📑History and Principles of Journalism Unit 10 – Media Law and Regulation

Key Legal Concepts

• Rule of law establishes that all individuals and institutions are subject to and accountable to the law
• Due process ensures fair treatment through the judicial system, including the right to be heard and the presumption of innocence
• Separation of powers divides government into distinct branches (executive, legislative, and judicial) to prevent concentration of power
• Checks and balances allow each branch to limit the powers of the others, maintaining a balance of power
  • Executive branch can veto legislative bills
  • Legislative branch confirms or rejects the executive's nominees and can override a veto with a supermajority
  • Judicial branch can declare legislative and executive acts unconstitutional
• Precedent refers to a court decision that serves as an authority for deciding subsequent cases involving similar facts or legal issues
• Jurisdiction is the authority of a court to hear and decide a case, determined by factors such as geographic area and type of case
• Standing requires that a party have a sufficient connection to the issue being litigated to support their participation in the case

Freedom of Speech and Press

• First Amendment protects freedom of speech and press from government interference
  • Prevents government from prior restraint, or censoring speech before it is expressed
  • Protects against government retaliation for critical speech
• Not an absolute right, as some forms of speech are not protected (obscenity, defamation, incitement to violence)
• Public officials and figures must meet a higher standard to prove defamation (actual malice) compared to private individuals
• Commercial speech (advertising) receives less protection than political or artistic expression
• Press has no special privileges beyond those of ordinary citizens but serves a vital role in informing the public and holding government accountable
• Shield laws in some states protect journalists from being compelled to reveal confidential sources
• Courts have recognized a qualified reporter's privilege based on the First Amendment and common law

Libel and Defamation

• Defamation is a false statement that harms a person's reputation, encompassing both libel (written) and slander (spoken)
• Plaintiff must prove the statement is false, defamatory, and published to a third party
• Public officials and figures must additionally prove actual malice, meaning the defendant knew the statement was false or acted with reckless disregard for the truth
• Truth is an absolute defense to defamation claims
• Opinion is protected speech, but statements presented as fact must be substantially true
• Retraction statutes in some states allow defendants to mitigate damages by publishing a correction or clarification
• Single publication rule limits the statute of limitations for defamation claims to the first publication of the statement

Privacy Laws and Journalism

• Privacy torts protect individuals from intrusion into their private lives and public disclosure of private facts
  • Intrusion requires a physical or electronic invasion of a person's solitude or seclusion
  • Public disclosure of private facts involves publishing truthful but highly offensive and not newsworthy information
• Newsworthiness defense protects publication of truthful information of legitimate public concern
• Right of publicity prevents unauthorized commercial use of a person's name, likeness, or identity
• Wiretapping and eavesdropping laws prohibit recording conversations without consent, with some exceptions for newsgathering in public places
• Freedom of Information Act (FOIA) and state open records laws provide access to government documents, with exemptions for privacy and other interests

Copyright and Fair Use

• Copyright protects original works of authorship, including literary, musical, and audiovisual works
• Exclusive rights of copyright holders include reproduction, distribution, and creation of derivative works
• Fair use allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, and research
• Four factors determine fair use: purpose and character of the use, nature of the copyrighted work, amount and substantiality used, and effect on the potential market
• Works in the public domain, such as those whose copyright has expired, are not protected and may be freely used
• Digital Millennium Copyright Act (DMCA) provides safe harbors for online service providers and notice-and-takedown procedures for alleged infringement

Regulation of Broadcasting and Online Media

• Federal Communications Commission (FCC) regulates broadcasting in the public interest
  • Licenses broadcasters and enforces rules on content, ownership, and technical standards
  • Regulates indecency and profanity, but not violence or other objectionable content
• Fairness Doctrine, which required broadcasters to cover controversial issues and present opposing views, was repealed in 1987
• Equal time rule requires broadcasters to provide equal opportunities for political candidates to purchase advertising time
• Online media largely exempt from FCC regulation due to First Amendment and statutory protections
• Section 230 of the Communications Decency Act shields online platforms from liability for user-generated content
• Network neutrality rules, which prohibited internet service providers from discriminating against content, were repealed in 2017

Ethical Considerations in Media Law

• Journalists must balance legal rights with ethical responsibilities to minimize harm and serve the public interest
• SPJ Code of Ethics emphasizes accuracy, independence, minimizing harm, and accountability
• Ethical decision-making involves weighing competing values, such as privacy vs. newsworthiness or transparency vs. national security
• Confidentiality of sources must be carefully considered, as breaking a promise of anonymity can undermine trust and credibility
• Conflicts of interest, such as personal or financial relationships, must be disclosed or avoided to maintain independence
• Deception and misrepresentation, such as undercover reporting or editing, should be used only as a last resort and with careful consideration of potential harm
• Corrections and retractions should be promptly published to acknowledge and rectify errors

Current Challenges and Future Trends

• Digital platforms have disrupted traditional media business models and raised new legal and ethical questions
  • Aggregation and curation of content blur lines between original reporting and infringement
  • Algorithms and personalization can create filter bubbles and echo chambers
• Spread of misinformation and disinformation undermines public trust in media and democracy
  • Deepfakes and manipulated media challenge ability to discern truth
  • Lack of gatekeepers and fact-checking on social media enables rapid dissemination of false information
• Surveillance and data privacy concerns arise from tracking of online behavior and targeted advertising
• Concentration of media ownership and decline of local news threaten diversity of perspectives and accountability journalism
• Globalization and cross-border data flows complicate application of national laws and norms
• Calls for platform liability and content moderation raise questions of free speech and private censorship
• Emerging technologies, such as artificial intelligence and virtual reality, present new opportunities and challenges for media law and ethics