1. Global Principles

Freedom of speech and freedom of the press are fundamental principles held worldwide and are considered hallmarks of civilization and democracy.

• In the United States of America, the First Amendment to the Constitution is the cornerstone of media law

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.

Although it is subject to interpretation, the general principles of US media law are quite clear:

We [have] ... a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.". -- New York Times v Sullivan, 1964

• The commitment to free speech and press is also explicit in many other countries.

Most significant is the United Nations Declaration of Human Rights, Article 19, which says:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10, which says:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...

These guarantees of free speech stand in sharp contrast to harsh repression in other nations. Two of the worst offenders are China and Saudi Arabia.

In China, the basic idea of freedom of speech is noted in Regulations on the Administration of Publishing (2001.12.25) (See US State Dept. site on Freedom of Expression in China). But observe the second clause-- that's the sticking point, and the truth is that even minor challenges to political authority in China can be met with harsh jail terms or execution.

Article 5: All levels of the People's Government shall ensure that citizens are able to legally exercise their right to freedom of publication. When citizens exercise their right to freedom of publication they shall abide by the Constitution and laws, shall not oppose the basic principles confirmed in the Constitution, and shall not harm the interests of the country, the society or the collective or the legal freedoms and rights of other citizens.

In Saudi Arabia, a "Royal Decree"of April, 2011 prohibited the following: 1 – Anything that violates Islamic Shariah rulings or laws in force. 2 – Anything calling for breaches of the security of the country or its public law, or anything that serves foreign interests in conflict with national interests. 3 - Anything affecting the reputation or dignity of, or slandering or personally insulting, the Grand Mufti of the Kingdom or members of the Board of Senior Ulema, or dignitaries of the state or any of its employees, or any person of ordinary standing or any legal person. 4 – Inciting and propagating division between citizens. 5 – Promoting or inciting to crime. 6 - Anything damaging to the country’s public affairs. 7 – Details of investigations or trials without obtaining permission from the legally authorized authority.”

Freedom of speech is shrinking worldwide, according to Reporters without Borders. In an era of rapidly increasing global communications technologies, the problem is a universal concern.

---

2. Why we study media law: Everyone who uses the media needs to understand media law, and new technologies make everyone on earth a publisher ...

• Natural rights theory takes the view that freedom is the natural human condition. Rights under this concept are not given by the state, but are rather given by nature or given by God. Therefore a state should serve to protect rights; the state does not "grant" rights. This view developed in Western Europe during the Enlightenment period, as we will see in the historical section of the course (Ch. 2). Yet Western Europe is not the only source of the idea of freedom of religion, speech or expression, or of democracy. This diversity re-affirms the natural rights perspective.

• Free speech has a pragmatic function. and dissent can lead to constructive social change and improvements in the human condition. Repression, on the other hand, alienates the people, making non-violent reform impossible and increasing the likelihood of violence.

* New technologies have affected everyone. In effect, we're all publishers now, and some understanding of this subject is vital.

• Historically, the role of mass media in democracy is to inform, to provide a vehicle for personal expression and to serve as a "social safety valve" for information and viewpoints -- even the unpopular ones.

•  Criticism of public people and public issues, even to the point of sharp and vehement debate, is often seen as 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 democratic theory of law supports public discussion of public issues, it may also protect private people and private information. The balance between public and private spheres is one of the key factors in media law in a democratic country.

---

3. Categories, sources and institutions of law

Categories of law:

There are two basic categories of law in every country: criminal law and civil law

• In criminal law, a case is brought by the police or a district attorney, usually after evidence is gathered by police or a grand jury.
  
  
• In civil law, a case is brought by any person against another person (or corporation). Money and behavior are the only issues at stake. If there is a crime involved, charges are brought under ctiminal law. .
• The two most important categories of civil law involve contracts and torts
  • A contract is a written document between people and/or corporations that is enforceable in court
  • A tort is a wrong that involves a breech of civil duty. Torts can involve:
    • negligence (alleged in personal injury cases);
    • statutory torts (such as product liability);
    • defamation and related "dignitary" torts (such as invasion of privacy, misappropriation of publicity, and disclosure of private facts), which are an area of major concern in media law.
      

Five sources of law:

Judicial branch:

• Common or Case law (judge made law) This was originally based on long legal history and custom stretching back more than a thousand years.
• 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) -- At both state and federal levels, constitutions provide for a check on the power of the legislature and executive on the basis of the Constitution. In countries without Constitutions, such as the United Kingom (Britain), laws are reviewed only by the Parliament.

Legislative branch:

• Statutory (Parliament, Congress, state legislatures)

-- See US Code
-- See Virginia Code

Executive Branch

• Regulatory or administrative law (executive agencies such as the Federal Communications Commission, the Federal Trade Commission, or state agencies)
  • See the Code of Federal Regulations
  • See Virginia Administrative Code

** Executive orders -- Actually a form of administrative law reserved for the president or agency heads, sometimes used in times of emergency. Administrative orders can be secret, and some have proven deeply embarrassing, for example, President George W. Bush's executive orders permitting torture of prisoners. Trager includes this as a major source of law, but that's controversial.

Institutions of law

United States legal system

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

Also, FYI:

-- UK/ English legal system

• Old system:
  • Magistrates courts --> Crown Court --> Lords appellate commitee --> House of Lords (Law lords)
• New system (2009):
  • Criminal: Magistrates courts --> Crown Court --> Court of Appeal -> Supreme Court
  • Civil: County Courts --> High Court --> Court of Appeal -> Supreme Court
• Jurisdictions distinguished by region (eg, Scotland, Britain, Wales, N. Ireland)
• No judicial review of Parliamentary law, no written constitution. This means that a law's "constitutionality" can't be considered by the courts, but can only be changed by Parliament.
• Increasing jurisdiction by European Court of Human Rights in free speech and media law issues.

-- Canadian legal system

• Provincial courts --> Superior Courts --> Courts of Appeal --> Supreme Court of Canada
• Federal Administrative Tribunals --> Federal Courts --> Federal --> Supreme Court of Canada
• From Wikipedia: "Until 1982, Canada had Parliamentary sovereignty like the United Kingdom, wherein the Supreme Court of Canada could only overturn acts of Parliament if those acts violated the division of powers between the federal and provincial levels of government. With the introduction of the Charter of Rights and Freedoms in 1982, Canadian courts gained the power to overturn primary legislation,"

---

4. Fundamental concepts:

Equal justice and the Rule of Law

The "rule of law" is an ancient concept and one of the most important and hard-fought ideas in human history. The principle is that no one -- not even a king -- is above the law. Many wars and revolutions have been fought to preserve and extend the basic idea of equal justice, as we will see when we consider the history of free speech.

From the Constitutional point of view, the "law" is not a static set of rules but one that can change to meet changing conditions. There are ongoing debates about this concept. Conservative scholars see a need to base Constitutional law on the "original intent" of the framers of the Constitution in 1789. Liberal scholars see the Constitution as a "living" document that can and should change with the times. Debates between these two schools of thought have underpinned questions about the rights of minority groups and free speech issues for many decades.

More fundamental concepts in US Constitutional law

Constitutionality means that a law is in harmony with the applicable Constitution. In the area of human rights law, for example, this concept might involve the protection of rights by the Bill of Rights (in the US) or the European Convention on Human Rights (in Europe). Also, in countries without a constitution, or without a constitutional guarantee of human rights, the United Nations Declaration of Human Rights may be invoked.

Example: In New York Times v Sullivan, 1964, the Supreme Court said that making it easy for public officials to sue the press for defamation (libel) would undermine the First Amendment of the US Constitution.

Supremacy -- Federal law takes precedence over state law:

• Supremacy clause in U.S. Constitution (6:2) means that states are bound by the U.S. Constitution, federal law and federal agency regulations
• 14th Amendment (passed in 1868) makes Bill of Rights applicable to the states

Stare decisis -- Let the precedent stand. (Respect prior court decisions) This is a legal principle that provides stability and predictability by relying on precedents to guide opinions. Judges usually go by the precedent unless there is a reason to overturn it.

Example: when asked about Roe v Wade (the abortion decision from 1973), many of the candidates for Supreme Court in recent years said they were personally opposed to abortion but that the principle of stare decisis was more important.

Overbreadth -- When Congress or a state legislature passes a law, sometimes the terms are not clear enough, and the law can be seen as reaching so deeply into Constitutional rights that no one knows what is punished and what is permitted. Uncertain laws can be selectively administered, and have at times been used to violate Constitutional rights. A good law is narrowly tailored to meet compelling interests.

Example: In US v Stevens, 2010, the Supreme Court said that a law banning videos depicting cruelty to animals was overly broad and should have been more narrowly tailored.

Procedures in civil law

Outline

• Plaintiff S. Smith files initial complaint against defendant J. Jones. The lawsuit is called Smith v. Jones
• Answer or response from defendant Jones.
• Preliminary motions (demurrer, summary judgement) and responses from both sides are filed.
• Discovery of evidence, including witness depositions; Trial date is set
• Trial - includes physical evidence, statements by attorneys and witnesses; Evidence is weighed by judge or jury
• 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 again
• Supreme court decides case on basis of majority, and the majority picks someone to write the decision. The minority may also write dissenting opinion.

Description

Initial complaint -- The plaintiff (or petitioner) presents a petition (brief) to the trial court stating 1) that they are in the proper court and location, or venue; 2) the facts of the case; 3) legal arguments, including the precedents on which the case stands; 4) the prayer for relief, (court action requested). This is often for a court order that plaintiffs recieve financial compensation. Or it may also be for an injunction against a defendant. In appeals cases the relief requested may be to overturn the law, which is called a facial challenge, which means that the law may be unconstitutional on its face.

The defendant (respondent) responds with an answer to the petition. The answer may include a motion for summary judgement on the basis of insufficient evidence, or possibly on an inaccurate reading of the law (called a demurrer). Other preliminary motions may include motions to supress evidence illegally obtained, motions to change the venue (espcially in the case of large amounts of publicity) and motions to reschedule a trial to allow more time to prepare.

Example: Let's say a plaintiff files a libel suit against a television station, but the petition (brief) does not allege falsehood. In the US, a defendant might file a demurrer because the complaint lacks legal sufficiency -- that is, it doesn't state exactly how the law has allegedly been broken. The plaintiff might then re-file the suit, and the defendant may move for summary judgement, claiming that no trial is necessary since undisputed facts make it clear that one party or the other would prevail in a full trial.

Venue -- A civil issue that involves more than one state may be heard in a federal court under "diversity jurisdiction." Federal courts also hear cases involving federal laws. Otherwise cases are heard in state courts. Forum shopping is when a plaintiff looks for a favorable venue. For example, plaintiffs from industry often prefer to take cases to the US 4th District in Richmond, for example. Libel plaintiffs in international cases often prefer to sue in Canadian or British courts, where the burden of proof is on the respondant / defendant, and not on the plaintiff / petitioner (as in US courts).

Trial -- If a trial is ordered, there is first a discovery process in which both sides learn of evidence to be presented. There may also be interrogatories, or questions, presented to witnesses of both sides, again, before the trial starts. Sometimes groups that are not named in the complaint but who have a stake in the trial may file a "friend of the court" (amicus) brief.

Jury selection -- If a jury is to be called, the process of jury selection is called voir dire.

When the trial begins, the petitioners and respondents make opening statements to the court and then call witnesses. During the trial, the way evidence is presented and the way witnesses are questioned may be subject to a number of challenges from both sides. Then closing statements are made and the judge or jury reaches a decision.

Tests (or standards): A judge or jury (or both) will apply the appropriate standard to the evidence in order for reach an opinion.

In a criminal case, the well-known test is guilt beyond a reasonable doubt. However, in a civil case, the test is the preponderance of evidence, sometimes tempered with by the "preferred position" doctrine in a First Amendment case.

In First Amendment cases, a test will usually refer to a case precedent. So in libel law there is the "Sullivan actual malice" test; in advertising law there is the "Central Hudson" test, and so on.

However, sometimes media law does not involve the First Amendment rights of citizens. Copyright law is an example. The copyright law "Fair Use" test is found in the US Code Title 17 Chapter 1 Section 107. This is a law passed by Congress, not a court precedent.

Appeal -- Either side can appeal a trial court decision to a higher court for a variety of legal reasons. There is a chain of appeals courts in both state and federal systems. A case heard by a state supreme court can be appealed to the US Supreme Court (as in New York Times v Sullivan).

If one of the parties is appealing to the US Supreme Court, they ask for a writ of certiorari. If certiorari is granted, the Court will hear the case. (Sometimes certiorari is abbreviated as cert.)

Opinion -- A court opinion may uphold a lower court, or reverse a decision of a lower court. When the Supreme Court issues an opinion, the majority will issue the opinion, there may also be concurring opinions with different takes on the law, or dissenting opinions from different court members. At the federal appeals court level, usually only one judge presides, but on important cases they may preside "en banc" or with all judges. A reversal of a decision often means that the case is remanded to a lower court to re-hear the case and make a new decison based on the upper court's instructions as expressed in the opinion.

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

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

Legal terms

petition (brief), petitioners, respondents, venue, diversity jurisdiction, demurrer, motion for summary judgement, voir dire, en banc appeal, writ of certiorari (cert.), majority / minority opinion, per curiam, uphold, reverse, remand

Briefing a case

For a class in law, a case brief is a one to two page memo with a students name, email address, and the name of the case. The memo should describe five points about the case:

1. Facts – Background
2. Issue - 1-2 sentences
3. Rule of Law – 1-2 sentences
4. Analysis – Explain why
5. Conclusion – votes, concurring or dissenting opinions, historical impact

Case citation styles

The citation system was originally based on paper libraries with book volumes and page numbers. Sometimes there are 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). (preferred styles)
• Other 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

---

5. What distinguishes media law

-- Media law is almost always civil; only rarely are criminal issues at stake in the US, Canada, the Commonwealth countries, or Europe.

-- US 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 but can be First Amendment 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 copyright, FCC or FTC regulations, and so on.

-- Media law involves both structural issues and content issues. See the chart below.

-- 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.

-- Media law does not include all elements of Entertainment Law as Wikipedia defines it.

• It does not include contract law, employment law, labor law, bankruptcy law, immigration law, securities law, private international law, or insurance law -- all of which may be elements of an entertainment law practice.
  
  
• On the other hand, it does include intellectual property (especially trademarks, copyright, and the so-called "Right of Publicity"), right of privacy, defamation, clearance of rights, and advertising.
  
  

OVERVIEW OF MEDIA REGULATION FOR THE US
TYPE	CONTENT ISSUES	DISPUTES RESOLVED THROUGH ...
All media	Defamation / libel, slander	Private civil lawsuits only Public figures bringing suit have high burden of proof
All media	Invasion of Privacy / false light, publication of private facts	Private civil lawsuits only Public figures bringing suit have high burden of proof
All media, esp. photography	Invasion of Privacy / intrustion by media, misappropriation of likeness	Limited regulation enforced through private lawsuits
All media	Copyright	Library of Congress, Courts; Bern Convention (UN)
All media	Prior Restraint / censorship	Federal agencies seek court injunctions Very high burden of proof on government Military situations are exceptions
Advertising	Most products and services	Federal Trade Commission (FTC)
Advertising	Medical products and services	Food and Drug Administration (FDA)
Broadcasting standards	Obscenity and indecency on TV	Federal Communications Commission (FCC)
Broadcasting standards	Advertising on TV to children	FCC
TYPE	STRUCTURAL ISSUES	RESOLVED THROUGH
Print ownership	Anti-trust laws	Congress
Broadcast ownership	Anti-trust laws, FCC regulations	Congress, FCC
Broadcast, cable and satellite technology	Frequency allocation, technical standards, etc.	FCC
Satellite, broadcast frequencies	technical standards	International Telecommunications Union, ISO (UN)
Internet and web	domain ownership, tech standards	ICANN, ITU (UN)

 

 

Additonal Information

Four US cases that changed the law: Sullivan, Sipple, Hustler and Grokster

Recent First Amendment and media law cases - These are some of the current issues that you may have heard about.

Law, as a term, has been defined in some of the following ways:

"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, Supreme Court Justice, who argued in a 1897 article for a pragmatic view of law that set down easily understood rules. (See Robert P. George's "What is Law?")

"The law is an ass." -- Charles Dickens, in Oliver Twist. The context of the famous quote is this: The character Mr. Bumble (illustration to the right) 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." This was part of the ancient doctrine of "coverture." Mr. Bumble's 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 document