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Journalism Law
 

Journalism Law

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Media law basics journalists should know.

Media law basics journalists should know.

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Journalism Law Journalism Law Presentation Transcript

  • Journalism Law Primer What you need to know Presented by Mark Grabowski
  • Why is matters
    • The laws affect how journalists are able to do their jobs: what they can report on and what they can’t.
    • Most countries don’t allow the freedoms that the U.S. does. But we tend to take press freedom for granted.
  •  
    • First Amendment rights must be asserted in order to be defended.
    • If you don’t know what your rights are, it’s easy for others to trample on them.
    • This often happens to students journalists because they are unaware that school administrators have violated the First Amendment.
    Why is matters
  • First, some history… It all begins with the First Amendment. Press freedom is rooted in this.
  • The First Amendment
    • A promise by the government to respect the individual rights of its people relating to:
      • Religion
      • Speech
      • Press
      • Assembly
      • Petition
    • First Amendment rights are not unlimited
    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.
  • First Amendment rights are not absolute The Supreme Court often balances First Amendment rights with other personal rights and societal interests such as the right to privacy; to protect reputation; to protect national security interests; and against obscenity, to name a few interests that are sometimes favored over First Amendment rights.
  • Only applies to government! Public vs. Private Schools
    • Because they are government agencies, public schools are limited by the First Amendment in their ability to censor
    • The First Amendment does not regulate the behavior of private schools
  • Has evolved over time
    • The First Amendment was ratified in 1791
    • Back then, there were only newspapers
    • The 20 th Century brought radio and TV
    • In the 21 st Century, the Internet is the main source of news
    • Technology has created new issues and challenges for press freedom
  • Beyond First Amendment
    • Press freedom is rooted in the First Amendment and no law can be created that limits the freedoms guaranteed in the First Amendment.
    • However, the First Amendment isn ’t the only law that concerns the media.
    • State laws, for example, address reporter ’s privilege. Local zoning laws regulate where newspaper stands go.
  • 6 Big Issues
    • Censorship
    • Libel
    • Obscenity
    • Invasion of Privacy
    • Reporter ’s Privilege & Shield Laws
    • Access to information
    … what does the future hold?
  • 1. Censorship
    • The Supreme Court has said injunctions preventing the exercise of speech should be viewed very skeptically--they carry "a presumption of unconstitutionality." See Pentagon Papers. But some exceptions:
      • Gag orders for trials
      • Pre-publication agreements for gov ’t employees
      • Media coverage of military ops
  • Pentagon Papers In 1971, the Nixon Administration went to court to stop publication of "the Pentagon Papers," a series of accounts based on a stolen, classified document entitled, "The History of U. S. Decision-Making on Viet Nam Policy."  The Administration argued that publication would threaten national security because other nations would be reluctant to deal with the U. S. if their dealings couldn't be kept secret.  The Court ruled this violated the First Amendment. Smart decision?
  • Oops? One seemingly innocuous statement in published reports about the Pentagon Papers was attributed to Soviet leader Leonid Brezhnev.  The Soviets knew that the quoted statement was made inside a Soviet limousine – a limousine that the CIA had succeeded in bugging. As a result, the bug was removed by the Soviets.  Does this incident suggest that courts should defer to Administration judgments that there is a national security need to enjoin publication ?
  • What if someone wanted to print an article on how to build a nuclear bomb? Already happened . The U.S. went to court to enjoin publication of an article scheduled to appear in the left-wing magazine, The Progressive .  The article, "The H-Bomb Secret: How We Got It and Why We're Telling It," was essentially a how-to-do-it account for anyone wanting to build an atomic bomb.  Reasoning that the article presented a clear and present danger of speeding the efforts of foreign nations or terrorist groups interested in developing atomic weapons, a Wisconsin federal district judge issued an injunction against publication. 
  • Later, the story was published outside the U.S., making the case moot.  To date, no direct harm has been traced to the story.
  • 2. Obscenity
    • Related to censorship
    • Highly offensive speech and expression may be deemed obscene, in which case it is not protected by the First Amendment
    • But what ’s “obscene”?
    • See The Miller Test
  • Miller Test
    • Miller v. California : 1973 case that established Supreme Court ’s current test for determining what’s obscene and thus not protected by the First Amendment. The test is “Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest…”
  • Indecency
    • In broadcast media, indecent speech is also prohibited
    • Not as severe as “obscenity,” it involves things like nudity and curse words
    • Stations are subject to steep fines unless safe harbor hours apply or on cable/satellite
    • Olympics, Super Bowl show
  • 3. Libel: Publication of a false statement of fact that seriously harms someone ’s reputation
  • Fault required The First Amendment requires that in order for media defendants to be held responsible for libel, the person suing must show — at a minimum — that the reporter/editor acted unreasonably
  • Public figures Under New York Times v. Sullivan , public officials and public figures are required to prove “actual malice” in defamation cases.
      • Fair report privilege
        • Allows journalists to report anything said in official government proceedings.
        • Must be accurate and fair.
    Privilege and protection for sources and stories
      • Opinion privilege
        • Protects written opinions from libel suits.
        • Distinction between facts and opinion.
  • The lesson: If you always do what a reasonable reporter should do (and don ’t do what a reasonable reporter wouldn’t do), you will never be successfully sued for libel
  • Acting Reasonably
    • Use trustworthy sources — in quality and number
      • Evaluate your sources
      • Do not overstate their credibility
    • Take accurate notes
    • Documents, documents, documents
    • Report — don ’t “sell”
    • Talk to all sides — including the subject
    • Be open-minded
    • Do the work required — or don ’t do the story
    • Be rigorous in your choice of language
    • Never publish a story if you doubt its truth
  • 4. Invasion of Privacy Certain details about people, even though true, may be "off limits" to the press and public Truth is not a defense
  • a. Public Disclosure of Private and Embarrassing Facts
    • Examples: Publishing detailed information about a private person ’s sexual conduct, medical/mental condition, educational records
    • Look for facts that are:
      • Sufficiently Private
      • Sufficiently Intimate
      • Disclosure would be highly offensive to reasonable person (shocking!)
    • Defense: Newsworthiness; consent
  • Examples
    • Examples could include publishing detailed information about a person ’s:
    • Sexual conduct
    • Medical/mental condition
    • Addiction recovery
    • Educational records
  •  
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  • b. Intrusion
    • Generally based on the act of newsgathering
    • Publication not required
    • Three most common types of intrusion:
      • Trespass: Going onto private property without the owner's consent
      • Secret Surveillance: Using bugging equipment, hidden cameras, other electronic aids
      • Misrepresentation: Invalid or exceeded consent (often in the context of undercover reporting)
    • Defenses: Newsworthiness; consent
  • Intrusion General Rule: You have the right to photograph anything from a public spot that you can see with the naked eye
  • Consent is generally required before newsgathering in a private space
  • c. False light
    • The unflattering, highly offensive portrayal —in words or pictures— of a person as something that he or she is not
    • Examples: Misleading caption published with a photo, inaccurate attribution of letter to the editor; careless use of photo morgue
    • Not recognized in all states
  •  
  • A student sued his school claiming that his face was used in a newspaper article warning teenagers about sexually transmitted diseases.
  • 5. Reporter ’s Privilege & Shield Laws Protecting the right of a free and independent press to gather and report the news
  • Most Common Problems
    • Protection of sources and information
      • Subpoena to reveal confidential sources
      • Subpoena to testify
      • Subpoena to produce notes, newsgathering material, outtakes
    • Protection of newsroom and journalists “work product”
      • Newsroom searches
      • Confiscation of journalists ’ notes, photos
      • Detention of journalists
      • Tracking journalist ’s communication records
  • Demands for Information/Material
    • Generally, there is no obligation to respond or comply with a demand to reveal information or provide newsgathering material absent a search warrant or properly served subpoena (court order)
    • If law enforcement officials are unmoved by your objections, you should comply with their demand, but formally contest the order
  • So you ’ve received a subpoena
    • Do not ignore it!
    • Seek legal assistance immediately
    • Do not destroy newsgathering material after receiving subpoena
    • You have the right to challenge the subpoena in court before complying with it
  • Shield Laws / privilege
    • Shield Laws
      • Created by lawmakers
      • Protection varies by statute
      • Can provide more specific, more certain protection
      • May contain very specific qualifications for its use (rare: student journalists may have a hard time qualifying for protection)
      • Protection may or may not be absolute
    • Qualified Privilege
      • Created/recognized by courts
      • Protection varies by jurisdiction
      • Provides more general, but sometimes more “fuzzy” protection
      • Often less stringent qualifications for those seeking protection
      • Protection not absolute
  • Final things to remember about Reporter ’s Privilege
    • Journalists have an ethical obligation to keep their promise to a confidential source
    • Journalists may have a legal obligation to keep their promise to a confidential source
    • For many reasons, promises of confidentiality should be very rare
  • 6. Freedom of Information Law Ensuring your right of access to public records and meetings
  • 3 Main Types of FOI Law
    • Open Records Laws
      • State open records laws
      • Federal Freedom of Information Act
    • Open Meetings Laws
      • State open meetings laws
      • Federal Government in the Sunshine Act
    • “ Pocket” FOI Laws
      • Federal Clery Act
      • Federal Student Right-to-Know Act
      • IRS Form 990 disclosure regulations, etc.
  • State/Federal FOI Laws
    • State laws are used to obtain access to records or meetings of state, county or local “government agencies” or “public bodies” (for example, city/campus police, school district, health department, etc.)
    • Federal laws are used to obtain access to federal government agency records or meetings (for example, Environmental Protection Agency, FBI, U.S. Dept. of Agriculture, etc.)
  • Using Open Records Laws
    • General Law: A public body must make its records available upon request unless the records are explicitly exempted by statute.
    • Commonly found exemptions:
      • Records involving an “ongoing criminal investigation,” disclosure of police techniques
      • Educational records re: individual, identifiable students
      • Documents whose release would constitute an invasion of privacy (medical, adoption,personal financial information)
      • Some personnel records
      • Records re: ongoing or contemplated legal proceedings
  • For example
    • Restaurants are regularly inspected by the local health department. In New York City, inspection results are posted online.
    • Visit http://bit.ly/ cCpFm1
  • For example
    • Under the federal Clery Act, even private colleges must report their crime statistics to the public.
    • Here are Adelphi University’s stats:
    • http ://bit.ly/ zU7f7x
  • Using Open Meetings Laws
    • General Law: A public body must provide notice of all gatherings and allow public attendance unless meeting is explicitly exempted by statute.
    • Commonly found exemptions:
      • Discussion of personnel matters
      • Discussion of individual students
      • Matters involving highly personal information (e.g., medical, personal finance, test scores)
      • Discussion of ongoing or contemplated legal proceedings
      • Meetings to discuss the acquisition of real estate
  • Online Journalism Law
    • First Amendment, libel, obscenity and everything else still apply to Internet.
    • Courts, government officials and others have been reluctant to afford the same rights and protections to bloggers. After all, any one with a computer can call himself a blogger – and giving protections and privileges to reckless, untrained hacks could encourage abuses that make life difficult for real journalists.
  • Other legal issues
    • Privacy
    •  Does it exist in Internet Age?
    • Defamation
    •  More common online, less protection?
    • Access
    •  More openness under Obama?
    • Shield laws
    •  Journalists under attack …will Congress act?