12/3/17

1

Mass Communication and the First Amendment

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law… abridging the freedom of speech, or of the press….

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Gitlow v. New York (1925) ❚  the First Amendment is binding upon the states ❚ via the due process clause of the Fourteenth Amendment ❚ no state shall “deprive any person life, liberty or property, ❚ without due process of law”

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law ….

exceptions to “no” •  national security •  libel •  privacy •  copyright •  obscenity •  fair trial

Prior Restraint ❚ stopping a message ❚ before it is communicated Key Prior Restraint Case • Near v. Minnesota (1931) •  Jay Near & Frank Guilford •  publishers of Saturday Press •  a “scandal sheet” that accused public officials of receiving

graft from gangsters • U.S. Supreme Court ruled prior restraint is unconstitutional

except in extreme situations (ex: threat to national security) •  government carries the burden of proof to prove validity of

exceptions

Pentagon Papers ❚  top secret 47-volume gov’t study ❚ U.S. decision-making process ❚  in Vietnam ❚ 1945-1968 ❚ Daniel Ellsberg ❚ Edward Snowden of his ❚ day

Daniel Ellsberg outside a federal courthouse in 1971

New York Times ❚ began publishing ❚  this study ❚  in serial form ❚ early in the summer of 1971

Nixon Administration ❚ got a temporary restraining order ❚ against the Times ❚  failed to get order against ❚ Washington Post ❚ which had also begun to publish the report

U.S. Supreme Court ❚  ruled 6-3 against Nixon Administration ❚ because it failed to meet ❚  the heavy burden of proof ❚ necessary for prior restraint

per curiam opinion ❚ unsigned ❚ often suggests ❚ strong disagreement ❚ among justices ❚ all 9 justices wrote individual opinions

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Defamation: Libel & Slander ❚ slander ❚  libel ❚ historically, ❚ slander refers to the spoken word ❚  libel to the written word

Plaintiff must prove ❚ publication ❚  identification ❚ actual harm to reputation ❚  falsity ❚  fault

New York Times v. Sullivan (1964) •  Feb. 1960—Dr. King arrested •  two counts of perjury • Alabama state tax return •  ultimately acquitted •  chain of events Times editorial •  run three weeks after arrest •  supporting King’s efforts •  praising civil rights activists in the South •  and admonishing Congress to •  “heed their rising voices, •  for they will be heard”

Full-Page Times Ad •  picks up the phrase •  describes violent incidents •  enjoins others to join the cause •  by contributing financial support • Committee to Defend Martin Luther King and the Struggle for

Freedom in the South •  signed by 64 persons •  some claimed no knowledge of ad

Circulation figures •  total circulation—650,000 •  copies to Alabama news dealers—394 •  copies in Montgomery County, Alabama—35 •  bitter reaction from white Alabamians •  several politicians initiated lawsuits

Libel Actions •  John Patterson—Alabama governor •  demands retraction (required by state law) •  Times prints one in response to his letter •  L.B. Sullivan—Commissioner of Public Affairs • makes similar demand •  Times writes back expressing puzzlement • Sullivan sues for $500,000 Courtroom atmosphere •  “diversity of citizenship” • Article III, section 2 of the U.S. Constitution •  yet tried in Alabama state court •  thick with racial prejudice •  seating segregated • Sullivan’s lawyers used racial epithets •  trial judge—Walter B. Jones •  spoke openly of “white man’s justice” •  and called the 14th amendment a “pariah and outcast” •  that had no place in his courtroom

Ad’s Factual Errors •  paragraph three: •  students sang “Star Spangled Banner” •  expelled for demanding service at courthouse lunch counter •  just part of the student body protested expulsions •  and only by boycotting classes on a single day •  the dining hall was never padlocked •  police never ringed the campus

Paragraph 6: “Again and again the Southern violators have •  answered Dr. King’s protests with •  intimidation and violence. •  They have bombed his home almost killing his wife and child. •  They have assaulted his person. •  They have arrested him seven times.” Ad’s Factual Errors •  paragraph six: • Dr. King arrested four times not seven •  ambiguous pronouns •  “They bombed….” •  “They arrested….” •  implies both pronouns have the same antecedent •  and only the police make arrests •  police not implicated in bombings • made efforts to apprehend those who were Trial Outcome •  lasted only three days •  verdict against the Times and four ministers •  and in favor of Sullivan •  awarded $500,000 • Alabama Supreme Court affirms judgment •  stated Times acted “irresponsibly”

U.S. Supreme Court •  unanimously overturned the decision •  created the standard of “actual malice” for public officials •  public official plaintiffs must demonstrate either •  (1) defendant had knowledge of falsity •  (2) or showed a reckless disregard for the truth

Rationale for Ruling •  1. a case of seditious libel •  2. debate on public issues should be •  uninhibited, robust, and wide-open •  3. public officials must expect their work will be closely

examined and criticized.

public official •  anyone elected to public office •  government employees who have or appear to have to the

public •  a substantial responsibility for or control over the conduct of

public affairs • Rosenblatt v. Baer (1966) Gertz v. Welch (1974) Public Figures ❚ celebrities or people with ready access to the mass media ❚  individuals who have thrust themselves into a significant

public controversy ❚ must also prove actual malice

Falwell v. Flynt (1988) • Hustler parody •  of Campari liquor ad •  your “first time” •  fictitious interview with Rev. Jerry Falwell •  incestuous encounter with his mother •  jury awarded Rev. Falwell $200,000 for emotional distress •  unanimous high court reverses

No basis for suit because •  the parody had not been •  touted as factual •  or understood as such by readers •  no false statement of fact • was made with actual malice • must first show libel •  to establish emotional distress Right of Privacy ❚ appropriation ❚  intrusion ❚  false light ❚ disclosure ❚ Oliver Sipple

1975 Sipple case ❚ ex-marine foiled an assassination attempt ❚ on the President Gerald Ford's life ❚ by Sarah Jane Moore ❚ extensive press coverage ❚  “outed” by Harvey Milk ❚ who hailed him as “gay hero” ❚ San Francisco Chronicle published details of Sipple's private

life ❚ other media outlets followed suit ❚ his mother in Detroit disowned him ❚ suit unsuccessful ❚ because facts were already public

Copyright Law

Copyright may be defined as •  a proprietary right of control •  over literary •  or other artistic creations •  granted by the federal government •  for a limited period of time

Copyright § Protects “creative” works § Books, songs, plays, films etc.

Primary Purpose •  to encourage creative production •  for the ultimate benefit of society at large

an “intangible” creation •  a creation one can’t •  touch, •  or hold or •  lock away for safekeeping •  to be protected, it must be •  fixed in a tangible medium of expression

the expression of something •  the way it is told, the style and manner in which it is

presented •  copyright law does not protect facts per se •  journalists may use the facts someone else have gathered Duration of Copyright • works created after 1978 are protected by copyright for the

life of the author or creator plus 70 years (1998 Sonny Bono Copyright Term Extension Act)

• works for hire are protected for 95 years after publication • After this period, a work falls into the public domain and may

be copied by any person for any reason without payment of royalty to the original owner

Works Created Prior to 1978 •  old law (1909)—two terms of 28 years—required renewal •  1998 extension applied retroactively •  under 1976 law as amended •  initial term—28 plus 67=95 years (must renew) •  second term—total of 95 years Eldred v. Ashcroft (2003) • Eric Eldred wanted to put Robert Frost’s poems on his Web

site, which posts public domain literature. •  high court rejects Eldred’s “for limited times” argument •  rationale: •  (1) in harmony with Berne convention •  (2) legacy—Americans living longer

Balancing the 1st Amendment and the Copyright Law •  “Congress shall make no law…abridging the freedom of

speech, or of the press….”

•  “To promote the progress of ……useful arts, by securing for limited times to authors…..the exclusive right to their respective writings…..” Article I, Section 8, Clause 8

Fair Use •  permits limited copying of copyrighted works •  that have not yet fallen into the public domain

Factors To Be Considered In Determining Fair Use •  1. The purpose and character of the use •  2. The nature of the copyrighted work •  3. The amount of the work used in relation to the copyrighted

work as a whole •  4. The effect of the use on the potential market for or value of

the copyrighted work

1. Purpose and Character of Use •  news, criticism, classroom use—occasional article vs. instant

anthology • Kinko case—chain of copy shops sued by 8 U.S. publishers •  federal district court ruled against Kinko •  citing extent of copying and profit-making intent •  “transformative uses” •  Campbell v. Acuff-Rose Music, Inc. (1994)

Campbell v. Acuff-Rose Music, Inc. (1994) •  2-Live Crew parody of Oh, Pretty Woman •  by Roy Orbison and William Dees •  high court ruled copying original work •  necessary so “parodic character” can be perceived •  remanded to lower court

“Ideas” not copyrightable •  I felt a funeral in my brain, • And mourners, to and fro, • Kept treading, treading, till it seemed •  That sense was breaking through. • And when they all were seated, • A service like a drum • Kept beating, beating, till I thought • My mind was going numb.

2. Nature of the Copyrighted Work •  Is work still available?—an out of print book •  Is work consumable?—a workbook accompanying a text? •  Is the work informational or creative?—newspaper vs. a

movie or novel •  Is the work published or unpublished?

Unpublished Works •  enjoy greater protection •  Ford memoirs/Nation (Harper Collins v. Nation Enterprises

(1985) •  high court said the 1976 Copyright Act clearly recognizes the

right of first publication for an author. •  1992 amendment--unpublished works may fall under “fair

use”

3. Amount and Substantiality •  the percentage of the work used is a key consideration •  frame enlargement vs. publicity shot •  for a biography, Ian Hamilton extensively paraphrased

unpublished letters of J.D. Salinger •  in Salinger v. Random House (1987), the Second U.S. Court

of Appeals ruled •  paraphrasing does not protect an author if such paraphrasing

is too close to the original words

4. Effect of Use on Marketplace •  refers to the direct economic impact the use has caused or is

likely to cause •  appears to be the element given the greatest weight •  Ford/Nation dispute

Damages § plaintiff’s lost profits § defendant’s ill-gotten gains

Copyright Notice •  until 1989, the failure to affix a copyright notice (Copyright ©

1985 by John Smith), meant the automatic loss of most copyright protection

•  today, a copyright notice is not required to protect a work •  once a work is created it is protected Registration •  to register a copyrighted work with the federal government,

the owner must: •  fill out the proper registration form •  pay a $35 fee •  deposit two complete copies of the work with the Copyright

Office

Plagiarism • the act of taking ideas, • thoughts or words from another • and passing them off as your own •  usually resolved outside the legal system • when instances of plagiarism reach the courts • they are usually litigated as copyright cases

Sexually Oriented Speech

Miller v. California (1973) •  1. appeals to a prurient interest in sex •  2. the proscribed material must depict or describe sexual

conduct in a patently offensive way, •  the conduct must be specifically described in the law, and •  3. the work must, taken as a whole, lack serious literary,

artistic, political, or scientific value--SLAPS test.

First Amendment in the Internet Age •  pornography •  cyber bullying •  online vitriol •  flooding •  bots •  troll armies

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12/3/17

2

Mass Communication and the First Amendment

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law… abridging the freedom of speech, or of the press….

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Gitlow v. New York (1925) ❚  the First Amendment is binding upon the states ❚ via the due process clause of the Fourteenth Amendment ❚ no state shall “deprive any person life, liberty or property, ❚ without due process of law”

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law ….

exceptions to “no” •  national security •  libel •  privacy •  copyright •  obscenity •  fair trial

Prior Restraint ❚ stopping a message ❚ before it is communicated Key Prior Restraint Case • Near v. Minnesota (1931) •  Jay Near & Frank Guilford •  publishers of Saturday Press •  a “scandal sheet” that accused public officials of receiving

graft from gangsters • U.S. Supreme Court ruled prior restraint is unconstitutional

except in extreme situations (ex: threat to national security) •  government carries the burden of proof to prove validity of

exceptions

Pentagon Papers ❚  top secret 47-volume gov’t study ❚ U.S. decision-making process ❚  in Vietnam ❚ 1945-1968 ❚ Daniel Ellsberg ❚ Edward Snowden of his ❚ day

Daniel Ellsberg outside a federal courthouse in 1971

New York Times ❚ began publishing ❚  this study ❚  in serial form ❚ early in the summer of 1971

Nixon Administration ❚ got a temporary restraining order ❚ against the Times ❚  failed to get order against ❚ Washington Post ❚ which had also begun to publish the report

U.S. Supreme Court ❚  ruled 6-3 against Nixon Administration ❚ because it failed to meet ❚  the heavy burden of proof ❚ necessary for prior restraint

per curiam opinion ❚ unsigned ❚ often suggests ❚ strong disagreement ❚ among justices ❚ all 9 justices wrote individual opinions

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Defamation: Libel & Slander ❚ slander ❚  libel ❚ historically, ❚ slander refers to the spoken word ❚  libel to the written word

Plaintiff must prove ❚ publication ❚  identification ❚ actual harm to reputation ❚  falsity ❚  fault

New York Times v. Sullivan (1964) •  Feb. 1960—Dr. King arrested •  two counts of perjury • Alabama state tax return •  ultimately acquitted •  chain of events Times editorial •  run three weeks after arrest •  supporting King’s efforts •  praising civil rights activists in the South •  and admonishing Congress to •  “heed their rising voices, •  for they will be heard”

Full-Page Times Ad •  picks up the phrase •  describes violent incidents •  enjoins others to join the cause •  by contributing financial support • Committee to Defend Martin Luther King and the Struggle for

Freedom in the South •  signed by 64 persons •  some claimed no knowledge of ad

Circulation figures •  total circulation—650,000 •  copies to Alabama news dealers—394 •  copies in Montgomery County, Alabama—35 •  bitter reaction from white Alabamians •  several politicians initiated lawsuits

Libel Actions •  John Patterson—Alabama governor •  demands retraction (required by state law) •  Times prints one in response to his letter •  L.B. Sullivan—Commissioner of Public Affairs • makes similar demand •  Times writes back expressing puzzlement • Sullivan sues for $500,000 Courtroom atmosphere •  “diversity of citizenship” • Article III, section 2 of the U.S. Constitution •  yet tried in Alabama state court •  thick with racial prejudice •  seating segregated • Sullivan’s lawyers used racial epithets •  trial judge—Walter B. Jones •  spoke openly of “white man’s justice” •  and called the 14th amendment a “pariah and outcast” •  that had no place in his courtroom

Ad’s Factual Errors •  paragraph three: •  students sang “Star Spangled Banner” •  expelled for demanding service at courthouse lunch counter •  just part of the student body protested expulsions •  and only by boycotting classes on a single day •  the dining hall was never padlocked •  police never ringed the campus

Paragraph 6: “Again and again the Southern violators have •  answered Dr. King’s protests with •  intimidation and violence. •  They have bombed his home almost killing his wife and child. •  They have assaulted his person. •  They have arrested him seven times.” Ad’s Factual Errors •  paragraph six: • Dr. King arrested four times not seven •  ambiguous pronouns •  “They bombed….” •  “They arrested….” •  implies both pronouns have the same antecedent •  and only the police make arrests •  police not implicated in bombings • made efforts to apprehend those who were Trial Outcome •  lasted only three days •  verdict against the Times and four ministers •  and in favor of Sullivan •  awarded $500,000 • Alabama Supreme Court affirms judgment •  stated Times acted “irresponsibly”

U.S. Supreme Court •  unanimously overturned the decision •  created the standard of “actual malice” for public officials •  public official plaintiffs must demonstrate either •  (1) defendant had knowledge of falsity •  (2) or showed a reckless disregard for the truth

Rationale for Ruling •  1. a case of seditious libel •  2. debate on public issues should be •  uninhibited, robust, and wide-open •  3. public officials must expect their work will be closely

examined and criticized.

public official •  anyone elected to public office •  government employees who have or appear to have to the

public •  a substantial responsibility for or control over the conduct of

public affairs • Rosenblatt v. Baer (1966) Gertz v. Welch (1974) Public Figures ❚ celebrities or people with ready access to the mass media ❚  individuals who have thrust themselves into a significant

public controversy ❚ must also prove actual malice

Falwell v. Flynt (1988) • Hustler parody •  of Campari liquor ad •  your “first time” •  fictitious interview with Rev. Jerry Falwell •  incestuous encounter with his mother •  jury awarded Rev. Falwell $200,000 for emotional distress •  unanimous high court reverses

No basis for suit because •  the parody had not been •  touted as factual •  or understood as such by readers •  no false statement of fact • was made with actual malice • must first show libel •  to establish emotional distress Right of Privacy ❚ appropriation ❚  intrusion ❚  false light ❚ disclosure ❚ Oliver Sipple

1975 Sipple case ❚ ex-marine foiled an assassination attempt ❚ on the President Gerald Ford's life ❚ by Sarah Jane Moore ❚ extensive press coverage ❚  “outed” by Harvey Milk ❚ who hailed him as “gay hero” ❚ San Francisco Chronicle published details of Sipple's private

life ❚ other media outlets followed suit ❚ his mother in Detroit disowned him ❚ suit unsuccessful ❚ because facts were already public

Copyright Law

Copyright may be defined as •  a proprietary right of control •  over literary •  or other artistic creations •  granted by the federal government •  for a limited period of time

Copyright § Protects “creative” works § Books, songs, plays, films etc.

Primary Purpose •  to encourage creative production •  for the ultimate benefit of society at large

an “intangible” creation •  a creation one can’t •  touch, •  or hold or •  lock away for safekeeping •  to be protected, it must be •  fixed in a tangible medium of expression

the expression of something •  the way it is told, the style and manner in which it is

presented •  copyright law does not protect facts per se •  journalists may use the facts someone else have gathered Duration of Copyright • works created after 1978 are protected by copyright for the

life of the author or creator plus 70 years (1998 Sonny Bono Copyright Term Extension Act)

• works for hire are protected for 95 years after publication • After this period, a work falls into the public domain and may

be copied by any person for any reason without payment of royalty to the original owner

Works Created Prior to 1978 •  old law (1909)—two terms of 28 years—required renewal •  1998 extension applied retroactively •  under 1976 law as amended •  initial term—28 plus 67=95 years (must renew) •  second term—total of 95 years Eldred v. Ashcroft (2003) • Eric Eldred wanted to put Robert Frost’s poems on his Web

site, which posts public domain literature. •  high court rejects Eldred’s “for limited times” argument •  rationale: •  (1) in harmony with Berne convention •  (2) legacy—Americans living longer

Balancing the 1st Amendment and the Copyright Law •  “Congress shall make no law…abridging the freedom of

speech, or of the press….”

•  “To promote the progress of ……useful arts, by securing for limited times to authors…..the exclusive right to their respective writings…..” Article I, Section 8, Clause 8

Fair Use •  permits limited copying of copyrighted works •  that have not yet fallen into the public domain

Factors To Be Considered In Determining Fair Use •  1. The purpose and character of the use •  2. The nature of the copyrighted work •  3. The amount of the work used in relation to the copyrighted

work as a whole •  4. The effect of the use on the potential market for or value of

the copyrighted work

1. Purpose and Character of Use •  news, criticism, classroom use—occasional article vs. instant

anthology • Kinko case—chain of copy shops sued by 8 U.S. publishers •  federal district court ruled against Kinko •  citing extent of copying and profit-making intent •  “transformative uses” •  Campbell v. Acuff-Rose Music, Inc. (1994)

Campbell v. Acuff-Rose Music, Inc. (1994) •  2-Live Crew parody of Oh, Pretty Woman •  by Roy Orbison and William Dees •  high court ruled copying original work •  necessary so “parodic character” can be perceived •  remanded to lower court

“Ideas” not copyrightable •  I felt a funeral in my brain, • And mourners, to and fro, • Kept treading, treading, till it seemed •  That sense was breaking through. • And when they all were seated, • A service like a drum • Kept beating, beating, till I thought • My mind was going numb.

2. Nature of the Copyrighted Work •  Is work still available?—an out of print book •  Is work consumable?—a workbook accompanying a text? •  Is the work informational or creative?—newspaper vs. a

movie or novel •  Is the work published or unpublished?

Unpublished Works •  enjoy greater protection •  Ford memoirs/Nation (Harper Collins v. Nation Enterprises

(1985) •  high court said the 1976 Copyright Act clearly recognizes the

right of first publication for an author. •  1992 amendment--unpublished works may fall under “fair

use”

3. Amount and Substantiality •  the percentage of the work used is a key consideration •  frame enlargement vs. publicity shot •  for a biography, Ian Hamilton extensively paraphrased

unpublished letters of J.D. Salinger •  in Salinger v. Random House (1987), the Second U.S. Court

of Appeals ruled •  paraphrasing does not protect an author if such paraphrasing

is too close to the original words

4. Effect of Use on Marketplace •  refers to the direct economic impact the use has caused or is

likely to cause •  appears to be the element given the greatest weight •  Ford/Nation dispute

Damages § plaintiff’s lost profits § defendant’s ill-gotten gains

Copyright Notice •  until 1989, the failure to affix a copyright notice (Copyright ©

1985 by John Smith), meant the automatic loss of most copyright protection

•  today, a copyright notice is not required to protect a work •  once a work is created it is protected Registration •  to register a copyrighted work with the federal government,

the owner must: •  fill out the proper registration form •  pay a $35 fee •  deposit two complete copies of the work with the Copyright

Office

Plagiarism • the act of taking ideas, • thoughts or words from another • and passing them off as your own •  usually resolved outside the legal system • when instances of plagiarism reach the courts • they are usually litigated as copyright cases

Sexually Oriented Speech

Miller v. California (1973) •  1. appeals to a prurient interest in sex •  2. the proscribed material must depict or describe sexual

conduct in a patently offensive way, •  the conduct must be specifically described in the law, and •  3. the work must, taken as a whole, lack serious literary,

artistic, political, or scientific value--SLAPS test.

First Amendment in the Internet Age •  pornography •  cyber bullying •  online vitriol •  flooding •  bots •  troll armies

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12/3/17

3

Mass Communication and the First Amendment

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law… abridging the freedom of speech, or of the press….

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Gitlow v. New York (1925) ❚  the First Amendment is binding upon the states ❚ via the due process clause of the Fourteenth Amendment ❚ no state shall “deprive any person life, liberty or property, ❚ without due process of law”

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law ….

exceptions to “no” •  national security •  libel •  privacy •  copyright •  obscenity •  fair trial

Prior Restraint ❚ stopping a message ❚ before it is communicated Key Prior Restraint Case • Near v. Minnesota (1931) •  Jay Near & Frank Guilford •  publishers of Saturday Press •  a “scandal sheet” that accused public officials of receiving

graft from gangsters • U.S. Supreme Court ruled prior restraint is unconstitutional

except in extreme situations (ex: threat to national security) •  government carries the burden of proof to prove validity of

exceptions

Pentagon Papers ❚  top secret 47-volume gov’t study ❚ U.S. decision-making process ❚  in Vietnam ❚ 1945-1968 ❚ Daniel Ellsberg ❚ Edward Snowden of his ❚ day

Daniel Ellsberg outside a federal courthouse in 1971

New York Times ❚ began publishing ❚  this study ❚  in serial form ❚ early in the summer of 1971

Nixon Administration ❚ got a temporary restraining order ❚ against the Times ❚  failed to get order against ❚ Washington Post ❚ which had also begun to publish the report

U.S. Supreme Court ❚  ruled 6-3 against Nixon Administration ❚ because it failed to meet ❚  the heavy burden of proof ❚ necessary for prior restraint

per curiam opinion ❚ unsigned ❚ often suggests ❚ strong disagreement ❚ among justices ❚ all 9 justices wrote individual opinions

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Defamation: Libel & Slander ❚ slander ❚  libel ❚ historically, ❚ slander refers to the spoken word ❚  libel to the written word

Plaintiff must prove ❚ publication ❚  identification ❚ actual harm to reputation ❚  falsity ❚  fault

New York Times v. Sullivan (1964) •  Feb. 1960—Dr. King arrested •  two counts of perjury • Alabama state tax return •  ultimately acquitted •  chain of events Times editorial •  run three weeks after arrest •  supporting King’s efforts •  praising civil rights activists in the South •  and admonishing Congress to •  “heed their rising voices, •  for they will be heard”

Full-Page Times Ad •  picks up the phrase •  describes violent incidents •  enjoins others to join the cause •  by contributing financial support • Committee to Defend Martin Luther King and the Struggle for

Freedom in the South •  signed by 64 persons •  some claimed no knowledge of ad

Circulation figures •  total circulation—650,000 •  copies to Alabama news dealers—394 •  copies in Montgomery County, Alabama—35 •  bitter reaction from white Alabamians •  several politicians initiated lawsuits

Libel Actions •  John Patterson—Alabama governor •  demands retraction (required by state law) •  Times prints one in response to his letter •  L.B. Sullivan—Commissioner of Public Affairs • makes similar demand •  Times writes back expressing puzzlement • Sullivan sues for $500,000 Courtroom atmosphere •  “diversity of citizenship” • Article III, section 2 of the U.S. Constitution •  yet tried in Alabama state court •  thick with racial prejudice •  seating segregated • Sullivan’s lawyers used racial epithets •  trial judge—Walter B. Jones •  spoke openly of “white man’s justice” •  and called the 14th amendment a “pariah and outcast” •  that had no place in his courtroom

Ad’s Factual Errors •  paragraph three: •  students sang “Star Spangled Banner” •  expelled for demanding service at courthouse lunch counter •  just part of the student body protested expulsions •  and only by boycotting classes on a single day •  the dining hall was never padlocked •  police never ringed the campus

Paragraph 6: “Again and again the Southern violators have •  answered Dr. King’s protests with •  intimidation and violence. •  They have bombed his home almost killing his wife and child. •  They have assaulted his person. •  They have arrested him seven times.” Ad’s Factual Errors •  paragraph six: • Dr. King arrested four times not seven •  ambiguous pronouns •  “They bombed….” •  “They arrested….” •  implies both pronouns have the same antecedent •  and only the police make arrests •  police not implicated in bombings • made efforts to apprehend those who were Trial Outcome •  lasted only three days •  verdict against the Times and four ministers •  and in favor of Sullivan •  awarded $500,000 • Alabama Supreme Court affirms judgment •  stated Times acted “irresponsibly”

U.S. Supreme Court •  unanimously overturned the decision •  created the standard of “actual malice” for public officials •  public official plaintiffs must demonstrate either •  (1) defendant had knowledge of falsity •  (2) or showed a reckless disregard for the truth

Rationale for Ruling •  1. a case of seditious libel •  2. debate on public issues should be •  uninhibited, robust, and wide-open •  3. public officials must expect their work will be closely

examined and criticized.

public official •  anyone elected to public office •  government employees who have or appear to have to the

public •  a substantial responsibility for or control over the conduct of

public affairs • Rosenblatt v. Baer (1966) Gertz v. Welch (1974) Public Figures ❚ celebrities or people with ready access to the mass media ❚  individuals who have thrust themselves into a significant

public controversy ❚ must also prove actual malice

Falwell v. Flynt (1988) • Hustler parody •  of Campari liquor ad •  your “first time” •  fictitious interview with Rev. Jerry Falwell •  incestuous encounter with his mother •  jury awarded Rev. Falwell $200,000 for emotional distress •  unanimous high court reverses

No basis for suit because •  the parody had not been •  touted as factual •  or understood as such by readers •  no false statement of fact • was made with actual malice • must first show libel •  to establish emotional distress Right of Privacy ❚ appropriation ❚  intrusion ❚  false light ❚ disclosure ❚ Oliver Sipple

1975 Sipple case ❚ ex-marine foiled an assassination attempt ❚ on the President Gerald Ford's life ❚ by Sarah Jane Moore ❚ extensive press coverage ❚  “outed” by Harvey Milk ❚ who hailed him as “gay hero” ❚ San Francisco Chronicle published details of Sipple's private

life ❚ other media outlets followed suit ❚ his mother in Detroit disowned him ❚ suit unsuccessful ❚ because facts were already public

Copyright Law

Copyright may be defined as •  a proprietary right of control •  over literary •  or other artistic creations •  granted by the federal government •  for a limited period of time

Copyright § Protects “creative” works § Books, songs, plays, films etc.

Primary Purpose •  to encourage creative production •  for the ultimate benefit of society at large

an “intangible” creation •  a creation one can’t •  touch, •  or hold or •  lock away for safekeeping •  to be protected, it must be •  fixed in a tangible medium of expression

the expression of something •  the way it is told, the style and manner in which it is

presented •  copyright law does not protect facts per se •  journalists may use the facts someone else have gathered Duration of Copyright • works created after 1978 are protected by copyright for the

life of the author or creator plus 70 years (1998 Sonny Bono Copyright Term Extension Act)

• works for hire are protected for 95 years after publication • After this period, a work falls into the public domain and may

be copied by any person for any reason without payment of royalty to the original owner

Works Created Prior to 1978 •  old law (1909)—two terms of 28 years—required renewal •  1998 extension applied retroactively •  under 1976 law as amended •  initial term—28 plus 67=95 years (must renew) •  second term—total of 95 years Eldred v. Ashcroft (2003) • Eric Eldred wanted to put Robert Frost’s poems on his Web

site, which posts public domain literature. •  high court rejects Eldred’s “for limited times” argument •  rationale: •  (1) in harmony with Berne convention •  (2) legacy—Americans living longer

Balancing the 1st Amendment and the Copyright Law •  “Congress shall make no law…abridging the freedom of

speech, or of the press….”

•  “To promote the progress of ……useful arts, by securing for limited times to authors…..the exclusive right to their respective writings…..” Article I, Section 8, Clause 8

Fair Use •  permits limited copying of copyrighted works •  that have not yet fallen into the public domain

Factors To Be Considered In Determining Fair Use •  1. The purpose and character of the use •  2. The nature of the copyrighted work •  3. The amount of the work used in relation to the copyrighted

work as a whole •  4. The effect of the use on the potential market for or value of

the copyrighted work

1. Purpose and Character of Use •  news, criticism, classroom use—occasional article vs. instant

anthology • Kinko case—chain of copy shops sued by 8 U.S. publishers •  federal district court ruled against Kinko •  citing extent of copying and profit-making intent •  “transformative uses” •  Campbell v. Acuff-Rose Music, Inc. (1994)

Campbell v. Acuff-Rose Music, Inc. (1994) •  2-Live Crew parody of Oh, Pretty Woman •  by Roy Orbison and William Dees •  high court ruled copying original work •  necessary so “parodic character” can be perceived •  remanded to lower court

“Ideas” not copyrightable •  I felt a funeral in my brain, • And mourners, to and fro, • Kept treading, treading, till it seemed •  That sense was breaking through. • And when they all were seated, • A service like a drum • Kept beating, beating, till I thought • My mind was going numb.

2. Nature of the Copyrighted Work •  Is work still available?—an out of print book •  Is work consumable?—a workbook accompanying a text? •  Is the work informational or creative?—newspaper vs. a

movie or novel •  Is the work published or unpublished?

Unpublished Works •  enjoy greater protection •  Ford memoirs/Nation (Harper Collins v. Nation Enterprises

(1985) •  high court said the 1976 Copyright Act clearly recognizes the

right of first publication for an author. •  1992 amendment--unpublished works may fall under “fair

use”

3. Amount and Substantiality •  the percentage of the work used is a key consideration •  frame enlargement vs. publicity shot •  for a biography, Ian Hamilton extensively paraphrased

unpublished letters of J.D. Salinger •  in Salinger v. Random House (1987), the Second U.S. Court

of Appeals ruled •  paraphrasing does not protect an author if such paraphrasing

is too close to the original words

4. Effect of Use on Marketplace •  refers to the direct economic impact the use has caused or is

likely to cause •  appears to be the element given the greatest weight •  Ford/Nation dispute

Damages § plaintiff’s lost profits § defendant’s ill-gotten gains

Copyright Notice •  until 1989, the failure to affix a copyright notice (Copyright ©

1985 by John Smith), meant the automatic loss of most copyright protection

•  today, a copyright notice is not required to protect a work •  once a work is created it is protected Registration •  to register a copyrighted work with the federal government,

the owner must: •  fill out the proper registration form •  pay a $35 fee •  deposit two complete copies of the work with the Copyright

Office

Plagiarism • the act of taking ideas, • thoughts or words from another • and passing them off as your own •  usually resolved outside the legal system • when instances of plagiarism reach the courts • they are usually litigated as copyright cases

Sexually Oriented Speech

Miller v. California (1973) •  1. appeals to a prurient interest in sex •  2. the proscribed material must depict or describe sexual

conduct in a patently offensive way, •  the conduct must be specifically described in the law, and •  3. the work must, taken as a whole, lack serious literary,

artistic, political, or scientific value--SLAPS test.

First Amendment in the Internet Age •  pornography •  cyber bullying •  online vitriol •  flooding •  bots •  troll armies

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Mass Communication and the First Amendment

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law… abridging the freedom of speech, or of the press….

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Gitlow v. New York (1925) ❚  the First Amendment is binding upon the states ❚ via the due process clause of the Fourteenth Amendment ❚ no state shall “deprive any person life, liberty or property, ❚ without due process of law”

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law ….

exceptions to “no” •  national security •  libel •  privacy •  copyright •  obscenity •  fair trial

Prior Restraint ❚ stopping a message ❚ before it is communicated Key Prior Restraint Case • Near v. Minnesota (1931) •  Jay Near & Frank Guilford •  publishers of Saturday Press •  a “scandal sheet” that accused public officials of receiving

graft from gangsters • U.S. Supreme Court ruled prior restraint is unconstitutional

except in extreme situations (ex: threat to national security) •  government carries the burden of proof to prove validity of

exceptions

Pentagon Papers ❚  top secret 47-volume gov’t study ❚ U.S. decision-making process ❚  in Vietnam ❚ 1945-1968 ❚ Daniel Ellsberg ❚ Edward Snowden of his ❚ day

Daniel Ellsberg outside a federal courthouse in 1971

New York Times ❚ began publishing ❚  this study ❚  in serial form ❚ early in the summer of 1971

Nixon Administration ❚ got a temporary restraining order ❚ against the Times ❚  failed to get order against ❚ Washington Post ❚ which had also begun to publish the report

U.S. Supreme Court ❚  ruled 6-3 against Nixon Administration ❚ because it failed to meet ❚  the heavy burden of proof ❚ necessary for prior restraint

per curiam opinion ❚ unsigned ❚ often suggests ❚ strong disagreement ❚ among justices ❚ all 9 justices wrote individual opinions

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Defamation: Libel & Slander ❚ slander ❚  libel ❚ historically, ❚ slander refers to the spoken word ❚  libel to the written word

Plaintiff must prove ❚ publication ❚  identification ❚ actual harm to reputation ❚  falsity ❚  fault

New York Times v. Sullivan (1964) •  Feb. 1960—Dr. King arrested •  two counts of perjury • Alabama state tax return •  ultimately acquitted •  chain of events Times editorial •  run three weeks after arrest •  supporting King’s efforts •  praising civil rights activists in the South •  and admonishing Congress to •  “heed their rising voices, •  for they will be heard”

Full-Page Times Ad •  picks up the phrase •  describes violent incidents •  enjoins others to join the cause •  by contributing financial support • Committee to Defend Martin Luther King and the Struggle for

Freedom in the South •  signed by 64 persons •  some claimed no knowledge of ad

Circulation figures •  total circulation—650,000 •  copies to Alabama news dealers—394 •  copies in Montgomery County, Alabama—35 •  bitter reaction from white Alabamians •  several politicians initiated lawsuits

Libel Actions •  John Patterson—Alabama governor •  demands retraction (required by state law) •  Times prints one in response to his letter •  L.B. Sullivan—Commissioner of Public Affairs • makes similar demand •  Times writes back expressing puzzlement • Sullivan sues for $500,000 Courtroom atmosphere •  “diversity of citizenship” • Article III, section 2 of the U.S. Constitution •  yet tried in Alabama state court •  thick with racial prejudice •  seating segregated • Sullivan’s lawyers used racial epithets •  trial judge—Walter B. Jones •  spoke openly of “white man’s justice” •  and called the 14th amendment a “pariah and outcast” •  that had no place in his courtroom

Ad’s Factual Errors •  paragraph three: •  students sang “Star Spangled Banner” •  expelled for demanding service at courthouse lunch counter •  just part of the student body protested expulsions •  and only by boycotting classes on a single day •  the dining hall was never padlocked •  police never ringed the campus

Paragraph 6: “Again and again the Southern violators have •  answered Dr. King’s protests with •  intimidation and violence. •  They have bombed his home almost killing his wife and child. •  They have assaulted his person. •  They have arrested him seven times.” Ad’s Factual Errors •  paragraph six: • Dr. King arrested four times not seven •  ambiguous pronouns •  “They bombed….” •  “They arrested….” •  implies both pronouns have the same antecedent •  and only the police make arrests •  police not implicated in bombings • made efforts to apprehend those who were Trial Outcome •  lasted only three days •  verdict against the Times and four ministers •  and in favor of Sullivan •  awarded $500,000 • Alabama Supreme Court affirms judgment •  stated Times acted “irresponsibly”

U.S. Supreme Court •  unanimously overturned the decision •  created the standard of “actual malice” for public officials •  public official plaintiffs must demonstrate either •  (1) defendant had knowledge of falsity •  (2) or showed a reckless disregard for the truth

Rationale for Ruling •  1. a case of seditious libel •  2. debate on public issues should be •  uninhibited, robust, and wide-open •  3. public officials must expect their work will be closely

examined and criticized.

public official •  anyone elected to public office •  government employees who have or appear to have to the

public •  a substantial responsibility for or control over the conduct of

public affairs • Rosenblatt v. Baer (1966) Gertz v. Welch (1974) Public Figures ❚ celebrities or people with ready access to the mass media ❚  individuals who have thrust themselves into a significant

public controversy ❚ must also prove actual malice

Falwell v. Flynt (1988) • Hustler parody •  of Campari liquor ad •  your “first time” •  fictitious interview with Rev. Jerry Falwell •  incestuous encounter with his mother •  jury awarded Rev. Falwell $200,000 for emotional distress •  unanimous high court reverses

No basis for suit because •  the parody had not been •  touted as factual •  or understood as such by readers •  no false statement of fact • was made with actual malice • must first show libel •  to establish emotional distress Right of Privacy ❚ appropriation ❚  intrusion ❚  false light ❚ disclosure ❚ Oliver Sipple

1975 Sipple case ❚ ex-marine foiled an assassination attempt ❚ on the President Gerald Ford's life ❚ by Sarah Jane Moore ❚ extensive press coverage ❚  “outed” by Harvey Milk ❚ who hailed him as “gay hero” ❚ San Francisco Chronicle published details of Sipple's private

life ❚ other media outlets followed suit ❚ his mother in Detroit disowned him ❚ suit unsuccessful ❚ because facts were already public

Copyright Law

Copyright may be defined as •  a proprietary right of control •  over literary •  or other artistic creations •  granted by the federal government •  for a limited period of time

Copyright § Protects “creative” works § Books, songs, plays, films etc.

Primary Purpose •  to encourage creative production •  for the ultimate benefit of society at large

an “intangible” creation •  a creation one can’t •  touch, •  or hold or •  lock away for safekeeping •  to be protected, it must be •  fixed in a tangible medium of expression

the expression of something •  the way it is told, the style and manner in which it is

presented •  copyright law does not protect facts per se •  journalists may use the facts someone else have gathered Duration of Copyright • works created after 1978 are protected by copyright for the

life of the author or creator plus 70 years (1998 Sonny Bono Copyright Term Extension Act)

• works for hire are protected for 95 years after publication • After this period, a work falls into the public domain and may

be copied by any person for any reason without payment of royalty to the original owner

Works Created Prior to 1978 •  old law (1909)—two terms of 28 years—required renewal •  1998 extension applied retroactively •  under 1976 law as amended •  initial term—28 plus 67=95 years (must renew) •  second term—total of 95 years Eldred v. Ashcroft (2003) • Eric Eldred wanted to put Robert Frost’s poems on his Web

site, which posts public domain literature. •  high court rejects Eldred’s “for limited times” argument •  rationale: •  (1) in harmony with Berne convention •  (2) legacy—Americans living longer

Balancing the 1st Amendment and the Copyright Law •  “Congress shall make no law…abridging the freedom of

speech, or of the press….”

•  “To promote the progress of ……useful arts, by securing for limited times to authors…..the exclusive right to their respective writings…..” Article I, Section 8, Clause 8

Fair Use •  permits limited copying of copyrighted works •  that have not yet fallen into the public domain

Factors To Be Considered In Determining Fair Use •  1. The purpose and character of the use •  2. The nature of the copyrighted work •  3. The amount of the work used in relation to the copyrighted

work as a whole •  4. The effect of the use on the potential market for or value of

the copyrighted work

1. Purpose and Character of Use •  news, criticism, classroom use—occasional article vs. instant

anthology • Kinko case—chain of copy shops sued by 8 U.S. publishers •  federal district court ruled against Kinko •  citing extent of copying and profit-making intent •  “transformative uses” •  Campbell v. Acuff-Rose Music, Inc. (1994)

Campbell v. Acuff-Rose Music, Inc. (1994) •  2-Live Crew parody of Oh, Pretty Woman •  by Roy Orbison and William Dees •  high court ruled copying original work •  necessary so “parodic character” can be perceived •  remanded to lower court

“Ideas” not copyrightable •  I felt a funeral in my brain, • And mourners, to and fro, • Kept treading, treading, till it seemed •  That sense was breaking through. • And when they all were seated, • A service like a drum • Kept beating, beating, till I thought • My mind was going numb.

2. Nature of the Copyrighted Work •  Is work still available?—an out of print book •  Is work consumable?—a workbook accompanying a text? •  Is the work informational or creative?—newspaper vs. a

movie or novel •  Is the work published or unpublished?

Unpublished Works •  enjoy greater protection •  Ford memoirs/Nation (Harper Collins v. Nation Enterprises

(1985) •  high court said the 1976 Copyright Act clearly recognizes the

right of first publication for an author. •  1992 amendment--unpublished works may fall under “fair

use”

3. Amount and Substantiality •  the percentage of the work used is a key consideration •  frame enlargement vs. publicity shot •  for a biography, Ian Hamilton extensively paraphrased

unpublished letters of J.D. Salinger •  in Salinger v. Random House (1987), the Second U.S. Court

of Appeals ruled •  paraphrasing does not protect an author if such paraphrasing

is too close to the original words

4. Effect of Use on Marketplace •  refers to the direct economic impact the use has caused or is

likely to cause •  appears to be the element given the greatest weight •  Ford/Nation dispute

Damages § plaintiff’s lost profits § defendant’s ill-gotten gains

Copyright Notice •  until 1989, the failure to affix a copyright notice (Copyright ©

1985 by John Smith), meant the automatic loss of most copyright protection

•  today, a copyright notice is not required to protect a work •  once a work is created it is protected Registration •  to register a copyrighted work with the federal government,

the owner must: •  fill out the proper registration form •  pay a $35 fee •  deposit two complete copies of the work with the Copyright

Office

Plagiarism • the act of taking ideas, • thoughts or words from another • and passing them off as your own •  usually resolved outside the legal system • when instances of plagiarism reach the courts • they are usually litigated as copyright cases

Sexually Oriented Speech

Miller v. California (1973) •  1. appeals to a prurient interest in sex •  2. the proscribed material must depict or describe sexual

conduct in a patently offensive way, •  the conduct must be specifically described in the law, and •  3. the work must, taken as a whole, lack serious literary,

artistic, political, or scientific value--SLAPS test.

First Amendment in the Internet Age •  pornography •  cyber bullying •  online vitriol •  flooding •  bots •  troll armies

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5

Mass Communication and the First Amendment

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law… abridging the freedom of speech, or of the press….

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Gitlow v. New York (1925) ❚  the First Amendment is binding upon the states ❚ via the due process clause of the Fourteenth Amendment ❚ no state shall “deprive any person life, liberty or property, ❚ without due process of law”

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law ….

exceptions to “no” •  national security •  libel •  privacy •  copyright •  obscenity •  fair trial

Prior Restraint ❚ stopping a message ❚ before it is communicated Key Prior Restraint Case • Near v. Minnesota (1931) •  Jay Near & Frank Guilford •  publishers of Saturday Press •  a “scandal sheet” that accused public officials of receiving

graft from gangsters • U.S. Supreme Court ruled prior restraint is unconstitutional

except in extreme situations (ex: threat to national security) •  government carries the burden of proof to prove validity of

exceptions

Pentagon Papers ❚  top secret 47-volume gov’t study ❚ U.S. decision-making process ❚  in Vietnam ❚ 1945-1968 ❚ Daniel Ellsberg ❚ Edward Snowden of his ❚ day

Daniel Ellsberg outside a federal courthouse in 1971

New York Times ❚ began publishing ❚  this study ❚  in serial form ❚ early in the summer of 1971

Nixon Administration ❚ got a temporary restraining order ❚ against the Times ❚  failed to get order against ❚ Washington Post ❚ which had also begun to publish the report

U.S. Supreme Court ❚  ruled 6-3 against Nixon Administration ❚ because it failed to meet ❚  the heavy burden of proof ❚ necessary for prior restraint

per curiam opinion ❚ unsigned ❚ often suggests ❚ strong disagreement ❚ among justices ❚ all 9 justices wrote individual opinions

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Defamation: Libel & Slander ❚ slander ❚  libel ❚ historically, ❚ slander refers to the spoken word ❚  libel to the written word

Plaintiff must prove ❚ publication ❚  identification ❚ actual harm to reputation ❚  falsity ❚  fault

New York Times v. Sullivan (1964) •  Feb. 1960—Dr. King arrested •  two counts of perjury • Alabama state tax return •  ultimately acquitted •  chain of events Times editorial •  run three weeks after arrest •  supporting King’s efforts •  praising civil rights activists in the South •  and admonishing Congress to •  “heed their rising voices, •  for they will be heard”

Full-Page Times Ad •  picks up the phrase •  describes violent incidents •  enjoins others to join the cause •  by contributing financial support • Committee to Defend Martin Luther King and the Struggle for

Freedom in the South •  signed by 64 persons •  some claimed no knowledge of ad

Circulation figures •  total circulation—650,000 •  copies to Alabama news dealers—394 •  copies in Montgomery County, Alabama—35 •  bitter reaction from white Alabamians •  several politicians initiated lawsuits

Libel Actions •  John Patterson—Alabama governor •  demands retraction (required by state law) •  Times prints one in response to his letter •  L.B. Sullivan—Commissioner of Public Affairs • makes similar demand •  Times writes back expressing puzzlement • Sullivan sues for $500,000 Courtroom atmosphere •  “diversity of citizenship” • Article III, section 2 of the U.S. Constitution •  yet tried in Alabama state court •  thick with racial prejudice •  seating segregated • Sullivan’s lawyers used racial epithets •  trial judge—Walter B. Jones •  spoke openly of “white man’s justice” •  and called the 14th amendment a “pariah and outcast” •  that had no place in his courtroom

Ad’s Factual Errors •  paragraph three: •  students sang “Star Spangled Banner” •  expelled for demanding service at courthouse lunch counter •  just part of the student body protested expulsions •  and only by boycotting classes on a single day •  the dining hall was never padlocked •  police never ringed the campus

Paragraph 6: “Again and again the Southern violators have •  answered Dr. King’s protests with •  intimidation and violence. •  They have bombed his home almost killing his wife and child. •  They have assaulted his person. •  They have arrested him seven times.” Ad’s Factual Errors •  paragraph six: • Dr. King arrested four times not seven •  ambiguous pronouns •  “They bombed….” •  “They arrested….” •  implies both pronouns have the same antecedent •  and only the police make arrests •  police not implicated in bombings • made efforts to apprehend those who were Trial Outcome •  lasted only three days •  verdict against the Times and four ministers •  and in favor of Sullivan •  awarded $500,000 • Alabama Supreme Court affirms judgment •  stated Times acted “irresponsibly”

U.S. Supreme Court •  unanimously overturned the decision •  created the standard of “actual malice” for public officials •  public official plaintiffs must demonstrate either •  (1) defendant had knowledge of falsity •  (2) or showed a reckless disregard for the truth

Rationale for Ruling •  1. a case of seditious libel •  2. debate on public issues should be •  uninhibited, robust, and wide-open •  3. public officials must expect their work will be closely

examined and criticized.

public official •  anyone elected to public office •  government employees who have or appear to have to the

public •  a substantial responsibility for or control over the conduct of

public affairs • Rosenblatt v. Baer (1966) Gertz v. Welch (1974) Public Figures ❚ celebrities or people with ready access to the mass media ❚  individuals who have thrust themselves into a significant

public controversy ❚ must also prove actual malice

Falwell v. Flynt (1988) • Hustler parody •  of Campari liquor ad •  your “first time” •  fictitious interview with Rev. Jerry Falwell •  incestuous encounter with his mother •  jury awarded Rev. Falwell $200,000 for emotional distress •  unanimous high court reverses

No basis for suit because •  the parody had not been •  touted as factual •  or understood as such by readers •  no false statement of fact • was made with actual malice • must first show libel •  to establish emotional distress Right of Privacy ❚ appropriation ❚  intrusion ❚  false light ❚ disclosure ❚ Oliver Sipple

1975 Sipple case ❚ ex-marine foiled an assassination attempt ❚ on the President Gerald Ford's life ❚ by Sarah Jane Moore ❚ extensive press coverage ❚  “outed” by Harvey Milk ❚ who hailed him as “gay hero” ❚ San Francisco Chronicle published details of Sipple's private

life ❚ other media outlets followed suit ❚ his mother in Detroit disowned him ❚ suit unsuccessful ❚ because facts were already public

Copyright Law

Copyright may be defined as •  a proprietary right of control •  over literary •  or other artistic creations •  granted by the federal government •  for a limited period of time

Copyright § Protects “creative” works § Books, songs, plays, films etc.

Primary Purpose •  to encourage creative production •  for the ultimate benefit of society at large

an “intangible” creation •  a creation one can’t •  touch, •  or hold or •  lock away for safekeeping •  to be protected, it must be •  fixed in a tangible medium of expression

the expression of something •  the way it is told, the style and manner in which it is

presented •  copyright law does not protect facts per se •  journalists may use the facts someone else have gathered Duration of Copyright • works created after 1978 are protected by copyright for the

life of the author or creator plus 70 years (1998 Sonny Bono Copyright Term Extension Act)

• works for hire are protected for 95 years after publication • After this period, a work falls into the public domain and may

be copied by any person for any reason without payment of royalty to the original owner

Works Created Prior to 1978 •  old law (1909)—two terms of 28 years—required renewal •  1998 extension applied retroactively •  under 1976 law as amended •  initial term—28 plus 67=95 years (must renew) •  second term—total of 95 years Eldred v. Ashcroft (2003) • Eric Eldred wanted to put Robert Frost’s poems on his Web

site, which posts public domain literature. •  high court rejects Eldred’s “for limited times” argument •  rationale: •  (1) in harmony with Berne convention •  (2) legacy—Americans living longer

Balancing the 1st Amendment and the Copyright Law •  “Congress shall make no law…abridging the freedom of

speech, or of the press….”

•  “To promote the progress of ……useful arts, by securing for limited times to authors…..the exclusive right to their respective writings…..” Article I, Section 8, Clause 8

Fair Use •  permits limited copying of copyrighted works •  that have not yet fallen into the public domain

Factors To Be Considered In Determining Fair Use •  1. The purpose and character of the use •  2. The nature of the copyrighted work •  3. The amount of the work used in relation to the copyrighted

work as a whole •  4. The effect of the use on the potential market for or value of

the copyrighted work

1. Purpose and Character of Use •  news, criticism, classroom use—occasional article vs. instant

anthology • Kinko case—chain of copy shops sued by 8 U.S. publishers •  federal district court ruled against Kinko •  citing extent of copying and profit-making intent •  “transformative uses” •  Campbell v. Acuff-Rose Music, Inc. (1994)

Campbell v. Acuff-Rose Music, Inc. (1994) •  2-Live Crew parody of Oh, Pretty Woman •  by Roy Orbison and William Dees •  high court ruled copying original work •  necessary so “parodic character” can be perceived •  remanded to lower court

“Ideas” not copyrightable •  I felt a funeral in my brain, • And mourners, to and fro, • Kept treading, treading, till it seemed •  That sense was breaking through. • And when they all were seated, • A service like a drum • Kept beating, beating, till I thought • My mind was going numb.

2. Nature of the Copyrighted Work •  Is work still available?—an out of print book •  Is work consumable?—a workbook accompanying a text? •  Is the work informational or creative?—newspaper vs. a

movie or novel •  Is the work published or unpublished?

Unpublished Works •  enjoy greater protection •  Ford memoirs/Nation (Harper Collins v. Nation Enterprises

(1985) •  high court said the 1976 Copyright Act clearly recognizes the

right of first publication for an author. •  1992 amendment--unpublished works may fall under “fair

use”

3. Amount and Substantiality •  the percentage of the work used is a key consideration •  frame enlargement vs. publicity shot •  for a biography, Ian Hamilton extensively paraphrased

unpublished letters of J.D. Salinger •  in Salinger v. Random House (1987), the Second U.S. Court

of Appeals ruled •  paraphrasing does not protect an author if such paraphrasing

is too close to the original words

4. Effect of Use on Marketplace •  refers to the direct economic impact the use has caused or is

likely to cause •  appears to be the element given the greatest weight •  Ford/Nation dispute

Damages § plaintiff’s lost profits § defendant’s ill-gotten gains

Copyright Notice •  until 1989, the failure to affix a copyright notice (Copyright ©

1985 by John Smith), meant the automatic loss of most copyright protection

•  today, a copyright notice is not required to protect a work •  once a work is created it is protected Registration •  to register a copyrighted work with the federal government,

the owner must: •  fill out the proper registration form •  pay a $35 fee •  deposit two complete copies of the work with the Copyright

Office

Plagiarism • the act of taking ideas, • thoughts or words from another • and passing them off as your own •  usually resolved outside the legal system • when instances of plagiarism reach the courts • they are usually litigated as copyright cases

Sexually Oriented Speech

Miller v. California (1973) •  1. appeals to a prurient interest in sex •  2. the proscribed material must depict or describe sexual

conduct in a patently offensive way, •  the conduct must be specifically described in the law, and •  3. the work must, taken as a whole, lack serious literary,

artistic, political, or scientific value--SLAPS test.

First Amendment in the Internet Age •  pornography •  cyber bullying •  online vitriol •  flooding •  bots •  troll armies

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Mass Communication and the First Amendment

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law… abridging the freedom of speech, or of the press….

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Gitlow v. New York (1925) ❚  the First Amendment is binding upon the states ❚ via the due process clause of the Fourteenth Amendment ❚ no state shall “deprive any person life, liberty or property, ❚ without due process of law”

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law ….

exceptions to “no” •  national security •  libel •  privacy •  copyright •  obscenity •  fair trial

Prior Restraint ❚ stopping a message ❚ before it is communicated Key Prior Restraint Case • Near v. Minnesota (1931) •  Jay Near & Frank Guilford •  publishers of Saturday Press •  a “scandal sheet” that accused public officials of receiving

graft from gangsters • U.S. Supreme Court ruled prior restraint is unconstitutional

except in extreme situations (ex: threat to national security) •  government carries the burden of proof to prove validity of

exceptions

Pentagon Papers ❚  top secret 47-volume gov’t study ❚ U.S. decision-making process ❚  in Vietnam ❚ 1945-1968 ❚ Daniel Ellsberg ❚ Edward Snowden of his ❚ day

Daniel Ellsberg outside a federal courthouse in 1971

New York Times ❚ began publishing ❚  this study ❚  in serial form ❚ early in the summer of 1971

Nixon Administration ❚ got a temporary restraining order ❚ against the Times ❚  failed to get order against ❚ Washington Post ❚ which had also begun to publish the report

U.S. Supreme Court ❚  ruled 6-3 against Nixon Administration ❚ because it failed to meet ❚  the heavy burden of proof ❚ necessary for prior restraint

per curiam opinion ❚ unsigned ❚ often suggests ❚ strong disagreement ❚ among justices ❚ all 9 justices wrote individual opinions

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Defamation: Libel & Slander ❚ slander ❚  libel ❚ historically, ❚ slander refers to the spoken word ❚  libel to the written word

Plaintiff must prove ❚ publication ❚  identification ❚ actual harm to reputation ❚  falsity ❚  fault

New York Times v. Sullivan (1964) •  Feb. 1960—Dr. King arrested •  two counts of perjury • Alabama state tax return •  ultimately acquitted •  chain of events Times editorial •  run three weeks after arrest •  supporting King’s efforts •  praising civil rights activists in the South •  and admonishing Congress to •  “heed their rising voices, •  for they will be heard”

Full-Page Times Ad •  picks up the phrase •  describes violent incidents •  enjoins others to join the cause •  by contributing financial support • Committee to Defend Martin Luther King and the Struggle for

Freedom in the South •  signed by 64 persons •  some claimed no knowledge of ad

Circulation figures •  total circulation—650,000 •  copies to Alabama news dealers—394 •  copies in Montgomery County, Alabama—35 •  bitter reaction from white Alabamians •  several politicians initiated lawsuits

Libel Actions •  John Patterson—Alabama governor •  demands retraction (required by state law) •  Times prints one in response to his letter •  L.B. Sullivan—Commissioner of Public Affairs • makes similar demand •  Times writes back expressing puzzlement • Sullivan sues for $500,000 Courtroom atmosphere •  “diversity of citizenship” • Article III, section 2 of the U.S. Constitution •  yet tried in Alabama state court •  thick with racial prejudice •  seating segregated • Sullivan’s lawyers used racial epithets •  trial judge—Walter B. Jones •  spoke openly of “white man’s justice” •  and called the 14th amendment a “pariah and outcast” •  that had no place in his courtroom

Ad’s Factual Errors •  paragraph three: •  students sang “Star Spangled Banner” •  expelled for demanding service at courthouse lunch counter •  just part of the student body protested expulsions •  and only by boycotting classes on a single day •  the dining hall was never padlocked •  police never ringed the campus

Paragraph 6: “Again and again the Southern violators have •  answered Dr. King’s protests with •  intimidation and violence. •  They have bombed his home almost killing his wife and child. •  They have assaulted his person. •  They have arrested him seven times.” Ad’s Factual Errors •  paragraph six: • Dr. King arrested four times not seven •  ambiguous pronouns •  “They bombed….” •  “They arrested….” •  implies both pronouns have the same antecedent •  and only the police make arrests •  police not implicated in bombings • made efforts to apprehend those who were Trial Outcome •  lasted only three days •  verdict against the Times and four ministers •  and in favor of Sullivan •  awarded $500,000 • Alabama Supreme Court affirms judgment •  stated Times acted “irresponsibly”

U.S. Supreme Court •  unanimously overturned the decision •  created the standard of “actual malice” for public officials •  public official plaintiffs must demonstrate either •  (1) defendant had knowledge of falsity •  (2) or showed a reckless disregard for the truth

Rationale for Ruling •  1. a case of seditious libel •  2. debate on public issues should be •  uninhibited, robust, and wide-open •  3. public officials must expect their work will be closely

examined and criticized.

public official •  anyone elected to public office •  government employees who have or appear to have to the

public •  a substantial responsibility for or control over the conduct of

public affairs • Rosenblatt v. Baer (1966) Gertz v. Welch (1974) Public Figures ❚ celebrities or people with ready access to the mass media ❚  individuals who have thrust themselves into a significant

public controversy ❚ must also prove actual malice

Falwell v. Flynt (1988) • Hustler parody •  of Campari liquor ad •  your “first time” •  fictitious interview with Rev. Jerry Falwell •  incestuous encounter with his mother •  jury awarded Rev. Falwell $200,000 for emotional distress •  unanimous high court reverses

No basis for suit because •  the parody had not been •  touted as factual •  or understood as such by readers •  no false statement of fact • was made with actual malice • must first show libel •  to establish emotional distress Right of Privacy ❚ appropriation ❚  intrusion ❚  false light ❚ disclosure ❚ Oliver Sipple

1975 Sipple case ❚ ex-marine foiled an assassination attempt ❚ on the President Gerald Ford's life ❚ by Sarah Jane Moore ❚ extensive press coverage ❚  “outed” by Harvey Milk ❚ who hailed him as “gay hero” ❚ San Francisco Chronicle published details of Sipple's private

life ❚ other media outlets followed suit ❚ his mother in Detroit disowned him ❚ suit unsuccessful ❚ because facts were already public

Copyright Law

Copyright may be defined as •  a proprietary right of control •  over literary •  or other artistic creations •  granted by the federal government •  for a limited period of time

Copyright § Protects “creative” works § Books, songs, plays, films etc.

Primary Purpose •  to encourage creative production •  for the ultimate benefit of society at large

an “intangible” creation •  a creation one can’t •  touch, •  or hold or •  lock away for safekeeping •  to be protected, it must be •  fixed in a tangible medium of expression

the expression of something •  the way it is told, the style and manner in which it is

presented •  copyright law does not protect facts per se •  journalists may use the facts someone else have gathered Duration of Copyright • works created after 1978 are protected by copyright for the

life of the author or creator plus 70 years (1998 Sonny Bono Copyright Term Extension Act)

• works for hire are protected for 95 years after publication • After this period, a work falls into the public domain and may

be copied by any person for any reason without payment of royalty to the original owner

Works Created Prior to 1978 •  old law (1909)—two terms of 28 years—required renewal •  1998 extension applied retroactively •  under 1976 law as amended •  initial term—28 plus 67=95 years (must renew) •  second term—total of 95 years Eldred v. Ashcroft (2003) • Eric Eldred wanted to put Robert Frost’s poems on his Web

site, which posts public domain literature. •  high court rejects Eldred’s “for limited times” argument •  rationale: •  (1) in harmony with Berne convention •  (2) legacy—Americans living longer

Balancing the 1st Amendment and the Copyright Law •  “Congress shall make no law…abridging the freedom of

speech, or of the press….”

•  “To promote the progress of ……useful arts, by securing for limited times to authors…..the exclusive right to their respective writings…..” Article I, Section 8, Clause 8

Fair Use •  permits limited copying of copyrighted works •  that have not yet fallen into the public domain

Factors To Be Considered In Determining Fair Use •  1. The purpose and character of the use •  2. The nature of the copyrighted work •  3. The amount of the work used in relation to the copyrighted

work as a whole •  4. The effect of the use on the potential market for or value of

the copyrighted work

1. Purpose and Character of Use •  news, criticism, classroom use—occasional article vs. instant

anthology • Kinko case—chain of copy shops sued by 8 U.S. publishers •  federal district court ruled against Kinko •  citing extent of copying and profit-making intent •  “transformative uses” •  Campbell v. Acuff-Rose Music, Inc. (1994)

Campbell v. Acuff-Rose Music, Inc. (1994) •  2-Live Crew parody of Oh, Pretty Woman •  by Roy Orbison and William Dees •  high court ruled copying original work •  necessary so “parodic character” can be perceived •  remanded to lower court

“Ideas” not copyrightable •  I felt a funeral in my brain, • And mourners, to and fro, • Kept treading, treading, till it seemed •  That sense was breaking through. • And when they all were seated, • A service like a drum • Kept beating, beating, till I thought • My mind was going numb.

2. Nature of the Copyrighted Work •  Is work still available?—an out of print book •  Is work consumable?—a workbook accompanying a text? •  Is the work informational or creative?—newspaper vs. a

movie or novel •  Is the work published or unpublished?

Unpublished Works •  enjoy greater protection •  Ford memoirs/Nation (Harper Collins v. Nation Enterprises

(1985) •  high court said the 1976 Copyright Act clearly recognizes the

right of first publication for an author. •  1992 amendment--unpublished works may fall under “fair

use”

3. Amount and Substantiality •  the percentage of the work used is a key consideration •  frame enlargement vs. publicity shot •  for a biography, Ian Hamilton extensively paraphrased

unpublished letters of J.D. Salinger •  in Salinger v. Random House (1987), the Second U.S. Court

of Appeals ruled •  paraphrasing does not protect an author if such paraphrasing

is too close to the original words

4. Effect of Use on Marketplace •  refers to the direct economic impact the use has caused or is

likely to cause •  appears to be the element given the greatest weight •  Ford/Nation dispute

Damages § plaintiff’s lost profits § defendant’s ill-gotten gains

Copyright Notice •  until 1989, the failure to affix a copyright notice (Copyright ©

1985 by John Smith), meant the automatic loss of most copyright protection

•  today, a copyright notice is not required to protect a work •  once a work is created it is protected Registration •  to register a copyrighted work with the federal government,

the owner must: •  fill out the proper registration form •  pay a $35 fee •  deposit two complete copies of the work with the Copyright

Office

Plagiarism • the act of taking ideas, • thoughts or words from another • and passing them off as your own •  usually resolved outside the legal system • when instances of plagiarism reach the courts • they are usually litigated as copyright cases

Sexually Oriented Speech

Miller v. California (1973) •  1. appeals to a prurient interest in sex •  2. the proscribed material must depict or describe sexual

conduct in a patently offensive way, •  the conduct must be specifically described in the law, and •  3. the work must, taken as a whole, lack serious literary,

artistic, political, or scientific value--SLAPS test.

First Amendment in the Internet Age •  pornography •  cyber bullying •  online vitriol •  flooding •  bots •  troll armies

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Mass Communication and the First Amendment

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law… abridging the freedom of speech, or of the press….

FIRST AMENDMENT to the U.S. Constitution Congress shall make no ….

Gitlow v. New York (1925) ❚  the First Amendment is binding upon the states ❚ via the due process clause of the Fourteenth Amendment ❚ no state shall “deprive any person life, liberty or property, ❚ without due process of law”

FIRST AMENDMENT to the U.S. Constitution Congress shall make no law ….

exceptions to “no” •  national security •  libel •  privacy •  c