Four cases

Four media law cases that changed history

Note from Prof. Kovarik -- These are not the only media law cases that have changed history, obviously. They are my favorite cases because they illustrate important principles or directions in law, and because they are recent enough to still have an impact on our lives.

New York Times v Sullivan, 1964

An important civil rights advertising case became the "bedrock" foundation for most modern social and political discussion in the US. Sullivan is a crucial case in understanding how libel law is interpreted today.

The case began with a March, 1960 advertisement placed by Alabama civil rights activists in the New York Times headlined "Heed their Rising Voices."

The advertisement described resistance to the civil rights movement in the South, but it had some minor inaccuracies. The police commissioner of Birmingham, Ala., Louis Sullivan, was not named in the ad, but he sued anyway under the state's libel law. Sullivan won the case at the trial court level. Sullivan also won appeals brought by the New York Times in the Alablama appeals court and then the state supreme court.

The New York Times then petitioned for certiorari to the U.S. Supreme Court and the court heard oral arguments in January, 1964. In its decision supporting the Times, the U.S. Supreme Court held "... 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 public officials." For a public official to successfully sue for libel, he or she would have to prove "actual malice," That is defined as knowingly publishing somethinf false or reckless disregard for the truthy.

Why did this case change history?

It's fairly easy for a society to lose sight of its values and persecute its critics. There was quite a lot of persecution during the Civil Rights era, but the laws concerning free speech were not allowed to be an instrument in that persecution.

In fact, by insisting that free speech must be respected, the courts helped the participants find an effective and non-violent path to social change. Without free speech, non-violent change is far less likely.

How did this change history?

The principle of individual rights is vital, but it is not an ultimate right. It is balanced against other public rights, and for good reason. As the public came to know about Sipple, it had to reconcile archaic ideas about personal behavior against the obvious example of heroism. While Sipple suffered, the truth changed the course of history.

Sipple v Chronicle Publishing, 1984

Where does the right to know trump the right to privacy?

One of the most clear-cut examples of the public's right to know, and how much damage that can inflict, is the case of Oliver Sipple.

Sipple happened to be in the right place at the right time. In the photo at left, the ex-marine lunges for Sara Jane Moore in San Francisco on September 23, 1975. Moore has just fired a shot in the direction of President Gerald Ford. (AP Photo/San Francisco Examiner, Gordon Stone). But Sipple prevented her from getting off a second and potentially more deadly shot.

When people wanted to know about this hero, reporters found that he was not only a homosexual but also a public advocate for gay rights in San Francisco. So Sipple's past as a homosexual became part of the story of his heroism. Unfortunately, it also led to breaking off relations with his family in Michigan and a great deal of personal pain.

Sipple sued the San Francisco Chronicle for revealing his secret life, but lost because he had become a public figure and questions about his character were deemed newsworthy.

"There can be no privacy with respect to a matter which is already public or which has previously become part of the 'public domain.' Once the information is released, unlike a physical object, it cannot be recaptured and sealed," a California court said in Sipple v. Chronicle Publishing.

Hustler Magazine and Larry C. Flynt v. Jerry Falwell, 1988

An ad parody was not a believable defamation.

The Virginia common law tort against "Intentional infliction of emotional distress" is not permissible as a form of libel action

The court said in its decision:

"The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive.

Larry Flynt famously said:
"If the law protects a scumbag like me, it will protect all of you."

How did this change history?

It's said that good cases make bad law. This was a "good" case, a case brought by a preacher who had been insulted by a pornographer. And yet, if Flynt's conviction for "intentional infliction of emotional distress" against Jerry Falwall had become set in law, as an example to others, then free speech would have been stifled.

In fact, the US Supreme Court could not allow this case to undermine protections for freedom of speech and press that had been so long in the making. The justices were angry that this obvious point was lost on the courts of appeals below them, where the case should have stopped.

MGM Studios Inc. v. Grokster Ltd., 2005

File sharing systems allow contributory copyright infringement when their principal object is the dissemination of copyrighted material to people who post or download music files.

One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.

As the Benedict.com copyright web site says of this case: " Finding itself stuck between the Sony rule and the perceived egregious conduct of P2Ps, the court found an out by creating a new theory of secondary liability for copyright infringement – the Inducement Theory.

“Sony’s rule limits imputing intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.”

The Inducement Test -- The Inducement Test states that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. The court goes to great pains to stress that the inducement rule premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

How did this change history?

For the first time, a device that could be used both legally and illegally was found to be illegal. The technology itself, and not the behavior, became the issue. The rights of people had become subordinated to the rights of companies and their choice of technologies.

Four media law cases that changed history Note from Prof. Kovarik -- These are not the only media law cases that have changed history, obviously. They are my favorite cases because they illustrate important principles or directions in law, and because they are recent enough to still have an impact on our lives.
New York Times v Sullivan, 1964 An important civil rights advertising case became the "bedrock" foundation for most modern social and political discussion in the US. Sullivan is a crucial case in understanding how libel law is interpreted today. The case began with a March, 1960 advertisement placed by Alabama civil rights activists in the New York Times headlined "Heed their Rising Voices." The advertisement described resistance to the civil rights movement in the South, but it had some minor inaccuracies. The police commissioner of Birmingham, Ala., Louis Sullivan, was not named in the ad, but he sued anyway under the state's libel law. Sullivan won the case at the trial court level. Sullivan also won appeals brought by the New York Times in the Alablama appeals court and then the state supreme court. The New York Times then petitioned for certiorari to the U.S. Supreme Court and the court heard oral arguments in January, 1964. In its decision supporting the Times, the U.S. Supreme Court held "... 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 public officials." For a public official to successfully sue for libel, he or she would have to prove "actual malice," That is defined as knowingly publishing somethinf false or reckless disregard for the truthy. Why did this case change history? It's fairly easy for a society to lose sight of its values and persecute its critics. There was quite a lot of persecution during the Civil Rights era, but the laws concerning free speech were not allowed to be an instrument in that persecution. In fact, by insisting that free speech must be respected, the courts helped the participants find an effective and non-violent path to social change. Without free speech, non-violent change is far less likely.

How did this change history? The principle of individual rights is vital, but it is not an ultimate right. It is balanced against other public rights, and for good reason. As the public came to know about Sipple, it had to reconcile archaic ideas about personal behavior against the obvious example of heroism. While Sipple suffered, the truth changed the course of history.		Sipple v Chronicle Publishing, 1984 Where does the right to know trump the right to privacy? One of the most clear-cut examples of the public's right to know, and how much damage that can inflict, is the case of Oliver Sipple. Sipple happened to be in the right place at the right time. In the photo at left, the ex-marine lunges for Sara Jane Moore in San Francisco on September 23, 1975. Moore has just fired a shot in the direction of President Gerald Ford. (AP Photo/San Francisco Examiner, Gordon Stone). But Sipple prevented her from getting off a second and potentially more deadly shot. When people wanted to know about this hero, reporters found that he was not only a homosexual but also a public advocate for gay rights in San Francisco. So Sipple's past as a homosexual became part of the story of his heroism. Unfortunately, it also led to breaking off relations with his family in Michigan and a great deal of personal pain. Sipple sued the San Francisco Chronicle for revealing his secret life, but lost because he had become a public figure and questions about his character were deemed newsworthy. "There can be no privacy with respect to a matter which is already public or which has previously become part of the 'public domain.' Once the information is released, unlike a physical object, it cannot be recaptured and sealed," a California court said in Sipple v. Chronicle Publishing.

Hustler Magazine and Larry C. Flynt v. Jerry Falwell, 1988 An ad parody was not a believable defamation. The Virginia common law tort against "Intentional infliction of emotional distress" is not permissible as a form of libel action The court said in its decision: "The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive. Larry Flynt famously said: "If the law protects a scumbag like me, it will protect all of you." How did this change history? It's said that good cases make bad law. This was a "good" case, a case brought by a preacher who had been insulted by a pornographer. And yet, if Flynt's conviction for "intentional infliction of emotional distress" against Jerry Falwall had become set in law, as an example to others, then free speech would have been stifled. In fact, the US Supreme Court could not allow this case to undermine protections for freedom of speech and press that had been so long in the making. The justices were angry that this obvious point was lost on the courts of appeals below them, where the case should have stopped.

		MGM Studios Inc. v. Grokster Ltd., 2005 File sharing systems allow contributory copyright infringement when their principal object is the dissemination of copyrighted material to people who post or download music files. One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses. As the Benedict.com copyright web site says of this case: " Finding itself stuck between the Sony rule and the perceived egregious conduct of P2Ps, the court found an out by creating a new theory of secondary liability for copyright infringement – the Inducement Theory. “Sony’s rule limits imputing intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.” The Inducement Test -- The Inducement Test states that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. The court goes to great pains to stress that the inducement rule premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.
		How did this change history? For the first time, a device that could be used both legally and illegally was found to be illegal. The technology itself, and not the behavior, became the issue. The rights of people had become subordinated to the rights of companies and their choice of technologies.