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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

A new exploration of disparaging trademarks and First Amendment protection A discussion of several recent Supreme Court cases involving intellectual property More extensive coverage of the transformative use test in copyright, especially as applied to new technologies A new and expanded discussion of the evolving meaning of commercial speech More extensive coverage of the Lanham Act A new exploration of Federal Trade Commission and Food and Drug Administration commercial speech actions Coverage of new Federal Trade Commission disclosure requirements related to commercial speech

Despite all the revisions, updates and new content, we believe this sixth edition of The Law of Journalism and Mass Communication will feel familiar to our former readers. We hope the breadth and diversity of media law you will discover in this volume provide the framework for a dynamic, engaged experience with the law. We also hope you find this text in good order, for, as Aristotle said, “Good law is good order.”

Digital Resources The wealth of online materials we provide through a companion website, located at http://study.sagepub.com/medialaw6e, encompasses both student learning aids and teaching tools. The following resources have been updated and revised to enhance student use of this new edition.

Password-protected Instructor Resources include the following:

A Microsoft® Word test bank contains multiple-choice, true/false, short- answer and essay questions for each chapter. The test bank provides you with a diverse range of prewritten options as well as the opportunity for editing any question and/or inserting your own personalized questions to assess students’ progress and understanding. Editable, chapter-specific Microsoft® PowerPoint® slides offer you complete flexibility in easily creating a multimedia presentation for your course, for you can highlight essential content and features. An Instructor Manual features chapter overviews, chapter outlines, classroom activities and links to professional resources. Lively and stimulating class activities can be used in class to reinforce active learning. The activities apply to individual or group projects. Tables and figures are available in an easily downloadable format for use in papers, handouts and presentations.

Our Student Study Site is completely open-access and offers a wide range of additional features:

Mobile-friendly eFlashcards reinforce understanding of key terms and concepts that have been outlined in the chapters. Mobile-friendly web quizzes allow for independent assessment of progress made in learning course material. Insightful chapter summaries help students study and reinforce key concepts. Links to professional resources help students further explore chapter concepts and facilitate research. An archive of case studies provides the opportunity to engage directly and personally with the legal decisions that construct The Law of Journalism and Mass Communication.

http://study.sagepub.com/medialaw6e
Acknowledgments

As with our previous editions, this book is a collaborative effort not only among its authors but also between us and the community we serve. The knowledge, insights, and comments of a large and expanding group of people have helped us update and improve this book. We offer our deep respect and gratitude to all those who have shaped our understanding of the field, gently pointed out our faults of commission or omission, and reinforced the strengths of this edition of The Law of Journalism and Mass Communication. You have been more generous than we deserve.

Beyond the friends, families, students, and colleagues who have encouraged and supported us in uncounted ways, we extend special thanks to all the anonymous reviewers who provided valuable feedback or, perhaps, favored our text among other books in the field. We also thank the talented editors, designers, and staff at CQ Press who helped bring this new edition to you.

Finally, and most important, we thank you, our readers.

The authors and SAGE also gratefully acknowledge the contributions of the following reviewers:

Roy S. Gutterman, Syracuse University Maria Moore, Illinois State University Elizabeth A. Skewes, University of Colorado, Boulder Martin D. Sommerness, Northern Arizona University John C. Watson, American University

About the Authors

Robert Trager is professor emeritus in journalism and mass communication at the University of Colorado. He taught courses in communication law, freedom of expression and media institutions. He is the founding editor of the law journal Communication Law and Policy. Before joining the University of Colorado faculty, he was an attorney with a major cable television company and practiced media law with a Washington, D.C., firm.

Susan Dente Ross is professor of English at Washington State University. A former newspaper owner and editor and head of the Association for Education in Journalism and Mass Communication Law Division, she is a Fulbright scholar whose international research, speaking, and training focus on free speech and press for the disempowered and as a tool for global equity, problem solving, and justice. She publishes on law, policy, and media’s role in conflict transformation and reconciliation. She is a writer of creative nonfiction.

Amy Reynolds is dean of the College of Communication and Information at Kent State University. Her research focuses on dissent, First Amendment history, and media sociology. She has written or edited seven books. Prior to becoming a dean, she was a journalism professor at Louisiana State University and Indiana University. Before earning her PhD at the University of Texas, she worked as a reporter, producer, and editor at newspapers and television stations.

The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. . . . [W]e recognize that no judicial system could do society’s work if it eyed each issue afresh in every case that raised it. . . . [Yet] it is common wisdom that the rule of stare decisis is not an “inexorable command.”

—Planned Parenthood of Southeastern Pennsylvania v. Casey1

The Electoral College in 2017 affirmed the election of Donald Trump despite partisan claims that the rule of law required it to endorse Hillary Clinton, who won the popular vote.2

Mark Ralston-Pool/Getty Images

1 The Rule of Law Law in a Changing Communication Environment

Chapter Outline 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

Suppose . . .

. . . it costs a lot to get elected, and people with money can affect election outcomes. In response, the federal government adopts laws that limit contributions to and spending by political candidates. The laws try to balance the right of individuals and groups to support candidates and the need to protect elections from corruption. Big money interests challenge the campaign finance laws in court. After decades of upholding similar laws, the U.S. Supreme Court in 2007 strikes down a federal3 ban on certain political advertisements as unconstitutional. Writing in dissent, Justice David Souter argues, “The court (and, I think, the country) loses when important precedent is overruled without good reason.”4

In the lead-up to the 2008 presidential election, a federal district court relied heavily on earlier Supreme Court decisions to uphold a law that prohibited a nonprofit organization called Citizens United from running advertisements and airing a film about then-presidential candidate Hillary Clinton.5 On appeal, the Supreme Court ruling in Citizens United v. Federal Election Commission6 struck down many campaign finance restrictions and raised questions about the stability and predictability of the law. This chapter and the case excerpts that follow explore the relative constancy or uncertainty of the rule of

law.

The ancient Greek philosopher Aristotle said people are basically self-interested; they pursue their own interests to the exclusion of the greater good or the cause of justice. However, self-interest is ultimately shortsighted and self-destructive. A lumber company that seeks only to generate the greatest immediate profit ultimately deforests the timberlands it depends on and eliminates its own future.7 Astute people therefore recognize that personal interests and short-term goals must sometimes give way to communal, universal or long-term objectives. Everyone benefits when people adopt a system of rules to promote a balance between gain and loss, between cost and benefit and between personal desires and universal concerns. Aristotle called this balance the “golden mean.” Human interests are served and justice is achieved when a society adopts a system of law to balance conflicting human objectives and allow people to live together and achieve desired goals.8

Belief in the power of law to promote this balance and restrain human injustice is the foundation of the U.S. Constitution and the rule of law. The U.S. Supreme Court said the notion that “our government is a government of laws, not of men” is central to our constitutional nature.9 In essence, laws establish a contract that governs interactions among residents and between the people and their government. Legal rules establish the boundaries of acceptable behavior and empower government to punish violations. The rule of law limits the power of government because it prohibits government from infringing on the rights and liberties of the people. This system constrains the actions of both the people and the government to enhance liberty, freedom and justice for all.

rule of law The standards of a society that guide the proper and consistent creation and application of the law.

In 1964, as the United States expanded what many then believed was an illegal military action in Vietnam, Harvard legal scholar Lon Fuller articulated what would become a foundational understanding of the rule of law. In Fuller’s view, the rule of law was a set of standards intended to create norms and procedures that provide for consistent, neutral decision making equally for all. Fuller’s formal, conceptual definition has been criticized because it does not provide specific guidance to those drafting, interpreting or applying the law.10 As one legal scholar noted, this understanding of the rule of law is created through its application. It “cannot be answered in the abstract.”11

Landmark Cases in Context

International Law: Four Foundations of the Rule of Law

The World Justice Project has articulated four foundations of the rule of law based on internationally accepted universal standards. Accordingly, a system of the rule of law exists when:

1. All individuals and private entities are accountable under the law. 2. The laws are clear, public, stable and just; are applied evenly; and protect fundamental rights. 3. The process by which the laws are enacted, administered and enforced is accessible and fair. 4. Justice is delivered in a timely manner by competent, ethical, independent and neutral

representatives who serve the public good.1

Even when endorsing these principles, many argue that any universal rule of law is a form of imperialism that tramples the unique priorities of individual nations and limits the freedom of different peoples to create distinct, culturally appropriate systems of law.2

1. World Justice Project, Rule of Law Index 2014, worldjusticeproject.org/sites/default/files/files/introduction_key_findings.pdf.

2. Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the “Rule of Law,” 101 Mich. L. Rev. 2275 (2003); but see David Pimental, Rule of Law Reform Without Cultural Imperialism?, 2 Hague J. on Rule L. 1 (2010).

For Fuller, the rule of law established eight “desiderata,” or desired outcomes, to guide how laws should be created and employed. The rule of law requires laws to be (1) general and not discriminatory; (2) widely known and disseminated; (3) forward- looking in their application rather than retroactive; (4) clear and specific; (5) self- consistent and complementary of each other; (6) capable of being obeyed; (7) relatively stable over time; and (8) applied and enforced in ways that reflect their underlying intent.

As a mechanism for ordering human behavior, the law functions best when it makes clear, comprehensible and consistent distinctions between legal and illegal behavior. People can only obey laws that they know about and understand. Good laws must be publicly disseminated and sufficiently clear and precise to properly inform citizens of when and how the laws apply (as well as when they do not).

Vague laws fail to define their terms or are unclear. They are unacceptable because people may avoid participating in legal activities because they are uncertain whether they will run afoul of the law. For example, ongoing legal battles seek to clarify the boundary between the First Amendment right to assemble and statutes governing unlawful assemblies.12 In California, protesters were arrested under a state law that makes it a misdemeanor for two or more people to gather to commit an unlawful act or to perform a lawful action in a “violent, boisterous or tumultuous manner.”13 Without clarifying the boundaries of protected assemblies, a judge ruled in 2016 that the contested facts in the dispute did not support an NAACP request to ban police arrests of people gathering at the site of a fatal police shooting.14

vague laws Laws that either fail to define their terms or use such general language that neither citizens nor judges know with certainty what the laws permit or punish.

Real World Law: U.S. Legal System Not Equally Accessible for All

The World Justice Project’s annual, global index of how citizens experience the rule of law in their home country ranked the United States 18 among 113 countries in 2016.1 The report put the United States behind the Nordic countries, which topped the list, and below Estonia, the Czech Republic and Japan but well ahead of Cambodia, Afghanistan and Venezuela, which ranked last.

The study found two primary weaknesses in the U.S. justice system. Civil justice is far more expensive in the United States than in other countries, which distinctly disadvantages poor people. The U.S. justice system also fell behind in terms of equal treatment and absence of discrimination under the law.

1. World Justice Project, Rule of Law Index 2016, data.worldjusticeproject.org.

Clear laws define their terms and detail their application in order to limit government officials’ discretion. In this way, clear laws advance the rule of law by reducing the ability of officials to apply legal rules differently to their friends and foes. “True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others,” one observer noted.15

Good laws accomplish their objectives with minimum infringement on the freedoms and liberties of the people. Well-tailored laws advance specific government interests or prevent particular harms without punishing activities that pose no risk to society. A law that sought to limit noisy disturbances of residential neighborhoods at night, for example, would be poorly tailored and overbroad if it prohibited all discussion out of doors, anywhere at any time.

The rule of law requires the law to be internally consistent, logical and relatively stable. To ensure slow evolution rather than rapid revolution of legal rules, judges in U.S. courts interpret and apply laws based upon the precedents established by other court rulings. Precedent, or stare decisis, is the legal principle that tells courts to stand by what courts have decided previously. As the U.S. Supreme Court has written, “[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.”16 The principle holds that subsequent court decisions should adhere to the example and reasoning of earlier decisions on the same point. Reliance on precedent is the heart of the common law (discussed later) and encourages predictable application of the law. But precedent is not absolutely binding; it is not always followed; and sometimes precedents seem to conflict. The rule of law can be ambiguous and unclear.17 Especially where constitutional values are at issue, courts must “not allow principles of stare decisis to block correction of error,” as the California Supreme Court said in 2015.18

discretion The authority to determine the proper outcome.

overbroad law A principle that directs courts to find laws unconstitutional if they restrict more legal activity than necessary.

stare decisis The doctrine that courts follow precedent; the basis of common law, it literally means to stand by the previous decision.

precedent The outcome of a previous case that establishes a rule of law that courts within the same jurisdiction rely on to determine cases with similar issues.

Laws are not inflexible. Even the U.S. Constitution—the foundational contract between the U.S. government and the people—can be changed through amendment. Other laws—regulations, orders and rules—may be repealed or amended by the federal, state and local bodies that adopted them, and they may be interpreted or invalidated by the courts. In its landmark 1803 ruling in Marbury v. Madison (excerpted at the end of this chapter), the Supreme Court established the courts’ power to interpret laws: “It is emphatically the province and duty of the judicial department

to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule.”19

International Law: Executive Orders Flow With the Stream of the Rule of Law

In a 2014 address to African leaders, President Barack Obama stepped into the long-standing political controversy over the meaning and global application of the rule of law. He said:

If you do not have a basic system of rule of law, of respect for civil rights and human rights, if you do not give people a credible, legitimate way to work though the political process . . . if there are not laws in place in which everyone is equal under the law . . . if you don’t have those basic mechanisms, it is very rare for a country to succeed.1

The speech renewed attention to the tension between a commitment to universal standards of human rights and self-governance, and a need for laws to embody the unique social, cultural and historical conception of justice in a specific country at a particular time.

President Barack Obama addresses young African leaders at the White House in 2014.

Xinhua/Alamy

A United Nations paper on the global debate said, “The rule of law is a concept that resonates across borders and boundaries while reflecting a diverse set of perspectives. . . . It highlights the importance of context and specificity.”2

1. Dave Boyer, Obama to Give Africa $38M, but Tells Young African Leaders: Stop “Making Excuses” for Economy, Wash. Times, July 28, 2014, www.washingtontimes.com/news/2014/jul/28/obama-give- africa-38m-tells-young-leaders-stop-mak.

2. Louis-Alexandre Berg and Deval Desai, Draft United Nations Development Program Background Paper: Overview on the Rule of Law and Sustainable Development for the Global Dialogue on Rule of Law, Aug. 2013, www.undp.org/content/dam/undp/library/Democratic%20Governance/Access%20to%20Justice%20and%20Rule%20of%20Law/Global%20Dialogue%20Background%20Paper%20- %20Rule%20of%20Law%20and%20Sustainable%20Developme....pdf.

http://www.washingtontimes.com/news/2014/jul/28/obama-give-africa-38m-tells-young-leaders-stop-mak
http://www.undp.org/content/dam/undp/library/Democratic%20Governance/Access%20to%20Justice%20and%20Rule%20of%20Law/Global%20Dialogue%20Background%20Paper%20-%20Rule%20of%20Law%20and%20Sustainable%20Developme....pdf
Body of the Law The body of law in the United States has grown in size and complexity as American society has become increasingly diverse and complicated. Many forms of communication and the laws that govern them today did not exist in the 1800s. Technology has been a driving force for change in the law of journalism and mass communication. U.S. law also has developed in response to social, political, philosophical and economic changes. Legislatures create new laws to reflect evolving understandings of individual rights, liberties and responsibilities. Employment and advertising laws, for example, emerged and multiplied as the nation’s workforce shifted and the power of corporations grew. Even well-established legal concepts, such as defamation, have evolved to reflect new realities of the role of communication in society and the power of mass media to harm individuals.

The laws of journalism and mass communication generally originate from six sources.

1. Constitutional law establishes the nature, functions and limits of government. The U.S. Constitution, the fundamental law of the United States, was framed in 1787 and ratified in 1789. Each of the states also has a constitution.

2. City, county, state and federal legislative bodies enact statutory law. Like constitutions, statutes are written down; both types of law are called black-letter law.

3. and 4. Judges create law in the form of both equity law and common law. When judges apply general principles of ethics and fairness to determine the proper remedy for a legal harm, they create equity law. Thus, restraining orders that prevent reporters from intimidating child celebrities are a form of equity law. Judges craft the common law when they use legal custom, tradition and prior court decisions to guide their decisions in pending cases. Common law often arises in situations not covered expressly by statutes when judges base their decision on precedent and legal doctrines established in similar cases. For example, under common law, publishers and distributors of indecent communications have been treated differently from other publishers (see Chapter 10). Some believe judges will move away from this distinction as online publishing increasingly replaces print.20

4. Constitutions and legislatures grant authority to government executives and to specialized agencies to make decisions and create rules that form the body of administrative law. Administrative agencies, such as the Federal Communications Commission (FCC) or the Federal Trade Commission (FTC), create the rules, regulations, orders and decisions that execute, or apply, laws

enacted by Congress. 5. Government executives, such as the president, can issue executive orders,

another source of law. In his 2014 State of the Union address, for example, President Barack Obama controversially said he planned to use executive orders to improve opportunities for Americans “wherever and whenever I can take steps without legislation.”21 Early in his administration, President Donald Trump signed an executive order that banned immigrants from seven nations, heightened vetting protocols for immigrants and suspended the nation’s acceptance of refugees from Syria.22 Acting quickly, the Ninth Circuit Court of Appeals refused to overturn a court injunction that blocked implementation of the executive order. The court did not determine whether the law, described by the president as a “Muslim ban,” was an establishment of religion that violated the First Amendment.23

The six sources of law are explored further below.

constitutional law The set of laws that establish the nature, functions and limits of government.

statutory law Written law formally enacted by city, county, state and federal legislative bodies.

black-letter law Formally enacted, written law that is available in legal reporters or other documents.

equity law Law created by judges to decide cases based on fairness and ethics and also to determine the proper remedy.

common law Judge-made law comprised of the principles and traditions established through court rulings; precedent-based law.

doctrines Principles or theories of law that shape judicial decision making (e.g., the doctrine of content neutrality).

administrative law The orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties.

Constitutions Constitutions at the federal and state levels establish the structure of government and dele gate and limit government power. The U.S. Constitution establishes the basic character, concepts and principles of government; organizes the federal government; and provides a minimum level of individual rights and privileges throughout the country. It creates three separate and coequal branches of government—the executive, the legislative and the judicial—and designates the distinct functions and responsibilities of each. The executive branch oversees government and administers, or executes, laws. The legislative branch enacts laws, and the judicial branch interprets laws and resolves legal conflicts.

Points of Law: Six Sources of Law

Constitutions Statutes Equity law Common law Administrative law Executive orders

Separation of government into branches provides the checks and balances within government that help uphold the rule of law. For example, “restrictions derived from the separation of powers doctrine prevent the judicial branch from deciding political questions . . . that revolve around policy choices and value determinations” because the Constitution gives the legislative and executive branches express authority to make political decisions.24

In many ways, state constitutions are distinct and independent from the U.S. Constitution they mirror. Under the principle of federalism, states are related to, yet independent of, the federal government and each other. Federalism encourages experimentation and variety in government. Each state has the ability to structure its own government and to craft state constitutional protections that exceed the rights granted by the U.S. Constitution. For example, the U.S. Constitution says nothing about municipalities; states create and determine the authority of cities or towns. While the federal right to privacy exists only through the U.S. Supreme Court’s interpretation of the protections afforded by the First Amendment to the Constitution,

Washington State’s constitution contains an explicit privacy clause that protects individuals from disturbances of their private affairs.26 State constitutions can be amended only by a direct vote of the people.

Congress has approved only 33 of the thousands of proposed amendments to the U.S. Constitution, and the states have ratified only 27 of these. The first 10 amendments to the Constitution, which form the Bill of Rights, were ratified in 1791 after several states called for increased constitutional protection of individual liberties. In fewer than 500 words, the Bill of Rights expressly guarantees fundamental rights and limits government power. For example, the First Amendment (see Chapter 2) prevents government from abridging the people’s right to speak and worship freely.

executive orders Orders from a government executive, such as the president, a governor or a mayor, that have the force of law.

political questions Questions not subject to judicial review because they fall into areas properly handled by another branch of government.

federalism A principle according to which the states are related to yet independent of each other and are related to yet independent of the federal government.

supremacy Article 4, Part 2 of the U.S. Constitution (commonly called the Supremacy Clause) establishes that federal law takes precedence over, or supersedes, state laws.

Statutes The U.S. Constitution explicitly delegates the power to enact statutory laws to the popularly elected legislative branch of government: the U.S. Congress and the state, county and city legislatures. Legislatures make laws to respond to—or predict and attempt to prevent—social problems. Thus, statutory law can be very specific to define the legal limits of particular activities. All criminal laws are statutes, for example. Statutes also establish the rules of copyright, broadcasting, advertising and access to government meetings and information. Statutes are formally adopted through a public process and are meant to be clear and stable. They are written down in statute books and codified, which means they are compiled into topics by codes, and anyone can find and read them in public repository libraries.

The Bill of Rights to the U.S. Constitution

National Archive

The Bill of Rights embodies the first 10 amendments to the U.S. Constitution. The ordering of the amendments was not intentional and does not reflect any hierarchy of principles. That is to say, the First Amendment does not override the Second or the Fourth.

The U.S. Constitution is both the pinnacle and the foundation of the law of the United States. Its own text establishes the supremacy of the Constitution over other laws of the land.

The supremacy clause resolves conflicts among laws by establishing that all state laws must give way to federal law, and state or federal laws that conflict with the Constitution are invalid. In a similar way, some federal laws pre-empt state laws, which in turn may pre-empt city statutes.

As the bedrock of the law, the Constitution dictates the proper actions of all divisions of government and is relatively difficult to change. There are two ways to amend the Constitution. The first and only method actually used is for both chambers of Congress to pass a proposed constitutional amendment by a two-thirds vote in each. The second method is for two-thirds of the state legislatures to vote for a Constitutional Convention, which then proposes one or more amendments. All amendments to the Constitution also must be ratified by three-fourths of the state legislatures. In 2013, when Mississippi became the last state to ban slavery by ratifying the 13th Amendment to the Constitution, the vote was only symbolic. The needed three-fourths of states ratified the amendment in 1865.25

Points of Law: The Three Branches of Federal Government

The Executive The president, the cabinet and the administrative agencies execute laws.

The Legislative The Senate and the House of Representatives pass laws.

The Judicial The three levels of courts review laws and adjudicate disputes.

When the language of a statute is unclear, imprecise or ambiguous, courts determine the law’s proper meaning and application through a review process called statutory construction. Statutes may be difficult to interpret because they fail to define key terms. For example, if the word meeting is not defined in an open-meetings law, it is unclear whether the law applies to virtual meetings online.28 When a statute suggests more than one meaning, courts generally look to the law’s preamble, or statement of purpose, for guidance on how the legislature intended the law to apply. Courts may use legislative committee reports, debates and public statements to guide their statutory interpretation.

With the 2017 swearing in of the 115th Congress and inauguration of President Donald Trump, the Republican Party controlled both branches of government. This marked the 17th time since World War II that one party controlled both the Congress and the White House.27

Win McNamee/Getty Images

Courts tend to engage in strict construction, which narrowly defines laws to their literal meaning and clearly stated intent. The effort to interpret laws according to the “plain meaning” of the words—the facial meaning of the law—limits any tendency courts might have to rewrite laws through creative or expansive interpretation. This deference to legislative intent reflects courts’ recognition that the power to write laws lies with the publicly elected legislature. The power of courts to engage in statutory construction is inherently nondemocratic because judges in many states are not elected.

statutory construction The process by which courts determine the proper meaning and application of statutes.

strict construction Courts’ narrow interpretation and application of a law based on the literal meaning of its language. Especially applied in interpreting the Constitution.

facial meaning The plain and straightforward meaning.

deference The judicial practice of interpreting statues and rules by relying heavily on the judgments and intentions of the administrative experts and legislative agencies that enacted the laws.

Courts may invalidate state statutes that conflict with federal laws, or city statutes that conflict with either state or federal law. However, courts generally interpret the plain meaning of a statute in a way that avoids conflict with other laws, including the Constitution. Courts review the constitutionality of a statute only as a last resort. When engaging in constitutional review, courts generally attempt to preserve any portions of the law that can be upheld without violating the general intent of the statute. For example, the U.S. Supreme Court struck down the Communications Decency Act,29 without undermining the balance of the comprehensive Telecommunications Act of 1996 (see Chapter 9).

Figure 1.1 How a Bill Becomes a Law

Points of Law: What’s in a Face?

Some constitutional challenges to laws are raised before a law is applied. Such facial challenges argue

that a law that may seem constitutional “on its face” is nonetheless unconstitutional in every instance. First Amendment challenges for vagueness and overbreadth often arise as facial challenges.

Laws are unconstitutionally vague if they are too unclear for a person to reasonably know whether the law applies to specific conduct. Vague laws often “chill” the exercise of constitutional rights and liberties because people fear their behavior might be punished under the law.

Laws intended to target illegal acts are overbroad if they harm constitutionally protected rights. For example, when the Supreme Court struck down a law prohibiting the depiction of animal cruelty, the Court said a law is unconstitutionally overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”1 The determination of overbreadth is based on a reasonable reading of the law’s language.

1. United States v. Stevens, 559 U.S. 460 (2010) (mem.).

More than two centuries ago, the U.S. Supreme Court essentially granted itself the power to strike down any laws it said conflicted with the U.S. Constitution. In 1803 in Marbury v. Madison,30 the Court said the Constitution’s system of checks and balances provided the judicial branch with inherent authority to limit the power of the legislative branch and bar it from enacting unconstitutional laws. The Court decided that although the Constitution gave the legislative branch the power to make laws, the judicial branch was empowered to interpret laws and discover what limits the Constitution placed on legislatures’ lawmaking authority. In this controversial decision, the Court established its power of judicial review.

facial challenge A legal argument that the challenged law or policy is unconstitutional in every application; there are no situations in which the law can be interpreted to be constitutional.

judicial review The power of the courts to determine the meaning of the Constitution and decide whether laws violate the Constitution.

Judicial review allows all courts to examine government actions to determine whether they conform to the U.S. and state constitutions. However, courts other than the U.S. Supreme Court rarely use their power of judicial review. If a state supreme court determined that a statute was constitutional under its state constitution, the decision could be appealed to the U.S. Supreme Court, which could decide that the law did not meet the standards set by the U.S. Constitution. The Supreme Court tries to use its power of review sparingly and rarely strikes down laws as unconstitutional. As a general rule, the Court will defer to the lawmaking authority of the executive and legislative branches of government by interpreting laws in ways that do not conflict with the Constitution.

Common Law The common law is judge-made law. The common law consists of the rules and principles developed through custom and precedent. The common law is a vast and unwritten body of legal doctrines established through hundreds of years of dispute resolution that reaches past the founding of this country and across the Atlantic to England. For centuries prior to the settlement of the American colonies, English courts “discovered” the doctrines people traditionally used to resolve disagreements. Judges then applied these “common” laws to guide court decisions. The resulting decisions, and the reasoning that supported them, came to be known as English common law, which became the foundation of U.S. common law.

The U.S. Supreme Court building displays a plaque bearing a quotation from Marbury v. Madison, 5 U.S. 137, establishing its authority of judicial review.

Wikimedia Commons

Eventually, common law grew to reflect more than the problem-solving principles of the common people. Today, U.S. common law rests on the presumption that prior court rulings, or precedent, should guide future decisions. The essence of precedent, stare decisis, is that courts should follow each other’s guidance. Once a higher court has established a principle relevant to a certain set of facts, fairness requires lower courts to try to apply the same principle to similar facts. This establishes consistency and stability in the law.

Under the rule of stare decisis, the decision of a higher court, such as the U.S. Supreme Court, establishes a precedent that binds lower court rulings. A binding precedent of the U.S. Supreme Court constrains all lower federal courts throughout the country, and the decisions of each circuit court of appeals bind the district courts in that circuit. Similarly, lower state courts must follow the precedents of their own state appellate and supreme courts. However, courts from different and coequal

jurisdictions do not establish binding precedent upon their peers. Courts in Rhode Island are not bound to follow precedents established in Wyoming, and federal district courts are not bound to apply precedents established by appellate courts in other federal circuits. In fact, different federal appellate courts sometimes hand down directly conflicting decisions. To avoid such conflicts, however, courts often look to each other’s decisions for guidance.

Even when the power of stare decisis is at its greatest, lower courts may choose not to adhere to precedent. At the risk of the judges’ credibility, courts may simply ignore precedent. After all, the common law must be discovered through research in the thousands of court decisions collected into centuries of volumes, called court reporters. Courts also may depart from precedent with good reason. Courts examining a new but similar question may decide to modify precedent—that is, to alter the precedent to respond to changed realities. Thus, the U.S. Supreme Court might find that contemporary attitudes and practices no longer support a 20-year-old precedent permitting government to maintain the secrecy of computer compilations of public records.31

modify precedent To change rather than follow or reject precedent.

Real World Law: Scalia Said Rules, History Should Guide Court Interpretations

Widely regarded as the most conservative justice on the Supreme Court,1 Justice Antonin Scalia was also one of the longest-seated justices in the Court’s history when he died in 2016 after almost 30 years on that bench.2 His long tenure and strong views on constitutional and statutory interpretation shaped many areas of contemporary mass communication law as well as the rule of law. Regarding the rule of law, he argued that the Supreme Court should “curb—even reverse—the tendency of judges to imbue authoritative texts with their own policy preferences.” Clearly delineated and consistently applied rules are necessary, he said, to “provide greater certainty in the law and hence greater predictability and greater respect for the rule of law.”3

Justice Scalia relied on two complementary principles to keep the discretion of judges in check. First, he was a strong proponent of originalism, which holds that the Constitution’s meaning should be based upon how the text was understood when it was adopted. Justice Scalia said the Supreme Court’s constitutional rulings relied too often on broad, amorphous principles rather than “a historical criterion that is conceptually . . . separate from the preferences of the judge himself.”4 Second, he preferred concrete, discrete, bright-line rules to multipart tests or balancing.

“When . . . I adopt a general rule . . . I not only constrain lower courts, I constrain myself as well,” he

said.5 Justice Scalia valued the predictability of rules to “enhance the legitimacy of decisions . . . [and] embolden the decision maker to resist the will of a hostile majority,” one observer said.6

1. William M. Landes & Richard A. Posner, Rational Judicial Behavior: A Statistical Study, 1 J. of Legal Analysis 775 (2009).

2. John G. Roberts, Jr., Statement by Chief Justice John G. Roberts, Jr., Feb. 13, 2016, www.supremecourt.gov/publicinfo/press/pressreleases/pr_02-13-16. (William O. Douglas, the longest- serving justice, served 36 and a half years. See also Supreme Court of the United States, Frequently Asked Questions, Mar. 14, 2016, www.supremecourt.gov/faq_justices.aspx.)

3. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, xxviii–xxix (2012).

4. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 862–4 (1989).

5. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).

6. Alex Kozinski, My Pizza With Nino, 12 Cardoza L. Rev. 1583, 1588–89 (1991).

Courts also may distinguish from precedent by asserting that factual differences between the current case and the precedent case outweigh similarities. For example, the Supreme Court 40-plus years ago distinguished between newspapers and broadcasters in terms of any right of public access.32 The Court said the public has a right to demand that broadcasters provide diverse content on issues of public importance because broadcasters use the public airwaves. The Court did not apply that reasoning when it later considered virtually the same question as applied to newspapers. Newspapers, the Court said, are independent members of the press with a protected right to control their content.

Finally, courts very occasionally will overturn precedent outright and reject the fundamental premise of that decision. This is a radical step and generally occurs only to remedy past errors or to reflect a fundamental rethinking of the law. In one such instance, the Supreme Court in 1997 overruled a 12-year-old Court precedent that had prohibited public school teachers from providing remedial education in parochial schools.33 The Court said the precedent had mistakenly confused government efforts to fulfill its mandate to educate all children with unconstitutional government establishment of religion.

distinguish from precedent To justify an outcome in a case by asserting that differences between that case and preceding cases outweigh any similarities.

overturn precedent To reject the fundamental premise of a precedent.

http://www.supremecourt.gov/publicinfo/press/pressreleases/pr_02-13-16
http://www.supremecourt.gov/faq_justices.aspx
Equity Law Judges, not legislatures, make equity law in order to provide fair remedies and relief for various harms. Equity law is based on the presumption that fairness is not always achieved through the rigid application of strict rules, and fines are not always the correct remedy for a legal harm. No specific, black-letter laws dictate equity. Rather, judges determine what is fair and issue decrees to ensure that justice is achieved. Thus, restraining orders that require paparazzi to stay a certain distance away from celebrities are a form of equity law. An injunction in 1971 that temporarily prevented The New York Times and The Washington Post from publishing stories based on the Pentagon Papers was another form of equity relief. While the law of equity is related to common law, the rules of equity law are more flexible and are not governed by precedent.