Law for Advertising, Broadcasting, Journalism, and Public Relations

Michael G. Parkinson, L. Marie Parkinson

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781136774621
• Topic: Business
• Subtopic: Public Relations
• Index: Business

This exceptional new text offers an up-to-date and integrated approach to communication law. Written by two practicing attorneys with extensive experience teaching the communication law course, Law for Advertising, Broadcasting, Journalism, and Public Relations covers the areas of communication law essential and most relevant for readers throughout the communication curriculum. Its integrated approach will serve students and practitioners in advertising and public relations as well as those in journalism and electronic media.

Providing background to help readers understand legal concepts, this comprehensive communication law text includes an introduction to the legal system; covers legal procedures, structures, and jurisdictions; discusses the First Amendment and electronic media regulations; and considers issues of access. Additional material includes: *intellectual property law; *employment and agency law, with explanations of how these laws create obligations for mass communication professionals and their employees; *commercial communication laws; and *special laws and regulations that impact reporters, public relations practitioners, and advertisers who deal with stock sales.

Special features of this text include:
*Magic Words and Phrases--defining legal terms;
*Cases--illustrating key points in each chapter;
*Practice Notes--highlighting points of particular interest to professional media practices;
*Instructions on finding and briefing cases, with a sample brief; and
*Examples of legal documents and jury instructions.

This text is intended as an introduction to communication law for students and practitioners in mass communication, journalism, advertising, broadcasting, telecommunications, and public relations.

1

Introduction to the Legal System

Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

—Chief Justice John Marshall¹

Overview

Background of Government and Court Structures

Sources of Law in the United States

Other Legal Systems

Types of Courts

Jurisdiction and Venue

Legal Hierarchy and Authorities

Rules for Justiciability

Overview

This chapter begins with an explanation of the legal system and sources of law in the United States. This information is essential to any understanding of the laws that impact the practices of advertising, broadcasting, journalism, and public relations. It also helps the reader interpret and apply the laws described later.

We begin with a brief comparison of governmental systems and a description of sources of law. We then describe legal systems and the types of courts that function both at the federal level and in the individual states. Included in the description of the courts are an introduction to the ideas of jurisdiction and legal authority. We con clude by describing the different types of opinions rendered by the U.S. Supreme Court and the rules of justiciability the court uses to avoid making unnecessary decisions and to avoid interfering with the states and other branches of the U.S. government.

Background of Government and Court Structures

Laws are the principles that structure the relationships between government and the gov erned and among the people within a society. To understand law, one must first have a feel for the government itself. Therefore, we begin with a cursory explanation of the structure of government so you will have a foundation for a later explanation of our legal system.

Systems of Government

There are three types of governments: the unitary, the confederal, and the federal. The differences among the three are based on how power is distributed and on the placement of sovereignty.

Under a unitary government, power rests in a centralized source, which is supe rior to all citizens and subunits of government. The sovereign, whether it is a single person or a body of rulers, has power over all matters in the society from education to garbage collection.

A confederal government, sometimes called a confederacy, is a fairly loose asso ciation of sovereign states or units that have joined together for specific purposes. Power in a confederacy flows from the sovereign units to a centralized unit that has very lim ited authority.

A federal government is theoretically a combination of the unitary and confederal systems. Ostensibly, power in a federal system flows both from many sovereign states to a centralized government and from the centralized government to the states. Certain pow ers are given to the central government by the member states through their subscription to a written constitution. The constitution not only gives sovereign powers to the central ized government, it also binds the member states together. The compact requires sub scribing members to accept the delegated authority of the central government.

Most countries today operate under a unitary system of government. These include France, Great Britain, Israel, Egypt, and Sweden. By contrast, a few countries operate or have operated using a confederal system. The United States, as it existed for a short period under the Articles of Confederation, and the southern states under the American Confed eracy during the Civil War are historic examples. Switzerland operates under a confeder ation of sovereign “cantons,” and a number of former republics of the Soviet Union have formed a confederal government system called the Commonwealth of Independent States.² For more than 200 years, the United States has had a federal government.

It is also important to understand the concepts of power and authority in connection with systems of governance and sovereignty. Power is the ability to cause others to modify their behavior and to conform to whatever the power holder wants. Authority is given to a leader or institution by the holders of power. Authority allows a leader or institution to compel obedience because of the legitimate position given by the power holders. In the United States, for example, the ultimate power rests with the people. The people can elect or reject all government officials and they have the power to change the form and nature of their government and its Constitutions.³ However, the government and its officials are given the legitimate authority to compel obedience to our laws.

Sovereignty is the source of power in government. Based on the U.S. Constitution, there are three sovereigns in the U.S. governmental system. These are the national government, commonly called the federal government; the states; and the often overlooked but absolute source of power in a democratic republic, the people. The people have the ultimate power to elect representatives to govern themselves and to change the form and nature of their government and its Constitution.⁴

In the U.S. Revolution, the people of the original 13 colonies took the sovereign power from the British King. Initially, they chose to collectively invest their former colonial governments with this sovereignty in units called “States” and band together under Articles of Confederation. They had effectively moved from a unitary to a confederal government. To further consolidate power and to defend the new country from foreign encroachment, the people, through their state representatives, finally formed the federal democratic republic that is today known as the United States.

The United States is federal in the sense that it operates under two tiers of gover nance, both of which are sovereigns, the national central government and the individual states. It is democratic in the sense that its leaders are granted authority to act through election by its citizens, and it is a republic in the sense that the people elect representa tives who are granted authority to engage in constitutionally specified activities of governance on behalf of their constituents, collectively known as the people.

Under the U.S. Constitution, the people, as sovereigns, gave the central government authority for six specific purposes.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.⁵

The People, through the Constitution, then separated the components of sovereign power into three branches of government. Article I of the U.S. Constitution created a leg islative branch. “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”⁶ Article II created an executive branch. “[T]he executive power shall be vested in a President of the United States of America.”⁷ Finally, Article III created a judiciary. “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”⁸

What is often called the “Supremacy Clause” of the Constitution sets out the hier archy of laws. It says:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land: and the judges in every state shall be bound thereby, anything in the Constitution of laws of any state to the contrary not withstanding.⁹

Article VI also binds the legislative, executive, and judicial officers of both the national and state governments to support the U.S. Constitution.

The Senators and Representative before mentioned, and the Members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by Oath or Affirmation to support this Constitution.¹⁰

Our legal system exists within the federal democratic republic established by the U.S. Constitution.

Legal Systems

There are basically two types of legal systems in the world today: code law and common law.

The foundation of code law is in statements of religious dogma or in the compila tions of written laws, edicts, or decrees from rulers or strong religious leaders. Examples of code law systems include (a) the code of Hammurabi, which is named for the king of Babylonia about 2,000 вc; (b) the Justinian Code, which is the body of Roman law sys tematized during the reign of the Byzantine Emperor, Justinian I, who reigned from 527 to 565; and (c) the Napoleonic Code, which was the collection of French laws compiled during the reign of Emperor Napoleon Bonaparte from 1804 to 1815. Other types of code laws are those statements of religious laws and principles of living found in the Muslim Quran or in the Christian Bible.

Common law is a more recent legal phenomenon than code law. Common law refers to the system of jurisprudence developed in England from the time of William the Conqueror, approximately 1066, to the present. British common law is based on evolu tion over time of legal rules, customs, and maxims created by the judiciary. It evolves and changes over time as courts wrestle with and apply the concepts of precedent and stare decisis. Once the jurisdiction of the British Courts of Law was established by the Magna Carta in 1215, those involved in deciding cases came to the conclusion that cases with similar facts and issues should all have similar results. Courts began consulting older decisions to ensure their decisions followed the principles used before. This consultation of older cases is called “following precedent.”

Following precedent means relying on previously decided cases to determine the choice and application of laws for current cases. The concept of stare decisis, literally to “let the decision stand,” is the very foundation of following precedent. Under the prin ciple of stare decisis, judges look for an historic case with facts and issues similar to the one now being adjudicated. The court does not change the laws but applies the holdings from the previously decided cases to the case currently before the court. Although courts can develop new interpretations and applications of the common law to adapt to current situations, real changes in the law are rare. Therefore...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• The Authors
• Contents
• List of Exhibits
• Acknowledgments
• Preface
• 1. Introduction to the Legal System
• 2. Legal Procedure
• 3. The First Amendment: History and Application
• 4. The First Amendment: Limitations
• 5. Electronic Media Regulations
• 6. Access to Places and Information: What You Can Get From Government, It Can Probably Get From You
• 7. Access to Trials and Judicial Proceedings
• 8. Means of Access: Law as Entertainment
• 9. Communication Torts
• 10. Copyright and Trademark
• 11. Contract and Employment Law
• 12. Commercial Communication: Rights and Regulations
• 13. Investor Relations and Financial Press Regulations
• Appendices
• Table of Cases
• Index