Jour/MA/RI 4250 Media Law Dr. Larry L. Burriss B.A., The Ohio State University, Broadcast Journalism M.A., The Ohio State University, Journalism M.A., University of Oklahoma, Human Relations Ph.D., Ohio University, Communications J.D., Concord Law School Lt Col, USAF (ret.) lburriss@mtsu.edu http://capone.mtsu.edu/lburriss Course Outline & Readings I Introduction to the Law and the Legal System II Freedom of the Press III Time, Place, Manner IV Broadcast VI Defamation VI Invasion of Privacy VII Access to Government Records & Meetings VIII Mass Media & National Security IX Pornography & Obscenity X Copyright XI Internet XII Commercial Speech XIII Free Press/Fair Trial Lots of Moving Parts Judicial Theory & Philosophy The Legal System The Citation System Legal Language Why Have Laws? Freedom vs. Justice Edmund Burke Rights vs. Laws Do you have the 'right' to do something because it is not prohibited? Or Do you have the 'right' to do something because the law gives you the right? St. Thomas Aquinas (1225-1274) Case law: History, Theory, Application The main thing is to keep the main thing the main thing Lots of Moving Parts Judicial Theory & Philosophy The Legal System The Citation System Legal Language Aristotle on the Law Marcus Tullius Cicero Basic Issues in the Law Problem of Knowledge Problem of Conduct Problem of Government Why Do We Do What We Do? Morality - Right and Wrong Behavior - Actions Legality - Legislated Permission to Act Who Does What to Whom Plaintiff (Petitioner, Complainant) Defendant (Respondent, Accused) Appellant (Plaintiff in error) Appellee (Defendant in error, Respondent) Civil Law v. Criminal Law 1. Who is Bringing the Action 2. Punishment 3. Burden of Proof 4. Right of appeal 5. Protections for the Defendant Where Does Law Come From? 1. Constitutional Law 2. Statutory Law 3. Administrative Law 4. Common Law Common Law Based on precedent and principle Stare decisis Constitutional Law Supremacy Clause (Art. VI, Sect 2) Separation of Powers Legislative (Article I) Executive (Article II) Judicial (Article III) Judicial Review (Marbury v. Madison, 5 U.S. 137 (1803)) Marbury v. Madison, 5 U.S. 137 (1803) Interpreting the Constitution Absolutist Preferred Position Presumption of Constitutionality Compelling State Interest Over-Breadth Determining if a Law Violates the First Amendment Tests the court uses to determine if a law that restricts the First Amendment is constitutional * Strict Scrutiny * Rational Basis Strict Scrutiny Arises when the law deals with a 'fundamental right' * Does the law advance a compelling state interest? * Is the law narrowly tailored * Is the law the least restrictive necessary Rational Basis Is the law rationally related to a legitimate government interest? Don't Tell Me What To Do!! Injunctions (Issued in equity) Temporary - Maintain Status Quo Permanent - Issued After a Trial Restraining Order (Issued ex parte) Summary Judgment Trials and Appeals Trial Court v. Appellate Court Facts v. Law The Relation Between Federal and State Court Systems Where Are We Tennessee Knoxville Memphis Nashville 6th Federal Circuit (Cincinnati) U.S. Supreme Court Authority Primary v. Secondary Mandatory v. Persuasive Primary & Secondary Sources Primary Constitutions Statutes Treaties Court decisions Secondary Law reviews Encyclopedias Headnotes Syllabi Concurring opinions Dissenting opinions Finding the Law Reading the Law Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006) Burriss v. Central Intelligence Agency, 524 F. Supp. 448 (M.D. Tenn, 1981) United States ex rel. Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D. Pa. 1971) J.S. v. Bethlehem School District, 807 A.2d 847 (Pa. 2002) Candidates for Public Office, 47 U.S.C. 315 Candidates for Public Office, 47 U.S.C. 315(b)(2)(C)(ii) United States Code Title 5: Government Organization & Employees Title 10: Armed Forces (including UCMJ) Title 18: Crimes & Criminal Procedure Title 42: Public Health & Welfare Title 47: Telecommunications Title 50: War & National Defense Matthew Silverman, National Security and the First Amendment: A Judicial Role in Maximizing Public Access to Information, 78 Ind. L.J. 1101 (2003) Reading and Applying the Law: The Pentagon Papers Case Pentagon Papers (Timeline) Pentagon Papers Government Arguments Washington Post / New York Times Arguments 6/30/71 - Decision (6-3) Marshall - Courts should not do what legislature has failed to do Brennan - Gov't did not meet burden of proof Stewart & White - Gov't had not justified prior restraint Burger - Lower courts need to decide issue first Harlan & Blackmun - Gov't knows best Pentagon Papers - Result Freedom of the Press Big Trouble in River City Treason - Actions against the state Sedition - Speech against the state Seditious Libel - Speech against the sovereign Treason in the Constitution Article I (Executive Branch) Article II (Legislative Branch) Article III (Judicial Branch) Section 1. Section 2. Section 3. Treason The First Amendment in Action Alien and Sedition Acts (1798) Civil War World War I Schenck v. United States 249 U.S. 47, 39 S.Ct. 247 (1919) Gitlow v. New York 268 U.S. 652 (1925) Smith Act (1940) 18 U.S.C.A. 2385 Brandenburg v. Ohio 395 U.S. 444 (1969) Brandenburg v. Ohio 395 U.S. 444 (1969) “Imminent Lawless Action" test 1. Intent to speak 2. Imminence of lawlessness 3. Likelihood of lawlessness [T]the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. 395 U.S. 444, 447 (1969)[ Is There a Right NOT to Speak: The Quandary of Compelled Speech Hatch Act, 5 U.S.C. 7321-7326 Little Hatch Act, TCA 2-19-202(b). Prior Restraint Background Current Issues Sir William Blackstone and the Commentaries Current Issues in Prior Restraint Movies and Music Cases and Comments Near v. Minnesota, 283 U.S. 697 (1931 Pentagon Papers Aviation Week and Space Technology The Progressive Time, Place and Manner Judicial Review Symbolic Speech Public Facilities and the Public Forum Time, Place and Manner Judicial Review Symbolic Speech Zoning The Public Forum Traditional Limited Non-Public Public Forum Cases and Issues Kovacs v. Cooper, 336 U.S. 77 (1949) Southeastern Promotions v. Conrad, 420 US 546 (1975) Texas v. Johnson, 491 US 397 (1989) Barnes v. Glenn Theatre, 501 US 560 (1991) Krishna Consciousness v. Lee, 505 US 672 (1992) Lee v. Krishna Consciousness, 505 US 830 (1992) Snyder v. Phelps, 131 S. Ct. 1207 (2011) School Speech Tinker v. Des Moines School District, 393 US 503 (1969) Island Trees School District v. Pico, 457 US 853 (1982) Bethel School District v. Fraser, 478 US 675 (1986) Hazelwood v. Kuhlmeyer, 484 US 260 (1988) Morse v. Frederick, 551 US 393 (2007) Westside Community Schools v. Mergens, 496 US 226 (1990) The College Press Time-Place-Manner Four-Part Test In order to be constitutional, a time, place, and manner restrictions must: 1. Be within the constitutional power of the government 2. Further an important or substantial government interest 3. Be unrelated to the suppression of free expression 4. Be no greater than is essential to the furtherance of that interest Broadcasting Federal Communications Commission A. Philosophical Background B. Rules and Regulations C. History Fairness Doctrine Who, What, When, Where, Why, How John Banzhaf and Cigarette Commercials 47 USC Telecommunications 202(h): Quadrennial Review 312(a)(7): Administrative Sanctions 315: Candidates for Public Office 315(b)(2)(C)(ii): Television Broadcasts 317: Announcement of Payment for Broadcast. 326: Censorship 508: Disclosure of payments to individuals connected with broadcasts Cameras in the Courtroom Chandler v. Florida, 449 U.S. 560 (1981) Fed. R. Crim. P. 53 Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom. Committee Notes - 2002 Amendment [A]lthough the revised rule does not explicitly recognize exceptions within the rules themselves, the restyled rule recognizes that other rules might permit, for example, video teleconferencing, which clearly involves 'broadcasting' of the proceedings, even if only for limited purposes. Local Rules, Federal District Court, Middle District of Tennessee Cameras in the Supreme Court The day you see a camera come into our courtroom it's going to roll over my dead body. Justice David Souter Tennessee Supreme Court Rule 30 Advertising and the Political Process Advertising 1. Connections 2. Major Criticisms 3. Advertising and the FTC 4. Cases Advertising 1. Connections A. Anti-trust & unfair competition B. Consumer information C. Communication law D. Technology E. Intellectual property law Advertising A. Persuades us to buy goods we don’t need B. Appeals to emotion rather than intellect C. Biased D. Conflicting claims E. Repetitious F. Vulgar G. Subliminal advertising Subliminal Advertising: Wilson Bryan Key Media Sexploitation (1976) The Clam-Plate Orgy (1980) Subliminal Seduction (1987) Subliminal Adventures in Erotic Art (1992) The Age of Manipulation: The Con in Confidence and the Sin in Sincere (1992) Advertising 3. Advertising and the FTC A. Development of regulation B. Deregulation Development of Regulation 1. History A. Laissez-faire capitalism B. Pure Food and Drug Act (1906) C. Federal Trade Commission (1914) D. Wheeler-Lea Amendment (1938) E. False, Deceptive and Unfair Ads Development of Regulation 2. Current Lack of Rigor A. First Amendment protection B. Political climate of deregulation Cases Valentine v. Chrestensen (1942) Bigelow v. Virginia (1975) Va. Pharmacy Bd. v. Citizens Consumer Council (1976) Warner Lambert v. Federal Trade Commission (1977) Liquormart v. Rhode Island (1996) City of Austin v. Reagan National Advertising (2022) First Nat'l Bank v. Bellotti (1978) Citizens United v. Federal Election Commission (2010) McCutcheon v. Federal Election Commission (2014) Valentine v. Chrestensen (1942) Commercial speech is not protected by the First Amendment Bigelow v. Virginia (1975) The state's antiabortion statute unconstitutionally infringed on an editor's First Amendment right of free speech because the ad contained information of interest to a diverse audience Va. Pharmacy Bd. v. Va. Citizens Consumer Council (1976) Truthful commercial speech is protected by the First Amendment Warner Lambert v. FTC (1977) The Federal Trade Commission has the authority to force companies to run 'corrective' advertising Liquormart v. Rhode Island (1996) A state cannot restrict freedom of speech to achieve social goals if other remedies are available (but compare with Banzhaf v. F.C.C) Austin v. Reagan National Advertising (2022) Distinguishing digital and non-digital and on- or off-premises advertising is not necessarily content-based. Advertising and the Political Process Question: Are political contributions a form of Free Speech? Question: What are the connections between campaign ads, political ads and issue ads? Question: What are the connections between the campaign and campaign supporters (PACs) Question: Who gets to decide? FCC? FEC? First Nat'l Bank v. Bellotti (1978) A state law prohibiting corporations from trying to influence voters was unconstitutional. Non-media corporations have First Amendment rights Broadcasting and Political Advertising Citizens United v. FEC 558 U.S. 310 (2010) Citizens United v. FEC 558 U.S. 310 (2010) Federal law prohibited any corporation (or labor union) from making an "electioneering communication" (defined as a broadcast ad reaching over 50,000 people in the electorate) within 30 days of a primary or 60 days of an election, or making any expenditure advocating the election or defeat of a candidate at any time. The conservative non-profit organization Citizens United sought to air a film critical of Hillary Clinton and to advertise the film during television broadcasts shortly before the 2008 Democratic primary election in which Clinton was running for U.S. President. Citizens United v. FEC 558 U.S. 310 (2010) [P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are 'subject to strict scrutiny,' which requires the Government to prove that the restriction 'furthers a compelling interest and is narrowly tailored to achieve that interest.' [P]olitical speech does not lose First Amendment protection 'simply because its source is a corporation.' The ruling only addresses direct advocacy. It DID NOT change regulations regarding contributions directly to candidates. Shaun McCutcheon As of September 2012, McCutcheon had given $33,088 to sixteen federal candidates and more than $25,000 in non-candidate contributions during the 2011-2012 cycle. He intended to donate to an additional twelve federal candidates, bringing his contribution total over the federal aggregate limit on federal candidates. McCutcheon v. FEC, 572 US 185 (2014) The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse. Defamation Libel - Libel Per Se Group Libel It is not necessary to name the person Any member of the group can sue How do you do it? 1. Publication 2. Identification 3. Defamation Fault A. Types 1. Negligence 2. Malice B. Damages 1. Compensatory 2. Punitive C. Strict Liability Defenses A. Major 1. Truth 2. Privilege 3. Fair Comment B. Minor 1. Neutral Reporting 2. Right of Reply 3. Consent 4. Statute of Limitations Cases A. New York Times vs. Sullivan, 376 US 254, 84 S. Ct. 710 (1964) B. Curtis Publishing Co. vs. Butts, 388 US 130, 87 S. Ct. 1975 (1967) C. Associated Press vs. Walker, 388 US 130, 87 S. Ct. 1975 (1967) D. Rosenbloom vs. Metromedia, 403 US 29 (1971) E. Gertz vs. Welch, 418 U.S. 323 (1974) F. Time v. Firestone, 424 U.S. 448 (1976) G. Herbert vs. Lando, 441 U.S. 153 (1979) Privacy 1. Background 2. Issues 3. Defenses 4. Cases Privacy 1. Background Privacy in American life Rights vs. Laws Privacy : Important Distinctions Personal Privacy ('Personhood') * right to be left alone (seclusion) * right to control your own life (autonomy) Location Privacy ('Location-Dependent' Privacy) Information Privacy ('Whose information is it and why it matters') Issues A. Invasion of Solitude B. Publication of Private Matters C. False Light D. Intentional Infliction of Emotional Distress E. Misappropriation F. Right to Publicity CBS v. DeCosta The Controversy 1947 Victor DeCosta creates image 1957 CBS launches HGWT 1966 DeCosta sues, wins $150,000 1967 1966 ruling overturned 1967 Cert Den 1974 DeCosta wins service mark infringement suit 1975 No likelihood of confusion 1976 Cert den 1977 DeCosta obtains trademark 1991 Viacom violated trademark law; DeCosta awarded $3.5 million 1992 Award overturned 1992 Family sues; wins 1992 Family cannot relitigate 1993 Cert den Carson v. Here's Johnny (1983) 498 F. Supp. 61 (E.D. Mich. 1980) 698 F. 2d. 831 (6th Cir, 1983) No. 91181092 (T.T.A.B. March 25, 2010) News Value vs. Misappropriation Alfred Eisenstadt Aug. 14, 1945 Life Magazine (Aug. 27, 1945) Mendonsa v. Time, 678 F. Supp 967 (D. R.I. 1988) How Much Is Your Dead Name Worth? Defenses 1. Newsworthiness 2. Consent Cases Sidis vs. F-R Publishing, 113 F.2d 806 (2d Cir. 1940) Time v. Hill, 87 S.Ct. 534 (1967) Copyright Thou shalt not steal!!! Article 1, Section 8(8) Copyright protection attaches at time work is created or fixed in a tangible medium of expression. Not when registered Not when published Intellectual Property Patent Trademark Copyright Copyright Infringement v. Plagiarism Copyright infringement - Unauthorized use of copyrighted materials Plagiarism - Appropriating all or part of a composition or idea and passing them off as the product of one's own mind Ownership v. Copyright Mere ownership or possession does not confer copyright Who, What, When, Where, Why, How Transfer of Copyright Copyright is a personal property right, subject to state property laws Author may grant rights to others You can transfer some rights and keep others The Mystical and Mythical Copyright Notice Fair Use Tests for fair use: Purpose of use Nature of work Proportion taken in relation to the work as a whole Economic impact Transformative vs. Derivative Copyright and the Internet Is it in the public domain? Probably not. Cases Baker v. Selden (1880) International News Service v. Associated Press (1918) Sony v. Universal City (1964) Sony v. Universal City (1984) A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th. Cir., 2001) MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), Harper & Row v. Nation Enterprises (1985) Campbell v. Acuff-Rose (1994) Copyright: Software Piracy The Internet: Special Cases and Special Issues Technical Problems Some Internet Basics You Ended Up WHERE??? Blocking Software What do you want to block? What's the Problem Cyber Alphabet Soup CDA (Communications Decency Act) COPA (Child On-Line Protection Act) CPPA (Child Pornography Prevention Act) PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) CIPA (Children's Internet Protection Act) COPPA (Children's On-Line Privacy Protection Act) Others CDA (Communications Decency Act) Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). CPPA (Child Pornography Prevention Act) Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) CIPA (Children's Internet Protection Act) U.S. v. ALA, 539 U.S. 194 (2003). COPA (Child On-Line Protection Act) Ashcroft v. ACLU, 542 U.S. 656 (2004). PROTECT (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) 18 USC 1466 U.S. v. Whorley, 550 F3d 326 (C.A. 4, 2008) Whorley v. U.S., 130 S.Ct. 1052 (cert. den., 2010) COPPA (Children's On-Line Privacy Protection Act) * ECPA (Electronic Communication Privacy Act) - prohibits unauthorized eavesdropping by all persons, businesses, and the government. 47 USC'230 - Protection for private blocking and screening of offensive material (c) Protection for “Good Samaritan' blocking and screening of offensive material Other Concerns Social Networking Privacy Social Networking & Students CyberPrivacy CyberCrime Encryption Legitimate interest or shield for criminal activity? CyberJurisdiction Jurisdiction The Puzzle of Pornography A. What the law says . . . and doesn’t say B. Some definitional problems C. Effects D. The Meese Commission E. Case Law Theoretical Foundations a. Emotional and Physical Effects b. Causes, Correlations and Causal Ordering Cause & Effect? Experimental Design Emotional and Physical Effects a. Cathartic b. Accumulative President's Commission on Obscenity and Pornography (Lockhart Commission (1970) Attorney General’s Commission on Pornography (Meese Commission (1986) The Meese Commission (1986) Zoning regulations (Time, Place & Manner) Case Histories 1. Regina v. Hicklin (1868) 2. Comstock Act (1873) 3. Roth v. US (1957) 4. Ginzburg v. US (1966) 5. Memoirs v. Massachusetts (1966) 6. Stanley v. Georgia (1969) 7. Miller v. California (1973) 8. Ashcroft v. Free Speech Coalition (2002) Mass Media & National Security Freedom vs. Responsibility How do we balance the need to protect the country with the Constitutional & practical concerns for a free and open society? Who guards the guardians? Something to think about… * An 'informed extreme participatory' democracy leads to a totalitarian state. * Therefore, the fewer people who have access to state secrets the better. McMullen, W.A. June 1972, Censorship and Participatory Democracy, Analysis, Vol. 32, No. 6, p. 207-208. Some History Thoms Paine Zimmermann Telegram Laws - A Quick Primer United States Code Executive Orders Court Cases Espionage Act of 1917 18 USC The Historic Record 18 USC 791-799 Congressional Debates The 'Whoever' problem 18 USC 798 – Disclosure of Classified Information Other Statutory Laws Executive Orders Classification Levels But . . . . . . what about the legislative history??? Blank Spots on the Map Area 51 Raven Rock Y-12 Pantex Area 51 Raven Rock (Site R), Fairfield, PA Y-12, Oak Ridge, TN Pantex, Amarillo, TX Mass Media & National Security Major Questions 1. Right of access to information 2. Right to publish once you get the information Access Right to Publish United States v. Marchetti, 466 F.2d 1309 (4 CA, 1972) Alfred A. Knopf v. Colby, 509 F. 2d 1362 (4 CA, 1975) Agee v. CIA, 500 F.Supp. 506 (D.C.D.C., 1980) Agee v. CIA, 517 F.Supp. 1335 (D.C.D.C., 1981) Haig v. Agee,453 U.S. 280 (1982) Snepp v. U.S., 444 US 507 (1980) Whistle-Blowing vs. Espionage vs. First Amendment Spies & Reporters Stephen Jin-Woo Kim James Rosen Julian Assange & Wikileaks Edward Snowden James Risen & Jeffrey Sterling USA Patriot Act Records and Meetings Records and Meetings 1. History and Background 2. Tennessee Law 3. Federal Freedom of Information Act 4. Federal Privacy Act 5. Federal Open Meeting Law Records and Meetings BACKGROUND Informed Debate Public Access v. News Media Access Why Do You Want To Know That? Computer Access v. Paper Access Government Records v. Business Records Access to the Judicial Process History Records and Meetings Tennessee Public Records Laws Tennessee Open Meeting Laws Tennessee Public Records Laws 1. What is available 2. Confidential Records 3. Denial of Access Tennessee Public Records Laws 1. What is available 2. Confidential Records 3. Denial of Access Federal Freedom of Information Act 1. Overview 2. Coverage 3. Making the Request 4. Exemptions Federal Freedom of Information Act 1. Overview A. Any person B. All Federal Agencies C. FOI Officer D. Response Time 2. Coverage A. Executive Branch i. Cabinet ii. Commissions iii. Government Controlled Corporations B. Does not apply to Congress C. Does not apply to Courts D. Does not apply to private corporations 3. Making the Request A. Unofficial B. Letter C. Search and Copy Fees D. Inspection vs. Reproduction E. Appeals F. Lawsuits 4. Exemptions A. 9 exemptions B. Are generally not mandatory C. Is disclosure 'in the public interest' D. Files can be edited then released Federal Privacy Act What does the government know about YOU Federal Privacy Act Collection of Information By the media By the government No records created of First Amendment Activities Reporting First Amendment Activities? Federal Open Meeting Law Applies FOIA to Meetings Free Press / Fair Trial Background Cases The Conflict 1st Amendment vs 6th Amendment Judd Gray and Ruth Snyder murder Snyder's husband, Albert Snyder (1928). The Lindbergh Kidnapping Trial (1935) Julius and Ethel Rosenberg (1951) Cases Sheppard v. Maxwell (1966) Nebraska Press Association v. Stuart (1976) Richmond Newspapers v. Virginia (1980) Chandler v. Florida (1981)