Legal considerations will always be a part of the media writer’s work. While the First Amendment protects freedom of speech and the press, many laws and regulations can intrude on the writer. Even if the writer is working for a large organization, he or she will still need to have a basic understanding of the law’s effect on the business of writing.
Key terms and concepts
First Amendment – Students should know the five freedoms protected by the First Amendment: speech, press, religion, assembly and petition. The First Amendment does not eliminated the need for laws governing writing. Copyright law, for instance, would be necessary whether or not there was a First Amendment.
Prior restraint – In the United States of American, a person or organization is rarely stopped by the government from publishing or speaking. Such an action would be prior restraint. Instead, there may be consequences to what is printed or spoken, but the government is not set up to monitor what is about to be published.
Libel or defamation – These are legal terms for harm to reputation done by written or spoken communication. This chapter outlines what the plaintiff must prove and what the writer may use for defense.
Privacy – The concept of privacy is still under development. Students should understand the four types of privacy law.
Copyright and trademark – Laws governing copyright and trademarks protect the creators of works from “infringement.” This is a growing area of concern for writers who need to be careful about what terms and images they can use and under what circumstances.
Journalism resources – media law. Links are provided to important cases, history and current events regarding the media and the law.
First Amendment handbook. Journalists all ought to know and fight to protect the rights provided to them by the First Amendment. This well organized site offers journalists a reference guide for laws that are important to the journalism professional. Best of all, the advice is free.
Student Press Law Center. Student journalists may encounter unique legal issues in the process of reporting. An advocate of student journalism, the Student Press Law Center is a valuable resource for educators and students alike.
Libel information. What is the difference between libel and slander? Ever wonder what the most a plaintiff ever was awarded for a successful libel suit? (It’s $222.7 million, by the way). If so, this site is for you.
Open records, open government. Many governmental bodies – particularly on the local level – like to operate in secret. That is, bodies such as school boards and zoning authorities find it easier to make decisions when they are not under public scrutiny. Sometimes these decisions are questionable, and those serving on these boards would rather not be questioned. Such an attitude, however, runs counter to how Americans view their government and in fact limits the First Amendment right to petition the government. The National Freedom of Information Center is an organization set up to fight secrecy in government. Check out NFOIC’s web site, and see if there is a Freedom of Information center in your state.
A new approach to copyright. Most people understand one of the ideas beyond copyright laws, but they do not get the other one. The first idea is to give some protection to the creator or owner of a copyrightable work and to make sure that person has some control over its use and, possibly, value. The second idea is to limit that protection so that eventually the creative work – whatever it is – would go into the public domain. The U.S. Constitution gives to Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (Article 1, Section 8, Clause 8)
For limited times, the Constitution says, not forever.
But over the last four decades, Congress has extended the time an owner can hold a copyright 11 times, so that now if a copyright is held by an individual, it lasts for that individual’s life plus 70 years, and in some cases corporations may hang onto copyrights even longer. In the age of the Internet, that approach to protecting copyrighted works is becoming less and less workable.
Lawrence Lessig, a law professor at Stanford University, has been arguing against these lengthy copyrights for many years. (He led an unsuccessful challenge to the current copyright law and argued his point, unsuccessfully, before the U.S. Supreme Court.) He wants to bring back more of a balance between the rights of copyright holders and the general that having works in the public domain does. To that end, he and others at Stanford have formed Creative Commons, a web site that allows writers, photographers, illustrations, etc., to post their works and to specify how much copyright protection they would like. For instance, a photographer may post a picture and say that anyone can use it as long as the photographer is credited.
Creative Commons is the subject of an article in the Online Journalism Review by Linda Seebach. The article explains in more detail how this works and the thinking behind it. For publishers and editors of high school and college media, this site could provide material that can be used without fear of conscience or law.
Students and the First Amendment. A flurry of news reports – a good bit of hand-wringing – appeared in the early days of 2005 about a survey that shows that many high school students do not have much knowledge or regard for the freedoms guaranteed by the First Amendment. A third of the students said the First Amendment goes “too far” in granting rights to Americans. Hodding Carter, the head of the Knight Foundation that sponsored the study, called the results "not only disturbing; they are dangerous. Ignorance about the basics of this free society is a danger to our nation's future."
True, but as is the case with many news reports, stories about this survey have failed to put the numbers into some context.
It would be nice if surveys showed that the number of Americans who fully understood and supported the rights granted by the First Amendment to be at about 90 percent; that the majority of people get it when it comes to the press being a watchdog of government (and it would be nice if more of the press would understand that, too); and that the absence of prior restraint is a deeply ingrained American value that defines who we are.
The fact is that surveys don’t show this at all.
The First Amendment Center has been conducting an annual survey about people’s attitudes toward the First Amendment since 1997. Paul McMasters in commenting about some of those findings points out the following:
- 30 percent say the First Amendment goes too far in the rights it guarantees; although this is a significant drop from the 49 percent spike in 2002 (apparently related to fear and concern in the wake of Sept. 11, 2001), three in 10 is still an unsettling number.
- 42 percent say the “press in America has too much freedom,” although that number drops to 36 percent when the question is whether “Americans have too much press freedom.”
- 41 percent disagree with the statement that newspapers should be allowed to freely criticize the U.S. military.
In other words, the students in this latest survey are reflecting the attitudes of adults in this nation – attitudes that have been around for a while. Is this disturbing? Certainly. People should be more aware and supportive of the rights they have.
Is this a disturbing new trend? Probably not. There seems always to have been a significant number of people who trust the government more than they trust the news media and who do not trust themselves to make up their own minds.
The battle to educate people about the First Amendment continues. These new survey results simply tell us, sadly, that it will have to go on for another generation.
Who is a journalist? The world of online journalism fluttered a bit last week when the Court of Appeals for the District of Columbia decided that the journalists subpoenaed in a federal investigation of the leaking of the name of a CIA agent in 2004 did not have any privilege to shield confidential sources. In a concurring opinion, Judge David Sentelle mentioned web logs and “blwoggers” in his discussion of the problem of defining a journalist. That nod to bloggers, which seemed to equate them with journalists, was only incidental. The real question for Sentelle was, "Who is a journalist?" His logic is correct, but his conclusion is wrong. (More) (Posted Feb. 19, 2005)
The court's entire 83-page opinion is available on JPROF as a PDF file.
Update: Michael Kinsley's Sunday column (Feb. 20, 2005) has a different take on this issue (when should a promise of confidentiality be made, not who is a journalist) but comes to the same conclusion: It is in the public's interest to try to figure this out so that journalists do have some protection.
Update: The question of who is a journalist is playing out in a different way and in a different courtroom. A New York Times story by Jonathan Glater describes the issue in a California lawsuit where Apple is suing a blogger for publishing inside information about its products. The blogger is claiming protection of his sources under California's shield law. Should the judge rule that the blogger can be considered a journalist, it would open up the shield privilege for many people not working for traditional media outlets such as newspapers and television stations. The story says a ruling could come on this as early as this week.