madison

Cases for Study Marbury v. Madison Citizens United v. Federal Election Commission

Chapter 2 • The First Amendment Speech and Press Freedoms in Theory and Reality

What the First Amendment Means Where the First Amendment Came From

Foundations of First Amendment Theory Why We Value the First Amendment When “the Press” Changes How Government Restrains First Amendment Freedoms How the Supreme Court Reviews Laws Affecting First Amendment Rights

Content-Based Laws Content-Neutral Laws

Speaking Politics Speaking for and as the Government Political Campaigning and Financing Elections Speaking Anonymously Assembling and Speaking in Public and Nonpublic Places

Private Property as a Public Forum Virtual Forums and Government Speakers

Requiring Speech Cases for Study

New York Times Co. v. United States Reed v. Town of Gilbert

Chapter 3 • Speech Distinctions Different Categories Trigger Distinct Treatment

National Security and Tranquility Threats to National Security

Evolving Court Tests to Protect Disruptive Speech From a Bad Tendency to a Clear and Present Danger From Clear and Present Danger to Incitement

Do Media Incite Harm? Physical Harms Negligence

Speech Harms Offensive Speech

Fighting Words Hate Speech Current Standard Harmful Images Intimidation and Threats

Symbolic Speech Burning Speech

Speech in the Schools Public Forum Analysis The Tinker Test The Fraser Approach The Hazelwood Test Choosing the Proper Test Campus Speech Speech Codes

Other Harms Cases for Study

Tinker v. Des Moines Independent Community School District Elonis v. United States

Chapter 4 • Libel and Emotional Distress The Plaintiff’s Case

A Brief History The Elements of Libel: The Plaintiff’s Case

Statement of Fact Publication Identification Defamation Falsity Fault Actual Malice

Emotional Distress Intentional Infliction of Emotional Distress

Outrageousness Actual Malice

Negligent Infliction of Emotional Distress Cases for Study

New York Times Co. v. Sullivan Hustler Magazine Inc. v. Falwell

Chapter 5 • Libel Defenses and Privileges

Truth Anti-SLAPP Protection Fair Report Privilege Fair Comment and Criticism Opinion

Letters to the Editor and Online Comments Rhetorical Hyperbole, Parody and Satire

Section 230 Immunity Other Defenses

Neutral Reportage Wire Service Defense Single-Publication Rule The Libel-Proof Plaintiff

Additional Defense Considerations Summary Judgment

Motion to Dismiss for Actual Malice Jurisdiction Statutes of Limitations Retractions

Cases for Study Ollman v. Evans Milkovich v. Lorain Journal Co.

Chapter 6 • Protecting Privacy Conflicts Between the Press, the Government and the Right to Privacy

Privacy Law’s Development False Light

Plaintiff’s Case Defenses

Appropriation Commercialization and Right of Publicity Plaintiff’s Case Defenses

Intrusion Methods of Intruding Intrusion on Private Property Defenses

Private Facts Intimate Facts Legitimate Public Concern Publicity First Amendment Defense

Privacy and Data Protection Electronic Privacy and the Supreme Court Cases for Study

Cox Broadcasting Corp. v. Cohn Riley v. California

Chapter 7 • Gathering Information Opportunities and Obstacles

Access to Places Access to Public Property Access to Quasi-Public Property

Access to Government Meetings and Records Open Federal Meetings Open State Meetings Open Federal Records

Open State Records Promises of Confidentiality

Anonymous Sources and Confidential Leaks Breaking Promises

Recording Right to Record Face-to-Face and Participant Recording Noncovert Recording

Obstacles to Gathering Information Harassment and Stalking Fraud and Misrepresentation Intrusion, Trespass and Voyeurism Problems With Covert Recording Recording or Intercepting “Wire” Conversations Social Media Sources

Obstacles to Gathering Government Information Exceptions to Government Openness The Privacy Act Student Records Medical Records Driver’s Information

Cases for Study U.S. Department of Justice v. Reporters Committee for Freedom of the Press Wilson v. Layne

Chapter 8 • Overseeing the Courts Protecting Procedures and Watchdogs

Access to Courts and Court Records Presuming the Openness of Trials Broadcasting and Recording Court Proceedings Using Newer Technologies in the Courts Accessing Court Records Electronic Access to Court Records

Advancing Fairness in Trials Following Sheppard Impartial Judges

Balancing Interests Requiring Evidence Penalizing Failure to Disclose Protecting Juveniles

Protecting Sexual Assault Victims Protecting State Secrets and National Security Closing Courts

Advancing the Flow of News Guiding Media Coverage of Courts Protecting Confidential Information Providing a Limited Privilege Applying Shield Laws Clarifying What Shield Laws Cover Finding Other Protections Challenging Closures

Cases for Study Branzburg v. Hayes Richmond Newspapers Inc. v. Virginia

Chapter 9 • Electronic Media Regulation From Radio to the Internet

Development of Broadcast Regulation Radio Regulation Federal Communications Commission Reasons to Regulate Broadcasting The Public Interest Standard

Broadcast Program Regulation Political Broadcasting Children’s Programming Hoaxes Public Broadcasting

Development of Cable and Satellite Regulation Multichannel Video Programming Distributors Regulation

Must-Carry and Retransmission Consent Public Access Channels

Internet Regulation Online Video Distributor Regulation Net Neutrality The Internet’s First Amendment Status

Cases for Study Red Lion Broadcasting Co. Inc. v. Federal Communications Commission Turner Broadcasting System Inc. v. Federal Communications Commission

Chapter 10 • Obscenity and Indecency

Social Norms and Legal Standards Obscenity

Comstock and Hicklin Current Obscenity Definition Enforcing Obscenity Laws

Indecency Broadcast Indecency Cable Indecency Internet Indecency

Cases for Study Federal Communications Commission v. Pacifica Foundation Federal Communications Commission v. Fox Television Stations Inc.

Chapter 11 • Intellectual Property Protecting and Using Intangible Creations

Copyright The Development of U.S. Copyright Law The 1976 Copyright Act Proving Copyright Infringement Copyright Infringement Defense: Fair Use The DMCA and Safe Harbor Protections Music, the Internet and File Sharing

Trademarks Distinctiveness Requirement Registering a Trademark Domain Names Trademark Infringement Trademark Infringement Defenses

Cases for Study Matal v. Tam American Broadcasting Companies Inc. v. Aereo Inc.

Chapter 12 • Advertising When Speech and Commerce Converge

What Is Commercial Speech? Evolving Commercial Speech Protection Creating Distinctions Within Commercial Speech

False and Deceptive Advertising Puffing Up Claims Promoting Vice and Dangerous Products Advertising That Offends Promoting Corporations and Professional Activities

Advertising Online Remedying Problems Through Executive Agencies

The Federal Trade Commission The Federal Communications Commission

Cases for Study Central Hudson Gas & Electric Corp. v. Public Service Commission of New York Sorrell v. IMS Health Inc.

Endnotes Glossary Case Index Subject Index

List of Features Chapter 1 • The Rule of Law 3

Emerging Law A Shifting Balance of Power? 18

International Law Four Foundations of the Rule of Law 5 Executive Orders Flow With the Stream of the Rule of Law 7

Points of Law Six Sources of Law 9 The Three Branches of Federal Government 11 What’s in a Face? 13 A Test for Court Jurisdiction of Internet Disputes 20

realWorld Law U.S. Legal System Not Equally Accessible for All 6 Scalia Said Rules, History Should Guide Court Interpretations 15 Senator Says Supreme Court Interpretation Violates the Rule of Law 17 Executive Orders Ebb, Flow, May Be Unpublished 19 Court Opinions Are Like Sausages 30 Arrests Inhibit Reporters 33

Chapter 2 • The First Amendment 51

Emerging Law Whose Free Press? 62 Reed’s Deregulatory First Amendment Sword 70 Are Government Online Sites Public Forums? 80

International Law The Great Firewall of China 59 English Publication Ban Doesn’t Keep Threesomes Private 67 Uncertain Speech Rights Online 78

Points of Law Some Core Values of Free Speech 61 Near v. Minnesota’s First Amendment Safeguards 65 What Is a Prior Restraint? 66 Strict Scrutiny 71 Intermediate-Level Scrutiny 72

realWorld Law Testing the Balance 53 Speech Favoritism? 54 A U.S. War on the Press in 2017? 58 The Pentagon Papers of Our Time? 69 Never-Ending Campaign Triggers Ban on Politicking 75 Opening the Floodgates 77 But Where Can I Speak? 81

socialMedia Law What’s Speech? 63

Chapter 3 • Speech Distinctions 97

Emerging Law Pokémon Go Craze Does Not Spawn Predicted Lawsuit 106

International Law Israel Moves to Stop Online Incitement 105 European Laws Punish Hate Speech 113

Points of Law The Incitement Test 104 Media Liability for Negligence 109 Fighting Words 111 Is That a True Threat? 116 Non-University-Student Speech 121

realWorld Law Democracy’s Unreasoned, Uncivil Promise 99 Just Clowning Around 102 Are College Campuses Becoming Free Speech-Free Zones? 126 Do the Speech Categories Make Sense? 128 Professor Punished for Violating Anti-Harassment Policy 132

socialMedia Law Cyberbullying 112 Rap Art or a Road Map to Threats? 117

Chapter 4 • Libel and Emotional Distress 145

Emerging Law Injunctions and Defamatory Speech Online 152

International Law Criminal Defamation Laws in Turkey 149 Fake News and Defamation 171

Points of Law Slander vs. Libel 147 The Plaintiff’s Libel Case 150 The Burden of Proof as Deterrent 162 Actual Malice 167 “Reckless Disregard” Criteria 170 Limited-Purpose Public Figure 174 Intentional Infliction of Emotional Distress 179 Parody or Satire? 182

realWorld Law Terrorism and Defamation 158 “Pink Slime” and the Decline of Beef Products Inc. 161 Can President Trump Change U.S. Libel Laws? 166 Lessons Learned From the Rolling Stone Defamation Lawsuit 169 The Governor vs. The Sniper 175

socialMedia Law Twitter, Politics and Insults 153

Chapter 5 • Libel 193

Emerging Law Gaps in Section 230 Immunity? 213 Internal Communication and Social Media as Evidence 219

International Law International Jurisdiction in Libel Actions 216

Points of Law Success on the Merits 197 Fair Report Privilege 197 The Ollman Test for Opinion 205 Innocent Construction Rule 207 Does Section 230 Immunity Apply? 210 Neutral Reportage 213 The Wire Service Defense 214 A Test for Jurisdiction 220

realWorld Law Fair Report Privilege and Press Conferences 200 Has “Truthiness” Changed Our View of the Law? 204 Modern Application of Milkovich 206 Managing Your Reputation Online 215

socialMedia Law Social Media and Defamation 211

Chapter 6 • Protecting Privacy 233

Emerging Law The Monetary Value of Privacy 261

International Law EU’s Right to Be Forgotten 263

Points of Law The Four Privacy Torts 236 False Light 237 Appropriation 245 Intrusion by Trespass 255 Private Facts 258 Constitutional Right to Privacy 270

realWorld Law Fake News and False Light 238 Facebook’s Sponsored Stories 246 The Proliferation of Mugshot Websites 247 “Revenge Porn” Websites: Invasion of Privacy or Simply Unethical? 259 Protection From Doxxing 267

Chapter 7 • Gathering Information 287

Emerging Law If You Work for Government, Your Work Emails Are Public 299 GMO Foods Grow in the DARK 327

International Law You Can’t Watch Everyone 304 Hacking Into Arrest 313

Points of Law State Open-Meetings Laws: The New York Example 293

Records Under FOIA 296 States That Forbid Hidden Cameras in Private Places 304 Wilson v. Layne: The State of Ride-Alongs 311 Media Distribution of Illegally Intercepted Calls 317 Freedom of Information Act: The Nine Exemptions 319

realWorld Law Ejection of Embedded Journalist Raises Coverage Concerns 290 How to Sue for Police Harassment 291 Sample FOIA Request Letter 297 Recording in Public Places 305 “Celebrities v. Paparazzi” 307 Undercover at Work 308 Chilling Hospital PR: Patient Approval Required 309 You Have No First Amendment Right to Trespass 310 It Is Not Just Illegal; It Is Embarrassing 312 NASA and FOIA 323 The Fight Over Photos 326

socialMedia Law Report Urges Transparency Renaissance 295 Access to State Records in the Digital Age 300

Chapter 8 • Overseeing the Courts 341

Emerging Law Tea Leaves, Cameras and Inevitability 345 Judges’ Instructions Reduce Potential Bias From Social Media 352 When Is Evidence Prejudicial? 359

International Law India’s Supreme Court Allows Cameras in Courts 347 Canada Says Stop Trampling on Reporters’ Rights 370

Points of Law Open Courts 344 Contempt of Court 361 The Press-Enterprise Test for Court Closure 366 What Is Fair Coverage of Criminal Trials? 367 Closing Media Mouths: The Nebraska Press Standard 368 The Reporter’s Privilege Test 371 Whom Shield Laws Protect 373

realWorld Law Courts Can’t Be Just for English Speakers 343 Does Publicity Bias Jurors? 355 Encrypted Data Not Safe From Government Eyes 360 Open Your Mouth and Open Courts 376

socialMedia Law Managing New Media in Courts 348 Twitter on Trial 349 Tweets and “Friends” of the Court 357

Chapter 9 • Electronic Media Regulation 397

Emerging Law Why Care About Spectrum Scarcity and the FCC? 408 Next-Generation TV? 420

Points of Law The FCC’s 2015 Open Internet Order 426

realWorld Law Radio Killed the Video Star? 400 The Current FCC 402 The Redskins Objection 405 Political Advertising and the 2016 Elections 411 Emergency Alert: Zombie Attack? 415 FCC Overturns Sports Blackout Rules 422 FCC and ISP Privacy Rules 424

Chapter 10 • Obscenity and Indecency 441

Emerging Law Snapchat Sued for Sexually Explicit Content 454 Online Adult Advertisements and Sex Trafficking 456

International Law United Kingdom Revises Pornography Regulations 445

Points of Law The Miller Test 449 Virtual Child Pornography 452

realWorld Law The Second Circuit on James Joyce’s “Ulysses” 444 Feminist Views on Pornography 447 Accidental Porn on the Local News 459 Popular Restaurants Add Porn-Blocking Filters 465

Taylor Swift Purchases Porn Domains 467

socialMedia Law Twitter, Reddit Ban Revenge Porn and Threats 450

Chapter 11 • Intellectual Property 485

Emerging Law APIs and Copyright 509 Copyright and the Music Marketplace 510

Points of Law The U.S. Constitution: Copyrights and Patents 487 The 1976 Copyright Act 489 When Copyright Takes Effect 492 Exclusive Rights in Copyrighted Works 496 The Public Domain 500 Infringing Copyright 502 Fair Use Defense 505 Transformative Use 505 Types of Marks 515

realWorld Law Samsung Electronics Co. v. Apple 488 The Hot News Doctrine 492 The Sonny Bono Law 499 “Blurred Lines” Infringes on Marvin Gaye Classic 501 Sports Trademarks 514

socialMedia Law Avoiding Copyright Issues on Social Media and Blogs 495 Trademarks and Social Media Services 521

Chapter 12 • Advertising 537

Emerging Law Court Allows State to Force Disclosure of “Cancer Agent” 546 Weed Control? 549

International Law Misleading Advertising in Europe 548 Advertisers Swarm to Facebook, Google 555

Points of Law

The Free Flow of (Commercial) Information 541 The Commercial Speech Doctrine 541 False and Misleading 543 Lanham Act Standing 559 FTC Mechanisms 561

realWorld Law A Bombardment of False and Deceptive Political Ads? 539 Going to the Dogs 544 Smoke-Filled Rooms and Hazy Standards? 552 In the Amazon Jungle: Third-Party Liability 556 The Jury’s Out: Does Advertising Increase Product Demand? 558

socialMedia Law Piling on Unwanted Texts 557

Preface

This book is intended and designed primarily to serve those of you who plan to work in journalism, public relations, advertising or marketing in new or old media. We strive to produce a truly readable book centered on the most significant aspects of the law situated within the social and political contexts that give them meaning. We have trained our eyes sharply on the legal issues related to gathering and disseminating information in today’s multimedia digital age that we believe are most relevant to you as a public communicator. Our goal is to improve your understanding of the protections and constraints imposed by the law upon the ways you communicate.

Our unique approach to The Law of Journalism and Mass Communication developed in response to the way we teach and the way we believe students learn best. We see the law as a product of specific decisions at a particular time and in a specific place. As such, the law is best understood when we see and feel its effects on real people, mundane conflicts and actions not only of our government but also of our friends, neighbors and families. Yet we recognize that time shifts rapidly, and decisions are both local and global.

Our goal is to make The Law of Journalism and Mass Communication as fresh and new as possible—to make it interesting and, yes, sometimes even fun or funny; not only to incorporate the latest court rulings and legislative enactments but also to present the trials and resolutions outside of court and beyond the judiciary that show how the law affects the ways mass communications work and how people perceive and receive that work. That means this edition deals with tweets and public protests, alcohol ads in university newspapers, global data privacy and cybersecurity, libel on the internet, free speech on college campuses and much more.

Features With this sixth edition, The Law of Journalism and Mass Communication enters those often-awkward teen years, ushering in the opportunity for some alterations beyond the customary biannual updates. All of the updated content you look for in each new edition—from the Supreme Court as well as both federal and state courts, Congress, executive agencies, federal and state policymakers and advisory groups, and media organizations and allies—is here, as always. As usual, these updates encompass at least one-third of a text that has been carefully edited to make it both interesting and readable. More than 150 photographs, color and graphics punctuate the text and respond to the need for a dynamic reading environment that encourages critical engagement. Each chapter embraces new case law and policy alongside new breakout boxes that highlight key rules of law, emerging legal issues and intersections with international law and policy. Boxes broaden the lens through which we view the law; emphasize that digital means local is global; draw out the intersections between the law and the people; and underscore key rules, tests and principles.

An initial quotation provides each chapter with a unique perspective or real-life example of the law at work. A Suppose . . . hypothetical engages readers with a central issue of the law raised in that chapter and resolved in one of the two Cases for Study that close the chapter. These cases allow students to read the actual decisions that construct The Law of Journalism and Mass Communication. Landmark Cases in Context point out when the web became our favorite public forum and when radio seemed like an alien intruder in our homes. Definitions in the margins and in a glossary at the back make it easier to comprehend and retain the often-unfamiliar terminology of the law.

Organization and Coverage This sixth edition also brings some more notable changes the authors believe will help to clarify fast-moving areas of the law, better juxtapose related material to highlight emerging intersections and weed more carefully through the plethora of legal details to emphasize core concepts and precepts for new students of the law of journalism and mass communication. We hope these alterations more fully engage students and aid comprehension and retention of the material as they facilitate teaching innovation and provide greater opportunity for creative classroom activities.

To this end, the authors have reduced the number of chapters from 13 to 12 and reorganized several chapters in response to requests from adopters and reviewers. Specifically, readers will find a new approach to the opening chapters. The chapter on speech distinctions moves its focus more precisely onto how the Supreme Court’s application of the First Amendment has evolved through time to differentially protect sometimes-fuzzy categories of speech. In this edition, you will find discussion of violence in video games in this chapter rather than in the later discussion of obscenity. The changes here are intended to make clear to readers how speech categories are not always precise and how court precedents constrain but do not absolutely bind subsequent decision making.

A sharpened chapter on libel and emotional distress is followed by a reorganized chapter on libel defenses to highlight those defenses most commonly used today. The privacy chapter now highlights the traditional privacy torts first, then offers a new section on privacy and data protection before ending with how the Supreme Court has approached emerging issues of electronic privacy. In this edition, two chapters on information gathering and overseeing the courts replace the three chapters that formerly dealt separately with newsgathering, reporter’s privilege and access to the courts. The new structure places reporter’s privilege within the uncertain protections afforded to the gathering of information and better integrates the protections for and limits to public access to judicial proceedings. The information gathering chapter is expanded from purely news situations to highlight issues of special relevance to public relations and marketing professionals.

A reorganized chapter on electronic media regulation makes the material more engaging and better explains both the regulatory history in this area and how changes in technology go hand in hand with regulation. Finally, the chapter on advertising has received a facelift to begin with a clarified discussion of how the definition of commercial speech has evolved before examining how the Supreme Court’s

protection of advertising has changed through time. Students of marketing are likely to find much in this chapter of interest.

What’s New in the Sixth Edition As with every edition, we have made every effort to keep the contents of this sixth edition abreast of the most recent law and policy actions of significance, the cutting- edge research in the field, and the social, technological and economic shifts affecting public communicators and their products. Just as Congress and the courts have altered the law in the two years since our last edition, updates and new information have reshaped every area of this edition of The Law of Journalism and Mass Communication. Some of the significant changes in this edition include:

Clearer definitions in the margins and the glossary A new foundational discussion of the rule of law A focus on the shifts in the U.S. Supreme Court and the legacy of Justice Antonin Scalia A new discussion of and excerpt from Reed v. Town of Gilbert in light of its growing impact A new examination of the Communications Decency Act’s Sec. 230 protections for online carriers of terrorist speech A discussion of the new Federal Aviation Administration regulations on commercial drone use Expanded coverage of the public right to record A new discussion of ag-gag and related limits on public access An updated review of driver’s license privacy Expanded coverage of the use of anti-SLAPP laws, particularly with libel suits Updates on the opinion defense in the context of social media and fake news A new discussion of privacy concerns around personally identifiable data and the Federal Trade Commission’s role in protecting consumer data A revised discussion of court-imposed gag orders New coverage of the right to a speedy trial A discussion of developments in the area of social media use in trials Updates on state reporter’s privilege and shield law protections A discussion of protection from newsroom searches in light of federal seizure of Associated Press phone records An expanded exploration of the Federal Communications Commission’s regulation of multichannel video programming distributors and online video providers An updated discussion of the Federal Communications Commission’s must-carry and retransmission consent rules More extensive coverage of virtual child pornography