The writer and the law
Legal and ethical issues
Writers for the mass media in America work without a great number of legal restraints. Yet the legal restraints that do exist are important, and understanding them is a necessary part of the writer’s job.
Writers are much more likely to encounter ethical guidelines and restraints. Here, again, knowing the general basis of ethical behavior is an important part of the writer’s work.
Legal protections and restraints
Can we say anything we want to say, write anything we want to write, broadcast anything and put anything on the web?
The answer, of course, is no.
While we have a great deal of freedom in this nation, that freedom is not absolute — even though there have been advocates of an “absolutist” point of view.
Legally, we do not have the right to libel someone. But libel is a tricky concept. In a practical sense, it does not mean that we cannot say something that will damage someone’s reputation. We do that all the time. Newspapers, magazines, broadcast news operations — all of them say things every day that will damage someone’s reputation.
What libel really means in a practical sense is that under certain conditions, we cannot damage someone’s reputation. We might say about a politician, “He’s a dirty, lying thief,” and we would probably get away with it. If we said the same thing about our next door neighbor.
Another legal restraint that writers have is copyright and trademark laws.
People in the mass media cannot take work that someone else has created and use it for their own purposes. Even if they do not gain any commercial advantage from doing this, they still cannot use substantial portions of copyrighted material without the permission of the owner. Using small portions of copyrighted material is sometimes protected under the concept of fair use, but this concept should not be interpreted broadly. Permission to use copyrighted material is almost always necessary.
Trademark protection gives the creators of products, logos and slogans some protection against their commercial use by others.
Both copyright and trademark protection are more fully explained on pages 316-319 ofWriting for the Mass Media (7th ed).
— basis for laws concerning media content
— what it says
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.
— written by James Madison
— names the freedoms that are important to society: religion, speech, press, assembly and petition
Why is each of these so important?
Are there other freedoms or rights that are equally as important?
One can look upon the First Amendment as the description of the “open society” that many of us assume for our civil life.
The First Amendment specifically prohibits Congress from enacting laws in there areas, but the meaning of the FA is far greater than that; over the years, this meaning as grown, changed, morphed by inferences and court decisions. Every generation interprets the First Amendment (and the rest of the Constitution); we do not feel totally bound by what the Founding Fathers meant – their understanding was incomplete, and they could not foresee all of the contingencies.
So, what does it mean?
— no prior restraint
government has no role in restricting or prohibiting speech, press, particularly political speech,
— during recent political campaigns we have seen an erosion of that principle; political ads requiring candidates to say they approved of the message; criticism of 527 groups in spending money for campaign ads and other activities
— gag orders by judges
— proposals to restrict the communication between doctor and patient in abortion counseling
— national security; wartime communication, especially from war zones
— campus regulations restricting offensive speech
Despite these restrictions, the limits to prior restraint by the government – particularly in political speech – are strong both in tradition and practice; those limits extent to what we might call civic speech, the kind we are engaging in here in a classroom.
. . . but the First Amendment goes beyond that into a positive realm
— enabling the right of people to speak and the process of speech; courts have been sensitive to easing or enabling the process of speech
— recognizing, to some extent, the value of symbolic speech,using symbols, actions rather than spoken words
— recognizing the value of offensive speech – speech that people do not agree with or that offends beliefs, attitudes, public values
• criticizing the president; we tried curbing that once with the Alien and Sedition Acts
• burning the flag; burning a draft card
— understanding that restricting speech in one area can lead to restrictions in other areas
— enabling the processes of the press, particularly reporting and publishing
— open government meetings
. . . and the First Amendment has been used to foster the public’s right to know
— open government records; gaining access to public information
— information that businesses must disclose
— reporters protection of sources and information
Limits of First Amendment protection
• Can we worship in any way we want?
• Can we gather – even peaceably – any way we want?
• Can we petition the government in any way we want? (symbolic speech)
• Can we say anything we want?
• Can we print anything we want?
No, there are restrictions to all of these. For the mass media, the most prevelant and difficult restriction is defamation.
— ancient principle of common law – a person’s reputation has value
yet there is the First Amendment, which says society has value in being able to speak freely; how do we resolve this conflict.
Modern defamation laws say you must prove
• publication (more than just two people have to see/hear it)
• identification (can the person defamed be identified)
• defamation (did the words have potential to do real damage)
• fault (was there negligence or some mitigation)
• harm (is there provable damage)
— defenses against defamation
• truth – powerful defense (society values truth)
• qualified privilege – is the situation one that relieves responsibility
reporters depend on qualified privilege to report public affairs; such as, the arrest of a person who is innocent
• absolute privilege
• statute of limitations
• Constitutional privilege
protects media from suits by public officials and public figures
comes from 1964 decisions New York Times v. Sullivan
makes virtually impossible for any well known figure to recover
still, the threat of the costs of litigation is there
• fraud and trespass
• public nuisance
Copyright and trademark
Obscenity and pornography
Watch these video discussions of the First Amendment on JPROF.com:
- How we got the First Amendment (video with Dr. Dwight Teeter)
- The First Amendment, Luther Baldwin and the Alien and Sedition Acts (video with Dr. Dwight Teeter)
- The nationalization of the First Amendment (video with Dr. Dwight Teeter)
- The First Amendment in times of crisis (video with Dr. Dwight Teeter)
- The First Amendment today (video with Dr. Dwight Teeter)
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