Media

Media Law: Overview

Freedom of the press is a fundamental liberty guaranteed by the First Amendment of the Constitution. As such, courts and legislative bodies have been hesitant to infringe upon the freedom of press. In fact, there are numerous state and federal statutes that seek to protect the freedom of the press, such as the Freedom of Information Act and the Privacy Act.

Freedom of the Press Overview

Incorporation

The freedom of the press is guaranteed by the First Amendment. As with all Constitutional Amendments, the First Amendment only applied to the federal government--not to the states--when it was first ratified. The Constitutional Amendments needed to be incorporated against the states by the U.S. Supreme Court in order to apply to the states. The freedom of the press, along with the freedom of speech, was incorporated in Gitlow v. New York, 268 U.S. 652 (1925): "[F]reedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States."

National Security and Freedom of the Press 

In New York Times v. United States, 403 U.S. 713 (1971), "the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam." The Nixon Administration claimed that releasing the documents would jeopardize national security. The Supreme Court found that there is a heavy presumption against prior restraint of the press, and that the respondent's (here, the United States) vague use of the word "security" is not enough to overcome the importance of the freedom of the press guaranteed by the First Amendment.

Censorship of a School Newspaper 

In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Supreme Court held that a school may exercise prior restraint against student publications. Schools may refuse to endorse speech, as long as the school's actions are "reasonably related to legitimate pedagogical concerns."

Compelling Reporters to Testify 

"Reporters' privilege" refers to the idea that a reporter is protected under either statutory or constitutional law from being compelled to testify about confidential information or sources. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that when a reporter is asked to testify under oath in front of a grand jury, the reporter may not invoke "reporters' privilege." As such, "reporters' privilege" is not protected under the First Amendment when the reporter is asked to testify in front of a grand jury.  The Court held that if asked to testify in court under oath to a grand jury, a reporter may not invoke "reporters' privilege." 

Communications Regulations & Prior Restraint

Intro

When a government seeks to regulate communications, courts must balance the interests of freedom of expression with the government's desire to protect its citizens from harm.The doctrine of prior restraint is usually invoked when this issue comes up. Prior restraint refers to when the government reviews materials to determine whether publication of the material is allowed. 

In Near v. Minnesota, 283 U.S. 697 (1931), the Supreme Court determined that it is unconstitutional to exercise prior restraint with regard to print publications: "It is plain, then, that the language of this amendment imports no more than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation, and so always that he does not thereby disturb the public peace or attempt to subvert the government. It is neither more nor less than an expansion of the great doctrine recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. And, with this reasonable limitation, it is not only right in itself, but it is an inestimable privilege in a free government."

Federal Communications Commission (FCC)

The Federal Communications Commission (FCC) regulates interstate and foreign communications by radio, television, wire, satellite, and cable. It was created by the Communications Act of 1934 (47 U.S.C. 151 et seq.) to regulate interstate and foreign communications by wire and radio in the public interest.

In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court defined the scope of the FCC's power with in relation to sanctioning television programs for airing certain content, such as vulgar language. The Court held that the FCC may censor television content, based on relevant factors such as time of day, the program's overall content, the audience, the medium, and the method of transmission of the message.  

In FCC v. Fox Television Stations, 567 US __ (2012), the Supreme Court further defined FCC rules dealing with vulgar content on television programs. To determine which type of content is offensive, the FCC had a policy outlining 3 main factors:

  1. “(1) [T]he explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities;
  2.   (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities;
  3.   (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.” 

The Supreme Court held that in order to actually enforce the policy, however, the FCC must give the networks fair warning, prior to the broadcasting of offensive content. Without warning networks of the policy, any enforcements are considered vague, and must be set aside. The Court, however, did not evaluate whether the actual policy violated the First Amendment, the Court only ruled regarding its enforcement. 

Federal Regulatory Bureaus 

Different branches of the media are regulated by different bureaus. The Media Bureau regulates amplitude and frequency modulation, low-power television, direct broadcast satellite, and regulates cable television. The Wireline Competition Bureau regulates telephone and cable facilities. The Wireless Telecommunications Bureau administers all domestic commercial and private wireless telecommunications programs and policies. The International Bureau manages all international programs. In a sweeping overhaul of the Communications Act of 1934, Congress enacted the Telecommunications Act of 1996 (47 U.S.C. 51 et seq.). Its goal was to deregulate the industry and encourage competition.

The growth of the Internet and digital media more generally have begun to blur the boundaries between media segments. In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) to deal with Internet issues and the advanced technologies used to bypass copy protection devices.

Further Reading

For more, see this Wex article on communications law, this University of Maryland Law Review article, and these Harvard Law Review articles

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