Dr. L. John Durney
Provost & Vice President For Academic Affairs

Professor of Communications

S105-Spellman Hall -- Academic Affairs Suite

Office Hours: 9-5, M-F

ldurney@stac.edu

845-398-4083

CA403 – Media Law & Ethics -- Fall 2006

Amendment I

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.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have previously been ascertained by law, and to be informed of the nature and the cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

PRIOR RESTRAINT

William Blackstone defined freedom of the press in England in the 1760s as freedom from “previous restraint.” America’s founding fathers (particularly Thomas Jefferson) wanted to insure that government would be open to public scrutiny and assessment, and that one strong outlet for that “openness” was the press at the time. In effect, the early attempts at prior restraint interfered directly with the conceptual freedoms expressed in the Constitution and Bill of Rights. Therefore…although various efforts over the years have been made to stifle the press (e.g. Alien and Sedition Acts), i.e. to allow government to prohibit, or at least inhibit publication, generally the press has prevailed. Following are some cases with which you should be familiar in this area of our discussion.

John Peter Zenger, 1734-35

This case actually involved a claim of seditious libel against Zenger, since he criticized the British governor of New York (Cosby). Under British law, at the time, Zenger was guilty. However, his attorney (Andrew Hamilton) convinced the jury to acquit him, on the grounds that what he had printed was true. It was a victory for the press, for the growing revolutionary sentiment, and for the concept that Government should not interfere with publication (prior restraint). It was also the first time that “truth” was used as a defense…and our later discussions around Libel will explore that defense.

Schenck v U.S. [Schenck v. U.S., 249 U.S. (1919)]

This is a historic case for a number of reasons. Schenck was the general secretary of the Socialist party in Philadelphia, which was “anti-war,” and at the party’s direction, he circulated 15,000 pamphlets urging young men to resist being drafted into the Army to serve in World War I. He was arrested and convicted under the Espionage Act of 1917. In effect, the government argued that his actions endangered the national security of the U.S., and in this case the Supreme Court agreed. This case is famous for providing one of the few exceptions allowing for prior restraint, and Oliver Wendell Holmes’ opinion included the historic line, “…create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Near v Minnesota [Near v. Minnesota, 283 U.S. 697 (1931)]

The Supreme Court got involved in this case (which originated in Minneapolis in 1927) because an existing State statute in Minnesota allowed for prior restraint of a publication under certain circumstances, characterized broadly as posing a “public nuisance.” The appellants, Jay Near and his partner, who published the anti-Semitic and defamatory Saturday Press, fought lower court rulings on the basis that their First Amendment rights had been violated by the censorship provided for in the state’s “nuisance” statute. The Supreme Court concurred, and reversed the lower courts, 5-4, declaring that the state statute was unconstitutional. (Ref: “amicus curiae”)

New York Times v U.S. [New York Times v. U.S.; Washington Post v. U.S., 403 U.S. 713 (1971)]

Also known as The Pentagon Papers case, this one involved the prior governmental restraint of The New York Times and The Washington Post, both of which papers began to publish excerpts from an official government study of the Vietnam War, which had been done by the Rand Corporation, and had been spirited away from California and delivered to the Times by Daniel Ellsberg. The case began with the first excerpts being published on June 12^th, the government issued restraining orders prohibiting further publication, and by June 30^th, the Supreme Court ruled in the papers’ favor (6-3), refuting government claims about national security, and ruling that its actions infringed on First Amendment protections. This case surfaced to the Supreme Court on one of the fastest tracks of any such constitutional issue case!

Progressive Magazine 1979

This case, known formally as U.S. v Progressive, never made it to the Supreme Court. It involved the publication of an article on how to make “The H-Bomb.” The government found out about its pending publication, and prohibited the magazine from going ahead with publication, on the grounds of endangering the national security interests of the U.S. The magazine appealed, on the grounds that the entire article had been composed using material which was readily accessible in public libraries, and that its First Amendment rights were being violated by the prohibition against publishing. District courts upheld the government, but before the magazine’s appeal could be heard before the Supreme Court, a small paper in Wisconsin published a similar article, and the Progressive case became “moot.”

LIBEL

Commonly known as defamation, libel is the most common legal problem faced by professional communicators. Defamation in print is Libel…oral defamation is Slander. In essence, Libel is any communication that holds a person up to contempt, hatred, ridicule or scorn; that lowers him/her in the esteem of peers and community.

To win a libel action, the plaintiff must prove:

1. Publication…that the libel was actually published.

2. Identification…the words in question were of and concerning the plaintiff.

3. Defamation…the material was defamatory and did the plaintiff harm in reputation or business.

4. Falsity…the printed material was clearly false.

New York Times v Sullivan [New York Times Co. v. Sullivan, 376 U.S. 254 (1964)]

Gertz v Welch [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)]

Time v Firestone [Time, Inc. v. Firestone, 424 U.S. 448 (1976)]

INVASION OF PRIVACY

Effectively, there are four areas of privacy law which professional communicators need to be somewhat familiar with: Appropriation, Intrusion, Publicity About Private Facts, and False Light Privacy. Most of our work which might ever involve some invading of privacy would fall into one of these categories. Remember that generally speaking, there is no privacy in public!

· Appropriation It is illegal to use an individual’s name or likeness for commercial gain without consent!

Use the Jackie Onassis and Bette Midler cases as points of reference.

· Intrusion It is illegal to intrude, physically or otherwise, upon the seclusion or solitude of an individual.

Use the second Jackie Onassis case as an example here…also, remember that the 1986 Electronic Communications Privacy Act made it illegal to intercept cell conversations, but it didn’t go far enough to protect against other “intrusions” on our privacy.

· Publicity About Private Facts It is illegal to publicize private information about a person, if that information is 1) highly offensive to a reasonable person, or 2) not of legitimate public concern.

Check out the 1984 Oliver Sipple case, involving the man who interceded in the Ford assassination attempt; also re-visit the Virgil v Time Inc. case (1975), involving Sports Illustrated’s story about body-surfing. We also spent considerable time during these privacy discussions exploring the pros and cons of the naming of rape victims (or victims of alleged sexual assaults).

· False Light Privacy It is illegal to publicize material that places an individual in a false light, if the false light would be offensive to a reasonable person, and if the publisher was at fault.

One of the classic cases in this area of privacy law, is the 1967 Time, Inc. v Hill. In that case, based on Life magazine’s coverage of a play (“Desperate Hours”) which depicted the Hill family’s harrowing home invasion experience in the ‘50s, Justice Brennan declared that the family name and photographs had not been used for trade purposes (i.e. to sell magazines). He also stated, using the classic Times v Sullivan (1964) case, that the material was not published with reckless disregard for the truth (absence of malice!).

NEWSGATHERING AND THE LAW

Freedom of Information Act, 1966 Congress designed the FOIA as a bill which would open up files and records long closed to public inspection…and its philosophy was to allow the fullest possible disclosure of government-held documents. The FOIA provided an avenue for professional communicators to review government documents (on many levels, not just the Fed) which would/could help their ability to provide their publics with information.

Government in Sunshine Act, 1976 Whereas the FOIA opened access to various government documents, the “open-meetings law” opened up government agencies’ meetings to public scrutiny. After the federal legislation was passed, every State enacted its own version of “sunshine laws” which allow for public access to meetings of agencies, municipalities, boards, etc.

Protection of Sources

· Cohen v Cowles Media Co. [111 S.Ct., 2513, 1991] This classic case involved a State statute referred to as promissory estoppel, which requires any individual who makes a promise, under most circumstances, to keep it! The case involved an 11-th hour revelation by one political hack against a politician on the eve of an election…a revelation which he made under the context of his name not being used in the newspaper story. The reporters who promised anonymity were trumped by their editors who published Cohen’s name as the source of the stories, in the interests of the paper’s credibility with its readers (a sound decision?). Cohen was fired, and he sued…and ultimately, the Supreme Court found for him, on the basis that the State statute in question created a legitimate expectation on his part that the promise would be kept!

· Branzburg v Hayes [408 U.S. 665, 1972] This case involved investigative reporting by Branzburg for the Louisville Courier-Journal about drug use in KY. Shortly after this case was brought, the Court consolidated several others in its consideration of the core issue…i.e. is there any Constitutional protection for journalists who do not want to reveal their sources? The Court split pretty dramatically in its ruling on this case, but eventually, the majority decided that there is no Constitutional protection for reporters to shield sources.

· Shield Laws Thirty-one states have enacted “shield laws” which provide some limited protection for reporters to protect sources, under similar considerations as those other “privileged communication” venues we discussed…i.e. doctor-patient, husband-wife, lawyer-client, and priest-confessor. Shield laws will only go so far though, and as we saw in the New York Times’ Farber case (Dr. X), and the more recent Muller case (CIA operative), courts will compel journalists to reveal sources if such revelation impacts the ability to guarantee a speedy trial, and the right to confront one’s accusers (6^th Amendment!).

· On-The-Record, On-Background, On-Deep-Background, Off-The-Record

Contempt Power

This phrase relates to the Court’s ability to preserve the integrity of judicial proceedings, and puts a tremendous power in the hands of judges who are charged with doing just that. Professional communicators can be held in “contempt of court,” for violating any number of judicial rulings designed to protect a defendant’s right to 6^th amendment protections (fair, speedy, unbiased trial, etc.). The remedies a judge has to preserve that courtroom decorum and integrity include: the voire dire process, change of venue, the sequestration of a jury, a continuance, a judge’s admonition to a jury, and restrictive orders (gag orders!).

· Sheppard v Maxwell [384 U.S. 333, 1966] This infamous case was the basis for the fictionalization known as “The Fugitive.” A wealthy Cleveland doctor was accused of murdering his wife in 1954. He was tried and convicted in what the Supreme Court ultimately called a “media circus,” and his 6^th Amendment rights were compromised (in the Court’s opinion). His attorney, F. Lee Bailey, gained tremendous fame and notoriety during this case, and became one of the nation’s premier criminal defense lawyers. The Court remanded this case back to Cleveland for another trial, and Bailey got Sheppard off the second time…although it was 12 years late! As part of the Court’s deliberations and decision, the concept of restrictive orders became the focal point, as a remedy which judge’s need to use to insure defendant’s rights.

Other Free Press/Fair Trial Considerations

Keep in mind that there are oftentimes occasions when your work as a professional communicator, gathering information to share with your publics, may involve access to trials and other judicial proceedings. On those occasions, you will have to be wary of the inevitable clash between First Amendment considerations, and Sixth Amendment considerations. Courts will almost always come down on the side of the individual rights contained in the Sixth vs the larger professional and societal rights contained in the First. However, you do have the right of access to court proceedings a la…

· Richmond Newspapers v Virginia [448 U.S. 555, 1980] In this case, the local Richmond newspaper wanted access to the 4^th trial of an alleged murderer. His earlier trials had been either reversed, or declared mistrials. Hence, the judge wanted to close the 4^th proceedings to the public. The newspaper sued, and on Constitutional grounds, pushed the issue to the Supreme Court…which ruled (2 years later) that in fact, courts are public domain, and deserve to be open under our system of justice.

· Cameras in the Courtroom, etc. There are a series of considerations, particularly for the broadcast media to think about, related to cameras in the courtroom. Remember the O.J. trial? Most states do allow cameras in their courtrooms, but still reserve final decisions for judges vis a vis defendants’ rights. If camera coverage of a trial will create undue bias or the media “circus” of Sheppard v Maxwell, judges will bar cameras…and we have seen several current examples of same.

Obscenity/Offensive Material

This area of the law has posed a real challenge for professional communicators, primarily because it is nearly impossible to define. Even the Supreme Court has had difficulty specifying what exactly obscenity is! The Miller Test that courts oftentimes use now, came out of a 1973 Supreme Court case which we examined (see below). But inevitably, obscenity generates tremendous public discourse, and as a society, we still have difficulty defining it and when we do, how to deal with it!

· Miller v California [413 U.S. 15, 1973] This case involved distribution of brochures which promoted sexually explicit books and videos in California. In arriving at its decision, the Court ruled that these basic guidelines must be adhered to in deciding whether something is obscene (or otherwise offensive): 1) the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; 2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and 3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value. The reality, of course, is that everyone defines many of these terms differently! What constitutes the “average person”? What is “artistic”? The phrase which governs many obscenity cases is the “contemporary community standards” measure. What’s obscene in what area of the country may very well not be considered obscene in another!

· FCC v Pacifica Foundation [438 U.S. 726, 1978] This case involved the infamous “Filthy Words” or “Seven Dirty Words” monologue of George Carlin. One individual brought the complaint to the FCC, and the Supreme Court carefully found in favor of the FCC after it had lost in lower court jurisdictions. In effect, the Court set aside First Amendment considerations, and decided that the FCC did have authority to ban such a public nuisance.