Electronic Media Law and Regulation

Kenneth C. Creech

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136289651
• Edition: 6
• Topic: Diritto
• Subtopic: Diritto dei media e dell'intrattenimento

Electronic Media Law and Regulation is a case-based law text that provides students with direct access to case law as well as the context in which to understand its meaning and impact. The text overviews the major legal and regulatory issues facing broadcasting, cable, and developing media in today's industry. Presenting information from major cases, rules, regulations, and legal documents in a concise and readable form, this book helps current and prospective media professsionals understand the complex realm of law and regulation. Students will learn how to avoid common legal pitfalls and anticipate situations that may have potential legal consequences.

This sixth edition provides annotated cases with margin notes, and new chapters address such timely issues asmedia ownership, freedom of information, entertainment rights, and cyber law.

Chapter 1

INTRODUCTION TO
THE LEGAL SYSTEM

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The U.S. is a nation governed by laws, not individuals

America is a nation governed by laws, not by individuals. Since the earliest days of the founding of the United States, Americans have attempted to justify actions by applying laws, rather than by relying on the authority of a single ruler. For example, the Declaration of Independence is a beautifully crafted, philosophical, and legal statement that justifies the separation of the 13 colonies from England. The same reliance on the sanctity of law forced the resignation of a president of the United States in 1974 and the impeachment of another in 1999.

The court cases that result from disputes over interpretations of American laws can easily be used as the basis for writing an accurate history of the United States. Court cases reflect the tensions present in American society at a given time. For example, the major cases of the 1790s reflect the growing pains of the new nation. Sedition and the powers of the various branches of government were common topics of litigation during this period. State rights and civil-rights issues were common in the 1860s and again one hundred years later. Many cases of the late nineteenth century were concerned with child labor, unions, trust busting, and consumerism. Of course, every war in which the U.S. was engaged, from the American Revolution to Vietnam, Iraq, and Afghanistan, spawned cases that resulted from protests, espionage, and treason.

Similar to court cases, federal and state laws reflect the concerns of the American people during a given period. Laws designed to protect against subversive activity have been passed and repealed throughout our history, depending on the perceived threat. Laws both limiting and expanding the civil rights of individuals have appeared on the books of many states. Issues of gun control, the right to bear arms, the right to abortion, and gay rights have found their way into the legal system and reflect the dynamics of American society.

The law of communication is a relative newcomer to this arena. Most cases that involve judicial interpretation of the First Amendment, which guarantees freedom of speech and freedom of the press, occurred after World War I. The rapid development of mass communication in the twentieth century focused new attention on the meaning of free speech and free press.

Undergraduate students studying communications law as journalism or mass-communication majors often find that they lack the proper background in the legal process to understand communications-law issues. This background is necessary to comprehend the cases, statutes, and principles involved in shaping communications law and policy. Undergraduate students must realize that they are studying a specialty field that would be encountered in the third year of most law schools. The remainder of this chapter is devoted to providing a point of departure for the study of communications law.

LAW AND POLICY

Law supports policy

Policy is a plan or course of action undertaken and designed by society to achieve a set of goals. Ideally, the articulation of a policy should guide the promulgation of laws. Laws are passed in the United States to support policies. For example, as a society we have determined that robbery is an undesirable act, thereby creating a policy. The federal government and the individual states have enacted laws designed to deter and punish individuals who violate this policy.

Basically, a law may be defined as a set of rules, promulgated by government agencies with authority to do so, that attempt to guide, conduct, and subsequently provide sanctions when the rules are violated.

SOURCES OF AMERICAN LAW

Sources of American Law

A sixth source of law is the Executive Order. Although not common in communication law, a 1962 Executive Order issued by President Kennedy (No. 10995) authorized the government to seize and control communication media in time of emergency. It was revoked in 1970. See EO 11556

The foundation of the American legal system was imported from England. The jury system, development of the common law, and many statutes were adopted by the colonies and retained after the American Revolution. America expanded her legal system with the addition of the Constitution. Although there are other sources of American law, the following five are most applicable to communications and media cases.

■ the common law;

■ equity law;

■ statutory law;

■ constitutional law;

■ administrative law.

Common Law

Common law looks to the past for Guidance

The roots of the common law go back to medieval England. Legal historians trace the common law to the mid-thirteenth century. It is the strongest British legacy to colonial America. In England, common law was distinguished from ecclesiastical law—the law of the Church. Ecclesiastical law used the Church as the basis for all decisions, whereas the common law looked to the people to resolve disputes. Common law is often called discovered law because magistrates discovered solutions to disputes by finding out what had been done in similar situations in the past. Judges or legislators do not create common law. Instead, a legal rule is mandated after specific cases are studied. Common law is inductive rather than deductive.

Stare decisis

A fundamental concept of the common law is stare decisis or “let the decision stand.” This means that judges should look to the past to resolve current problems. At first glance, this concept may give the impression that common law is also static law. After all, how can a 200-year-old decision be applied to today's disputes? And what about “bad” decisions? How does the common law keep from propagating an unfair judgment? Needless to say, many factors are taken into consideration by judges who rely on precedent. Rarely is an archaic precedent used as a basis for a judgment.

The Supreme Court relies heavily on stare decisis

The common law is dynamic and is usually very responsive to changing times. Judges use precedent only as a guideline in reaching a decision. There is a great deal of room for interpretation and change. For example, when the Supreme Court reviews a case, it relies on previous decisions as guidelines, but many times it overrules what it considers an incorrect interpretation of the law. When this happens, judges in future cases may no longer cite a particular precedent. Therefore, a “weeding out” process occurs in the application of the common law.

Theoretically, of all forms of Anglo-American law, the common law offers the most equitable means of settling disputes. As Justice Oliver Wendell Holmes wrote about the common law:

The life of the law has not been logic; it has been experience.… The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. To know what it is, we must know what it has been, and what it tends to become.¹

Equity Law

Equity law mitigates disputes between individuals

Like the common law, equity law also developed in England and was imported to the colonies. Equity law emerged in the fourteenth and fifteenth centuries as a supplement to the common law and as an additional means of settling disputes. The common-law courts of England had become somewhat rigid by the year 1400 and many persons seeking to file grievances were turned away. Unable to obtain a hearing before a magistrate, those individuals often petitioned the king to prescribe a solution to their problem. The king's chief officer, or chancellor, set up courts of chancery to deal with these petitions. All decisions made in chancery court were made on the basis of conscience or equity—fairness. Some states still refer to equity courts as chancery courts.

Equity law retains the common-law dependence on stare decisis. However, equity law begins where the common law stops. Child custody, divorce, property settlements, and accident claims are examples of issues taken to equity court. Equity cases are not tried before a jury and decisions are rendered in the form of discretionary orders issued by judges. Equity law provides for an injunction or restraining order, which is issued by a judge to stop someone from behaving in a manner that is deemed unfair or damaging to another. Injunctions are often sought in communications law cases.

Statutory Law

Before the Revolutionary War, laws decreed by Parliament bound Americans. Indeed, it was the enforcement of some of these laws that contributed to the Revolution. After the Revolution, America established its own laws in Congress and in state assemblies. These laws are statutory laws and are so named because they prescribe, by statute, the behavior of members of society. A well-constructed statute defines the behavior to be regulated and imposes sanctions for violating the statute. No statutes promulgated in the United States may violate the U.S. Constitution. Any statute that does so is invalid prima facie (on its face).

Statutory law anticipates societal Problems

Before 1825, statutory law did not play a large role in the American legal system. Most legal issues were settled via the common law. Between 1850 and 1900, however, a greater percentage of American law resulted from legislative acts rather than from common-law tradition. Today, most American law is statutory. The reason for the shift from the common law to statutory law is tied to the steady growth of the United States population. Common law is most effective when dealing with the problems of individuals. Statutes are written to address the problems inherent in governing large groups.

Statutory law can anticipate social problems, but the common law cannot. While the common law is inductive, statutory law is deductive—one rule applies to many situations. All criminal law in the United States is statutory. While common law is based on precedent, statutory law is founded on various federal, state, and local codes. Ideally, statutory law leaves room for less ambiguity in interpretation than does common law. However construction of a workable statute is often difficult. Sometimes, the application of statutory law does not take into consideration individual circumstances. For these reasons, statutes often require interpretation by judges. For example, federal and state statutes make it illegal to distribute obscene materials. However, the judge must determine what is or is not obscene. Statutory law is not always the final word.

Constitutional Law

Constitutional law is the supreme law of the U.S.

The United States Constitution is the supreme law of the land. It provides for the organization of government, outlines the duties and powers of the various branches of government, and guarantees United States citizens certain individual rights. The Constitution is the yardstick by which all other actions of government are measured. Any laws that conflict with the Constitution are legally unenforceable.

The student of all forms of communications law should be familiar with the Bill of Rights and subsequent amendments to the Constitution. Most, but by no means all, communications-law cases stem from the interpretation of one of three amendments—the First, Sixth, and Fourteenth. The First and Sixth Amendments are parts of the original Bill of Rights, which was ratified in 1787. The Fourteenth Amendment was ratified in 1868 and was primarily designed to limit the power of the readmitted southern states after the Civil War. The first paragraph of the Fourteenth Amendment, known as the due process clause, has an impact on communications law.

The First Amendment states:

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.

Of major concern is the interpretation of the freedom of the press and speech clause. Though it is written in absolute terms, most courts agree that the Founding Fathers did not mean that speech and press could never be restrained. The extent and nature of the restraint has been the subject of a plethora of litigation, most of which has taken place since 1919. Of additional concern is how the First Amendment should be applied to cases regarding the electronic media. As we shall see, the debate continues.

The Sixth Amendment states:

Sixth Amendment

In criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, ...