Freedom of speech and freedom of the press are fundamental principles held worldwide and are considered hallmarks of civilization and democracy.
• In the United States of America, the First Amendment to the Constitution is the cornerstone of media law. It has six major parts; two about religion, and one each in the areas of speech, press, assembly and petition:
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.
Although it is subject to interpretation, the general underlying principles of US media law have been made clear by the Supreme Court through opinions it issues. The fundamental principle of freedom of speech and press was very well expressed in the bedrock case, New York Times v Sullivan:
We [have] … a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”. — New York Times v Sullivan, 1964
• The commitment to free speech and press is also explicit in many other countries.
Most significant is the United Nations Declaration of Human Rights, Article 19, which says:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10, which is also very significant, says:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
These guarantees of free speech stand in sharp contrast to harsh repression in other nations. Two of the worst offenders are China and Saudi Arabia.
In China, the basic idea of freedom of speech is noted in Regulations on the Administration of Publishing (2001.12.25) (See US State Dept. site on Freedom of Expression in China). But observe the second clause– that’s the sticking point, and the truth is that even minor challenges to political authority in China can be met with harsh jail terms or execution.
Article 5: All levels of the People’s Government shall ensure that citizens are able to legally exercise their right to freedom of publication. When citizens exercise their right to freedom of publication they shall abide by the Constitution and laws, shall not oppose the basic principles confirmed in the Constitution, and shall not harm the interests of the country, the society or the collective or the legal freedoms and rights of other citizens.
In Saudi Arabia, a “Royal Decree“of April, 2011 prohibited any negative statements about the kingdom or its politics whatsoever.
Freedom of speech is shrinking worldwide, according to Reporters without Borders. In an era of rapidly increasing global communications technologies, the problem is a universal concern.
2. Why we study media law
Everyone who uses the media needs to understand media law, and new technologies make everyone on earth a publisher. But to understand why this is important, we need to reach back into the history and ideas behind the legal system.
• Natural rights theory takes the view that freedom is the natural human condition. Rights under this concept are not given by the state, but are rather given by nature or given by God. Therefore a state should protect rights; it does not “grant” rights. This view developed in Western Europe during the Enlightenment period, as we will see in the historical section of the course (Ch. 2). Yet Western Europe is not the only source of the idea of freedom of religion, speech or expression, or of democracy. This diversity re-affirms the natural rights perspective.
• Free speech has a pragmatic function. and dissent can lead to constructive social change and improvements in the human condition. Repression, on the other hand, alienates the people, making non-violent reform impossible and increasing the likelihood of violence.
* New technologies have affected everyone. In effect, we’re all publishers now, and some understanding of this subject is vital.
• Historically, the role of mass media in democracy is to inform, to provide a vehicle for personal expression and to serve as a “social safety valve” for information and viewpoints — even the unpopular ones.
• Criticism of public people and public issues, even to the point of sharp and vehement debate, is often seen as a citizen’s responsibility as well as a right. This idea was voiced in an interesting way by US president Theodore Roosevelt.
“To announce that there must be no criticism of the president or that we are to stand by the president right or wrong, is not only unpatriotic and servile, but it is morally treasonable to the American public.”
• While the democratic theory of law supports public discussion of public issues,
it may also protect private people and private information. The balance between public and private spheres is one of the key factors in media law in a democratic country.
3. Categories, sources and institutions of law
Categories of law:
There are two basic categories of law in every country: criminal law and civil law
- In criminal law, a case is brought by the police or a district attorney, usually after evidence is gathered by police or a grand jury. We won’t be spending much time on criminal law. Media law is almost entirely civil.
- In civil law, a case is brought by any person against another person (or corporation). Money and behavior are the only issues at stake. If there is a crime involved, charges may be brought separately under criminal law.
- The two major categories of civil law are contracts and torts
- A contract is a written document between people and/or corporations that is enforceable in court
- A tort is a wrong that involves a breech of civil duty. Torts can involve:
- negligence (alleged in personal injury cases);
- statutory torts (such as product liability);
- defamation and related “dignitary” torts (such as invasion of privacy, misappropriation of publicity, and disclosure of private facts), which are an area of major concern in media law.
- negligence (alleged in personal injury cases);
- The two major categories of civil law are contracts and torts
Five sources of law:
- Constitutional (18th c. product of American and French revolutions) — At both state and federal levels, constitutions provide for a check on the power of the legislature and executive on the basis of the Constitution. In countries without Constitutions, such as the United Kingom (Britain), laws are reviewed only by the Parliament.
- Common or Case law (judge made law) This was originally based
on long legal history and custom stretching back more than a thousand years.
- Equity — A body of civil law concerned with doing
justice where money is inadequate or inappropriate as a remedy. Examples
of equitable actions include divorce and injunctions. Equity cases are handled
by circuit courts. (Originally, a King’s corrective prerogative, justice
administered according to ideas of fairness, not strict adherence to precedent / stare decisis)
- Statutory (Parliament, Congress, state legislatures)
- Regulatory or administrative law (executive agencies such as the Federal Communications Commission, the Federal Trade Commission, or state agencies)
** Executive orders — Actually a form of administrative law reserved for the president or agency heads, sometimes used in times of emergency. Administrative orders can be secret, and some have proven deeply embarrassing, for example, President George W. Bush’s executive orders permitting torture of prisoners. Trager includes this as a major source of law, but that’s controversial.
Institutions of law:
The United States legal system
- State courts:
- District / Inferior (traffic, misdemeanors,
- Circuit / Superior (civil and felony criminal)
- District / Inferior (traffic, misdemeanors,
of appeals — > state supreme court(s)
- Federal district courts -> Federal District Appeals Courts –> US Supreme Court
- US Supreme Court has final jurisdiction over both state and federal courts
– UK/ English legal system
- Old system:
- Magistrates courts –> Crown Court –> Lords appellate committee –> House of Lords (Law lords)
- New system (2009):
- Criminal: Magistrates courts –> Crown Court –> Court of Appeal -> Supreme Court
- Civil: County Courts –> High Court –> Court of Appeal -> Supreme Court
- Jurisdictions distinguished by region (eg, Scotland, Britain,
Wales, N. Ireland)
- No judicial review of Parliamentary law and no written constitution. This means that a law’s “constitutionality” can’t be considered by the courts and is subject to change only by Parliament.
- Increasing jurisdiction by European Court of Human Rights in free speech and media law issues.
– Canadian legal system
- Provincial courts –> Superior Courts –> Courts of Appeal
–> Supreme Court of Canada
- Federal Administrative Tribunals –> Federal Courts –> Federal –> Supreme Court of Canada
- From Wikipedia: “Until 1982, Canada had Parliamentary sovereignty like the United Kingdom, wherein the Supreme Court of Canada could only overturn acts of Parliament if those acts violated the division of powers between the federal and provincial levels of government. With the introduction of the Charter of Rights and Freedoms in 1982, Canadian courts gained the power to overturn primary legislation,”
4. Fundamental concepts of law
Equal justice and the Rule of Law
The “rule of law” is an ancient concept and one of the most important and hard-fought ideas in human history. The principle is that no one — not even a king — is above the law. Many wars and revolutions have been fought to preserve and extend the basic idea of equal justice, as we will see when we consider the history of free speech.
From the Constitutional point of view, the “law” is not just a set of rules that can easily be consulted. New circumstances require new interpretations all the time. But there are ongoing debates about this concept. Conservative scholars see a need to base Constitutional law on the “original intent” of the framers of the Constitution in 1789. Liberal scholars see the Constitution as a “living document” that can and should change with the times. Debates between these two schools of thought have underpinned questions about the rights of minority groups and free speech issues for many decades.
US Constitutional law
Constitutionality means that a law is in harmony with the applicable Constitution. In the area of human rights law, for example, this concept might involve the protection of rights by the Bill of Rights (in the US) or the European Convention on Human Rights (in Europe). Also, in countries without a constitution, or without a constitutional guarantee of human rights, the United Nations Declaration of Human Rights may be invoked.
Example: In New York Times v Sullivan, 1964, the Supreme Court said that if it were to decide the case against the New York Times, and make it easy for public officials to sue the press for defamation (libel), then the court would be undermining the First Amendment of the US Constitution.
Supremacy — Federal law takes precedence over state law:
- The Supremacy clause in U.S. Constitution (Article 6 ) means that states are bound by the U.S. Constitution, federal law and federal agency regulations.
- 14th Amendment (passed in 1868) makes Bill of Rights applicable to the states
Stare decisis — Let the precedent stand. (Respect prior court decisions) This is a legal principle that provides stability and predictability by relying on precedents to guide opinions. Judges usually go by the precedent unless there is a reason to overturn it.
Example: when asked about Roe v Wade (the abortion decision from 1973), many of the candidates for Supreme Court in recent years said they were personally opposed to abortion but that the principle of stare decisis was more important.
Overbreadth — When Congress or a state legislature passes a law, sometimes the terms are not clear enough, and the law can be seen as reaching so deeply into Constitutional rights that no one knows what is punished and what is permitted. Uncertain laws can be selectively administered, and have at times been used to violate Constitutional rights. Therefore a good law is not overly broad. A good law is narrowly tailored to meet compelling interests.
Example: In US v Stevens, 2010, the Supreme Court said that a law banning videos depicting cruelty to animals was overly broad and should have been more narrowly tailored.
Absolutism and democratic theory — First Amendment absolutism, as advocated by Alexander Meiklejohn, is an argument that nothing is more important to a democracy than freedom of speech. For example, see Free Speech and its Relation to Self-Government, 1948.
Procedures in civil law / exemplified in this hypothetical case of SMITH v JONES
- Plaintiff S. Smith files initial brief against respondent (defendant) J. Jones. The lawsuit is called Smith v Jones
- Venue – A civil issue that involves more than one state may be heard in a federal court under “diversity jurisdiction.” Federal courts also hear cases involving federal laws. Otherwise cases are heard in state courts.
- The brief (or complaint or petitition) is presented to the trial court stating 1) that they are in the proper court and location, or venue; 2) the facts of the case; 3) legal arguments, including the precedents on which the case stands; 4) the prayer for relief, (court action requested). This is often for a court order that plaintiffs receive financial compensation. Or it may also be for an injunction against a defendant. In appeals cases the relief requested may be to overturn the law, which is called a facial challenge, which means that the law may be unconstitutional on its face.
- Answer or response from defendant Jones. The answer may include preliminary motions, for example, a motion for summary judgement on the basis of insufficient evidence, or possibly on an inaccurate reading of the law (called a demurrer). Other preliminary motions may include motions to supress evidence illegally obtained, motions to change the venue (espcially in the case of large amounts of publicity) and motions to reschedule a trial to allow more time to prepare.
- Discovery of evidence, including witness depositions; There may also be interrogatories, or questions, presented to witnesses of both sides, again, before the trial starts.
- Trial — If a trial is ordered, there is first a discovery process in which both sides learn of evidence to be presented. Sometimes groups that are not named in the complaint but who have a stake in the trial may file a “friend of the court” (amicus) brief.
- Jury selection — The process of jury selection is called voir dire.
- Trial – includes physical evidence, statements by attorneys and witnesses;
- Evidence is weighed by judge or jury. Tests (or standards): A judge or jury (or both) will apply the appropriate standard to the evidence in order for reach an opinion. In a criminal case, the well-known test is guilt beyond a reasonable doubt. However, in a civil case, the test is the preponderance of evidence. In a Constitutional law case involving the First Amendment, free speech is considered to have the “preferred position.”
- Smith wins, Jones appeals on a point of law, case is now
called Jones v. Smith
- Appeal – Either side can appeal a trial court decision to a higher court for a variety of legal reasons. There is a chain of appeals courts in both state and federal systems. A case heard by a state supreme court can be appealed to the US Supreme Court (as in New York Times v Sullivan).
- Appeals court reads briefs, hears oral arguments, Jones
wins, appeals court decides to remand with instructions to lower
- The decision could stand as a weak federal district precedent if the Supreme Court doesn’t grant certiorari.
- Smith appeals to Supreme Court. SC grants certiorari. Case is now Smith v. Jones again
- Supreme court decides case on basis of majority, and the majority picks someone to write the opinion. The minority may also write dissent.
- Opinion — A court opinion may uphold a lower court, or reverse a decision of a lower court. When the Supreme Court issues an opinion, the majority will issue the opinion, there may also be concurring opinions with different takes on the law, or dissenting opinions from different court members. At the federal appeals court level, usually only one judge presides, but on important cases they may preside “en banc” or with all judges. A reversal of a decision often means that the case is remanded to a lower court to re-hear the case and make a new decison based on the upper court’s instructions as expressed in the opinion.
petition (brief), petitioners, respondents, venue, diversity jurisdiction, demurrer, motion for summary judgement, voir dire, en banc, writ of certiorari (cert.), majority / minority opinion, uphold, reverse, remand
Legal terms in Virginia are defined in the court’s Glossary of Terms
Briefing a case
For a class in law, a case brief is a one to two page memo with a students name, email address, and the name of the case. The memo should describe five points about the case:
- Facts – Background
- Issue – 1-2 sentences
- Rule of Law – 1-2 sentences
- Analysis – Explain why
- Conclusion – votes, concurring or dissenting opinions, historical impact
Case citation styles
The citation system was originally based on
paper libraries with book volumes and page numbers. Sometimes there are editions noted, as in the Rosemont
case, because the numbering system was changed twice. (We are now on the 3rd
edition since 1993). Later some systems used database numbers. Virginia uses
a straight up case numbering system along with a traditional volume and page
- Rosemont Enterprises v. Random House, 366 F.2d 303 Federal
Case number (Vol. 366 page 303 of the Federal Reporter, Second edition)
- New York Times v. Sullivan, 376 US 254 (Vol. 376 page 254
of the US Supreme Court reporter). (preferred styles)
- Other parallel citations for Sullivan are:
- 84 S. Ct. 710 (Vol. 84 Supreme Court Reports p. 710)
- 11 L. Ed. 2d 686 (Vol. 11 Lawyers Edition Second Edition
- 1964 U.S. LEXIS 1655 (Lexis database case citation)
- 95 A.L.R.2d 1412 (Vol. 95 Alabama Reports Second Edition
- 1 Media L. Rep. 1527 (Bureau of National Affiars private
- Richmond Newspapers v. Virginia, Record No. 781598 SUPREME
COURT OF VIRGINIA 1979 Va. LEXIS 307; 5 Media L. Rep. 1545
- Richmond Newspapers v. Virginia, when reheard and new instructions
issued in 1981: Record Nos. 801370, 801580, 810666, 801198, 801199 Supreme
Court of Virginia 222 Va. 574; 281 S.E.2d 915; 1981 Va. LEXIS 346; 7 Media
L. Rep. 1897
5. What distinguishes media law
– US Media law involves many First Amendment issues directly,
but some only indirectly. For example, issues involving the establishment
of religion clause are often not media issues but can be First Amendment issues. Symbolic speech issues are often not mass media issues. In addition, a good deal of media law involves non-First Amendment areas such as copyright, FCC or FTC regulations, and so on.
- – Media law involves both structural issues and content issues. See the chart below.
- – Structural issues usually involve statutory law and regulatory
• The controversy over cross ownership (newspapers owning TV stations in the same town, for example) is a structural issue.
• The government is sometimes involved when structural
issues are at stake, such as in “anti-trust” (anti-monopoly) lawsuits.
– Content issues are usually between a plaintiff and a respondent.
– In the US, content issues usually involve Constitutional law and common law.
• Prior restraint, libel, invasion of privacy, and obscenity are common law issues tried in civil courts .
• Copyright and some broadcasting content issues are governed by statutory and regulatory law.
– Media law emerges from a large and complex historical tradition
of the struggle first for religious and next for political freedoms.
– Tests applied in media law content cases give a strong “preferred position” to individual liberty of speech as protected by the First Amendment to the US Constitution. However, tests applied in structure cases use a standard “preponderance of evidence” test.
– Media law does not include all elements of Entertainment Law as Wikipedia defines it.
- It does not include contract law, employment law, labor law, bankruptcy law, immigration law, securities law, private international law, or insurance law — all of which may be elements of an entertainment law practice.
- On the other hand, it does include intellectual property (especially trademarks, copyright, and the so-called “Right of Publicity”), right of privacy, defamation, clearance of rights, and advertising.
|OVERVIEW OF MEDIA REGULATION FOR THE US|
|TYPE||CONTENT ISSUES||DISPUTES RESOLVED THROUGH …|
|All media||Defamation / libel, slander||
Private civil lawsuits only
Public figures bringing suit have high burden of proof
|All media||Invasion of Privacy / false light, publication of private facts||Private civil lawsuits onlyPublic figures bringing suit have high burden of proof|
|All media, esp. photography||Invasion of Privacy / intrustion by media, misappropriation of likeness||Limited regulation enforced through private lawsuits|
Library of Congress, Courts; Bern Convention (UN)
|All media||Prior Restraint / censorship||Federal agencies seek court injunctionsVery high burden of proof on governmentMilitary situations are exceptions|
|Advertising||Most products and services||Federal Trade Commission (FTC)|
|Advertising||Medical products and services||Food and Drug Administration (FDA)|
|Broadcasting standards||Obscenity and indecency on TV||Federal Communications Commission (FCC)|
|Broadcasting standards||Advertising on TV to children||FCC|
|TYPE||STRUCTURAL ISSUES||RESOLVED THROUGH|
|Print ownership||Anti-trust laws||Congress|
|Broadcast ownership||Anti-trust laws, FCC regulations||Congress, FCC|
|Broadcast, cable and satellite technology||Frequency allocation, technical standards, etc.||FCC|
|Satellite, broadcast frequencies||technical standards||International Telecommunications Union, ISO (UN)|
|Internet and web||domain ownership, tech standards||ICANN, ITU (UN)|