General Laws And The Media: Who's Exempt?

The media is subject to laws of general application, which are laws that apply to everyone, not just specific subjects. In the US, media law refers to the regulations of mass media production and use, including broadcast television, radio, film, internet, and print. While the First Amendment of the Constitution guarantees freedom of the press, courts and legislative bodies must balance this with national interests such as safety, security, and preventing the spread of misinformation.

The Federal Communications Commission (FCC) regulates broadcast media, and has the power to censor television content based on factors such as time of day, overall content, audience, medium, and method of transmission. The FCC must also balance freedom of expression with the government's desire to protect its citizens from harm.

In the context of religious liberty, laws of general application refer to laws meant to protect or improve the citizenry, which may sometimes conflict with sincerely held religious beliefs. For example, in Employment Division v. Smith, the Supreme Court upheld the denial of unemployment benefits to members of a Native American Church who had been fired for using peyote, which was illegal under Oregon law. The Court ruled that the law against peyote use was a law of general application meant to combat drug abuse and did not intentionally target Native American religious practices.

The application of laws of general application to the media raises questions about the boundaries of freedom of the press and the role of regulatory bodies in enforcing these laws.

Intellectual property law

Copyright law protects creative efforts, or "original works of authorship", and gives the owner the exclusive right to reproduce, distribute, display, perform, and create derivative works from the copyrighted material. Copyright protection typically lasts for seventy years beyond the death of the original author. Examples of copyrightable works include blog posts, photographs, videos, podcasts, news articles, musical compositions, and computer software.

Trademark law, on the other hand, deals with the usage rights of words, phrases, symbols, and other indicators that identify the source or sponsorship of goods or services. A valid trademark can prevent others from using similar marks in connection with similar goods and services. Trademark law aims to protect consumers from confusion and companies that have invested in creating positive associations with their trademarks. Examples of trademarks include brand names, logos, and slogans.

Trade secrets law protects secret information that gives a company or organization a competitive advantage. Trade secret owners can prevent others from acquiring or disclosing their trade secrets through improper means, such as theft, hacking, or breach of a confidentiality agreement. Trade secrets law encourages research, innovation, and high standards of commercial morality. Technical specifications of unreleased products, confidential customer lists, and manufacturing processes are all examples of trade secrets.

Lastly, patent law provides ownership rights and protection for unique processes, inventions, and discoveries. It grants the patent owner the exclusive right to create, use, sell, and distribute the invention for a limited period, typically twenty years from the patent application filing. Patent law aims to spur innovation by providing financial incentives to inventors.

Censorship

The First Amendment of the US Constitution guarantees freedom of speech and freedom of the press, which acts as a fundamental liberty. Courts and legislative bodies are cautious about violating these rights, and there are numerous state and federal statutes, such as the Freedom of Information Act (FOIA) and the Privacy Act, that aim to safeguard them. However, it is important to balance freedom of the press with national interests, such as safety, security, and preventing the spread of misinformation.

The Federal Communications Commission (FCC) plays a crucial role in overseeing all communications laws, regulations, licensing, and content. They have the authority to determine the right of access to broadcasting and ensure content neutrality. The FCC has outlined policies to define offensive content, considering factors such as explicitness, repetition, pandering, and shock value.

In the context of censorship, media lawyers play a vital role in advocating for their clients' free speech rights. They counsel clients on the impact of state and federal regulations on their First Amendment rights and represent them in proceedings before the FCC. Media lawyers also handle licensing issues, helping companies license intellectual property, including copyrights and trademarks.

In conclusion, censorship in media law involves navigating the delicate balance between protecting free speech and addressing potentially harmful content. Media lawyers are essential in ensuring that regulations are applied fairly and that their clients' rights are upheld.

Defamation

For a defamation claim to be successful, the plaintiff must prove the following elements:

• Publication: The statement must be published, meaning it was read or viewed by at least one person other than the plaintiff.
• Identification: The plaintiff must be identified, either by name, image, or through recognizable descriptive characteristics.
• Harm to reputation: The statement must harm the plaintiff's reputation, and it can be "per se" defamatory, meaning the words are defamatory on their face without any context.
• False statement of fact: The statement must be proven to be false, as statements that are incapable of being proven true or false are not defamatory.
• Fault: The plaintiff must prove that the defendant acted with negligence or actual malice, depending on whether they are a private individual or a public official/figure.

To reduce the risk of defamation lawsuits, journalists and media organizations should follow ethical guidelines that emphasize accuracy and fairness in their reporting. Additionally, retractions or corrections can be issued if false information is published, which may limit liability and satisfy the affected person.

The law of defamation varies slightly in India, where it is defined under Section 499 of the Indian Penal Code, 1860. According to this definition, defamation includes making or publishing any imputation concerning a person, intending to harm or knowing that it will harm their reputation. It also includes imputations about deceased persons that would harm their reputation if they were alive and are intended to be hurtful to the feelings of their family or relatives.

Antitrust law

The media is sometimes treated differently in the application of antitrust laws to promote a diverse marketplace of ideas under the First Amendment. This is a unique situation due to the media's important function in a democratic society, providing citizens with the information they need to make informed decisions and serving as a check on public officials.

Concentration of media ownership may reduce diversity of opinion and threaten freedom of speech and press. For example, in the case of Associated Press v. United States (1945), the Supreme Court upheld the application of the Sherman Act to a limit imposed by the Associated Press (AP) on new members joining its service and a prohibition on its members selling AP news to non-members. The majority argued that the limits imposed by the AP on access to ideas endangered the marketplace of ideas. However, in his dissent, Justice Owen J. Roberts expressed his fear that the application of antitrust laws to the media constituted an unjustified intervention of the government into the dissemination of ideas that could threaten freedom of the press.

To address issues of media concentration, Congress has adopted specific laws that often exempt or apply special rules to the news media industry. For example, the Newspaper Preservation Act of 1970 allows two or more newspapers to form a joint operating agreement (JOA) under circumstances of economic distress at all but one of the papers. This Act was upheld by the Supreme Court in Federal Communications Commission v. National Citizens Committee for Broadcasting (1978).

In addition, the Telecommunications Act of 1996 directed the Federal Communications Commission (FCC) to reconsider its rule on cross-ownership, which had previously precluded the joint ownership of newspapers and broadcast television stations in the same geographic markets. In 2002, the FCC issued new rules that would have allowed more cross-ownership within specific markets and across the country. However, this was opposed by many members of Congress and citizens, and eventually, a federal court voided the rules on technical grounds.

In 2017, the FCC further relaxed limits on TV station ownership and reversed a rule that prevented a single company from owning a newspaper and television and radio stations in the same town. The FCC chairman, Ajit Pai, argued that media organisations would have greater ability to compete against internet giants by combining resources in local markets.

Free speech

Freedom of speech and freedom of the press are fundamental liberties guaranteed by the First Amendment of the US Constitution. The First Amendment states:

> Congress shall make no law ... abridging the freedom of speech, or of the press...

The freedom of speech and freedom of the press were incorporated against the states in Gitlow v. New York, where the Supreme Court ruled that:

> [F]reedom of speech and of the press... are protected by the First Amendment from abridgment by Congress [and] are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.

In practice, this means that courts and legislative bodies are wary of violating the right to freedom of the press. There are numerous state and federal statutes that seek to protect freedom of the press, such as the Freedom of Information Act (FOIA) and the Privacy Act.

Media law requires legislatures to carefully balance the freedom of the press with national interests such as safety and security or the spread of misinformation. For example, in New York Times v. United States, the Supreme Court found that there is a heavy presumption against prior restraint of the press, but also that the government's interest in protecting national security is a legitimate concern.

Media lawyers often counsel clients regarding the impact of state and federal regulations on their free speech rights. This often involves limitations on content perceived to be obscene or defamatory. In many cases, a media lawyer will advocate for clients in proceedings before the Federal Communications Commission (FCC).

Frequently asked questions