Communication Law

Practical Applications in the Digital Age

Dom Caristi, William R Davie, Laurie Thomas Lee

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000484601
• Edition: 3
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This fully revised third edition brings a fresh approach to the fundamentals of mass media and communication law in a presentation that undergraduate students find engaging and accessible.

Designed for students of communication that are new to law, this volume presents key principles and emphasizes the impact of timely, landmark cases on today's media world, providing an applied learning experience. This new edition offers expanded coverage of digital media law and social media, a wealth of new case studies, expanded discussions of current political, social, and cultural issues, and new features focused on ethical considerations and on international comparative law.

Communication Law serves as a core textbook for undergraduate courses in communication and mass media law.

This edition includes timelines to show students "what happened when" in the legal process. These simple diagrams are available at www.routledge.com/9780367546694.

1

Sources of Law and Systems of Justice

DOI: 10.4324/9781003091660-1

LEARNING OBJECTIVES

After reading this chapter, you should know:

• how the branches of government limit each other’s legal authority in crafting laws
• what judicial review can do to uphold acts of law or strike them down
• where courts proceed when neither legislative acts nor legal precedents apply
• how cases are assigned to courts by regional or subject jurisdiction
• the manner by which regulatory agencies administer regulations
• how historical precedents contrast with other forms of precedent
• the contrasting legal processes of civil and criminal law

Public Protests and the Rule of Law

Americans see the rule of law as an essential safeguard for personal freedoms, including freedom of expression and assembly, holding to their belief the laws imposed by state and local governments must be just, fairly enforced, and uniformly upheld. When those rights come into conflict with other interests such as health and safety, or when law enforcement does not adhere to constitutional principles, Americans seek justice from their court system.

When state and local governments took sweeping action to mitigate the spread of a deadly virus during the COVID-19 pandemic, Americans wondered how their rights might be suspended for reasons of health and safety. The rules of social distancing and stay-at-home orders varied from state to state including exemptions for such reasons as Sunday worship. California’s government, for example, ordered a full ban on religious gatherings during the pandemic. A group of churches responded by suing Gov. Gavin Newsom (D-Calif.), challenging this ban as a violation of their constitutional rights. A federal panel of judges¹ heard the petition and ruled against the churches, citing Jacobson v. Massachusetts (1905).² That precedent from years ago authorized a health board to require vaccinations during a smallpox outbreak in Massachusetts.

1. South Bay United Pentecostal Church v. Newsom, U.S. Court of Appeals, 9th Circuit Order# 20–55533 No. 3:20-cv-865 (S.D. Cal. May 15, 2020). 2. Jacobson v. Massachusetts, 197 U.S. 11 (1905).

Executive Branch

The enforcement wing of the U.S. government headed by the president. It is defined in Article II of the U.S. Constitution as holding authority for execution of the laws. In the states, governors hold that same authority.

In response to that ruling, the White House moved against the state of California with the president asking churches to reopen their doors to worship. The U.S. Justice Department defended his position through a warning letter to Gov. Newsom that “the Constitution calls for California to do more to accommodate religious worship.”³ Citing the Supreme Court case of Church of the Lukumi Babalu Aye v. City of Hialeah, Florida,⁴ the letter reminded California it must act with neutrality toward religious freedom with generally applicable laws that serve a compelling interest using the least restrictive means possible toward constitutional rights. In response, the state relented but issued strict guidelines for churches to reopen so long as they monitored congregations for COVID-19 fever, practiced social distancing, and regularly disinfected contact areas in the church.⁵ Finally, the U.S. Supreme Court took the case and supported the State of California in a 5–4 ruling, although much was made of the dissenting justices’ regard for the protection of religion. Chief Justice John G. Roberts wrote for the majority, “Our Constitution principally entrusts ‘the safety and the health of the people’ to the politically accountable officials of the states ‘to guard and protect.’”⁶ In the U.S., state and federal branches of government move to check each other’s acts affecting fundamental constitutional rights.

3. E.S. Dreiband, Asst. Atty. General, Civil Rights Division (May 19, 2020). Letter, at www.politico.com/f/?id=00000172-3334-d930-a77f-b3b7e1a50000. 4. 508 U.S. 520 (1993). 5. See COVID-19 Industry Guidance: Places of Worship and Providers of Religious Services and Cultural Ceremonies, at https://covid19.ca.gov/pdf/guidance-places-of-worship.pdf. 6. South Bay United Pentecostal Church v. Gavin Newsom, Governor of California, 590 U.S. ____ (2020).

A different type of protest captured headlines during the Black Lives Matter movement in June 2016 when demonstrators in Baton Rouge marched on the city police department and illegally blocked the highway in front of its headquarters. Black Lives Matter activist DeRay Mckesson organized the protest in light of the shooting death of a CD merchant, Alton Sterling, 37, killed by white police officers.

The demonstrators gathered at police headquarters in Baton Rouge and blocked the highway out front. One protestor hurled a piece of concrete that struck a police officer in the face knocking him to the ground and injuring his jaw and head and knocking out some of his teeth. The officer identified in the complaint as John Doe sued the outof-state activist Mckesson for damages as leader of the protest who negligently led his followers into an illegal activity – blocking the highway – knowing police would have to respond to that act.

At his trial, Mckesson sought protection under the First Amendment and maintained he should suffer no liability for the actions of others based on Supreme Court precedent (NAACP v. Claiborne Hardware, 1982).⁷ On appeal, the Fifth Circuit Court of Appeals sided with the police officer holding that the First Amendment does not offer immunity for demonstrators who lead followers to illegal actions. Reversing his ruling in the case, Judge Don R. Willett had a judicial change of heart in this case. After first siding with the police officer, he chose to dissent months after the decision. Judge Willett summoned the memory of Martin Luther King, Jr. who saw demonstrators break store windows along Beale Street in Memphis hours before his assassination. The U.S. Supreme Court was asked to grant certiorari for Doe v. Mckesson⁸ based on principle and precedent that the First Amendment shields protest leaders from such claims of liability at such events.

7. 458 U.S. 886 (1982). 8. See Doe v. Mckesson, 945 F.3d 818 (Court of Appeals, 5th Circuit 2019).

Separation of powers and the checking function of the three coequal branches are central to our republican form of government. The role of the courts is to ensure that the executive and legislative branches do not overreach their authority. Even though the mechanism creating this balance of branches, separate and equal, is inefficient, it stands as a bulwark against dictatorial rule under a relatively stable Constitution that has been only amended 27 times since its ratification in 1787.

Sources of Law

Legislative Branch

The representative wing of government was established in Article I of the U.S. Constitution. It holds authority to pass laws through acts of Congress. In state government, elected assemblies of lawmakers perform the same function.

To institutionalize a check on tyranny, the framers of the Constitution divided the federal powers into equal departments of government. President Washington, at the time he left office, believed danger was inherent in the “spirit of encroachment (that) tends to consolidate the powers of all departments in one” and would, if left unchecked, create “a real despotism.” The solution for the foundation of the new nation would be “reciprocal checks in the exercise of political power; by distributing it into different depositories.”⁹ James Madison (see Figure 1.1), the chief architect of the Constitution, felt a sense of urgency since the earlier Articles of Confederation had failed to afford sufficient power needed to sustain the government. The founding fathers preferred a united republic with executive, legislative, and judicial branches to check on the use or abuse of power in each other’s branches.

9. The Farewell Address of George Washington 35. Ed. Frank W. Pine (New York: American Book Company, 1911).

Figure 1.1 Portrait of James Madison

Source: By Chester Harding, National Portrait Gallery, Washington, DC

Time was pressing for the Constitution’s adoption because if the vote was postponed “it may occasion suspicions, which though not well founded, may tend to influence or prejudice the public mind, against our decisions,” wrote Madison as he pleaded for “wise and liberal men to make such alterations as shall produce that effect”¹⁰ and move for its passage. The three branches were given their respective powers in the first three articles of the Constitution with legislative first, followed by executive, and then judiciary. The four articles that followed dealt with the states’ rights and relations; constitutional amendments; treaties and qualifications for public office; and the means for ratification. The Bill of Rights was added in 1791 setting out ten amendments to protect essential freedoms and define certain responsibilities.

10. James Madison, “Debate in the First Congress,” June 8, 1789, as cited by Neil H. Cogan, Contexts of the Constitution 812 (New York: Foundation Press, 1999). Twelve amendments were proposed originally, but the first two were not ratified.

The judicial branch exercised its power of oversight in a landmark case, Mar-bury v. Madison (1803) that showed how the Supreme Court would interpret the Constitution. From that case comes the principle that courts interpret laws and have the power to strike down ones in violation of the Constitution.

Judicial Branch

Established in Article III of the U.S. Constitution, this limb oversees the court system. In the federal government, legal authority resides both in the Supreme Court and the lower federal courts that Congress may establish.

Partisan feuding between liberals and conservatives has been a familiar facet of national politics since before President Adams left office in 1801, when he tried to secure offices for as many Federalist Party members as he could. One Baltimore financier, William Marbury, wanted his place among the federal elite, and Presi...