The First Amendment seems clear, but it is difficult to interpret. 

 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.

Q: What do YOU think about these recent First Amendment and media law issues?

• Computing and networking
  
• Is Yahoo responsible for nude photos posted by an angry ex-boyfriend?
• How public are politicians emails?
• Can a blogger recover damages for being denied access to public records?
• Freedom of information
  
• Can the government block the release of prisoner abuse photos ?
• Are a Nebraska psychiatric hospital's burial records public?
• Can a Virginia reporter be banned from a high school campus?
• Can the courts close public information about a Jena La. defendant?
• Establishment of religion
  
• Can a Tennessee school ban religious phrases from student posters and school work?
• Should an Alabama judge be allowed to display the Ten Commandments in his courtroom?
• Can a state offer license plates for one side of a political message but not the other?  (eg, Choose Life in SC)
  
• Should a school allow a nativity scene in the annual Christmas play? 
  
• When school children recite the Pledge of Allegiance  do the words "Under God" reflect an establishment of religion?
  
• Freedom of speech:
  
  • Can a high school student wear a button depicting Hitler Youth with the message "no school uniforms"
  • Can a high school student post criticism of his teachers on an independent web site?
    
  • Can an aggrieved citizen picket a police station calling a cop a "liar" or is that criminal libel? 
    
  • Should a high school student be punished for refusing to stand during the Pledge of Allegiance? 
    
  • Can the Ku Klux Klan burn a cross on private property in Virginia if the property is near the residences of minorities? 
    
  • Should it be legal to burn a US flag at a public demonstration? 
    
• Free press:
  
  • Can the government jail reporters and subpoena files in order to learn the identity of sources?  
  • Can high schools censor student publications? What about universities censoring college publications? 
    
  • Can the government keep embarrassing mistakes secret, even if they do not threaten national security?
    
• Right to assembly
  
  • Should Radford University have a "free speech zone" ?
  • Should Boston anti-war groups  be forced to keep their distance from the main St. Patricks Day parade in 2004?
    
  • Can gay rights groups march in the main St. Patricks Day parade?
    
  • Should federal and state officials be allowed to spy on individuals and infiltrate political  groups? 
    
• Advertising:
  
  • Should there be limits on campaign advertising spending? 
    
  • How  strictly should laws governing accurate advertising be enforced when they involve political issues? 
    
  • Can beer and liquor makers advertise high alcohol content drinks to college students?
    
• Other issues: 
  
  • How long should copyright laws last?
    
  • How much latitude should media corporations get in their drive to preserve intellectual property

Frequently asked questions:

Q: What can happen if I criticize the government or my school?

A: Usually nothing. The law exists to protect your rights, especially the right to free speech and your freedom to criticize the government or other public institutions.This is especially true of college newspapers. If you are in high school or junior high school, your right to criticize the school while in school can (unfortunately) be limited in official school publications or while in school because it can be seen as "disruptive," (see Hazelwood School District v. Kuhlmeier, 1988). In such cases, many students opt for "underground" newspapers. The Student Press Law Center provides legal advice on this and similar topics.

But ...

Example:  In 2002, a 16-year-old Utah high school student spent seven days in a youth detention center after posting comments on an off-school web site about a school principal (he was called a 'town drunk') and af teacher ('possibly addicted to speed or some other narcotic.') The student was arrested under an 1873 criminal libel law, but the Utah Supreme Court ordered him released and invalidated the law. See "Regulating Rudeness: Why Insults are not a Crime" by Ken Paulson. Note: This is an example of an extreme anomaly.

Chilling Example: In 2008, a high school student in Connecticut got public support for a Battle of the Bands, but the school cancelled it. Then, off campus, in her blog, she called the principal a "douche-bag." She was not allowed to be senior class secretary after she won an election, and sued. Comments generally favored the student. But she lost and then lost on appeal in the 2nd district. The court said: "Vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school."

Q: Can student publications be censored?

A: The short answer is YES in high school and ABSOLUTELY NOT in college. Many college administrators cite Hazelwood in attempting to assert their rights over the students rights. A close reading of the case, and subsequent cases, shows clearly that Hazelwood is not meant to apply to colleges.

High school teachers and administrators often censor official school publications (relying on the 1988 case Hazelwood v. Kuhlmeier). Anything that makes the administrators uncomfortable may be spiked. Articles about drug and alcohol use, teen pregnancy, birth control and other issues that are important to teenagers are not permitted in a majority of high school publications. Free speech advocates see this situation as distorting the students views of the role of media and sending an extremly negative educational message about the nature of controversy and democracy.

High school teachers and administrators can't tell students what to do off school grounds, and as a result, a large number of "underground" high school publications have cropped up on the web.

College teachers and administrators may not censor student publications, even official publications funded by student actitivies funds. The courts have held that this is akin to the government censoring citizens.

• The most recent case concerning college censorship is Hosty v. Carter.  A dean at Governors State University in Illinois demanded a prior review of the student newspaper before publication. The newspaper's student editors, who had published stories and editorials critical of the administration, refused.  In the first round of the case, a court upheld the students. Then in June of 2005, the full 7th District Court reversed an earlier decision. This could lead to outright censorship on colleges. The case is being appealed to the US Supreme Court, but there is some doubt that the court will grant cert. 
• Hampton University students this fall were disciplined for passing out pamphlets and holding a demonstration without permission. As a private Virginia university, Hampton does not fall under constitutional protections afforded public universities. 
• Rosenberger v Rectors of the University of Virginia (1995) A religious publication could not be denied student publication funding on the basis of its religious orientation. "A public university ... may not ... silence the expression of selected viewpoints... Viewpoint discrimination poses danger to First Amendment speech principles in (1) granting the state the power to examine publications to determine whether such publications are based on some ultimate idea and if so, for the state to classify such publications, and (2) chilling individual thought and expression; such danger is especially real in the university setting, where the state acts against a background and tradition of thought and experiment that is at the center of the nation's intellectual and philosophical tradition.."
• Healey v. James, 408 US 169, 180, (1972) the Court said that the First Amendment applies on college campuses with same force as elsewhere.
• Bazaar v. Fortune, 489 F.2nd 255 (5th Cir. 1973) cert denied 414 US 1135 (1973) The university, as an arm of the state, could not make private publisher decisions about content and had infringed upon the free press rights of students when it denied distribution rights to an issue of the magazine.
• Joyner v. Whiting, 447 F.2nd 456 (4th Cir. 1973) A university can't withdraw funding from a student publication due to content disagreements.
• Papish v. Board of Curators at the Univ. of Missouri, 410 US 667 (1973) The Court said that even ideas offensive to good t aste could not be prohibited on a state university campus in the name of conventions of decency alone.
• Stanley v. Magrath, 719 F.2nd 279 (8th Cir. 1983) University administrators can't punish students for content of a publication by withholding funds.

Q: Do universities and/or local police departments have to disclose crimes? What if they don't?

A: Yes, they are obliged to, but no, they often don't. Good reporters learn to politely insist on public rights, pointing out to a desk sergeant that in America, we do not tolerate secret arrests or secret trials. In practice, if a reporter or any citizen wants to find out about an arrest and the police refuse to produce the police "blotter" (arrest record) the complaint follows a chain of command to the police chief and then to a local district judge's office. The form of the complaint need not be a formal court action in most states. Check your state's Freedom of Information law and your state press association. (for example, the Virginia Press Association has an FOIA page.)

• Under state Freedom of Information acts, public access to criminal incident information is guaranteed in all states, but the form of access varies considerably. A group of journalists at the Investigative Reporters and Editors group found that, overall, the national grade was a C-.
• Refusal to disclose campus crimes may be a violation of the Clery Act. In 2004, a West Virginia college was fined for its manipulation of campus crime statistics, according to the Student Press Law Center.

Q: Does the law prohibit lying in a newspaper or on a Web site?

A: A made-up story that doesn't hurt any living person's reputation is not prohibited by law. This means that the Weekly World News is perfectly free to say that a Bat Boy led soldiers to Sadam Hussein's spider hole. Yes, its a lie. Its an outright fabrication. And why should the government care? The government is not the truth police. On the other hand, if they make up a story about a movie star's illegitimate child by the batboy or bigfoot, the star might be concerned. That's why there are libel suits. 

Q: Can a person be jailed for music piracy?

A: Simple copyright infringement on a small scale is usually treated as a civil and not a criminal violation. It's unlikely that a person would be jailed for downloading a few songs. But there is a lot of controversy in this area. Most recently, an appeals court turned down the RIAA's lawsuit against Verizon seeking access to names of people engaged in p2p networking of music files. See the EFF files.

Q: Is flag burning protected?

A: Controversy over flag "desecration" goes back over 100 years. Between the 1890s and the 1930s, many states passed laws backed by patriotic groups which set out strict rules for handling flags. A test case in 1907 Halter v. Nebraska, upheld a law that banned a flag - draped label for a "Stars and Stripes" beer. (Today there is a "Stars and Stripes" root beer.) In 1931 the court said a California law banning all red flags was unconstitutional. Finally, in 1989, the Supreme Court struck down a Texas law banning the desecration of the US flag. See the Flag Desecration Amendment article at the Freedom Forum site or the History of the flag burning controversy by Robert Goldstein.

There are many other symbolic speech issues, such as those mentioned above. In most cases symbolic speech is protected. One recent exception is cross burning when associated with racial intimidation.

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1. All publishers need to understand media law

-- Historical role of mass media in democracy is to inform, to allow expression and to serve as a "social safety valve" for information and viewpoints that need to be heard.

-- Informed criticism is a citizen's responsibility as well as right.

"To announce that there must be no criticism of the president or that we are to stand by the president right or wrong, is not only unpatriotic and servile, but it is morally treasonable to the American public." - President Theodore Roosevelt

-- While the law supports public discussion of public issues, it also protects private people and private information. Knowing what is responsible and ethical will protect you, whether you are a media professional or a part-time web developer.

2. What is law?

"A body of rules of action or conduct prescribed by a controlling authoirity." -- Black's law dictionary

"A sophisticated and complex system of rules and regulations devised over many years to meet certain social needs and to administer the relationships between individuals and between individuals and the state..." -- Tom Crone, Law and the Media

"You will find some text writers telling you that [the law] is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or whatnot, which may or may not coincide with the decisions. But if we take the view of our [... hypothetical] bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. " -- Oliver Wendell Holmes, Sup reme Court Justice, who argued in a 1897 article for a pragmatic view of law. (See Robert P. George's "What is Law?")

"The law is an ass." -- Charles Dickens, in Oliver Twist. (The character Mr. Bumble has been accused of encouraging his wife to steal jewelry. Even if his wife committed the crime, a lawyer says to Mr. Bumble: "You are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction." His famous response is: "If the law supposes that ... the law is an ass -- an idiot. If that's the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience."

 

• Timetable of World Legal History
• Medieval Legal History
• Yale / Avalon legal documents

3. What institutions create the law? What are the types and sources of law?

Types:

There are two basic types of law: civil and criminal.

• In criminal law, a case is brought by the district (or Commonwealth's) attorney, usually after evidence is gathered by police. Those who lose in criminal court may go to jail or serve some other physical punishment. 
• In civil law, a case is brought by any person against another person, and nearly always the loser will lose only money.
  
  These two types of law have major differences. For instance, what are the basic standards of proof that are applied?  (Hint: How did OJ Simpson lose in civil court after winning in criminal court?)

Sources of law:

Common or Case law (judge made law, originally based on local custom )

-- See US Supreme Court cases
-- See Virginia Supreme Court cases

Equity -- A body of civil law concerned with doing justice where money is inadequate or inappropriate as a remedy. Examples of equitable actions include divorce and injunctions. Equity cases are handled by circuit courts. (Originally, a King's corrective prerogative, justice administered according to ideas of fairness, not strict adherence to precedent / stare decisis )

Constitutional (18th c. product of American and French revolutions)

Statutory (Parliament, Congress, state legislatures)

-- See US Code
-- See Virginia Code

Regulatory (executive agencies)

-- See the Code of Federal Regulations
-- See Virginia Administrative Code

4. How are the courts structured?

-- US Judicial system

• Trial courts: District / Inferior (traffic, misdemeanors, juvenile) and Circuit / Superior (civil and felony criminal)
• Appeals: district courts of appeals --> circuit courts of appeals -- supreme court(s)
• Jurisdictions distinguished between federal and state courts
• US Supreme Court has final jurisdiction over both

-- UK legal system

• Magistrates courts --> Crown Court --> Queen's Bench --> House of Lords
• Jurisdictions distinguished by region (eg, Scotland, Britain, Wales, N. Ireland)
• Supreme Court is a special session of the House of Lords
• Increasing jurisdiction of European Court of Human Rights

5. How do civil lawsuits proceed?

• Initial complaint filed as Smith v. Jones;
• Preliminary motions (demurrer, summary judgement)
• Discovery, trial date set
• Trial evidence weighed by judge or jury depending on plaintiff preference (Tests: Beyond Reasonable Doubt; Preponderance of evidence; Preferred Position)
• Smith wins, Jones appeals on a point of law, case is now called Jones v. Smith
• Appeals court reads briefs, hears oral arguments, Jones wins, appeals court decides to remand with instructions to lower court judge.
• The decision could stand as a weak federal district precedent if the Supreme Court doesn't grant certiorari.
• Smith appeals to Supreme Court. SC grants certiorari. Case is now Smith v. Jones.
• Supreme court decides case on basis of majority, writes decision. Minority members may also write dissenting opinion.

6. Legal terms and case citation styles

Legal terms in Virginia are defined in the court's Glossary of Terms

Also see Everybody's legal dictionary and the Law.com dictionary

Among the important terms:

action, brief, certiorari, concur, demurrer, discovery, dissent, distinguish, ex parte, injunction, interrogatories, motion, opinion, petitioner (plaintiff), quash, remand, reverse, respondent, subpoena duces tecum, summary judgment, stare decisis, tort, uphold, venue, voir dire

7. Case citation styles

You will need to learn how to look up and cite cases for this class.

The citation system was originally based on paper libraries with book volumes and page numbers. There were Supreme Court (US) Federal District. Sometimes there a re editions noted, as in the Rosemont case, because the numbering system was changed twice. (We are now on the 3rd edition since 1993). Later some systems used database numbers. Virginia uses a straight up case numbering system along with a traditional volume and page number system.

• Rosemont Enterprises v. Random House, 366 F.2d 303 Federal Case number (Vol. 366 page 303 of the Federal Reporter, Second edition)
• New York Times v. Sullivan, 376 US 254 (Vol. 376 page 254 of the US Supreme Court reporter).
• Parallel citations for Sullivan are:
  • 84 S. Ct. 710 (Vol. 84 Supreme Court Reports p. 710)
  • 11 L. Ed. 2d 686 (Vol. 11 Lawyers Edition Second Edition page 686)
  • 1964 U.S. LEXIS 1655 (Lexis database case citation)
  • 95 A.L.R.2d 1412 (Vol. 95 Alabama Reports Second Edition page 1412).
  • 1 Media L. Rep. 1527 (Bureau of National Affiars private database system)
• Richmond Newspapers v. Virginia, Record No. 781598 SUPREME COURT OF VIRGINIA 1979 Va. LEXIS 307; 5 Media L. Rep. 1545
• Richmond Newspapers v. Virginia, when reheard and new instructions issued in 1981: Record Nos. 801370, 801580, 810666, 801198, 801199 Supreme Court of Virginia 222 Va. 574; 281 S.E.2d 915; 1981 Va. LEXIS 346; 7 Media L. Rep. 1897

8. What distinguishes media law ?

-- Media law is civil, not criminal law.

-- Media law involves many First Amendment issues directly, but some only indirectly. For example, issues involving the establishment of religion clause are often not media issues. Symbolic speech issues are often not mass media issues. In addition, a good deal of media law involves non-First Amendment areas such as reporter privilege, access to courts, broadcasting ownership regulation and so on.

-- Media law involves both structural issues and content issues

-- Structural issues usually involve statutory law and regulatory law.

• The controversy over cross ownership (newspapers owning TV stations in the same town, for example) is a structural issue.

• The government is sometimes involved when structural issues are at stake, such as in "anti-trust" (anti-monopoly) lawsuits.

-- Content issues are usually between a plaintiff and a respondent.

-- In the US, content issues usually involve Constitutional law and common law.

• Prior restraint, libel, invasion of privacy, and obscenity are common law issues tried in civil courts .

• Copyright and some broadcasting content issues are governed by statutory and regulatory law.

-- Media law emerges from a large and complex historical tradition of the struggle first for religious and next for political freedoms.

-- Tests applied in media law content cases give a strong "preferred position" to individual liberty of speech as protected by the First Amendment to the US Constitution. However, tests applied in structure cases use a standard "preponderance of evidence" test. "Guilt beyond a reasonable doubt" is only used in criminal cases as part of the Sixth Amendment guarantee of a fair trial.