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15.3 The Law and Mass Media Messages

Critics have debated media law 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.

In 1974, Congress passed the Privacy Act, 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).” 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 demonstrate care to avoid revealing certain information about an individual without his or her permission, even if factually accurate. Privacy laws, including the Privacy Act, limit the “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).” Members of the media can avoid the pitfalls of privacy laws by maintaining a professional relationship with a community. To avoid liability, journalists and other media professionals should 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).” 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 court dismissed the case when it decided that Cutler had only provided publicly known facts (Citizen Media Law Project).

Libel and Slander

Media outlets also must also take great care not to commit acts of defamation. These occur when they publish false statements about an individual that damage his or her reputation, whether printed, broadcast, spoken, or otherwise communicated to others. Two different types of legal protections, libel and slander laws, exist to prevent such defamation from taking place. Although defamation encompasses both categories, they allude to separate concepts. Libel refers to written statements or printed visual depictions, while slander refers to verbal statements and gestures (Media Law Resource Center). State jurisdiction largely covers libel and slander laws, but most states enforce nearly identical statutes 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 have legal protection 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 prove devastating. In the 2007 case Murphy vs. Boston Herald, Massachusetts Superior Court Judge Ernest Murphy sued the Boston Herald newspaper for misquoting him. The court ruled that the paper published the false quote a malicious intent and awarded Murphy $2.1 million in damages (Wall, 2005). In the more famous case of Linda Tripp in 1998, Tripp faced charges for secretly recording phone conversations between President Bill Clinton and Monica Lewinsky. She faced a prison sentence of 10 years for slander and illegal documentation; however, witness bias led to the case’s dismissal in early 2000 (Van Natta Jr., 2000).

Copyright and Intellectual Property

Copyright laws fall under federal jurisdiction, so apply to all Americans across the country. As identified 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).” 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 the legal reproduction of that work. After a certain number of years, a copyright expires and the work enters the public domain.

Copyright does not, however, protect facts, which the news media find particularly useful. Despite the time and effort 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 source for the written story or broadcast.

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 could no longer repeat certain aspects and segments of his TV show). 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).” This chapter will cover the role of copyright and intellectual property in the mass media in greater detail later.

Freedom of Information Act

President Lyndon B. Johnson first signed the Freedom of Information Act (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).” Because it allows everyone access to federal documents and information that otherwise would go unreleased, FOIA particularly important for those working in the news media.

Although the act covers a large range of agencies, some offices have exemptions from FOIA requests. 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). Because FOIA pertains to individuals and information at high levels of government, the process of accessing information may get complicated. Those 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).

The Equal Time Rule

Falling under broadcast regulations, the Communication Act’s Section 315—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 TV and radio stations cannot favor any one political candidate over another.

Passed by Congress in 1927, the equal opportunity requirement represents the first major federal broadcasting law. Even then, legislators feared that broadcasters and stations had the power to manipulate elections. 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.

The requirements of Section 315 exempt news programs, interviews, and documentaries. 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 do not require the inclusion of third-party candidates.

Section 315 also prohibits media from censoring what a candidate says or presents on air. Campaign ads picturing aborted fetuses caused some controversy in 2010 . Citing Section 315, the FCC allowed these television ads to continue to run (Museum of Broadcast Communications).

The Fairness Doctrine

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).”

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).

Some journalists considered the Fairness Doctrine controversial because they felt that it infringed on the rights of free speech and freedom of the press granted in the First Amendment. The Reagan administration dissolved the doctrine during its 1980s deregulatory efforts. These effects resonate today with the popularity of political talk radio.

The Digital Millennium Copyright Act

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, people may not use code-cracking devices to illegally copy software, and websites must take down material that infringes on copyrighted material. (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 TV 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).

Controversially, while the DMCA 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 in 2010  addressed this factor. Viacom argued that YouTube infringed on its rights by hosting copyrighted videos. Google responded that while YouTube may include copyrighted material, it had no obligation to scan every user-uploaded video to search for instances of copyright infringement. When an agency brings a claim against a YouTube video, they remove the video—beyond that, the website has no responsibility for the posted content. The judge ruled in favor of Google, stating that it qualified for DMCA protection. While many saw this as a victory for Internet freedom, others warned that it would have future consequences for the protection of copyright holders (Rosenbaum, 2010).

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