communication law & policy notes
TRANSCRIPT
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
03/02/15Communication and the Law,
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
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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)
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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
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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
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Legal Research
FOIA, 5 U.S.C. Sec. 552 Chaplinsky v. New Hampshire, 315
U.S. 568 (1942)
Lexis/Nexis http://library.unomaha.edu
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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?”
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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).
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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
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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
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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?
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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
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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)
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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
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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)
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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.
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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.
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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.
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
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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
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Copyrights, Patents & Trademarks
Content, such as writing and music, is copyright protected
Inventions may be patented Unique names may be
trademarked
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201526
Unprotected Works
Ideas, procedures and concepts Common facts or information Names, familiar symbols U.S. government works Content in the public domain
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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
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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
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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
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Broadcast, Cable & New Media
Broadcast Regulation
Regulating Cable Communications
New Communication Technologies
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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)
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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
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2015 Edition33
Regulating Cable Communications
Consumer protection Service and rate regulation Fair competition issues Access channels Structural or content-based regulation
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2009 Edition34
Continuing Issues…
Rate regulation: rates, bundling, packaging, competition
Ownership restrictions – vertical and horizontal
Merger mania Access Must-Carry Telco and Internet
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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)
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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