Media Law: A Guide to Understanding Mass Communication Law
Edition: 5
Copyright: 2024
Pages: 480
Edition: 5
Copyright: 2024
Pages: 530
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The health of the American democracy in the 21st Century will depend largely upon the health of American media. Information is the lifeblood of a free republic. Yet, the internet and social media have provided media professionals with new legal challenges regarding privacy, security and credibility. If the free flow of ideas and news is to continue, those who work in the media must understand the principles and laws that protect our right to know.
In Media Law: A Guide to Understanding Mass Communication Law, Mark Hanebutt provides a concise summary of those precepts to help media professionals in their day-to-day task of presenting information. The publication cuts through non-essential discussion and presents the basics. As such, it presents a readable desk reference for students, journalists, advertisers, and public relations specialists.
Mark Hanebutt, a former reporter and editor for The Orlando Sentinel, is professor of journalism at the University of Central Oklahoma and a lawyer in Oklahoma City.
Acknowledgments
Introduction
Chapter 1 The Purpose, Origin, and Types of Law
The Need for Order
Law, Ethics, and Morality
Systems of Law
Common Law
Equity Law
Statutory Law
Constitutional Law
Administrative Law
Executive Orders
Areas of Law
Chapter 2 American Democracy and the Law
Early Events That Shaped American Law
The Enlightenment—Foundation of American Government
Moving Toward a Government of, by, and for the People
Principles of Democracy
Drafting the U.S. Constitution
The Fight for Ratification
What’s in the Constitution: Types and Limitations of Power
The Congress
How a Bill Becomes a Law
The Presidency
Chapter 3 The American Legal System
Seeking Truth and Interpreting the Law
A Dual Court System
The Federal Courts
The Anatomy of a Lawsuit
• Civil Suits
• Appeals
• Criminal Trials
Finding the Law
Briefing a Case
Bench-Bar-Press Guidelines
Chapter 4 The First Amendment: A Look at Speech and Press
Protecting the Pursuit of Truth
A History of Censorship
Advocates of Free Expression
Early Suppression in America
The First Amendment: Discovering the Framers’ Intent
Ways to Interpret the First Amendment Today
• Absolutist Theory
• Ad Hoc Balancing Theory
• Preferred Position Balancing Theory
• Marketplace of Ideas Theory
• Access Theory
• Self-Realization Theory
• Meiklejohnian Theory
The Future of the First Amendment
Chapter 5 The Boundaries of Free Expression
The Alien and Sedition Acts of 1798
The Espionage and Sedition Acts of 1917 and 1918
The Clear and Present Danger Test
The Doctrine of Incorporation
More Speech, Not Less
The Smith Act of 1940
The Brandenburg Imminent and Likely Test
The Strict Scrutiny, Intermediate Scrutiny, and Rational Basis Tests
Forum Analysis
Unprotected Speech
Prior Restraint
• Near v. Minnesota
• Pentagon Papers
• Hate Speech
• Symbolic Speech
• Compelled Speech
• Censoring Government Employees
• False Speech
• Taxation as Censorship
• Retaliatory Arrest
• Son of Sam Laws
• Grand Jury Testimony
• Elections
• Internet
• Disturbing Images
• Distributing Literature
• Immigration
• Foreign Organizations
• Gender Issues
• Signs
• Protests, Solicitations and Picketing
• Schools
Chapter 6 Libel
The Value of Reputation
Elements of Defamation
• Defamation
• Identification
• Publication
• Damage
• Falsity
• Fault
The New York Times Co. v. Sullivan and Public Officials
The Impact of The New York Times Co. v. Sullivan Case
Public Figures
Limited-Purpose Public Figures
Businesses as Public Figures
• Product Disparagement
Public Persons and the Passage of Time
Defenses to Libel
• Truth
• Summary Judgment
• Statute of Limitations
• Privilege
• Fair Comment and Criticism
• Opinion
• Jurisdiction
• Section 230
• Neutral Reportage
• Wire Service Defense
• Single Publication Rule
• Libel-Proof Plaintiffs
• Section 315 of the Federal Communications Commission Act
• Consent
• Right of Reply
• Retractions
• Precautions
Infliction of Emotional Distress
Chapter 7 Invasion of Privacy
The Need to Be Let Alone
Sources of Privacy Law
Contrasting Libel and Invasion of Privacy
The Growing Privacy Problem
• Intrusion
• Disclosure of Private Facts
• Appropriation
• False Light
Privacy and the Internet
Chapter 8 Open Records and Meetings
The Need for Information
The Freedom of Information Act
Internet Access to Information
Using the Freedom of Information Act
Freedom of Information Act Exemptions
Freedom of Information Act Limitations
• Interviewing Government Officials
• Executive Privilege
• The 1974 Privacy Act
• The Buckley Amendment and Clery Act
• The Federal Advisory Committee Act
• Criminal History Information
• The Federal Driver’s Privacy Act
• The Health Insurance Portability and Accountability Act (HIPAA)
Government in the Sunshine Act
State Open Records and Meetings Laws
Additional Problems of Information Access
Suggestions for Getting Information
Sample Freedom of Information Request Letter
Chapter 9 Protection of Sources
The Need to Protect Sources
Failing to Keep a Promise—When Sources Sue
Branzburg v. Hayes
Other Sources of Protection
Contempt and the Collateral Bar Rule
Criminal Cases v. Civil Cases and Nonconfidential Information
Telephone Records
State Shield Laws
Who Is a Reporter?
Efforts to Pass a Federal Shield Law
Zurcher v. Stanford Daily
The Privacy Protection Act
Consider Alternatives
Chapter 10 Free Press/Fair Trial
When Constitutional Rights Collide
Sheppard v. Maxwell
Seating an Impartial Jury
• Voir Dire
• Change of Venue
• Change of Veniremen
• Continuance
• Jury Admonition
• Sequestration
Restrictive Orders
The Nebraska Press Association Test
Closed Courtrooms
The Press-Enterprise Test
Challenging Closure
Accessing Court Records
Electronic Records
Recording, Photographing and Televising Court Proceedings
New Technologies in the Courtroom
Bench-Bar-Press Guidelines
Eliminating Prejudicial Reporting
Chapter 11 Obscenity
Defining Sexual Expression
The Problem with Obscenity
Early Regulation of Sexual Expression
The Miller Test
Variable Obscenity
Child Pornography
Sexting
Other Ways to Regulate Obscenity
• Postal Regulations
• Film Censorship and Ratings Systems
• Internet Filters
• Withholding Government Grants
• Nuisance Laws
• Zoning Ordinances
Broadcast Indecency
Cable Indecency
Violence
Chapter 12 Intellectual Property
Protecting Creations of the Mind
The Copyright Act of 1790
Copyright Today
Copyright and the Internet
Copyright and Artificial Intelligence
Copyright and Music
Duration of Copyright
Freelancers
Copyright Infringement
Unfair Competition
The Fair Use Defense
Other Defenses to Infringement
Trademarks
Duration of Trademark Protection
Marks of Distinction
Patents
Chapter 13 Advertising and Commercial Speech
The Evolution of Commercial Speech Protection
Government Regulation of Advertising
• Printer’s Ink Statutes
• The Federal Trade Commission Act
The Commercial Speech Doctrine
Compelled Commercial Speech
Corporations and Noncommercial Speech
Media Access
The Far Reach of the Federal Trade Commission
FTC Methods to Stop False Advertising
• Guides
• Publicity
• Substantiation
• Voluntary Compliance
• Consent Agreements
• Litigated Orders
• Corrective Advertising
• Injunctions
Other Advertising Concerns
• Negligence
• Testimonials
• Mockups
• Telemarketing
• Internet and Social Media Advertising
• Comparison Ads
• Bait-and-switch Advertising
Advertiser Liability and Defenses Against False-Advertising Claims
Other Federal Agencies That Regulate Advertising
• The Food and Drug Administration
• The Federal Communications Commission
• The Securities and Exchange Commission
• The Bureau of Alcohol, Tobacco, and Firearms (ATF)
• The Federal Election Commission
• The Federal Reserve Board
The Lanham Act
Self-regulation
Chapter 14 Broadcasting and the Internet
The Development of Radio
First Amendment Concerns
The Federal Communications Commission (FCC)
Licensing
The Effects of Deregulation
Broadcast Station Ownership
The Fairness Doctrine
Personal Attack Rules and Political Editorial Rules
Broadcast Ascertainment Rules
The Equal Time Rule
The Candidate Access Rule
Candidate Advertising
Children’s Programming
Indecency
Violence on Television
The News, Hoaxes, and Video News Releases
Other Content Rules
Noncommercial Broadcasting
Cable Television
Direct Broadcast Satellites
Low Power Television
Satellite Radio
Low Power FM Radio
The Internet
Appendix A: The Declaration of Independence: A Transcription
Appendix B: The Constitution of the United States: A Transcription
Bibliography
About the Author
Index
Mark Hanebutt is professor of journalism in the department of mass communication at the University of Central Oklahoma where he teaches courses in news reporting and media law. In addition, he is a member of the Oklahoma Bar Association and is of counsel to Magill & Magill, P.L.L.C., Attorneys and Counselors at Law, in Oklahoma City, where he mediates and consults on media law issues and cases. A former reporter, editor, and syndicated writer with The Orlando Sentinel, he is also the author of The Journalist’s Primer: A No-Nonsense Guide to Getting and Reporting the News (Kendall Hunt 2019). He holds a Bachelor of Arts degree in journalism, a Master of Arts degree in English and a Juris Doctor degree in law and has received fellowships from the American Press Institute and the Gannett Foundation.
The health of the American democracy in the 21st Century will depend largely upon the health of American media. Information is the lifeblood of a free republic. Yet, the internet and social media have provided media professionals with new legal challenges regarding privacy, security and credibility. If the free flow of ideas and news is to continue, those who work in the media must understand the principles and laws that protect our right to know.
In Media Law: A Guide to Understanding Mass Communication Law, Mark Hanebutt provides a concise summary of those precepts to help media professionals in their day-to-day task of presenting information. The publication cuts through non-essential discussion and presents the basics. As such, it presents a readable desk reference for students, journalists, advertisers, and public relations specialists.
Mark Hanebutt, a former reporter and editor for The Orlando Sentinel, is professor of journalism at the University of Central Oklahoma and a lawyer in Oklahoma City.
Acknowledgments
Introduction
Chapter 1 The Purpose, Origin, and Types of Law
The Need for Order
Law, Ethics, and Morality
Systems of Law
Common Law
Equity Law
Statutory Law
Constitutional Law
Administrative Law
Executive Orders
Areas of Law
Chapter 2 American Democracy and the Law
Early Events That Shaped American Law
The Enlightenment—Foundation of American Government
Moving Toward a Government of, by, and for the People
Principles of Democracy
Drafting the U.S. Constitution
The Fight for Ratification
What’s in the Constitution: Types and Limitations of Power
The Congress
How a Bill Becomes a Law
The Presidency
Chapter 3 The American Legal System
Seeking Truth and Interpreting the Law
A Dual Court System
The Federal Courts
The Anatomy of a Lawsuit
• Civil Suits
• Appeals
• Criminal Trials
Finding the Law
Briefing a Case
Bench-Bar-Press Guidelines
Chapter 4 The First Amendment: A Look at Speech and Press
Protecting the Pursuit of Truth
A History of Censorship
Advocates of Free Expression
Early Suppression in America
The First Amendment: Discovering the Framers’ Intent
Ways to Interpret the First Amendment Today
• Absolutist Theory
• Ad Hoc Balancing Theory
• Preferred Position Balancing Theory
• Marketplace of Ideas Theory
• Access Theory
• Self-Realization Theory
• Meiklejohnian Theory
The Future of the First Amendment
Chapter 5 The Boundaries of Free Expression
The Alien and Sedition Acts of 1798
The Espionage and Sedition Acts of 1917 and 1918
The Clear and Present Danger Test
The Doctrine of Incorporation
More Speech, Not Less
The Smith Act of 1940
The Brandenburg Imminent and Likely Test
The Strict Scrutiny, Intermediate Scrutiny, and Rational Basis Tests
Forum Analysis
Unprotected Speech
Prior Restraint
• Near v. Minnesota
• Pentagon Papers
• Hate Speech
• Symbolic Speech
• Compelled Speech
• Censoring Government Employees
• False Speech
• Taxation as Censorship
• Retaliatory Arrest
• Son of Sam Laws
• Grand Jury Testimony
• Elections
• Internet
• Disturbing Images
• Distributing Literature
• Immigration
• Foreign Organizations
• Gender Issues
• Signs
• Protests, Solicitations and Picketing
• Schools
Chapter 6 Libel
The Value of Reputation
Elements of Defamation
• Defamation
• Identification
• Publication
• Damage
• Falsity
• Fault
The New York Times Co. v. Sullivan and Public Officials
The Impact of The New York Times Co. v. Sullivan Case
Public Figures
Limited-Purpose Public Figures
Businesses as Public Figures
• Product Disparagement
Public Persons and the Passage of Time
Defenses to Libel
• Truth
• Summary Judgment
• Statute of Limitations
• Privilege
• Fair Comment and Criticism
• Opinion
• Jurisdiction
• Section 230
• Neutral Reportage
• Wire Service Defense
• Single Publication Rule
• Libel-Proof Plaintiffs
• Section 315 of the Federal Communications Commission Act
• Consent
• Right of Reply
• Retractions
• Precautions
Infliction of Emotional Distress
Chapter 7 Invasion of Privacy
The Need to Be Let Alone
Sources of Privacy Law
Contrasting Libel and Invasion of Privacy
The Growing Privacy Problem
• Intrusion
• Disclosure of Private Facts
• Appropriation
• False Light
Privacy and the Internet
Chapter 8 Open Records and Meetings
The Need for Information
The Freedom of Information Act
Internet Access to Information
Using the Freedom of Information Act
Freedom of Information Act Exemptions
Freedom of Information Act Limitations
• Interviewing Government Officials
• Executive Privilege
• The 1974 Privacy Act
• The Buckley Amendment and Clery Act
• The Federal Advisory Committee Act
• Criminal History Information
• The Federal Driver’s Privacy Act
• The Health Insurance Portability and Accountability Act (HIPAA)
Government in the Sunshine Act
State Open Records and Meetings Laws
Additional Problems of Information Access
Suggestions for Getting Information
Sample Freedom of Information Request Letter
Chapter 9 Protection of Sources
The Need to Protect Sources
Failing to Keep a Promise—When Sources Sue
Branzburg v. Hayes
Other Sources of Protection
Contempt and the Collateral Bar Rule
Criminal Cases v. Civil Cases and Nonconfidential Information
Telephone Records
State Shield Laws
Who Is a Reporter?
Efforts to Pass a Federal Shield Law
Zurcher v. Stanford Daily
The Privacy Protection Act
Consider Alternatives
Chapter 10 Free Press/Fair Trial
When Constitutional Rights Collide
Sheppard v. Maxwell
Seating an Impartial Jury
• Voir Dire
• Change of Venue
• Change of Veniremen
• Continuance
• Jury Admonition
• Sequestration
Restrictive Orders
The Nebraska Press Association Test
Closed Courtrooms
The Press-Enterprise Test
Challenging Closure
Accessing Court Records
Electronic Records
Recording, Photographing and Televising Court Proceedings
New Technologies in the Courtroom
Bench-Bar-Press Guidelines
Eliminating Prejudicial Reporting
Chapter 11 Obscenity
Defining Sexual Expression
The Problem with Obscenity
Early Regulation of Sexual Expression
The Miller Test
Variable Obscenity
Child Pornography
Sexting
Other Ways to Regulate Obscenity
• Postal Regulations
• Film Censorship and Ratings Systems
• Internet Filters
• Withholding Government Grants
• Nuisance Laws
• Zoning Ordinances
Broadcast Indecency
Cable Indecency
Violence
Chapter 12 Intellectual Property
Protecting Creations of the Mind
The Copyright Act of 1790
Copyright Today
Copyright and the Internet
Copyright and Artificial Intelligence
Copyright and Music
Duration of Copyright
Freelancers
Copyright Infringement
Unfair Competition
The Fair Use Defense
Other Defenses to Infringement
Trademarks
Duration of Trademark Protection
Marks of Distinction
Patents
Chapter 13 Advertising and Commercial Speech
The Evolution of Commercial Speech Protection
Government Regulation of Advertising
• Printer’s Ink Statutes
• The Federal Trade Commission Act
The Commercial Speech Doctrine
Compelled Commercial Speech
Corporations and Noncommercial Speech
Media Access
The Far Reach of the Federal Trade Commission
FTC Methods to Stop False Advertising
• Guides
• Publicity
• Substantiation
• Voluntary Compliance
• Consent Agreements
• Litigated Orders
• Corrective Advertising
• Injunctions
Other Advertising Concerns
• Negligence
• Testimonials
• Mockups
• Telemarketing
• Internet and Social Media Advertising
• Comparison Ads
• Bait-and-switch Advertising
Advertiser Liability and Defenses Against False-Advertising Claims
Other Federal Agencies That Regulate Advertising
• The Food and Drug Administration
• The Federal Communications Commission
• The Securities and Exchange Commission
• The Bureau of Alcohol, Tobacco, and Firearms (ATF)
• The Federal Election Commission
• The Federal Reserve Board
The Lanham Act
Self-regulation
Chapter 14 Broadcasting and the Internet
The Development of Radio
First Amendment Concerns
The Federal Communications Commission (FCC)
Licensing
The Effects of Deregulation
Broadcast Station Ownership
The Fairness Doctrine
Personal Attack Rules and Political Editorial Rules
Broadcast Ascertainment Rules
The Equal Time Rule
The Candidate Access Rule
Candidate Advertising
Children’s Programming
Indecency
Violence on Television
The News, Hoaxes, and Video News Releases
Other Content Rules
Noncommercial Broadcasting
Cable Television
Direct Broadcast Satellites
Low Power Television
Satellite Radio
Low Power FM Radio
The Internet
Appendix A: The Declaration of Independence: A Transcription
Appendix B: The Constitution of the United States: A Transcription
Bibliography
About the Author
Index
Mark Hanebutt is professor of journalism in the department of mass communication at the University of Central Oklahoma where he teaches courses in news reporting and media law. In addition, he is a member of the Oklahoma Bar Association and is of counsel to Magill & Magill, P.L.L.C., Attorneys and Counselors at Law, in Oklahoma City, where he mediates and consults on media law issues and cases. A former reporter, editor, and syndicated writer with The Orlando Sentinel, he is also the author of The Journalist’s Primer: A No-Nonsense Guide to Getting and Reporting the News (Kendall Hunt 2019). He holds a Bachelor of Arts degree in journalism, a Master of Arts degree in English and a Juris Doctor degree in law and has received fellowships from the American Press Institute and the Gannett Foundation.