Kara Sears
Media law refers to the regulations of mass media production and use. While the freedom of the press is a fundamental liberty guaranteed by the First Amendment of the US Constitution, it is not absolute. The first law to regulate media in the US was the Federal Radio Act of 1927, which created licensing procedures to allocate frequencies to radio stations under the principle that the airwaves belong to the public. The Communications Act of 1934 established the Federal Communications Commission (FCC), which was given governing authority over public radio and television stations. The FCC requires television and radio news providers to provide equal airtime to opposing major-party political candidates and makes it illegal for them to censor political ads. The FCC can enforce limits on television and radio programming by fining or revoking licenses, and indecent programs can only be broadcast between 10 pm and 6 am. The media landscape is evolving with the growth of the internet and digital media, requiring more sophisticated regulatory structures to protect democracy and maintain the balance between freedom of the press and national interests.
| Characteristics | Values |
|---|---|
| Date of the first law | 1914 (Federal Trade Commission Act) |
| Agency | Federal Trade Commission (FTC) |
| Purpose | To "prevent unfair methods of competition in commerce" |
| Media covered | Television, radio, wire, satellite, and cable |
| Ownership regulations | Yes, e.g. the 1941 National TV Ownership Rule |
| Free speech protections | Yes, e.g. the First Amendment |
| Defamation protections | Yes, e.g. libel and slander laws |
| Privacy protections | Yes, e.g. Privacy Act |
| Right to reply | Yes, e.g. the Right of Rebuttal |
| Equal time for candidates | Yes, e.g. the Equal Time Rule |
| Fairness in broadcasting | Yes, e.g. the Fairness Doctrine |
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What You'll Learn
The First Amendment and freedom of the press
The First Amendment to the United States Constitution guarantees freedom of the press, among other fundamental freedoms. The text of the amendment states:
> "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."
The framers of the First Amendment believed that a free and robust press was essential to protecting other political freedoms. Indeed, freedom of the press plays a crucial role in maintaining a healthy democracy, as it allows journalists to expose government abuses and corruption and helps citizens stay informed about government affairs.
While the First Amendment guarantees freedom of the press, this freedom is not absolute and may be regulated by the government to protect other important interests. For example, the press cannot libel or slander individuals, publish information about troop movements, or broadcast obscene material. The Federal Communications Commission (FCC) enforces these and other restrictions on television and radio programming.
The courts have also recognised certain limitations on the freedom of the press. For instance, in Branzburg v. Hayes, the Supreme Court held that reporters could not invoke "reporters' privilege" and refuse to testify before a grand jury. Additionally, in Houchins v. KQED, the Court concluded that the First Amendment does not grant the media special access to prisons or information not available to the general public.
Despite these limitations, the courts have generally been cautious about infringing on the freedom of the press. They have recognised that governmental regulation of the media may implicate First Amendment values and have sought to balance the interests of freedom of expression with other legitimate concerns, such as national security or preventing the spread of misinformation.
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Libel and slander
To prove defamation, the plaintiff must show that the defendant made a statement to someone other than the plaintiff, and that the statement was unprivileged and negligently made. If the plaintiff is a public figure, then actual malice (intent to cause harm) must be demonstrated. The plaintiff must also show that the statement caused actual damage or was defamatory per se (so obviously harmful that proof of injury is not required). For example, a statement accusing someone of adultery is considered defamatory per se. Importantly, a statement can only be considered defamatory per se if the harmful effect is apparent on its face.
Defamation law continues to evolve, and attorneys must have extensive knowledge of First Amendment rights and other aspects of defamation law to effectively represent their clients. The First Amendment guarantees freedom of speech and freedom of the press, but these freedoms are not absolute and may be regulated by the government. For example, the media cannot libel or slander individuals, or publish information about troop movements or undercover operatives. The Federal Communications Commission (FCC) can enforce limits on television and radio programming by fining or revoking licenses.
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The Federal Communications Commission (FCC)
The FCC's mandate, as specified in Section 1 of the Communications Act of 1934, is:
> "to make available so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, rapid, efficient, nationwide, and worldwide wire and radio communication services with adequate facilities at reasonable charges."
The Act also states that the FCC was created "for the purpose of national defense" and "for the purpose of promoting safety of life and property through the use of wire and radio communications". The FCC is directed by five commissioners, appointed by the US President and confirmed by the Senate for five-year terms.
The FCC enforces limits on television and radio programming, including fines or revoking licenses for violations. Broadcast material cannot be obscene, and indecent programs can only be broadcast between 10 pm and 6 am. Stations must give equal time to political candidates for advertising and interviews. The FCC also regulates cable television, and the frequency and amplitude modulation of radio.
The FCC has been involved in several notable court cases, including Red Lion Broadcasting Co. v. FCC, in which the Court upheld an FCC regulation that required broadcasters to allow persons the opportunity to reply if attacked on the basis of their "honesty, character, integrity, or like personal qualities".
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The Federal Trade Commission (FTC)
The FTC enforces a variety of antitrust and consumer protection laws affecting virtually every area of commerce, with some exceptions concerning banks, insurance companies, non-profits, transportation, and communications common carriers, among others. The basic statute enforced by the FTC, Section 5(a) of the FTC Act, empowers the agency to investigate and prevent unfair methods of competition and unfair or deceptive acts or practices affecting commerce. This creates the FTC's two primary missions: protecting competition and consumers.
The FTC has five commissioners, nominated by the President and subject to Senate confirmation. Commissioners serve seven-year terms and can only be fired for "inefficiency, neglect of duty, or malfeasance in office." One member serves as FTC Chair at the President's pleasure. In addition to its focus on antitrust law and consumer protection, the FTC is also involved in the oversight of the online advertising industry and its practice of behavioural targeting. The FTC has proposed initiatives such as the Do Not Track mechanism to allow Internet users to opt out of behavioural targeting and the Made in USA Labeling Rule to ensure truthful advertising claims.
The FTC also enforces the Children's Online Privacy Protection Act (COPPA) and the Telemarketing Sales Rule, which protects consumers from fraudulent telemarketing calls and gives them certain protections under the National Do Not Call Registry. The FTC's ability to implement trade regulation rules and publish reports and legislative recommendations to Congress further underscores its role in shaping policy and ensuring fair practices in the marketplace.
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Privacy and antitrust laws
Media law covers various forms of media, including broadcast television, radio, film, internet, and print. Broadcast media is the most heavily regulated. Media law also covers censorship, intellectual property, defamation, and broadcast, among other areas. The Federal Communications Commission (FCC) regulates interstate and foreign communications. The FCC can enforce limits on television and radio programming by fining or revoking licenses. Broadcast material cannot be obscene, and indecent programs can only be broadcast between 10 p.m. and 6 a.m. Stations must give equal time to political candidates for advertising and interviews.
Antitrust laws are designed to promote competition by preventing monopolies and concentrated business ownership. The Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914 are well-known federal antitrust laws. The Newspaper Preservation Act of 1970 is another example of antitrust law, allowing competing newspapers to form joint operating agreements. In the media industry, antitrust laws interact with the First Amendment right to freedom of speech. The First Amendment's vision of a marketplace of ideas aligns with the goals of antitrust law to prevent a small group of people or entities from controlling most media outlets, which could undermine this marketplace.
The Supreme Court has addressed the application of antitrust laws to the media in cases such as Associated Press v. United States (1945) and Turner Broadcasting System, Inc. v. Federal Communications Commission (1994). In the former, the Court upheld the Sherman Act's application to the Associated Press, while in the latter, the Court considered the constitutionality of a "must-carry" provision in the 1992 Cable Act. The Supreme Court has also ruled on media ownership rules, such as the cross-ownership ban enforced by the FCC, which barred media companies from owning a daily newspaper and a radio or television station in the same market.
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Frequently asked questions
The first law to regulate media in the US was the Federal Radio Act of 1927, which created licensing procedures for radio stations.
The Federal Radio Act of 1927 established licensing procedures to allocate frequencies to radio stations under the principle that the airwaves belong to the public. Radio stations were required to apply for licenses, which were contingent upon following rules regarding political advertising, public discussion forums, and local and minority interests.
The Communications Act of 1934 established the Federal Communications Commission (FCC), which was charged with regulating interstate and international communications by radio, television, wire, satellite, and cable. The FCC has five members who monitor public radio and television airwaves and limit the number of stations a company can own. Other early laws that regulated the media include the 1941 National TV Ownership Rule, the 1970 Radio/TV Cross-Ownership Restriction, and the 1975 Newspaper/Broadcast Cross-Ownership Prohibition. These laws were meant to encourage diversity in media ownership and prevent domination by powerful conglomerates.
