hese are perilous times for journalists. President Donald Trump continually attacks the press; his protests against “fake news,” popular with his campaign crowds in 2016, are a key aspect of his campaign for reelection. Trump’s pugnacious style involves calling reporters “the enemy of the people” and encouraging campaign crowds to chant “CNN sucks.”1
Relations between the Trump White House and CNN reached a low point on November 7, 2018, when the White House revoked the press pass of CNN’s Jim Acosta after a heated exchange between Trump and Acosta at a press conference. The White House claimed Acosta had been disruptive, but CNN countered that the revocation was an attempt to censor the press. In response to a suit filed by CNN, a federal judge forced the White House to reinstate Acosta. The administration’s hasty decision and shifting reasons for banning Acosta did not satisfy the Fifth Amendment’s due process requirements.2
In another unprecedented action, Trump’s lawyers sought to stop publication of the book Fire and Fury: Inside the Trump White House
because the book contained “false/baseless” statements about the Trump administration. The publisher said Trump was attempting to “silence legitimate criticism” and increased the book’s print run to more than a million copies, which sold out within a week in January 2018. Trump dropped his cease and desist demand and instead attacked the book on Twitter as “phony.”3
Defenders of the press counter Trump’s attacks by noting the U.S. Supreme Court believes “uninhibited, robust, and wide-open” criticism of government officials is a key aspect of American democracy.4
The founding fathers recognized that free discussion of government affairs was central to the process of self-government and the discovery of truth. Thomas Jefferson, who faced intense criticism while president, famously wrote to Lafayette, “The only security of all is in a free press.” To protect the press and public commentators against a repressive government, the First Amendment to the U.S. Constitution was adopted in 1791.
As interpreted by the U.S. Supreme Court, the First Amendment largely insulates the press—which includes broadcasting, cable and online media—from liability for publication on issues of public importance. The First Amendment makes it almost impossible for the government to stop publication before news reports and opinion, some of it hyperbolic, false, and even classified, can “see the light of day.” The First Amendment protects media from liability for almost all political speech, even statements defaming public officials.
The framers of the Constitution recognized that the guarantee of freedom of expression rests not just on limiting the power of government, but also on the attitudes of the public. As Alexander Hamilton wrote in The Federalist No. 84, the security of liberty of the press “must altogether depend upon public opinion, and on the general spirit of the people….”
Journalists fear that public antipathy toward the press has resulted in a series of “eye-bugging” legal judgments against journalists and news outlets, “reflecting a shift in a legal climate that had once been more favorable” to reporters.5
Most striking is a March 2016 jury verdict against Gawker.com
that forced the company into bankruptcy. A Florida jury found Gawker.com
, which had published much credible journalism, owed former professional wrestler Hulk Hogan $140 million for invading his privacy by posting a story featuring a brief clip of Hogan having sex with the wife of his best friend. When the jury’s verdict was sustained by the trial judge, Gawker Media, parent of Gawker.com
, was forced to file for bankruptcy protection and put its portfolio of websites up for sale. The company sold websites such as Deadspin to Univision in August 2016, but no one was willing to buy Gawker.com
. The tainted site was closed in August 2016. Worn down by the prospect of multimillion dollar legal fees for its appeal, Gawker Media settled with Hogan in November 2016 for $31 million.
The bankruptcy and closure of Gawker are largely due to the actions of Silicon Valley billionaire Peter Thiel who paid the $10 million fee of Hogan’s high-priced legal team because he wanted to extract revenge on Gawker for an earlier story reporting Thiel was gay. Thiel’s role as secret benefactor and his motives were unknown to the jury and only became public after the judge sustained the jury verdict. Thiel’s outrage stemmed from a 2007 story about his sexual orientation in Valleywag, a now-defunct Gawker Media blog. Thiel hired a team of lawyers to find other “victims” of Gawker and fund lawsuits against it. Thiel’s financial backing was a game changer; Hogan lacked the money to pay for a high-priced legal team, but with Thiel’s backing he was able to pursue his case. Gawker Media found itself facing huge legal fees as it defended multiple lawsuits in addition to the Hogan suit.
Although the Hogan verdict was likely to be overturned or reduced on appeal, Gawker founder Nick Denton explained the $31 million settlement with Hogan by stating “an all-out legal war with Thiel would have cost too much, and hurt too many people, and there was no end in sight…. Gawker’s nemesis was not going away.”6
As the Gawker case reveals, there are strong social forces seeking to punish the press for its excesses and mistakes. Much of this book discusses the ways by which society holds public communicators accountable, but also explains why the First Amendment generally protects the freedom to publish. Important concepts, such as the line between private information and newsworthy information—concepts that in are flux due to changing social customs—are also explored. The standards designed to protect the press from defamation lawsuits are also explained. While traditional First Amendment doctrine is designed to protect public communicators from the government, the book also explores the protections for a news outlet when a wealthy person pursues a vendetta.
This book also shows that the First Amendment’s protection is not limited to journalists working for mainstream media outlets. As the Supreme Court has noted in a variety of cases, street corner speakers have the same First Amendment protection as journalists. Or, stated in contemporary terms, those who use Twitter or other social media platforms have the same constitutional status as the journalists writing for the New York Times.
The Law of Public Communication explains the law that affects journalists, and other public communicators, such as advertising and public relations professionals. This book will discuss not only the law governing political communication, but also the law of libel, privacy, copyright, obscenity, coverage of court proceedings, reporter-source relationships and access to government-held information. The book focuses on the law affecting the content of public communication, including printed publications, electronic media, advertising and public relations.
This chapter examines legal concepts and procedures that are important to an understanding of the law of public communication. It will explain the purpose and organization of law and describe court procedures. Finally, this chapter discusses how communicators work with lawyers.
Law can be defined in many ways, but for our purposes, law is the system of rules that govern society. The system of rules serves many functions in our society, including regulating the behavior of citizens and corporations. Law prohibits murder and restricts what advertisers can say about their products. It provides a vehicle to settle disputes, such as when a reporter refuses to testify in court. Furthermore, law limits the government’s power to interfere with individual rights, such as the right to speak and publish.
The law in the United States comes primarily from six sources: constitutions, statutes, administrative rules and regulations, executive actions, the common law7
and the law of equity
Constitutions are the supreme source of law in the United States and are the most direct reflection of the kind of government desired by the people. Constitutions of both the federal and state governments supersede all other declarations of public policy. The Constitution of the federal government and the constitutions of the fifty states establish the framework for governing. They outline the structure of government and define governmental authority and responsibilities.
Frequently, a constitution limits the powers of government, as in the case of the Bill of Rights, the first ten amendments to the U.S. Constitution. The Bill of Rights, printed in Appendix B
of this book, protects the rights and liberties of U.S. citizens against infringement by government. The First Amendment, particularly its prohibition against laws abridging freedom of speech and the press, provides the foundation for communication law.
The federal constitution is the country’s ultimate legal authority. Any federal law, state law, or state constitution that contradicts the U.S. Constitution cannot be implemented; the U.S. Constitution prevails. Similarly, a state constitution prevails in conflicts with either the statutory law or the common law in the same state. However, federal and state laws that do not conflict with the federal constitution can provide more protection for communicators than is available under the First Amendment alone. For example, the majority of states shield journalists from revealing confidential news sources in more circumstances than the First Amendment as interpreted by the U.S. Supreme Court.
The Supreme Court, the nation’s supreme judicial body, has the last word on the meaning of the federal constitution. Each state’s supreme court is the interpreter of that state’s constitution. Only the U.S. Supreme Court can resolve conflicts between the federal and state constitutions. The courts make constitutional law when they decide a case or controversy by interpreting a constitution. In 2010, the U.S. Supreme Court said the First Amendment requires that corporations and unions be permitted to spend money on advertising advocating the elec...