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Media Law
University of North Carolina School of Law
Ardia, David S.

Ardia- Media Law Spring 2014

I. DEFINING & REPRESENTING THE MEDIA

a. Defining the Media:

i. Why news media? [the reasons we came up with in class]

1. Self-governmentàcivic information

2. Sense of communityàshared culture

3. Checking on government/powerful interests

4. Pleasure/entertainment

5. Tolerant society

ii. The Press in Colonial America: “the liberty of the press”àmeant only freedom from prior restraint, not from prosecutions for seditious libel

iii. The News Media in the 21st Century: new technology is redistributing power from news producers to consumers

1. Technology has given us a communications toolkit that allows anyone to become a journalist at little costànews is a “conversation” in which “lines will blur between producers and consumers, changing the role of both in ways we’re only beginning to grasp”

a. Gillmor: says that news will be “bottom-up, interactive, and democratic”

i. Potential Problems with Democratizing the News= accuracy and credibility

ii. Reno v. ACLU: “any person or organization with a computer connected to the Internet can ‘publish” information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals.”

1. Democratizing Effect of the Internet: (1) from reader’s perspective: abundance of human expression available to anyone; (2)anyone can be a publisher, even individuals

b. Benkler:

i. Benkler’s Networked Public Sphere:

1. Greater individual autonomy, freedom, and voice

2. Forum of cooperation and exchange of political beliefs

3. Collective filtering of information—identify, refine, and distribute ideas

4. Reducing influence of elite gatekeepers and agenda setting

5. Facilitates collaborative action

· Good example of these benefits= Senator Trent Lott:

o given the short news cycle, the lack of initial interest by the media, and the large time lag between the event itself and when the media actually took the subject up, it seems likely that w/o the intervention of the blogosphere, the story would have died

o What happened instead, was that the cluster of political blogs took up the subject, investigated, wrote opinions, collected links and public interest, and eventually captured enough attention to make the comments a matter of public importance

o Free from the need to appear neutral and not to offend readers, and free from the need to keep close working relationships with news subjects, bloggers were able to identify something that grated on their sensibilities, talk about it, dig deeper, and eventually generate a substantial intervention into the public sphere

o Even though that intervention still had to pass through mass media, the new source of insight, debate, and eventual condensation of effective public opinion came from w/in the networked information environment

ii. Benkler’s Concerns:

1. Information overload

2. Echo chamber

3. Watchdog role?

a. Networked public sphere cannot investigate as deeply or create the public salience that the mass media can

b. Individuals can’t play the watchdog function because they don’t have the needed power or $

b. The Legal Significance of Definitions: the press is the only organized private business given explicit Constitutional protection

1. What protections should we extend to those who advance the goals of news media?:

a. Protections from barriers to access

b. Protections from punishmentàcriminal

c. Protections from civil damages

d. Protections for news gathering & sources (right to refuse to reveal confidential sources)

e. Protections from prior restraints

f. Protections from taxes

g. Protections from searches & seizures

h. Protections from subpoenas

2. What affirmative rights should we extend to those who advance the goals of news media?:

a. Right to access (government places + government documents)

b. Right to communication channels

c. Right to publish

d. Right to gather/assemble

e. Right to reuse content (fair use)

f. Right to record audio & video

3. Who should we extend these rights & protections to?:

a. Functional Test: exercise of independent editorial judgment

i. Blumenthal v. Drudge: concluded that Drudge is not a reporter/journalist/newsgatherer, he is a purveyor of gossip

b. Structural Approach: means of dissemination of information (e.g. newspapers, websites, TV)

i. Banco Nacional de Mexico: [rejects structural approach] holding that the Narco News website is a media Δ and is entitled to heightened protection under 1st Amend because its format is similar to regularly published news/magazine/newspaper other than the periodical being published online/electronically instead of being printed on paper

c. Institutional Test: different types of media as part of an institution

4. Where should we look for answers?:

a. Textualàdictionaryàthe Constitution itself

b. History

c. Leave it to the government to decide

d. State constitutions

ii. Constitutional Protection—The Speech Clause vs. The Press Clause

1. 1st Amendment: “Congress shall make no law abridging Freedom of Speech or of the Press”

2. SCOTUS has never given “Press Clause” independent significanceàhas refused to give the press any more protection than an individual enjoys under the Speech Clause

3. “The press” insofar as it means something more than a machine for printing, is largely a creation of lawàa collection of individuals and entities that receive special perks, sometimes from private sources (sports leagues/movie studios), but often from government

i. Newspapers get the most protection

b. Nimmer: suggests that freedom of the press should be recognized as a right distinct from freedom of speech because each serves different functions

i. Press= the primary conduit for democratic dialogue, the process by which we inform ourselves about matters of self-governance

ii. Speech= serves a self-fulfillment function, affirming the individual’s dignity and integrity by protecting his intellectual freedom

c. Potter Stewart: Free Press guarantee is a structural provision of the Constitutionàextends protection to an institution, the publishing business (the press) is, the only organized private business that is given explicit constitutional protection

i. If the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancyàby including both guarantees the Founders quite clearly recognized the distinction between protecting freedom of the press and the general freedom of speech

ii. Primary purpose of Press Clause= to create a 4th institution outside the Government as an additional check on the 3 official branches

d. Volokh: Press Clause doesn’t protect the press-as-industry but rather everyone’s use of the printing press (and its modern equivalents) as a TECHNOLOGY

i. Press-as-Technology Model= right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry

e. Bezanson: press’ claim to freedom is strongest when its speech is a product of a process of judgment that is independent, audience oriented, and grounded in a reasoned effort to publish info judged useful and important for the maintenance of freedom in a self-governing society

4. Grosjean= [1 of the few cases in which SCOTUS has considered the application of the Press Clause] held that a Louisiana business tax imposed on any newspaper, magazine, periodical, or publication having a circulation of more than 20k copies per week was unconstitutionalà”a free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves”

iii. Statutory Definitions: state and federal §s sometimes provide special treatment to journalists and certain media entitiesàthreshold question in these situations is who is entitled to the statutory protection or privilege?’

1. State Retraction §s: require that Πs must first request a retraction before they can recover some types of damages in a defamation lawsuit…common elements:

a. A party that believes it has been defamed must request a retraction or serve notice of the allegedly libelous statements before proceeding with a lawsuit against a covered party;

b. The request/notice must be made w/in a reasonable period of time after publication of the allegedly defamatory statement; and

c. If the publisher issues a “frank and full” retraction of the defamatory statement, it will be entitled to a reduction in certain types of damages

2. State Shield Laws: [currently no federal shield law] provide protection from the forced disclosure of confidential sources and newsgathering materials

3. Press Credentialing Regulations: provide additional rights of access to events and government officials

In Re Cable News Network and Time Magazine

Π sued CNN and Time for defamation due to CNN’s reporting on the military operation—Operation Tailwind

Issue: is Time a “newspaper” for purposes of receiving the protection of CA’s retraction §?

Holding: Time disseminates news and is thus a “newspaper” w/in meaning of §. Thus, the retraction § applies to both Time and CNN; because Π failed to comply with the retraction §, he is limited to special damages arising out of the defamation

v FUNCTIONAL TEST: whether a publication is called a “newspaper” is not controllingàthe substance of the publication controls

v Substantial evidence that Time disseminates breaking news:

Ø Distributed each week

Ø Researched & developed stories up to time

processes of educationà”only an emergency can justify repression”

a. The imminent danger must be “relatively serious”àthe deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly

iii. SELF-GOVERNANCE THEORY: in order to run a democracy, people need to have free speechàfree speech is a fundamental linchpin of self government…to be protected, the speech must be relevant to self-governance, the political process

1. Meiklejohn: “1st Amend specifies and protects the exercise of the Power which we have reserved to ourselves as the primary political activity of a free people”…3 kinds of “electoral judging” protected by 1st Amend:

1. Public Records: documents, books, magazines, newspapers, etc. àturn to the thinking of other men to better inform ourselves

2. Public Discussion: by group action of congenial minds, we form political parties, adopt platforms, conduct campaigns, etc. à”we electors do our thinking, not only by lonely reading & reflection, but also in active associations of public discussion…we think together as well as apart”

3. Independent Vote: elector acts as sovereign on election day

b. “we, the People, are self-governing. That is why our minds must be free”

i. What shall he read? àwhat he himself decides to read

ii. With who shall he associate? à with those with whom he decides to associate

iii. Whom shall he oppose? à those with whom he disagrees

2. Bork: 1st Amend protection should be accorded only to speech that is EXPLICITLY POLITICAL= speech about how we are governedàcriticisms of public officials/policies, proposals for the adoption/repeal of legislation/constitutional provisions, and anything addressing the conduct of any governmental unit [excludes speech advocating FORCIBLE OVERTHROW OF GOVERNMENT]

a. “The line drawn must, therefore, lie between the explicitly political and all else”

i. Protection of non-political speech rests upon the enlightenment of society and its elected representativesàspeech outside the definition of explicitly political gets no special protection by the Constitution, but gets protection by democracy

3. Sunstein: requires something other than free/unrestricted speechà(1)exposure to materials outside of our information cocoon (=opposing views); and (2)common experiences

a. Speech that is political in character—relates to democratic self-government—cannot be regulated w/o a special showing of government justificationàit is here when the government is most likely to be acting on the basis of illegitimate considerations

b. Speech that is not political can be regulated on the basis of a somewhat weaker government justification

iv. CHECKING VALUE THEORY: governments, by their nature, will overreach and become corruptàfree speech acts as a check against governmental corruption

1. Blasi: value of free speech, a free press, and a free assembly is the ability to check the abuse of power by public officialsàabuse of official power is an especially serious evil, more serious than the abuse of private power

a. Government has a monopoly on the ability to use legitimized violence

b. There’s not a concentrated force available to check the government in the way government is available to check even the most powerful private parties

c. Government also has abundance of checking recourses including significant investigative capabilities (e.g. subpoenas, mandatory data, etc.)àno such investigative resources are available to serve the diffuse process by which government is checked by public opinion

d. Believes that John Locke’s democratic theory is right in that the general populace must be the ultimate judge of the behavior of public officials

i. Unlike Meikeljohn/Sunstein, Blasi thinks the public acts as a final veto on decisions of officials that pass certain boundariesàwhen we think the government has crossed the line we will rise up