Mass Media Law
Mass Media Law EMC 4250
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COMP 1200 - 002
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This 12 page Class Notes was uploaded by Cristobal O'Reilly on Wednesday September 23, 2015. The Class Notes belongs to EMC 4250 at Middle Tennessee State University taught by Dennis Oneal in Fall. Since its upload, it has received 18 views. For similar materials see /class/213002/emc-4250-middle-tennessee-state-university in Media and Public Affairs at Middle Tennessee State University.
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Date Created: 09/23/15
First Exam next Tuesday No law can be enforced unless the majority of society agrees with it The AARP is the most powerful lobbyist group Absolute Privilege Those persons in quotOfficial session of government may not be sued for libel based on the statements made as a part of the quotofficial proceedings 0 All communications are recorded under the Congressional Record Qualified Privilege Media members are covered under Absolute Privilege as long as they report quotfairly and accuratequot Cherry SistersFair Comment Those that offer themselves for public approval also offer themselves for public disapproval Social Norm Organized or ritualized method of settling disputes o Definite rules of human conduct with appropriate sanctions for their enforcement Iohn Austin 0 Social engineering the attempt to order the way people behave Roscoe Found 0 Set of rules which attempt to guide human conduct and a set of sanctions which are applied when those rules are violated Sources ofAmerican Law 1 Common Law discovered law Community custom Government Sanction Iudges to look to the past for precedents 2 Law oquuity Chancery Decision based on conscience or fairness or quotequityquot 3 Statutory Law 0 Adopted by legislative bodies 0 Tend to deal with society or large groups 0 Can anticipate problems 4 Constitutional Law Memorize the First Amendment Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the Government for a redress of grievances Per Se Legal term meaning it s on its face Libel Is damage to one s reputation In Media attribution doesn t help change libel If you your media participates in the libel by publishing the defamatory statement ifyou spread the word you are libel Sedition or Seditious Libel Criticism of the government truth is immaterial the greater the truth the greater the libel Defamation you don t have to have to have intent in order to defame someone False Opinions If the facts are correct an opinion is protected If the fact is false the opinion is not protected Name ofmovies watched Books Under Fire Chronological Order of Cases Test One Material Espionage Act of1917 amp Sedition of 1918 Hindrance of the draft false report to interfere with war cause disloyalty Sedition Act repealed 1921 Schenck vs US 1919 Published antiwar lea ets Socialist Party leader Supreme court created the term quotclear and present danger Gitlow vs New York 1925 States cannot take away rights granted by Constitution 14th Amendment Gitlow published 34 pages of dull political on revolution NY arrested him for publishing violating his 1st Amendment rights Near vs Minnesota 1931In ammatory newspaper declared obscene by Minn law Law declared Unconstitutional the object of the law was to censor Made all future issues practice prior restraint which violates First Amendment Dicta and Hughes Dicta defined Grosjean vs American Press Co 1936 Tax against big papers in Louisiana designed to limit circulation of the newspaper GovernorUS Senator Grosjean s taX was in violation of First Amendment Lovell vs City of Griffin 193 8 City had law prohibiting distribution of printed handouts without permission of city manger Lovell was a Jehovah s Witness handed out pamphlets Arrested in Griffin appealed to Supreme Court Ordinance was invalid on its face Publication without distribution is useless Smith Act 1940 Crime to advocate overthrow of government Aimed at Communists Part of the Alien Registration Act Dennis vs US 1951 Tied to Smith Act equated advocacy of overthrow with actual attempt to at overthrow Beauharnais v Illinois 1952 Leader of quotThe White Circle passed out defamatory lea ets against blacks Illinois convicted him under Criminal Libelwas upheld by Supreme Court due to racial issues of the time Times VS Sullivan 1964 Actual Malice Rule Created quotHeed Their Rising Voices LB Sullivan sued saying he was defamed Sullivan was Commissioner of Public Affairs he claimed quot Anyone would know it was him who was responsible Claimed inaccuracies in the article such as it was the pledge of allegiance the students sang NOT my country tis of thee Also that because it was and advertisement it had no first amendment protection Sullivan was awarded 500000 upheld by the Alabama Supreme Court BUT was overturned by the US Supreme Court Rejected the inaccuracies and the idea that a paid advertisement was not protected There was not quotactual malice that the publication knew it was false and they didn t care ifit was true or false Public person has to prove malice while a private person has to prove negligence Garrison v Louisiana 1964 Garrison an attorney criticized parish judges Louisiana convicted him of Criminal libel Supreme Court overturned applied Times v Sullivan quotactual malice must be proved against public official The free ow of information of public officials must be intact to show the fitness for the office they hold Associated Press vs Walker amp Curtis Publishing vs Butts 1965 Major Walker opposed integration at Ole Miss took commend ofviolent crowd Walker sued for the reportingin Texas Tied in the Supreme Court to Butts where Saturday Evening Post reported Butts was fixing games between Georgia vs Alabama 0 Neither were quotpublic officials 0 However Walker quotthrust himself into public vortex and not malice because no quotreckless disregard proved o On Butts Saturday Evening Post did show quotreckless disregard Brandenburg vs Ohio 1969KKK Leader case overturned Ohio Sedition Law bc it did not distinguish between advocacy ofideas and incitement to unlawful conduct Organization for Better Austin vs Keefe 1971 quotBlockbustingquot Keefe was called a quotPanic Peddler had no right to stop free speech Ruled in favor of Org for Better Austin New York Times Co vs US 1971 Pentagon Papers decision that the government bears a heavy burden to justify prior restraint In this case the government failed Rosenbloom vs Metro Media 1971 Rosenbloom distributor of a nudist magazine Sued WIP for linking him to quotsmut literature rackets Libel was overturned by the Supreme Court he must prove quotactual malice because the news is of quotpublic interest even if it involved an otherwise private citizen US vs Marchetti 1972 168 Book passages taken out As a CIA agent Marchetti voluntarily gave up his First Amendment rights Gertz vs Welch Inc 1974 Gertz was a lawyer American Opinion published a story saying Gertz framed an officer and was a communist The courts tried to define what a quotpublic figure is 0 Anyone who achieves enough fame or notoriety as to exert power and in uence 0 Voluntary inject themselves into particular controversypublic figure for limited range ofissues Also can be quotdrawn in involuntarily Public officials and figures have greater access ofmedia than private citizens Private Citizens to prove actual malice Time Inc v Firestone 1976 About a divorce between Mary and Russell Firestone Mary sued for Libel Supreme Court rules she was not a quotpublic figure quotapplying the Gertz case and dissolution of marriage was not a quotpublic controversy even if aired in a public forum Hutchinson v Proxmire 1979 Golden Fleece of the Month awarded by Senator Proxmire Monkey teeth cleaning case 0 S Court ruled Proxmire went beyond his quotAbsolute privilege it covered remarks in the Senate and Congressional record but not his press release 0 Hutchinson claimed it hurt his reputation and he was a private figure TEST 2 Materials Privacy The Right to be left alone 1888 4 Distinct Legal Words 0 Appropriation Name picture Likeness wout permission 0 Intrusion upon the solitude and into private life of a person 0 Publication of private Information gossip of private truthful information 0 quotFalse Li ht publication of false info not necessarily defamatory fictionalization 1902 Roberson vs Rochester Folding Box Co 0 First privacy act in state of New York after Roberson lost case bc no law existed 1905 Pavesich vs New England Life Insurance Co 0 First judicial recognition of privacy 0 Company used Pavesich photograph 0 Georgia was 1St state to recognize privacy through common law The Right of Publicity If something that belongs to you is used to make money for someone else you have a right to be compensated 1962 Booth vs Curtis P quot 39 co Establish the Booth Rule Idea that a newspaper magazine or television can advertise themselves using the name or likeness of an individual that has been or will be part of the medium s news or information content without specific consent of that individual llubbard V ournal Pub Co 1962 Rape Victim tried to sue for reporting of the incident Court ruled it was part ofpublic recordfairly and accurate reporting Several states have rules against reporting the names of rape Victims Time V Hill 1967 The ls t Case to reach Supreme Court involving privacV and the communications of Media First time 39fictionalization used as a grounds bc the re enactment invaded privacyTook 15yrs to reach Supreme Court but were told to go back because Hill was considered a public figure and must prove quotactual malice Thanks to Times V Sullivan 1964Hill dropped the case Richard Nixon was an attorney on the case Cox Broadcasting V Cohn 1975 Father sued for reporting of his daughters name being reporting she was a rape Victim who died Cohn lost because name was found in legitimate public record 1977Zacchini vs Scripts Howards Broadcasting Co quotHuman Cannon Ball Supreme Court ruled quotbroadcast of the entire act posed a substantial threat to economic value ofperformance Intrusion Eavesdropping Florida Publishing Co vs Fletcher 1977 quotCommon custom and usage and quotindirect consent Reports invited into home by fire marshal and was not trespassing bc homeowner did not deny access Contempt of Court lump Back Contempt power is usually restricted to actions in the presence of judges rarely to published criticism of courts The Act of 1831 quotthe misbehavior of any person or persons in the presence of said courts or so near there as to obstruct the administration ofjustice Civil Contempt not an affront to the court but failure to obey a court ruling made to protect the rights of one of the parties in a case Criminal Contempt protection of the court Obstruction of court proceedings Direct Contempt interference with the orderly administration ofjustice in the presence of the court Indirect Contempt misconduct which occurs apart from the trail but still interferes with the proceedings Contempt Cases Bridges v California 1941Bridges a labor leader threatened have the entire west coast to strike in judges ruling in a case was enforced Supreme Court overturned citing there must be a quotclear and present danger test to indirect contempt proceedings Could Bridges really create such a strike Branzburg v Hayes 1972 3 cases in one Supreme Court ruled 1st Amendment balances with grand jury power of inquiry grand jury wins Free PressI Free TrialI amp Trial Publicity Amendment right to a fair and speedy trial by an impartial jury New ersey v Hauptmann 1935 Led ABA Code ofudicial Conduct Canon 35 which barred cameras from courts Irvin v Dowd 1961 Press coverage of Irvin caused jurors to already decide he was guilty before the trial Supreme Court ruled trial was unfair ordered new trial Irvin was found guilty Rideau V Louisiana 1963Rideau was filmed by KLPCTV confessing Estimated that 97000 of 150000 saw the interview Change ofvenue was denied State Supreme Court upheld Supreme Court overturned ordered new trial for following reasons 0 TV Interview 0 During Voir Dire two jurors said they saw interview 0 Two jurors were deputy sheriffs Regulation of the Electronic Media The Radio Act of 1927 Broadcaster s asked to be regulated Prevented segmented the stations to prevent overlap Communications Act of 1934 Created FCC regulate in quotPublic interest necessity and convenience Scarcity Principle Limited bandwidth for broadcast Section 315 of Comm Act of 1934 Broadcasters must allow equal time facilities and use for all candidates running for public office 0 Broadcaster may not censor the message 0 Does not have to solicit only provide the opportunity if requested for the next 7 days 0 Doesn t not have to allow candidate but if one is allowed they all are allowed 0 1971 Amendment Must charge lowest rate possible Only required for Federal Officials Requirements in effect 45 days before Primary and 60 days before the General gt Exemptions to quotUSEquot o 1 Appearance in Bona Fide newscast o 2 Appearance in bona de news interview 0 3 Appearance in onthespot coverage Candidate baking 0 4 Appearance in bona de news documentary gt Exemptions to section 315 0 During Primaries rules apply intraparty o Zapple Doctrine same rules apply but not with candidate friends relatives or someone close to candidate Fairness Doctrine NBCZCBS v US 1943 FCC excessive contracts ofboth networks FCC used Licensing power to get its way gt Supreme Court ruled in favor of FCC 0 Made each licensee responsible for all programming on their station including originating from networks Clarified role of FCC quotcommission s power not limited to engineering amp technical aspects burden of determining the composition of that traffic 0 United Church Of Christ V FCC 1969 0 Monitoring Technique used for FCC precedent 0 United Church of Christ claimed quotStandingquot quotonly legitimate interest can participate o DC Court oprpeals Granted quotStandingquot First time any public interest group had been granted quotstandingquot 0 Court reversed ruling of FCC vacated license Warren Burger quot Curious neutrality in favor of the licensee Temp license until 1980 Elements ofa Lottery 0 Prize 0 Chance 0 Consideration Broadcasters can now promote and air lotteries that are permitted by the state law of the state in to which the station is licensed Final Exam Notes Start Valentine v Chrestensen 1942 Supreme Court ruled the First Amendment did not protect commercial advertising Hand Bills advertising the submarine New York Times v Sullivan 1964 Retreat from previous decision that commercial advertising is not protected by first amendment advertising has some protection Pittsburgh Press v Human Rights Commission 1973 Supreme Court ruled you couldn t advertise an illegal service Discrimination in employment is an illegal activity per se and therefore could not be run in paper Bigelow v Virginia 1975 Abortion advertisement in Virginia for a New York clinic Abortions are illegal in Virginia Supreme Court overruled lower court s guilty ruling of the paper Lower court in error that ads have no first amendment rights Abortion decisions also include privacy laws Board of Pharmacy v Citizen s Consumer Council 1976 Advertising prescription drugs Government was free to regulate commercial speech which is false misleading or deceptive and which proposes illegal transactions Bates V State Bar of Arizona 1977 Lawyers have a constitutional right to advertise their prices for various services because these services are legal activities Central Hudson Gas amp Electric Corp v Public Service Commission of New York 1980 Commercial Speech Doctrine If the advertising is of a lawful product then in order for the government to restrict it the following conditions must be made The State must have substantial governmental interest in restricting the advertising The restrictions must directly advance the government s interest The restrictions must be no more extensive than necessary to advance the governmental interest 9 Federal Trade Commission Established in 1914 Mission is to police unfair methods of competition and originally had nothing to do with consumers only competitors WheelerLea Amendment 193 8 FTC could proceed against all unfair and deceptive acts in commerce regardless ofwhether they affected competition 0 FTC is decreasingin size 0 5 commissioner appointed by President approved by Senate on 7 year term no more than 3 from each political parties FTC has Authority Over False Advertising AntiTrust Flammable Fabrics Truth in Lending Fair Credit gt Labeling Before the FTC can act 1 Action is in Public Interest 2 The Ad must be unfair or deceptive gt gt gt gt FTC v Colgate Palmolive 1965 Colgate claimed Rapid Shave could shave sandpaper They used Plexiglas with loose sand in the mock up 0 FTC declared mockups illegal 0 Court of appeals said FTC went to far FTC New Rules Upheld in Court Unfairly or deceptive advertising any product by presenting a test experiment or demonstration that 1 Is represented to the public as actual proof ofa claim made for the product that is material to inducing a sale 2 Is in fact not a genuine test but a fake experiment and does not prove actual claim that a product performs a certain away Magnuson Moss Warranty FTC Improvement Act 1975 1 Enlarged power and jurisdiction 2 Changed to quotaffectng commerce 3 Power to issue trade rules defining and outlawing unfair and deceptive acts Trade Regulation Rules TRR s 4 FTC can sue in federal court on behalf of consumers Remedies for FTC 1 GuidesAdvisory from FTC Voluntary Compliance FTC tells ad has a problem Company complies Consent Order Written agreements that ifAd Company violates fines add up to 10000 a day Cease amp Desist Order Ad must stop Substantiation Must prove claims ofAd Corrective Advertising FTC forces the admission of false advertising Injunctions Used in drastic cases SAJN gt195 WarnerLambert v FTC 1978 Claimed Listerine could cure the common cold FTC ordered them to disclose the false claim Court upheld FTC standard for corrective advertising 0 Made WarnerLambert insert the admission of the false claim over the next year They had to spend 10million in Advertising Same as they spent the year before making the claim had been making the claim for 50 years FTC Corrective Advertising Standards 0 Factual Inquires 1 Did product Ad play a role in creating or reinforcing the public s mind a false belief about a product 2 Would this belief linger on after the false advertising cease COPYRIGHT Legally recognizable claim to literary or pictorial property It is the right extended by Federal Statue to entitle originators to ownership of the product ofyour mind Falls inline with intellectual property What can and cannot be copyrighted P65 Length of copyright After Ian 1 1978 1 The work is protected for the life of the author plus 70yrs 2 If the work is a joint copyright the copyright protection is for life of the last surviving author plus 70yrs 3 A work for hire is protected for 95yrs from the publication or 120yrs from creation whichever is earlier Fair Use 1 The purpose and character of the use 2 The nature of the copyright of the use 3 The amount and substantiality of the use 4 The effect of the use on the economic value of the original work The court can use any or all of the above factors in considering a case but if your case damages to the original you will probably lose Freedom oflnformation Act 1975 T National Defense Internal agency personnel Matters specifically exempted by statue Confidential commercial amp financial information or trade secrets Intra and Interagency communications Matters ofquotinvasion of privacy Law enforcement amp criminal investigatory records Required banking records Geological or geophysical information or data about oil and gas companies Government in Sunshine Act 1977 ALL meetings of government shall be open EXCEPT National Security Matters by law expressed to be confidential Agency s issuance of subpoena or participation in hearing Bank examiner records Similar exceptions as the FIA Obscenity The Hicklin Rule 1868 Lasted until 1933 Must not offend the most innocent people including children or abnormal adults Comstock Law 1873 Brown paper bag rule no obscene material is to be knowingly distributed Ulysses Decision 1933 Book is obscene ifit tends to stir sexual impulses on a person of average sexual instincts Principles defined Purpose of the author Rejected isolated passages Effect on a reasonable person Literary or artistic merit weighed against incidental obscenity FWN Roth V US 1957 Roth was convicted of mailing obscene material Supreme Court ruled obscenity not constitutionally protected Rejected the Hicklin Rule this marks the beginning of the modern obscenity law Fanny Hill Case 1966 Memoirs ofa Woman of Pleasure 1749 by John Cleland a very erotic novel Supreme Court ruled in favor of the book said book must be found obscene unless it was quotutterly without redeeming social value Art protected Mishkin v New York 1966 Bookstore selling sadism and masochism material Supreme Court upheld the conviction against Mishkin Material aimed at a specific deviant sexual group rather than the public at large Roth test applies ifit applies to prurient interest of that specific group Ginzburg v US 1966 Supreme Court EROS was not artistic Ginsburg openly bragged the Fanny Hill Case would protect him The Court found him guilty of pandering quotthe business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers THE BIG CASE Miller V California 1973 Mailed five unsolicited brochures to a restaurant in Newport Beach Miller was convicted ofa misdemeanor Appeal failed at the Supreme Court Modern Obscenity Law Created Miller Test 1 An average person applying contemporary community standards would find that work taken as a whole appeals to the prurient interest 2 The work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law 3 The work taken as a whole lacks serious literary artistic political or scientific value All States had to review their obscenity rule and be as specific as they could be
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