PART SEVEN: RIGHTS AND RESPONSIBILITIES
CHAPTER 19 Media Law
Overview
The basics of the law its protections and its limitations
ability to maintain confidentiality of sources. We discuss those, a bit tentatively, because of
variations from state to state and because of the uncertain prospects of shield legislation.
Teaching Tips
Libel privacy is the right to be left alone. One
goal of this chapter is to get students to realize how often libel and invasion of privacy issues
arise. This will allow students to see possible defenses for the various stories that are written
daily.
Lecture Notes
I. INTRODUCTION
II.
A. Free flow of ideas is the heartbeat of democracy; people who govern themselves need
to know about their government.
B. There is much protection for access to information (First Amendment, Freedom of
Information Act, sunshine laws), but also restrictions.
III. LIBEL
A.
B. Identifying libel.
1. Time magazine used to explain libel.
2. Courts mainly rely on four categories of statements to determine if a reputation has
been damaged: accusing someone of a crime; damaging a person in his or her
public office, profession or occupation; accusing a person of serious immorality;
accusing someone of having a loathsome disease.
C. Libel suit defenses:
1. Truth best defense; burden of proof is on the plaintiff; courts will settle for
2. Privilege applies to journalists covering any of the three branches of government;
officials say if report is full, fair and accurate.
3. Fair comment and criticism journalists are protected when focus is anyone in the
4. The actual malice test and public officials to successfully recover damages for
defamatory statements, public officials must prove that press knew what it printed
was false or that it was printed with reckless disregard for the truth.
5. The actual malice test and public figures the Wally Butts football case vs. the
General Edwin Walker riot case; protection from libel action when writing about
those who have thrust themselves into the forefront of a controversy or event.
6. The negligence test and private citizens must use the same care in gathering facts
and writing the story as a reasonable reporter would under the same circumstances;
New York has a gross responsibility test; some states require private citizens to
prove actual malice, others require a finding of fault.
D. Libel remains a danger jury awards can be financially devastating.
E. Libel and the Internet individuals who libel over the Internet can be held
responsible, but what about online service providers like Microsoft, Google, etc.?
Generally, decisions have favored online service providers.
IV. INVASION OF PRIVACY
A.
1. Physical intrusion into a private area.
2.
3. True disclosures that are also offensive to individual or ordinary sensibilities.
B. Trespassing
deception.
C. where a picture or story is misleading.
D. Causing unwanted publicity offensive to a person of ordinary sensibilities a morbid
and sensational prying into private lives.
V. PROTECTION OF SOURCES AND NOTES
A.
B. Shield laws adopted by 40 states and District of Columbia; there is no federal shield
law.
C. Without a shield law, journalists do go to jail for refusing to testify.
D. Privacy Protection Act (1980) offers some protection to newsrooms.
E. Three-part test to maintain confidentiality, even in states with shield laws (Branzburg
v. Hayes, 1972); government officials must show: (1) Information they seek is clearly
F. In civil litigation, sources can remain confidential unless court rules information is
unavailable from other sources and is highly relevant to the litigation.
G. If sued for libel,
H. Be conservative about promising confidentiality.
I. Position of bloggers and other digital authors is unclear in many states.
VI. ACCESS TO COURTS
A. Presumption of openness in trials.
B. Jury selection can only rarely be closed.
C. Most states now allow cameras in courts, and they are also allowed in some lower
federal courts (but not in the U.S. Supreme Court).
VII. COPYRIGHT AND FAIR USE
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A. Purpose of copyright law is to ensure compensation for creators.
B. Copyright
plus 70 years; anonymous/pseudonymous works protected for 95 years from
publication or 100 years from creation.
C. Fair use limitation on copyright based on purpose and character of the use, nature of
the work, size and significance of the portion used in relationship to the work as a
whole, effect on the potential market for value of the copyrighted work.
E. Changes in 1989 copyright notice no longer required (but still widely used);
registration no longer required for federal court infringement action (but required to
collect statutory damages).
Class Activities and Discussion Questions
Activity 1: In a computer lab with Internet access, assign pairs of students one of the
following press law cases. They should make a brief presentation that includes the facts of the
case, the key question, and how the case was eventually decided (in or out of court).
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Hazelwood School District v. Kuhlmeier
New York Times Co. v. Sullivan
New York Times Co. v. the United States (the Pentagon Papers case)
Schenck v. the United States
Near v. Minnesota
Gertz v. Robert Welch, Inc.
Discussion questions: In general, where does the Supreme Court stand when it comes to
balancing freedom of the press with other competing interests? Does the court seem to be
increasing or decreasing levels of press freedom?
Activity 2: In a computer lab with Internet access, have students go to the website of the
National Freedom of Information Coalition (www.nfoic.org/state-foi-resources), which
includes a list of links for freedom of information laws for all 50 states. Have students
neighboring states. Discussion questions
Activity 3: Have students play the role of newspaper lawyers, and ask them to respond, using
information in the chapter, to the following situation: The newspaper has printed an
advertisement in its rental property section for a local apartment building. The photo
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accompanying the ad features the apartment building, but it also includes the clearly visible
establishment, and his lawyer has contacted the newspaper claiming that the advertisement is
Discussion questions: Is this a case of appropriation? Is
the fact that the photograph was taken in public relevant? How should the newspaper
Activity 4: Most newspapers have increased their scrutiny of anonymous sources in the last
few years, but many still allow sources to remain unnamed as long as reporters have
appropriately justified the reasons for anonymity with their editors. Still, especially in
-the-
small groups of students play the role of an editorial board, and ask them to develop and
Activity 5: Media law is constantly changing, and any journalism or media law textbook is
dated the
www.firstamendmentcenter.org).
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They should read at least one story li
enough time, they can skim other headlines and stories. They can find other relevant articles
on the First Amendment Center website, students should prepare a brief presentation on the
current status of media law, including any recent and relevant court cases (they are listed
Solutions to Textbook Exercises
1. This exercise depends, of course, on whether or not there is a local First Amendment
clearly cite First
Amendment arguments as part of the analysis.
2. The New York Times Co. v. Sullivan is perhaps the most important case in the history of
libel law. It probably has greatly reduced the number of libel suits brought to trial and
3. The Richmond Newspapers cases will probably be cited in all cases dealing with
openness of criminal court proceedings. See, for instance, the Supreme Court cases of
Press-Enterprise Co. v. Superior Court of California (1984) and Press-Enterprise Co. v.
Superior Court of California (1986).
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4. Your journalism blog.
a thoughtful explanation of how access to government information was critical to the
to also report on the impact of the
5. As you know, the legal guidelines and principles for journalistic blogs are really no
different than the standards for a printed newspaper or online news website. While blogs
are often more focused on commentary and criticism of events, and not just reporting, we
certainly pointed out in this chapter that opinion and commentary are no less subject to
potential lawsuits and perhaps more so. A blogger s courtroom declaration that a
6. One way to trigger a richer classroom conversation on this topic is to introduce case
studies and ask students to take sides. For example, in most states, it is not illegal to print
the names of juveniles who have been arrested, but most newspapers won t do it. The
same thing is true for victims of sexual assault.
A possible case study for your student to consider, then, is this: In 1991, William
Kennedy Smith, the nephew of the now-deceased Sen. Ted Kennedy (D-Mass.), was tried
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inquiry-fought-adversity-and-sought-acceptance.html?pagewanted=all.)
Question: Should the names of rape victims be published? Should The New York Times
and other publications have published the name of the alleged rape victim in the William
Kennedy Smith case?
Here s another case study: In early 1991, the Columbia Missourian discovered that a
member of the men s basketball team had charged almost $150 of long-distance phone
calls to a credit card belonging to a University of Missouri graduate student. (The student
had photographed a Missouri women s basketball game and left the telephone credit card
in the M.U. gymnasium, where the player found it during a men s practice session.) The
Missourian investigated and eventually reported a story about the illicit use of the credit
card. During the investigation, Missourian reporters discovered the credit card number
to the story of the unauthorized use of the telephone credit card, and so printing the
information would constitute an invasion of privacy.)
Solutions to Workbook Exercises
1. a.
b. about the political and
2. a. Libel is damage to a pe
contempt or ridicule in the eyes of a substantial and respectable group.
b. Reporters should be careful to avoid:
1. Accusing someone of a crime.
2. Damaging a person in his or her public office or occupation.
c. Truth, privilege, and fair comment and criticism are three traditional defenses to libel.
d. Members of the three branches of government enjoy absolute privilege.
3.
requirement to present full, fair and accurate coverage.
4. Writers are protected as long as they do not misstate the facts on which they base their
comments or criticism.
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5. a. The actual malice test was applied. To be convicted of actual malice, you must have
had knowledge that what you printed or broadcast was false or you must have been
reckless in disregarding whether or not the report was false.
b.
AP had a reporter on the scene of a newsworthy event. There was actual malice in the
c. A public official is a government employee who has, or appears to the public to have,
substantial responsibility for or control over the conduct of governmental affairs.
d. One kind of public figure is a person who has assumed a role of special prominence in
the affairs of society someone who has pervasive power and influence in a
6. Reporters who physically intrude in a private area to get a story or a picture are risking an
invasion of privacy suit.
7. The newspaper is likely to win this case. The fact that the photo illustration featured a
subject identified as a model, and the model is not the plaintiff, is most significant. Also,
8. If the story focuses only on what the reporter saw in the nightclub, there is no need for
any additional information. However, if the piece is about the mayor as an alcoholic, more
than just the word of two council members (who may be adversaries of the mayor) is
needed. At a minimum, the reporter should secure some sort of medical or legal records.
9.
passage implies that Payne was careless when he pulled the plug. That may be the case,
10. This story is potentially libelous in two of the four major areas of libel. It says that the
faculty member is not doing his job appropriately and accuses him of engaging in
immoral activity of a sexual nature. If the allegations are false or there is no way to prove
them, the newspaper is republishing a libel even if the accuser is quoted correctly.
If the accuser files a complaint with the court, the newspaper could base a story on a
11. The story contains sources who are calling the provost a liar. If this account is wrong, it is
libelous.
There is internal corroboration. An administrator and a faculty member both say that
the faculty do not trust the provost. Two faculty members agree with Mary Barnridge.
An editor would want to know whether the anonymous sources would be willing to
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have reason to know for a fact that the resignation has been requested. They may simply
be passing on information to the reporter that they had picked up around campus.
If the sources are credible, this story could be printed. If it turns out to be wrong and
the provost sues, the newspaper would probably need the anonymous sources to come
12. The story is fine until the next-to-last paragraph when Commissioner Cummings accuses
Bill Rodgers of being a fool. Unless you want to be forced to prove in court that Rodgers
is a fool, delete that quotation. The meaning of the term is imprecise, and proving truth
13. There are no apparent legal problems with this story.
14. Here is one way the story could be written:
T –housing licensing
ordinance for the first time since the ordinance went into effect in January.
Prosecutor Mel Cross said that Mark Dillow, 43, of 209 Perch Lane, has been
charged with violating the ordinance, which requires the inspection and licensing of
rental housing to ensure that minimal standards of safety are met.
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Richard
violations in one spot. There were frayed electrical wires, leaky toilets, you name it.
15. Regardless of whether you see a copyright notice, the article is protected by copyright.
You need permission to reprint it. However, if you are using the facts to write a story, you
do not need permission.
16.
crediting the photographer is insufficient. the campus newspaper
Facebook page does not constitute consent from readers to use their photos.
17. As long as the images accompany reviews of the music CDs, this is considered fair use
and is not a violation of copyright. Best practice is to download the original image, as
produced by the music studio or musicians. Many music and film studios have
promotional materials on their websites specifically for journalists and publications to
download.
18. a. There is probably no legal problem with this story. The public administrator is a public
official, and her actions are subject to public review and scrutiny.
b. The fairness question is another issue. The fairness of the story may depend in large
part on how prominently it is played. If it occupies a banner across the top of Page 1, it
the accounts in one bank is more convenient. An interview with the administrator is
essential. That should give the reporter a clue about how to proceed.
CHALLENGE EXERCISE
19. in this essay.
Libel remains defamation, and fair use remains a little murky no matter what the medium.