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Media law has been a much-debated topic ever since the first U.S. media industry laws appeared in the early 1900s. The contention surrounding media law largely stems from the liberties guaranteed under the First Amendment of the U.S. Constitution, which includes the freedom of the press.
Generally speaking, media law comprises two areas: telecommunications law, which regulates radio and television broadcasts, and print law, which addresses publications such as books, newspapers, and magazines. Despite differences between the two areas, many media laws involve First Amendment protections. This section explores several areas of media law: privacy, libel and slander, copyright and intellectual property, freedom of information, and equal time and coverage.
Privacy, as you have likely noticed, has been a theme in many chapters. The media and privacy intersect in many arenas, including the legal arena. In 1974, Congress passed the Privacy ActA piece of legislation designed to protect how individuals’ personal information is collected, used, and published., which “protects records that can be retrieved by personal identifiers such as a name, social security number, or other identifying number or symbol.”U.S. Department of Health and Human Services, “The Privacy Act,” http://www.hhs.gov/foia/privacy/index.html. This act also regulates how agencies can collect, store, and use information and requires agencies to tell individuals when they are collecting information about them. Designed to ensure that all First Amendment guarantees remain honored, the act requires all public and private agencies to function within its boundaries.
Under the Privacy Act, media personnel must be careful to avoid revealing certain information about an individual without his or her permission, even if that portrayal is factually accurate. Privacy laws, including the Privacy Act, “limit … your ability to publish private facts about someone and recognize … an individual’s right to stop you from using his or her name, likeness, and other personal attributes for certain exploitative purposes.”Citizen Media Law Project, “Publishing Personal and Private Information,” http://www.citmedialaw.org/legal-guide/publishing-personal-and-private-information. Members of the media can avoid the pitfalls of privacy laws by maintaining a professional relationship with the community upon which they report. To avoid liability, journalists and other media professionals are encouraged to report or comment only on “matters of legitimate public interest and only portray people who have a reasonable relationship to [their] topic.”Citizen Media Law Project, “Publishing Personal and Private Information,” http://www.citmedialaw.org/legal-guide/publishing-personal-and-private-information. In 2005, a legal dispute arose between congressional aides Robert Steinbuch and Jessica Cutler. Steinbuch sued Cutler for publishing information about their intimate relationship; however, the case was dismissed when the court decided that Cutler had only provided facts that were already publically known.Citizen Media Law Project, “Publication of Private Facts,” http://www.citmedialaw.org/legal-guide/publication-private-facts.
Media outlets also must be wary of committing acts of defamation. These occur when false statements that can harm a reputation are printed, broadcast, spoken, or otherwise communicated to others. Two different types of legal protections, libelDefamatatory statements or visual depictions in writen or permanent form. and slanderDefamatatory verbal statements. laws, exist to prevent such defamation from taking place and can extend to individuals, groups, and even companies. Although defamation encompasses both categories, they are separate concepts. Libel refers to written statements or printed visual depictions, while slander refers to verbal statements and gestures.Media Law Resource Center, “Frequently Asked Media Law Questions,” http://www.medialaw.org/Content/NavigationMenu/Public_Resources/Libel_FAQs/Libel_FAQs.htm. State jurisdiction largely covers libel and slander laws, but they are nearly identical throughout the United States.
As with privacy laws, print and broadcast journalists can protect themselves from defamation lawsuits by carrying out responsible reporting. Media personnel are legally protected when communicating a report outweighs any potential damage to a person’s reputation. However, when journalists do not report responsibly, the legal and financial consequences can be devastating. In the 2007 case Murphy vs. Boston Herald, the Boston Herald newspaper was sued for misquoting Massachusetts Superior Court Judge Ernest Murphy. The court ruled that the false quote was published with a malicious intent and awarded Murphy $2.1 million in damages.Barbara W. Wall, “News Watch: Boston Newspapers Suffer Setbacks in Libel Cases,” Gannett, http://188.8.131.52/go/newswatch/2005/april/nw0401-4.htm. In the more famous case of Linda Tripp in 1998, Tripp was charged with secretly recording phone conversations between herself and Monica Lewinsky, who had a sexual relationship with President Bill Clinton. Tripp faced a prison sentence of 10 years for slander and illegal documentation; however, the case was dropped in early 2000 due to witness bias.Don Van Natta Jr., “Maryland Is Dropping Wiretap Case against Tripp,” New York Times, http://www.nytimes.com/2000/05/25/us/maryland-is-dropping-wiretap-case-against-tripp.html. More recently, David and Victoria Beckham sued their former nanny for telling the tabloids that their marriage is in trouble. The nanny’s contract contained an agreement not to talk about the celebrity couple’s private lives.CBS News, “Beckham’s Sue Former Nanny,“ February 11, 2009, http://www.cbsnews.com/stories/2005/04/26/entertainment/main691003.shtml
Copyright laws fall under federal jurisdiction and are, therefore, identical across the country. As you learned in Chapter 4 "Newspapers", Congress first established U.S. copyright and patent protections in 1790 and, despite revisions and updates, has maintained some form of copyright law to this day. With coverage of a wide range of materials, copyright law encompasses “almost all creative work that can be written down or otherwise captured in a tangible medium.”Citizen Media Law Project, “Copyright,” http://www.citmedialaw.org/legal-guide/copyright. This includes literary works; musical works; dramatic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and even architectural works. Once a work has achieved copyright, the copyright owner must grant permission for that work to be legally reproduced. After a certain number of years, a copyright expires and the work enters the public domain.
Copyright does not, however, protect facts. This is of particular importance for news media. Despite the length of time it takes to uncover facts, no individual or company can own them. Anyone may repeat facts as long as that person does not copy the written story or broadcast in which those facts were communicated.
Intellectual property law protects “products of the mind,” including copyrights, patents, open licenses, trademarks, trade secrets, URLs, domain names, and even components of television programs (as David Letterman found out when he moved from NBC to CBS, and was forced to leave certain aspects of his television show behind). Intellectual property law generally follows the same guidelines as copyright law, and the associated legislation seeks “to encourage innovation and creativity, with an ultimate aim of promoting a general benefit to society.”Citizen Media Law Project, “Intellectual Property,” http://www.citmedialaw.org/legal-guide/intellectual-property. The role of copyright and intellectual property in the mass media will be covered in greater detail later in this chapter.
President Lyndon B. Johnson first signed the Freedom of Information ActA piece of legislation that permits the public at large, including the news media, to request access to many government documents. (FOIA) into law in 1966. By requiring full or partial disclosure of U.S. government information and documents, the act “helps the public keep track of its government’s actions, from the campaign expenditures of city commission candidates to federal agencies’ management of billions of dollars in tax revenues.”Citizen Media Law Project, “Access to Government Records,” http://www.citmedialaw.org/legal-guide/access-government-records. Because it allows everyone access to federal documents and information that otherwise would go unreleased, FOIA is particularly important for those working in the news media.
Although the act covers a large range of agencies, some offices are exempt from FOIA. The act provides access to the public records of the executive branch of the U.S. government but does not include documents from the current president, Congress, or the judicial branch.Citizen Media Law Project, “Access to Records from the Federal Government,” http://www.citmedialaw.org/legal-guide/access-records-from-federal-government. Because FOIA pertains to individuals and information in high levels of government, the process of accessing information can be complicated. Those who are interested must become skilled at navigating the complex set of procedures to offer citizens accurate information. Although FOIA allows any person for any reason access to the records, journalists who work for mainstream media organizations often receive perks such as the waiving of fees and expedited processing.Citizen Media Law Project, “Who Can Request Records Under FOIA,” http://www.citmedialaw.org/legal-guide/who-can-request-records-under-foia.
Falling under broadcast regulations, the Communication Act’s Section 315A component of the Communications Act of 1934 that requires broadcast media to offer equal opportunity of broadcast time to candidates.—also known as the Equal Time Rule—requires radio and television stations to give equal opportunity for airtime to all candidates. Essentially, Section 315 ensures that television and radio stations cannot favor any one political candidate over another.
Passed by Congress in 1927, the equal opportunity requirement was the first major federal broadcasting law. Legislators feared that broadcasters and stations would be able to manipulate elections by giving one candidate ample air time. Although candidates cannot receive free airtime unless their opponents do as well, the law doesn’t take into consideration campaign funding. Well-funded candidates who can afford to pay for airtime still have an advantage over their poorly funded peers. Controversies over campaign financing are directly tied to the high cost of political campaign advertising, especially over television.
News programs, interviews, and documentaries are exempt from the requirements of Section 315. This allows media outlets to report on the activities of a candidate without also having to cover the activities of his or her opponent. Presidential debates fall under this exemption as well and are not required to include third-party candidates.
Section 315 also prohibits media from censoring what a candidate says or presents on air. Recently there has been controversy over campaign ads picturing aborted fetuses. Citing Section 315, the FCC allowed these television ads to continue to run.Museum of Broadcast Communications, “Equal Time Rule: U.S. Broadcasting Regulatory Rule,” http://www.museum.tv/eotvsection.php?entrycode=equaltimeru.
As discussed in Chapter 7 "Radio", the Fairness Doctrine was enacted in 1949, when applications for radio broadcast licenses outpaced the number of available frequencies. At the time, concerns that broadcasters might use their stations to promote a particular perspective encouraged the creation of the radio-specific version of Section 315. The FCC thus instituted the Fairness Doctrine to “ensure that all coverage of controversial issues by a broadcast station be balanced and fair.”Museum of Broadcast Communications, “Fairness Doctrine,” http://www.museum.tv/eotvsection.php?entrycode=fairnessdoct.
The FCC took the view … that station licensees were “public trustees,” and as such had an obligation to afford reasonable opportunity for discussion of contrasting points of view on controversial issues. The commission later held that stations were also obligated to actively seek out issues of importance to their community and air programming that addressed those issues.Museum of Broadcast Communications, “Fairness Doctrine,” http://www.museum.tv/eotvsection.php?entrycode=fairnessdoct.
The Fairness Doctrine was considered controversial among journalists who felt that it infringed on the rights of free speech and freedom of press granted in the First Amendment. The doctrine was dissolved during the 1980s with the Reagan administration’s deregulatory efforts. We can see these effects today with the popularity of political talk radio. Stations do not have to assure that all sides of an issue are discussed.
In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) to bring order to the then-largely-unregulated online arena. As discussed in Chapter 13 "Economics of Mass Media", the DMCA prohibits individuals from either circumventing access-control measures or trafficking devices that may help others circumvent copyright measures. Under this act, it is illegal to use code-cracking devices to illegally copy software, and websites are required to take down material that infringes on copyrights. (You’ve experienced this regulation yourself if you’ve ever visited YouTube or Google Video and found that a video has been removed due to copyright claims.)
The DMCA does allow webcasting (the broadcasting of media over the Internet) as long as webcasters pay licensing fees to the companies that own the material. This allows sites such as Hulu to legally stream movies and television shows to viewers. The DMCA also protects institutes of higher education, including distance-learning programs, from certain copyright liabilities.Online Institute for Cyberspace Law and Policy, “The Digital Millennium Copyright Act,” UCLA, http://www.gseis.ucla.edu/iclp/dmca1.htm.
One of the most controversial aspects of the DMCA is that, while it requires websites to remove copyrighted material, it does not require websites to monitor their content. A 3-year-long court battle between media giant Viacom and the Google-owned website YouTube was recently waged over this factor. Viacom argued that YouTube infringed on its rights by hosting copyrighted videos. Google responded that while YouTube may include copyrighted material, it is not required to scan every user-uploaded video for copyright infringement. When a claim is brought against a YouTube video, the video is removed—beyond that, the website is not responsible for content. The judge ruled in favor of Google, stating that it was indeed protected under the DMCA. While many saw this as a victory for Internet freedom, others warned that it would have future consequences for the protection of copyright holders.Steve Rosenbaum, “Viacom vs. YouTube: What Was Won. What Was Lost,” Huffington Post, July 9, 2010, http://www.huffingtonpost.com/steve-rosenbaum/viacom-vs-YouTube-what-wa_b_641489.html.
Visit the website of a major media outlet and examine the coverage of a recent local, state, or national election. Compare the coverage of different candidates. Then write answers to the short-response questions below. Each response should be a minimum of one paragraph.