Introduction to Mass Communication Law
Introduction to Mass Communication Law JOMC 340
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This 10 page Study Guide was uploaded by Brenda Cartwright on Sunday October 25, 2015. The Study Guide belongs to JOMC 340 at University of North Carolina - Chapel Hill taught by Willia Hopkins in Fall. Since its upload, it has received 28 views. For similar materials see /class/228653/jomc-340-university-of-north-carolina-chapel-hill in Journalism and Mass Communications at University of North Carolina - Chapel Hill.
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Date Created: 10/25/15
Content Highlights Regulating the Media amp Issues in Newsgathering II Regulating the Media Copyright Works that can be copyrighted any work fixed in any tangible medium of expression from which it can be perceived reproduced or otherwise communicated Must be original the independent creation of its author and creative embodies a modest amount of intellectual labor but does not need to be novel Term of copyright protection For works created in 1978 or later copyright lasts for the lifetime of the author plus 70 years If there is more than one author it s the lifetime of the last surviving For works made for hire and for anonymouspseudonymous works the duration is 95 years from first publication or 120 years from creation whichever is shorter detailed chart on CLWG 133 Rights of copyright holders The author may create or authorize derivative works or adoption rights distribute the work perform or display the work copy the work Burden of proof in a copyright lawsuit That the plaintiff owned the copyright That the defendant copied the work If no direct evidence the plaintiff can prove the case by circumstantial evidence ie That the defendant had access to the work That there is substantial similarity between the two works in question Fair use defense Designed to reconcile society s interest in encouraging creativity with the need to allow dissemination and discussion of the work Four factors considered when determining whether the use of the work was a fair use The purpose and character of the secondary use 7 is it of a commercial nature or for nonprofit educational purpose Does it serve the public interest by stimulating creativity Does it do more than paraphrase or repackage the original by adding value to or transforming the original copyrighted work critical commentary parodies The nature of the copyrighted work fair use more likely to protect an outofprint work rather than one that s still being sold for example Also if it s factual it s more likely to be considered fair use than a fictional work 7 the public interest in dissemination becomes stronger Also if the work was unpublished it s less likely to be considered fair use than a published work The amount and substantiality of the portion used in the secondary work 7 based on size and significance of the copied portion in comparison with the whole work The effect of the use upon the potential market for or value of the copyrighted work 7 generally considered to be the most important part of the fair use defense Related to the first factor 7 the more transformative a work is the less likely it is to compete commercially with the original These factors must be explored together rather than in isolation and the line between fair use and infringement must be drawn on a casebycase basis Advertising Regulation The attitude of the Supreme Court toward commercial speech It is different from other speech becaus e It is persuasive The speaker has a vested interest in the response to the message It is bought and paid for before it reaches the consumer The consumer helps pay for the message The interest of the source makes the message particularly sturdy the speech will survive regulation Reread CLWG 166168 The Central Hudson test A test for determining the extent of protection for commercial speech from Central Hudson Gas amp Electric Co v Public Service Commission of New York 2 E 4 Is the ad true and not misleading and does it advertise a legal product or service Is the asserted governmental interest substantial Burden of proof shifts to the government Does the regulation directly advance the governmental interest Immediate connection between advertising and the interest Is the regulation no more extensive than necessary to serve the governmental interest narrowly drawn The powers and operation of the FTC 7 Established by Congress in 1914 to prohibit unfair methods of competition in commerce 1934 7 case allowed it to regulate unfair marketing of candy to children 1938 7 FTC act amended to prohibit unfair methods of competition and unfair or deceptive acts or practices in commerce False advertising of food drugs and cosmetics also became a crime 1978 7 act amended to allow regulation of local methods of competition including advertising May regulate ads if acting in the public interest or if the ad is deceptive An ad is deceptive if 0 There is a representation omission or practice that is likely to mislead mockups which are true but deceptive are not allowed 0 The representation omission or practice must be likely to mislead a reasonable consumer o The representation omission or practice must be material 7 likely to affect the decision to buy the product 0 The misleading ad must be likely to cause harm FTC remedies before the fact Informal staff opinion letters Advisory opinions 7 formal on the record Industry guides Policy statements OOOO 0 Trade regulation rules 7 have the force of law FTC has to publish and explain the rule and allow for public comment before it goes into effect FTC remedies after the fact 0 0 OOO Consent decrees complaint issued to the advertiser detailing the FTC s charges The advertiser may then choose to settle the charges by signing a consent agreement Agrees to stop doing something and waives right to judicial review but does not admit liability Ceaseanddesist orders If an advertiser chooses to fight the charges instead of reaching a consent agreement the complaint will be adjudicated before an FTC judge who will either issue a ceaseanddesist order or dismiss the complaint The decision may be appealed to the full commission then a federal court of appeals etc Injunctions likely to do this in cases of ongoing fraud Civil amp criminal penalties Can also have an ad halted or require affirmative disclosure lture ads must explain the claim more fully BroadcastRegulation The rationale behind broadcast regulation elaborated more pp 199200 The airwaves belong to the public 7 broadcasters lease spots The electromagnetic spectrum is limited Broadcast media are uniquely pervasive 7 they must operate in the public convenience interest or necessity The development of broadcast regulation reread CLWG 197198 Legal history has determined that o O O O O O The right of the public to service is superior to the right of the broadcaster Broadcasting is a medium of free speech Stations have a responsibility to provide time for the discussion of controversial issues Licensees control programming Stations must be responsive to the needs of communities Public service The application of the First Amendment to broadcasting First Amendment can be applied more loosely to broadcasting because broadcasting is more pervasive and is a public service The powers and operation of the FCC Structure One of the fed gov s independent agencies 5 members 7 selected by the President approved by Congress Employs over 2000 staff members and has judicial executive and legislative powers Awards broadcast licenses and may take them away The regulatory schemes governing broadcast licensing Criteria for licensure US citizenship Good character 7 no felony convictions no record of lying to the FCC Access to technical expertise Financial security to be able to operate for 3 months with no income Equal employment opportunity plan Awareness of community needs and interests Market considerations diversity How many media institutions the person already owns in a market License renewal every 8 years FCC considers renewal in isolation not comparing to competitors Under Telecom Act of 1996 FCC must renew unless 0 Station has not served public interest convenience necessity 0 Station has had a serious violation of the Telecom Act or rules of FCC 0 Station has other violations that would constitute a pattern of abuse Cable The development of cable regulation When cable first came about broadcasters asked the FCC to regulate it and the FCC refused because cable is not limited by the electromagnetic spectrum 1950s In the 1960s the FCC decided to regulate cable because it was a threat to local broadcasters Instated mustcarry rules The Cable Communications Policy Act of 1984 eased regulation of cable 7 more exibility for making programming changing subscription prices Also required cable providers to receive franchises from local governments Grounds for franchise nonrenewal cable operator didn t comply with terms of franchise cable operator s service or overall programming was inadequate cable operator does not have legal or technical ability to provide services renewal proposal was not a reasonable attempt to meet the community s needs or interests Court has ruled that cable operators have some level of First Amendment protection Regulations need to be structural and not contentbased Broadcasters and the cable industry 1992 Cable TV Consumer Protection Act 7 Regulated rates gave competitors access to programming regulated cablebroadcast issues Broadcasters could either require cable to carry their signal or make cable compensate them for the right to carry their signal These are called access rules The FCC and cable regulation Structural regulation that stems from cable being viewed as a business that is a natural monopoly FCC has regulated rates ownership horizontal and vertical integration pp 226235 Other New Communication Technologies The Telecommunications Act of 1996 Amends 1934 act attempts to regulate all forms of telecommunications Mostly tried to deal with the Internet CDA was part of this had 2 sections that were struck down as overbroad criminalized indecent communication to minors Goal was to increase competition between all communications businesses and allow companies to enter each other s businesses The Supreme Court and the Internet Cases Harper amp Row V Nation Enterprises 471 US 539 1985 Gave special attention to the effect of a secondary use on market value in a fair use defense Involved the use of Gerald Ford s memoirs in The Nation magazine He had contracted with Harper and Row and Reader s Digest to publish them The Nation s purpose was to scoop the other publishers and therefore wasn t fair Also although it only used 300 words of it the portion was essentially the heart of the book Va Pharmacy Bd v Va Cits Consumer Council 425 US 748 1976 Citizens s council wanted pharmacists to post prices for namebrand drugs and generics Pharmacy board had a rule banning advertising of drug prices Court said free speech is not invalidated because it s commercial but some regulation is allowed First time the Court said the First Amendment protects purely commercial advertising The consumer has an important interest in consumer information The free ow of commercial information is necessary for the public to make informed commercial decisions Still the government is still free to regulate ads that are false misleading deceptive or that promote illegal products or services Central Hudson Gas amp Elec Corp v Pub Serv Comm n 447 US 557 1980 Central Hudson Test The company had been advertising that people should use more electricity which the government said went against their interest in conservation so the government blocked the company from advertising at all 1 Is the ad true and not misleading and does it advertise a legal product or service 2 Is the asserted governmental interest substantial 3Does the regulation directly advance the governmental interest 4 Is the regulation no more extensive than necessary to serve the governmental interest Red Lion Bcasting Co v FCC 395 US 367 1969 A radio station carried a program in which a minister attacked Fred Cook the author of Goldwater 7 Extremist on the Right He said the man made false charges against officials had worked for a Communist publication had denounced J Edgar Hoover and the CIA and had set out to destroy Goldwater Cook asked the station for free time to reply under the FCC s personal attack rule The station refused The FCC ordered the station to give him time Court found that A license permits broadcasting but the licensee has no constitutional right to monopolize a radio frequency to the exclusion of his fellow citizens So the First Amendment does not prohibit requiring a broadcaster to permit answers to personal attacks Upheld the idea that broadcasters First Amendment rights are different from those of print media Miami Herald Pub Co v Tomillo 418 US 241 1974 Miami Herald had published an editorial critical of a candidate for the Florida House He asked for space for a response under a Florida law The Court said it was unconstitutional for the government to force a newspaper to publish anything it chooses not to Press responsibility is not mandated by the Constitution and cannot be legislated FCC v Pacifica Foundation 438 US 726 1978 A child was exposed to indecent language on the radio because of George Carlin s Seven Dirty Words standup Court said that with many forms of communication like movies or words on jackets people can choose not to look but the radio and TV are omnipresent they are intruders Radio and TV come into the home and could expose children to things their parents don t want them to see or hear This makes broadcasting unique among the mass media and justifies treating it differently under the First Amendment Reno V ACLU 521 US 844 1997 Part ofthe 1996 CDA made it illegal to knowingly send or make available to minors any indecent or obscene material The Court acknowledged Congress concern with protecting children from sexually explicit communications but said the ban on indecency was vague and overbroad The Court distinguished the Internet from broadcasting saying the Internet doesn t use the public spectrum and people are not as likely to be exposed to something inadvertently on the Internet as they would on broadcasting Internet users shouldn t be limited by the same rules that limit broadcasters But obscene material still isn t protected because the First Amendment never protects it Court treated Internet users as publishers Ashcroft v ACLU 535 US 564 2002 Court voted that the Child Online Protection Act COPA was unconstitutional because of the Miller test The community standards prong is dangerous when it comes to Internet communication because content would have to be appropriate for the most conservative community Also said that software filters would be more effective at protecting children than a block on content Ashcroft v Free Speech Coalition 535 US 234 2002 Court rejected a ban on virtual child porn unless it is advertised as real as violating the First Amendment Nike v Kasky 539 US 654 2003 Nike had been criticized for its treatment of factory workers It responded with an aggressive campaign with letters to newspapers university athletic programs Attorney Mark Kasky sued Nike for unfair and deceptive practices California court of appeals says Nike s response was not commercial speech 7 it was part of a debate California Supreme Court reversed ruled in favor of Kasky saying it was commercial because it promoted sales The Supreme Court dismissed the case FCC v Fox Television Stations 129 SCt 1800 2009 Brought up question of whether words can be banned Upheld the FCC s regulation banning eeting expletives Continued to isolate broadcast regulation as a special case 111 Issues in Newsgathering Newsgathering The Supreme Court and newsgathering Journalists don t have more rights than other citizens They don t have a right to interview prisoners or access prisons Their access to military bases and battlefields is limited Trespassing laws apply to journalists just as they apply to non joumalists Law enforcement officers cannot give journalists special access rights Con dential Sources The Supreme Court39s stance on confidential sources The press is the eyes and ears of the public and must be free to gather information to inform the public Has a right to gather information and keep sources confidential but must give up information The privilege to keep sources confidential pp 336338 The Stewart test shield laws and case law Stewart test 7 government can require testimony only if the information is relevant to a violation of the law the information is available nowhere else there is a compelling and overriding need for the information NC Shield Law Privilege must yield when The material is relevant to the proper administration of the legal proceeding The information cannot be obtained from alternate sources The information is essential to the maintenance of a claim or defense of the person on whose behalf the information is sought Extends to noncon dential sources Privacy Protection Act law enforcement officers must seek subpoenas unless There is probable cause to believe the person with the material has committed or is committing a crime or there is reason to believe immediate seizure is necessary to prevent death or serious injury There is reason to believe the subpoena will cause the material to be destroyed or the material is not supplied following a subpoena other remedies have been exhausted further delay would threaten interests of law enforcement A Free Press and Fair Trials How the Supreme Court has resolved the con ict cases Also defined prejudicial information or the type of information that will prejudice a jury as statements about the character amp reputation of the accused or witnesses contents of statements made by the accused Results of or a refusal to take tests The plea bargain Prior criminal charges Nonprejudicial information is defined as Factual information about the accused Substance and text of the charge Denial of guilt Any action by a judge in an open court Anything in official records not sealed by a judge Voluntary guidelines To compensate for the effects of the press at trial Change of venue Change of venire Continuance delaying the trial until publicity dies down Voir dire Admonitions to the jury ordering them not to read watch or listen to coverage or commentary about the trial or to discuss the trial with anyone except other jurors Sequestration isolating the jury for the duration of the trial To prevent or diminish publicity Gag orders on the media Restrictions on trial participants PostPublication Sanctions Denials of access to court records Terrorismrelated secrecy Access Access and information after 911 pp 375376 The North Carolina Open Meetings Law NC Media Law Handbook pp 5866 Public bodies must Provide notice of meetings Conduct meetings in the open unless a motion is made and carried under one of nine statutory exemptions to go into closed session Keep a record of their meetings When can meetings be closed To prevent disclosure of information that is privileged con dential or not considered a public record To prevent premature disclosure of an honorary degree scholarship prize or similar award To consult with an attorney employed by the public body in order to maintain attomey client privilege To discuss matters relating to the location or expansion of industries or other businesses To establish or instruct the staff on business plans for the body To deal with qualifications etc of a specific employee or to investigate a complaint against an officer or employee To plan conduct or hear reports concerning investigations of alleged criminal misconduct To formulate plans by a local board of education relating to emergency response to incidents of school violence To discuss and take action regarding plans to protect public safety as it relates to existing or potential terrorist activity and to receive briefings by staff members legal counsel or law enforcement officers concerning response actions The North Carolina Public Records Law NC Media Law Handbook pp 108122 Disclosure of public records is the rule withholding them from the press and public is the exception Public records are all records of any agency of the NC government or its subdivisions Cases Gannett Co inc v DePasquale 443 US 368 1979 A man was murdered in a boat on a lake with 3 friends The press was excluded from the trial 7 Gannett said this violated the defendant s right to a public trial Court said the defendant can always choose to waive a right 7 the defense attorneys were the ones who asked to close the trial Richmond Newspapers v Va 448 Us 555 1980 Court held that there is a First Amendment right ofthe press and public to access to trials 7 began limiting judges ability to close courtrooms 61h amendment right to a public trial is a defendant s right and can therefore be waived by the defendant A man accused of murdering a hotel manager waived his right to a public trial He had been tried 3 times already so the judge ordered a fourth trial and declared the man not guilty but since the trial had been closed there was no way for people to know if this decision was justified Said that since trials had been traditionally open as a way to discourage corruption and the First Amendment was meant to assure freedom of communication on matters concerning the government the First Amendment could be used as a reason for why courtrooms cannot be completely closed The judge did not prove that there was no other way to assure the defendant a fair trial Said that closing courtrooms makes the public distrust the legal system Branzburg V Hayes 408 US 665 1972 Requiring newsmen to appear and testify before state or federal grand juries does not abridge the freedom of speech and press The First Amendment does not guarantee the press a right of special access to information not available to the public Sheppard v Maxwell 84 US 333 1966 Sheppard s wife was killed he was a suspect Lots of publicity everyone had bias that Sheppard was guilty His lawyer filed a writ of habeas corpus saying the right to a fair trial had been abridged Court ruled that the judge controls the courtroom 7 could have changed venire or venue postponed the trial had rigorous voir dire emphatic and clear instructions to keep people involved away from publicity but he didn t so it wasn t a fair trial Nebraska Press Ass n v Stuart 427 US 529 1966 A family in a small town was murdered court put a gag order on the local press to keep publicity from endangering the fair trial Supreme Court said prior restraint is not allowed but to consider the nature and extent of possible publicity possible alternative measures to lessen the effect of the publicity the actual effectiveness of a gag order Chandler v Florida 449 US 560 1981 The Constitution does not prohibit a state from allowing cameras in courtrooms Miami police officers went on trial for burglary and possession of burglary tools Trial was filmed defendants lawyers complained Court distinguished precedent 7 this case doesn t fit the mold of the precedent Cameras weren t as bulky and intrusive as they were in the past no extra lights people were more accustomed to it Did not say courts have to allow cameras though Saxbe v Washington Post 417 US 843 1974 The First Amendment does not guarantee the press access to correctional facilities or specifically identified prisoners Upheld the constitutionality of a federal prison regulation that prohibited interviews with specific prisoners Houchins v KQED 438 US 1 1978 The First Amendment does not guarantee the press access to correctional facilities or specifically identified prisoners Because the First Amendment does not require the release of information within the control of government it does not require a sheriff to grant journalist access to a county jail Wilson v Layne 526 US 603 1999 Indicated for the first time that individuals can win lawsuits on privacy grounds when law enforcement officers take journalists into private homes Law enforcement officers raided the Wilson home looking for their son because he had violated probation Part of a program in which law enforcement routinely invited journalists to come along when apprehending fugitives Wilsons sued officers for violating right against unreasonable search and seizure by bringing journalists in who had no official role in the search Court said that the presence of third parties with no legit role in law enforcement violated the Fourth Amendment s protection of residential privacy Ridealongs may further the interest of police generally but don t help with speci c searches Also rejected the idea that media coverage would discourage crime Also rejected idea that the presence of journalists would minimize the abuse of suspects and protect o icers safety A police Video camera would do the same thing
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