Mass Media Law Outline
Professor Anderson
Fall 2011
Part One: The First Amendment and Govt. Regulation
Chapter 1. Foundations of Media Law
A. The Role of the First Amendment
1. The Beginnings
2. Interpreting the First Amendment
a. Fostering a Marketplace of Ideas
b. Facilitating Self-Government
c. Broader Purposes
d. First Amendment Eclecticism
B. Emergence of Media Law
C. Evolution of the News Media
1. Early History of the Press
2. The Decline of Old Media and the Rise of New
3. New Media, New Issues
Chapter 2. First Amendment Principles that apply to media generally
A. Prior Restraints on Publication
1. The Presumption of Unconstitutionality
Near v. Minnestoa [p. 28]
2. Defining Prior Restraint
3. Overcoming the Presumption
4. Injunctions to Protect Fair Trial Rights
a. Enjoining the Press
b. Gagging Trial Participants
5. Prior Restraints and the Internet
6. Disobeying Injunctions
7. Why are Prior Restraints Bad
B. Contempt
C. Direct Prohibitions
D. Indirect Burdens
1. Access
2. Financial Disincentives
3. Taxation
E. Disfavored Speech
1. Obscenity
2. Child Pornography
3. Commercial Speech
Chapter 3. Different Rules for some Media
A. Broadcasting
1. Fairness
2. Political Broadcasts
3. Ownership
4. Indecency
B. Cable
1. Indecency on Cable Television
2. Access
C. Internet
1. Pornography and Children
2. Open Access
Part Two: Legal Issues Arising from Publication
Chapter 4. Defamation
A. What is Defamation?
1. What do the words mean?
2. S the ascribed meaning Defamatory
3. Roles of judges and jury
B. Special Damages, Libel Per Se, Libel Per Quod, Slander Per Se
1. Slander Per Se
2. Libel Per Se
C. Identification of Plaintiff
D. Fault
1. Actual Malice
i. Application to public officials
ii. Extension of the NYT rule to public figures
iii. Applying the Actual malice standard
2. Negligence
i. Private plaintiffs
ii. Administering the negligence standard
iii. Actual injury
3. Liability without fault
E. The Public-Private Distinction
1. Who is a public official
2. Who is a public figure
i. General-purpose public figures
ii. Limited purpose public figure
iii. Involuntary public figures
F. Falsity
1. Burden of Proof
2. Falsity and Opinion
G. Publication and Republication
1. Publishers and Distributors
2. Neutral Reportage
H. Common Law Privileges
1. The Nature of Privileges
2. Fair Comment
3. Fair and Accurate Report
I. Other Issues
1. Retraction
2. Jurisdiction and libel tourism
3. SLAPP motions
4. Reform
Chapter 5. Protecting Privacy
A. Public Disclosure of Private Facts
1. The Tort
2. Constitutional Limitations
B. False Light Privacy
C. Appropriation
1. Nature of the Tort
2. Unauthorized Coverage of Entertainment Acts
3. Self-Promotions
4. False or Misleading Promotional Mateial
D. Data Protection Statutes
Chapter 6. Liability for emotional, economic, and physical harm
A. Emotional Distress
B. Economic Harm
C. Physical Harm
Part 3. Legal Issues Arising From Newsgathering
Chapter 8. Newsgathering Torts
A. Intrusion
B. Trespass
C. Constitutional Violations
D. Wiretapping and Eavesdropping
E. Misrepresentation
F. Negligence
G. Damages
1. Tort law
2. First Amendment Considerations
Chapter 9. Subpoenas and Searches
A. Reporter’s Privilege: The Concept
B. How the Privilege Works
C. Who is a Reporter
D. Applying the Privilege in Leaks Cases
E. Applying the Privilege to Non-Confidential Materials
1) Reporters as Eyewitness
F. Search Warrants
Chapter 10. Access to Information
A. Access to Records
1) Freedom of Information Act
2) State Open Records Acts
B. Access to Governmental Meetings
1. Federal Law
2. State Laws
C. Access to Institutions
D. Access to Military Operations
E. Criminal Law Restrictions on Access
Chapter 11. Access to Judicial Proceedingsq
A. Access to Courtrooms
1. Criminal
Different forms of media justify different rules. Finite number of frequencies, no fairness doctrine for print. Maybe regulation for broadcasting is justified because its more powerful, it’s ubiquitous (everywhere). Public wants FCC regulation.
2. Political Broadcasts
a. CBS v. FCC – Federal candidates have a clear statutory right of access.
i. [Candidate try to buy air time early in the race. CBS refused bc feared sell would require it to sell time to other candidates.]
ii. Held: statutory right of access properly balances the 1st am rights of federal candidates, public and broadcasters. CBS violated law by not selling time.
iii. Analysis: only required “reasonable time.” Important for the public to receive access.
3. Ownership
a. Used to be limits on how many outlets a single entity can own. Not anymore. Arguments for deregulation.
4. Indecency
a. Fox Television Stations, Inc. v. F.C.C. [FCC issued notices of apparent liability against broadcaster with regard to two broadcasts for violating the FCC's indecency regime. George Carlin’s “Filthy Words.” FCC fined broadcasters for fleeting expletives]
i. Held: that indecency policy was impermissibly vague in violation of free speech.
ii. Analysis: broadcasting has uniquely pervasive presence in the lives of Americans. Pacifica established that broadcasting was different from other media. Technology had now made it possible for parents to block unwanted cable channels, but the court was still not at liberty to depart from precedent unless they reinterpreted that precedent; FCC’s policy is unconstitutionally vague; broadcasters won’t know what to expect to be considered indecent so they will naturally err on the side of caution which is basically chilling protected speech; no system will ever be 100% perfect
