IT’S BETTER TO BE AN OUTLAW THAN AN IN-LAW. AT LEAST OUTLAWS ARE WANTED.

Media Law

Topics We’ll Discuss

First AmendmentLibelPrivacyIntellectual PropertyCommunications Decency Act (Section 230)

First Amendment to the U.S. Constitution

“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.” No “prior restraint” (Near v. Minnesota, 1931) of publication, with rare exceptions for threats to national security.

Limitations on free speech: penalties can happen after publication for certain types of content (obscenity, libel, intellectual property infringement, false advertising, etc.).

Libel

LIBEL: The publication of a falsity that causes defamation. Public and private figure

Public figure must prove “actual malice” (New York Times v. Sullivan, 1964). Knowingly publishing something false or having a reckless disregard for the truth.

Private figure libel standards are set by each state, but he usual standard is carelessness/negligence (Gertz v. Welch, 1974).

Public vs. Private

Public Official (such as elected officials and candidates for public office) Have the power to set governmental policy Can easily access media Note: Police are typically considered public officials because they can exert control on behalf of government.*

Public Figure All-purpose or “pervasive” public figure (such as celebrities)

Limited-purpose or “vortex” public figure Involuntary public figure

Private Figure

Defenses Against Libel

Truth is the best defense against libel.Perhaps the plaintiff was not sufficiently identified in the publication to constitute libel.

Maybe the plaintiff’s reputation wasn’t substantially damaged.

Did the publishing organization take steps that indicated a sense of responsibility and attempt to minimize harm before and/or after publication?If publishing any accusations, always cross-check with the accused person first to get his/her side of the story.

If there’s a mistake, issue a correction.Consider the merits of showing sources your material for fact-checking and accuracy before publication (but protect your rights).

Libel Traps

Corrections aren’t a replacement for getting it right in the first place.

Construction of headlines and captions are sometimes not given enough time and attention, but they are a primary area of libel concern.

Opinion pieces can contain libelous material just like journalistic pieces.

Libel Traps

Special considerations for crime stories: The word “alleged” (as in “the alleged murderer”) is not enough to protect against a libel suit. You still need to cite an official person or document.

Instead of something like “robber,” say the “suspect” or “the man accused of…” or “the woman charged with...” if there is no official conviction yet.

Be careful in using the word “victim.” It implies criminality.

Attribution of a source who made libelous accusations isn’t enough by itself to protect against libel. You still have to check it out. Look for official documents (even with statements from police if those statements were made in a non-official time/place).

Invasion of Privacy

Four grounds for lawsuit: Intrusion (publication not necessary for lawsuit)

Private vs. public property It there a “reasonable expectation” of privacy in that context?

Means by which info. was obtained Public disclosure of personal and embarrassing facts

OK to publish if such facts are already on public record

False light Inaccurate depiction of someone Plaintiff has to prove “actual malice.”

Use of name/image without permission Applies to commercial use or promotion

Intellectual Property

Types of IP Patent: applied to inventions

Utility patent lasts 20 years; design patent lasts 14 years

Trademark: applied to words, symbols, and images used to identify a product or service 10-year terms; can go on indefinitely

Copyright: applied to “original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works Lasts for the lifetime of the author + 70 years, thereafter in the “public domain”

Any work created after 1978 is automatically copyright protected

Intellectual Property

Fair Use: using portions of copyrighted work for commentary/criticism (parody, literary reviews, etc.)

Fair use factors: Purpose and nature of use

Parody? Is it transformative? For education purpose?

Nature of copyrighted material Has original work been published already? Fiction vs. non-fiction

Amount and substantiality of content taken Effect on the market

Communications Decency Act (1996)

Section 230: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

For Additional Help

Consult: The media law section of the Associated Press Stylebook.

The Student Press Law Center