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

Media Law Outline
Ardia Fall 2014
I. Defining the Media
Value of News/Info
·         Informed Citizenry, Democratic self-governance, facilitates conversation
·         More tolerant society, stable society
·         Government checking function – transparency of the powerful
·         Entertainment
·         Search for Truth – the idea is that truth will win out over false speech – marketplace of ideas
Should the law provide protection for press?
·         To achieve check on gov’t, we may need to protect reporters who are less powerful
·         Rights and protections are not unlimited
How does government protect press now?
·         Protections
o   Protections for sources/confidential information
o   Protection from prior restraints (restraints occurring prior to publication)
o   Protection from taxation
o   Protection against criminal charges
o   Protection from civil liability (protection for money damages in civil lawsuit i.e. retraction statute)
o   Some protection against searches and seizures
·         Rights
o   Access to prisons and courtrooms
o   Publish political campaign information
o   Access to government meetings, congress, courts, warzones, disasters
o   Right to use (and re-use) content of others
Suggested Tests:  Who should get rights and protections?
·         Structural Test
o   Potter Stewart- part of press if it serves as a counterweight to the three branches of government for structure of our democratic system to work
§  Assumes press is a counterweight to the government
§  Lonely pamphleteer might not be defined by Potter’s press
·         Functional Test
o   Press must be independent from government and powerful interest
o   Audience oriented- must be focusing outwards
o   Grounded in reasonable effort to publish important information using editorial judgment
§  CA retraction statute seems functional
·         Institutional Test
o   If you work for the institution, you are press
o   Doesn’t ask about the function
State instruments to protect Press
·         Retraction Statutes
o   Require a plaintiff to request a retraction before he or she can recover certain types of damages in a defamation lawsuit
§  Generally require:
1.      Request of a retraction of service of notice of alleged libelous statement
2.      Request must be made within reasonable time of publication
3.      If ‘frank and full’ retraction of statement, reduction in some types of damages
·         Shield laws
o   Protects press from testifying or disclosing info
o   Definitions may matter
§  Price v. Time – held Sports Illustrated was not a newspaper and therefore did not qualify under Alabama shield law
·         Press Credentials
o   Give access to things that not everyone can go see
o   What credentials are needed by law?
o   NYC- only to full-time employees of news gathering organizations, and freelancers from organization attesting to previous work (6 events in 24 months)
II. First Amendment Protection: Theories for Protection of Speech
First Amendment: “Congress shall make no law…abridging the freedom of speech, or of the press…”
·         Press Clause has never been granted protection or rights- always on the Speech Clause
·         Supreme Court has never treated Press Clause as independent
Marketplace of Ideas Theory (most widely accepted theory)
·         Stated in Holmes, dissent of Abrams v. United States
o   The ultimate goal is Truth, which is better reached by free trade of ideas
§  If you think you are right, other people’s views should not scare you
§  Best test of truths is to have it accepted in the marketplace
§  This is not an absolute theory- it is not always the best method
Individual Autonomy Theory
·         Stated in Brandeis, concurrence of Whitney v. California
o   Can’t be fully functioning humans without being able to express ourselves
o   Formation of ourselves is in conjunction with others
o   Imminent danger still an exception
o   There must be imminent, serious harm, to suppress speech
Self-governance theory
·         As voters, to govern ourselves we must allow channel of free speech to be open
·         To be good electors, we need access to information to best govern ourselves to use our reason to form opinions
·         Seems to only protect political speech
·         Bork:
o   Only political speech should be protected- on its face relate to something political
o   Political process can protect other sources of speech
·         Cass R. Sunstein,

mise and conjecture
o   Government’s burden (party seeking to impose restraint)
·         Justice White
o   Unusually high burden
o   Executive power issue- Congress could have passed legislation to stop such sorts of speech, but did not; not within Executive power
§  Note: Marbury v. Madison- constitution trumps Congress, so could Congress have done that?
§  Also note: Near – Minnesota made argument based on statute, but operation and effect was turned down
·         Harlan, Berger, and Blackmun, dissent
o   President has authority to determine if this would be harmful because foreign policy
o   Court should differ to executive that this is grave harm because deals with national security
·         Blackmun, dissent:
o   Need more information on balance of prior restraint and national security
§  Issue with this dissent- delay is restraint (Nebraska Press Association v. Stuart)
United States v. Progressive, Inc. (W.D. Wisc. 1979)­ – Progressive magazine tried to publish instruction to make H-Bomb.
·         Court granted the injunction because of nature of harm
o   This is a more imminent harm then the NYT v. United States [Pentagon Papers] o   Also a violation of Atomic Energy Act – think of White’s opinion in NYT v. US, which can be contradicted by Near
·         Note: The injunction does not seem effective in preventing harms, as this was published somewhere else
§  When dealing with Prior Restraint questions, generally:
o   1) Would it be a prior restraint?
§  Use operations and effects test
§  Form vs. function:
·         Which do we look at?
·         Near says operation and effect
o   2) Does it fall under the narrow exceptions?
§  National Security?
o   3) Will an injunction be effective in preventing harm? (Has the information already been disseminated? How wide?)