communication law & policy notes

03/02/15Communication and the Law,

2015 Edition1

Communication Law & Policy Jeremy Harris Lipschultz

Isaacson Professor, UNO Social Media Lab

School of Communication,

University of Nebraska at Omaha


2015 Edition2

Preface & Introduction

“The law is ever-changing.” “Like the society it serves, law is

dynamic.” Laws are “rules of conduct” Laws are passed by legislative

bodies


2015 Edition3

The Sources of Law Common Law is “case law” that

applies established precedent of previous cases

Equity Law includes injunctions and TROs based upon “fairness”

Statutory Laws are the statutes passed by legislative bodies

Administrative Law is regulation, such as that of the FCC

Consitutional Law (1st Amend.) International Law (UN)


2015 Edition4

U.S. Court of Appeals: Important Circuits

Second Circuit (includes New York)Second Circuit (includes New York) Third Circuit (includes Pennsylvania)Third Circuit (includes Pennsylvania) Seventh Circuit (includes Illinois)Seventh Circuit (includes Illinois) Eighth Circuit (includes Nebraska)Eighth Circuit (includes Nebraska) Ninth Circuit (includes California)Ninth Circuit (includes California) Eleventh Circuit (includes Florida)Eleventh Circuit (includes Florida) D.C. Circuit – specializes in telecommunication law and regulationD.C. Circuit – specializes in telecommunication law and regulation


2011 Edition5

Legal Civil Procedure Victim of civil wrong consults with attorney Contract broken or tort violation (libel, privacy) Possibility of settlement for damages ($s) Pre-trial pleadings and discovery – complaint

and answers Interrogatories (written questions) and

depositions (under oath transcript reviewed and signed) -- hearings,motions

Settlement conference Jury or bench trial and appeal


2015 Edition6

Legal Research

FOIA, 5 U.S.C. Sec. 552 Chaplinsky v. New Hampshire, 315

U.S. 568 (1942)

Lexis/Nexis http://library.unomaha.edu

http://library.unomaha.edu/


2015 Edition7

John Milton’s Areopagitica (1644) “Though all the winds of doctrine

were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”


2015 Edition8

Douglas’ near-absolutist view

“Unless and until extreme and necessitous circumstances are shown, our aim should be to keep speech unfettered and to allow the processes of law to be invoked only when the provocateurs among us move from speech to action “ – Dennis v. U.S. (1951).


2015 Edition9

Emerson’s Values

Discovery of truth allows for reasonable decisions

Free speech allows for self-government

Media are a check on government power (checking value)

Stable governmental change (safety valve)

Fulfillment of individual enrichment


2015 Edition10

First Amendment Tests Bad tendency (1925) – “nip-it-in-

the-bud” Clear and present danger (1919)

– restrict serious and immediate danger

Balancing – flexible but unpredictable outcomes

Strict Scrutiny – government must show compelling reason to impose narrowly tailored regulation


2015 Edition11

O’Brien (1967) test 1. Is the government regulation

within constitutional power? 2. Does the regulation further an

important or substantial interest? 3. Is the interest unrelated to the

suppression of free expression? 4. Is the incidental restriction of

free expression no greater than is essential to the furtherance of the stated government interest?


2015 Edition12

Blackstone’s Prior Restraint

“Every freeman has an undoubted right to lay what sentiments he pleases before the public… but if he publishes what is improper, mischievous, or illegal, he must take the consequences for his own temerity” – Commentaries on the Laws of England (1769).

Near v. Minnesota supports this view


2015 Edition13

Nebraska Press (1976)

“A prior restraint… has an immediate and irreversible sanction… If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time” – Chief Justice Warren Burger.

Starting points Paul Cohen “Fuck the Draft” jacket –

Justice Harlan: “it is nevertheless often true that one man’s vulgarity is another’s lyric (Hopkins, p. 75; Cohen v. California, 403 U.S. 15, 1971, at

p. 25)

03/02/15 Communication Law and Policy 2015 14

Robert Mapplethorpe Exhibit and obscenity case (1988-89)

Mapplethorpe’s homoerotic photography led to a Cincinnati obscenity charge against an art museum director later exonerated

03/02/15 Communication Law and Policy 2015 15

Obscenity and the Law

Obscenity was an exception under Near

Distribution of obscenity may be prosecuted as a criminal offense

Repeat offenders can be charged under RICO as “racketeers” and face huge fines (Hopkins, p. 76)

03/02/15Communication Law and Policy

201516


201517

Miller v. California, 413 U.S. 15 (1973)

(1) whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to prurient interest;

(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law;

(3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.


201518

FCC indecency criteria (2001)

(1) explicitness or graphic nature of the depiction of sexual or excretory organs or activities;

(2) whether the materials dwell on or repeat at length such sexual depictions;

(3) the context and whether the depiction appears to pander or titillate, or is presented for shock value.

http://www.fcc.gov/


201519

Alternative Systems

Zoning and Channeling Rating Content Labeling

Libel Law in America

The First Amendment: Constitutional Law under New York Times v. Sullivan (1964)

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble and to petition the Government for a redress of

grievances.

http://www.youtube.com/watch?v=Ia7vyqSWN80

Libel plaintiff’s case

Seventy percent of all libel actions are against media Defamation is damage to reputation

Identification Publication Defamation Falsity Facts, not opinion Fault: Actual malice or negligence Damages: Actual and punitive

Libel defenses

Defenses Truth, first but is not always used Public or private person Neutral reportage Opinions Fair comment Wire service defense Libel-proof


201524

Intellectual Property Patent and copyright laws derive

from congressional powers in the interstate commerce clause of the Constitution

In 1790, 1976 and 1998 there were major developments and revisions in copyright law

The Digital Millennium Copyright Act of 1998 has been challenged in the courts


201525

Copyrights, Patents & Trademarks

Content, such as writing and music, is copyright protected

Inventions may be patented Unique names may be

trademarked


201526

Unprotected Works

Ideas, procedures and concepts Common facts or information Names, familiar symbols U.S. government works Content in the public domain


201527

Fair Use: Four Factors in Determining Public Interest

Purpose and character of work Nature of copyrighted work Amount and substantiality of

portion used Effect on potential market


201528

FTC and Deceptive Advertising

Misrepresentation or omission of information likely to mislead public

Deception must be material – likely to affect consumer behavior

Likely to mislead a “reasonable” consumer

Likely to cause harm


2009 Edition29

Public Relations Law

A mixture of business law and First Amendment law such as:

Employment contracts No-compete clauses Confidentiality agreements Consent forms Informal agreements with news

reporters

http://www.law.cornell.edu/topical.html

03/02/15

Communication and the Law, 2015

30

Broadcast, Cable & New Media

Broadcast Regulation

Regulating Cable Communications

New Communication Technologies


2015 Edition31

Broadcast Regulation

One of the most complex and dynamic areas of communication law

Began with concern about ship-to-shore radio and safety (1912)

Developed because of early radio spectrum interference (1927)


2015 Edition32

Communications Act of 1934

Public interest, convenience or necessity standard

Congress delegated to FCC powers over radio and wire communication

More than a “traffic cop” (NBC) Major revision in

Telecommunications Act of 1996


2015 Edition33

Regulating Cable Communications

Consumer protection Service and rate regulation Fair competition issues Access channels Structural or content-based regulation


2009 Edition34

Continuing Issues…

Rate regulation: rates, bundling, packaging, competition

Ownership restrictions – vertical and horizontal

Merger mania Access Must-Carry Telco and Internet


2015 Edition35

Internet Indecency The Telecommunications Act of 1996,

and the Communications Decency Act provisions, made it illegal to distribute indecent or obscene material to minors

In Reno v. ACLU (1997) found the indecency ban vague and overbroad. Internet “publishers” were seen as different from broadcasters

The courts rejected the constitutionality of COPA (1998)


2015 Edition36

Privacy and Technology In Kyllo (2001) a split

Supreme Court found police violate 4th Amendment search and seizure protection when using thermal imaging technology

Future uses (e.g. facial recognition, public video monitoring) pose potential legal fights

Net Neutrality?


2015 Edition37

communication law & policy notes

Education