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Communications Law: Liberties, Restraints, and the Modern Media, Sixth Edition

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Communications Law: Liberties, Restraints, and the Modern Media, Sixth Edition Communications Law From the Wadsworth Series in Mass Communication and Journalism General Mass Communication Biagi, Media/Impact: An Introduction to Mass Media, Ninth Edition Hilmes, Connections: A Broadcast History Reader Hilmes, Only Connect: A Cultural History of Broadcasting in the United States, Third Edition Lester, Visual Communication: Images with Messages, Fifth Edition Overbeck, Major Principles of Media Law, 2011 Edition Straubhaar/LaRose, Media Now: Understanding Media, Culture, and Technology, Sixth Edition Zelezny, Cases in Communications Law, Sixth Edition Zelezny, Communications Law: Liberties, Restraints, and the Modern Media, Sixth Edition Journalism Bowles/Borden, Creative Editing, Sixth Edition Hilliard, Writing for Television, Radio, and New Media, Tenth Edition Kessler/McDonald, When Words Collide: A Media Writer’s Guide to Grammar and Style, Seventh Edition Rich, Writing and Reporting News: A Coaching Method, Sixth Edition Public Relations and Advertising Diggs-Brown, The PR Styleguide: Formats for Public Relations Practice, Second Edition Drewniany/Jewler, Creative Strategy in Advertising, Tenth Edition Hendrix, Public Relations Cases, Eighth Edition Newsom/Haynes, Public Relations Writing: Form and Style, Ninth Edition Newsom/Turk/Kruckeberg, This Is PR: The Realities of Public Relations, Tenth Edition Research and Theory Baran and Davis, Mass Communication Theory: Foundations, Ferment, and Future, Fifth Edition Sparks, Media Effects Research: A Basic Overview, Third Edition Wimmer/Dominick, Mass Media Research: An Introduction, Ninth Edition Communications Law Liberties, Restraints, and the Modern Media Sixth Edition John D. Zelezny Attorney at Law Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States Communications Law: Liberties, Restraints, © 2011, 2006, 2004 Wadsworth, Cengage Learning and the Modern Media, Sixth Edition ALL RIGHTS RESERVED. No part of this work covered by the copyright John D. Zelezny herein may be reproduced, transmitted, stored or used in any form or by Senior Publisher: Lyn Uhl any means graphic, electronic, or mechanical, including but not limited to photocopying, recording, scanning, digitizing, taping, Web distribution, Publisher/Acquisitions Editor: information networks, or information storage and retrieval systems, except Michael Rosenberg as permitted under Section 107 or 108 of the 1976 United States Copyright Development Editor: David Estrin Act, without the prior written permission of the publisher. 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Marketing Coordinator: Darlene Macanan Marketing Communications Manager: Library of Congress Control Number: 2009942287 Christine Dobberpuhl Content Project Management: Pre-PressPMG ISBN-13: 978-0-495-79417-2 Art Director: Linda Helcher ISBN-10: 0-495-79417-1 Print Buyer: Justin Palmeiro Text Permissions Editor: Wadsworth Margaret Chamberlain-Gaston 20 Channel Center Street Production Service: Pre-Press PMG Boston, MA 02210 USA Permissions Account Manager, Images/Media: Mandy Groszko Cover Designer: Pier Design Company Cengage Learning is a leading provider of customized learning solutions with offi ce locations around the globe, including Singapore, the United Kingdom, Cover Image: ©stevesm/istockphoto, Australia, Mexico, Brazil, and Japan. Locate your local offi ce at ©CostinT/istockphoto, international.cengage.com/region. ©uschools/istockphoto, ©Nikada/istockphoto Compositor: Pre-Press PMG Cengage Learning products are represented in Canada by Nelson Education, Ltd. For your course and learning solutions, visit www.cengage.com. Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com. Printed in the United States of America 1 2 3 4 5 6 7 13 12 11 10 09 Contents Preface xiv CHAPTER ONE The U.S. Legal System 1 Studying the Law 1 Sources of Law 4 Constitutional Law 4 Statutory Law 6 Administrative Law 7 Case Law 9 Other Ways to Categorize Law 12 Civil Law Versus Criminal Law 12 Contracts Versus Torts 13 Court Systems and Jurisdiction 14 Federal Jurisdiction 15 State Jurisdiction 19 Special Problem: Cyberspace 21 The Judicial Process 25 Justiciable Controversy 25 Pretrial Procedure 26 Trial Procedure 28 Appellate Procedure 29 Administrative Proceedings 31 Summary Points 31 Discussion Questions 32 Key Terms 33 CHAPTER TWO The First Amendment 34 Background: A Short History of Free Speech 34 Reasons for Freedom of Speech 38 Social Reasons 38 Individualistic Reasons 39 Rebuttal 40 v vi Contents Adoption of the First Amendment 41 Nature of the Guarantee 43 Liberty Versus Government Power 43 Expression Versus Conduct 44 Gathering and Distributing 46 Suspect Restrictions 47 Prior Restraints 47 Punishment After the Fact 50 Financial Burdens 52 Compelled Speech 54 Time, Place, and Manner Restrictions 57 Resolving Conflicts 59 Rights Not Absolute 59 Unprotected Speech 60 The Balancing Approach 63 Special Problem: Government Facilities and Media 69 The Forum Theory 69 The Student Press 70 Special Problem: Corporate Speech 74 Protecting Investment Markets 75 Protecting the Political Process 77 Waiver of Free Speech Rights 82 Summary Points 83 Discussion Questions 84 Key Terms 85 CHAPTER THREE Risks to Public Safety 86 When to Censor? 86 Law and Order 88 Clear and Present Danger 89 The Incitement Standard 91 National Security 93 The Pentagon Papers Case 94 The H-Bomb Case 96 Wartime Access Restrictions 97 The Patriot Act 98 Personal Injury 99 Negligence Versus Incitement 99 Harm Through Imitation 100 Contents vii Harm From Advice or Instruction 104 Harm Through Advertising 110 Summary Points 113 Discussion Questions 114 Key Terms 115 CHAPTER FOUR Damage to Reputation 116 Evolution of Defamation Law 116 Development by the States 119 The Constitution Intervenes 120 Ingredients for a Lawsuit 121 Defamatory Content 121 The Meaning of Defamatory 121 Interpreting the Statements 124 Falsity 129 Burden of Proof 129 How False Must It Be? 130 Publication 135 Identification 136 Special Problem: Group Defamation 136 Fault 137 New York Times Co. V. Sullivan 138 The Meaning of Actual Malice 141 Gertz and the Negligence Standard 145 Categorizing the Plaintiff 147 Harm to Plaintiff 153 Awarding Damages 154 Limits on Damages 155 Matters of Private Concern 155 Privileges, Defenses, and Other Protections 156 Reports of Official Proceedings 157 Neutral Reporting 159 The Wire Service Defense 160 Retractions 161 Summary Judgment 162 Counterattacks by The Media 163 Anti-Slapp Statutes 163 Statutes of Limitations 165 viii Contents Defamation in Cyberspace 165 ISP Liability 166 User Liability 169 Libel Tourism 170 Libel Reform Efforts 171 Reasons for Change 171 The Uniform Correction Act 172 Summary Points 173 Discussion Questions 174 Key Terms 175 CHAPTER FIVE Invasion of Privacy 176 Origins of Privacy Law 176 Four Distinct Torts 178 Appropriation of Name or Likeness 179 Commercial Use 180 Name or Likeness 184 Consent 186 Special Problem: Deceased Celebrities 189 First Amendment Clash 189 Disclosure of Private Facts 190 Private Life 191 Highly Offensive Disclosure 193 Not Newsworthy 194 False Light 200 False Light Situations 201 The Elements and Privileges 203 Intrusion 204 Expectation of Privacy 204 Offensiveness 206 Use of Subterfuge 208 Public Places 211 Limits of Liability 212 Companion Torts 212 Fraud 213 Emotional Distress 214 Trespass 217 Criminal Statutes 218 Photo Stalking 218 Betraying Identity 218 Recording and Intercepting Calls 219 Contents ix Privacy in Cyberspace 222 E-Mail and Websites 223 Collecting and Accessing Data 224 Summary Points 227 Discussion Questions 228 Key Terms 229 CHAPTER SIX Access to Places and Information 230 Access to Places 230 Trespass on Private Property 232 Accident, Crime, and Disaster Scenes 237 Polling Places 238 Government Property 238 Government Proceedings 239 State Open Meetig Laws 240 The Federal Meetings Statute 243 Government Records 245 The Freedom of Information Act 245 State Open Records Laws 259 Selective Access by Government 263 Summary Points 266 Discussion Questions 266 Key Terms 267 CHAPTER SEVEN Media and the Justice System 268 Media and Courts: A Unique Relationship 268 The Quest for Fair Trials 270 The Sixth Amendment Guarantee 271 The First Amendment Conflict 272 Warnings from the Supreme Court 272 The True Effect of Publicity 276 The Aftermath of Sheppard 277 Gag Orders and the First Amendment 278 Gagging the Media 279 Gagging Trial Participants 283 Access to Proceedings 285 Criminal Trials 286 Pretrial Proceedings 290 Executions 291 x Contents Civil Proceedings 292 Deportation Hearings 293 Special Problem: Juvenile Court 294 Special Problem: Cameras in The Courtroom 295 Ethics, Etiquette, and Court Coverage 299 Access to Evidence and Records 299 Keeping Media Secrets 302 Forced Disclosure and the First Amendment 303 Shield Laws 308 Legal Obligation to Sources 311 Police Searches 313 Contempt of Court 313 Summary Points 315 Discussion Questions 316 Key Terms 317 CHAPTER EIGHT Creative Property 318 A Special Kind of Property 319 Copyright 320 Protected Works 321 Ownership 326 Formalities
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