The Law (in Plain English) for Publishers

Leonard D. DuBoff, Amanda Bryan

• Publisher: Allworth
• Year: 2019
• ISBN:
  9781621537106
• Topic: Droit
• Subtopic: Droit de la propriété intellectuelle

"T he ultimate legal manual for anyone in the publishing industry." — Independent Publisher In The Law (in Plain English)® for Publishers, Leonard DuBoff and Amanda Bryan tackle the many legal considerations of the publishing world. Both new and seasoned publishers and industry professionals will find the information they need as the authors break down the intricacies of the business in thorough yet concise explanations. Chapters cover important topics such as:

• Privacy, defamation, and other content issues
• Copyright basics, protection, and infringement
• Negotiating with authors and literary agents
• Contract terms
• Books in the digital age
• Publishing as a business
• Tax considerations

An indispensable reference, The Law (in Plain English)® for Publishers belongs on the shelves of all publishers, industry professionals, and enterprising authors.

CHAPTER 1

The Freedom to Write

The First Amendment of the United States Constitution embodies the basic freedom to express oneself in writing in the statement “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Censorship, called a prior restraint on speech because it prohibits certain expressions before they have been made, has been constitutionally disfavored since the founding of the United States. Some historians suggest that the First Amendment was written specifically to prevent the government from imposing any prior restraints on expression. Prior restraints impose an extreme burden upon the exercise of free speech, since they limit open debate and the unfettered dissemination of knowledge. It is not surprising that the United States Supreme Court has consistently found that it is unconstitutional to restrain speech prior to a determination of whether the speech is protected by the First Amendment.

However, that is not to say that all speech is permissible. The courts uphold laws that protect consumers from false advertising, prevent incitements likely to cause immediate, unlawful violence, and control the distribution of pornography. These constitutional restraints on speech impose varying degrees of control on the type of speech being made, the purpose behind the speech, and the time, place, and manner of the speech.

IN PLAIN ENGLISH

The First Amendment prohibits most prior restraint on speech. This means that laws will most likely be unconstitutional if the law’s purpose is to stop someone from speaking or publishing some targeted content before the words have been spoken, published, or otherwise disseminated to the public.

POLITICAL SPEECH

The courts are very hesitant to prevent someone from expressing his or her opinion. As so much content can be construed as expressing an opinion in one form or another, it is not easy for the government to pass laws restricting speech. This is especially true when the expression goes toward political speech—speech that criticizes the government or otherwise questions its authority.

Any attempt by the government to prevent the publication of expression bears a heavy presumption against its constitutional validity. Even cases where national security is at issue receive strict scrutiny. Under the strict scrutiny standard, courts look behind any nominal justifications offered by government entities for why a restriction is necessary and apply their own judgment as to whether the alleged harm is sufficiently serious to warrant regulation. A good example of such a case is New York Times Co. v. United States, in which the government tried to stop the publication of the “Pentagon Papers,” which detailed US involvement in Vietnam prior to 1968. The government claimed that publication of the papers violated a statute protecting government secrets and that their publication would prolong the war and embarrass the United States in the conduct of its diplomacy. The Supreme Court, although unable to agree on a single basis for its holding, found that the government’s claim of potential injury to the United States was insufficient to justify prior restraint. The justices, although believing that publication would probably be harmful, were not persuaded that publication would surely cause the harm alleged.

More recently, when Michael Wolff wrote a very negative book about President Trump titled Fire and Fury: Inside the Trump White House, the president’s lawyers sent Mr. Wolff and his publisher, Henry Holt and Co., a cease and desist letter threatening to enjoin the publication. Since the publisher was aware of the extraordinarily high burden to prevent a book from being published, it not only ignored the threat, but it actually accelerated the date of publication. Both Mr. Wolff and his publisher were essentially thumbing their nose at the hollow threat. The First Amendment is a particularly effective shield against threats to speech that criticizes political leaders regardless of how embarrassing that speech may be to the politicians or the political process.

Even political speech that advocates the use of unlawful force is constitutionally protected, except where such advocacy is likely to produce imminent lawless action. However, the legal standard for evaluating whether words are likely to lead to violence is very high. In such cases, the government must show that the speech is both directed to a particular person and is inherently likely to result in violent action. The mere use of expletives and offensive words, without a compelling reason to believe they will lead to imminent violence, is protected by the First Amendment.

For the most part, the constitutional battles over the right to political speech have shifted away from issues of whether citizens have the right to criticize governments or even the form of government. A more divisive issue is to what extent the First Amendment affects the right to express political views that reflect negatively on race, creed, sexual orientation, religion, or national origin. A number of schools and universities have adopted codes that prohibit statements that express any form of prejudice or bigotry, such as racism, anti-Semitism, or homophobia. Some of these codes have been struck down by courts, but many remain.

IN PLAIN ENGLISH

The First Amendment protects against censorship by the government. The government encompasses federal, state, and local agencies run by the government, including public universities and city councils. Private citizens and institutions, including publishers and booksellers, are not subject to the same restrictions. The choice to publish content or not, to censor certain words, or to pull offensive books from the shelves is not action that is prohibited by the First Amendment when that action is taken by a private citizen or entity.

JUDICIAL PROCEEDINGS

Courts are also reluctant to suppress information related to judicial processes because of the important constitutional interests inherent in having public trials. To justify the imposition of gag orders, parties who seek to restrict reporting and public access to legal proceedings must show that there are no reasonable alternatives. The most common situation is when the issue is the conflict between an individual’s right to a fair trial and the right of the press to its First Amendment guarantee of free speech.

For example, in Nebraska Press Association v. Stuart, the Nebraska Press Association appealed a court order prohibiting the press from reporting about confessions and other information implicating a defendant after the murder of six family members had gained widespread public attention. The trial judge originally issued the order because he felt that pretrial publicity would make it difficult to select a jury that had not been exposed to prejudicial press coverage. The US Supreme Court struck down the trial judge’s order, finding that the impact of publicity on jurors was “speculative, dealing with factors unknown and unknowable.” The justices went on to suggest alternatives to restraining all publication. These included changing the location of the trial, postponing the trial, asking in-depth questions of prospective jury members during the selection process to determine bias, explicitly instructing the jury to consider only evidence presented at trial, and isolating the jury. In other words, judges must consider alternative methods of pretrial precautions and should restrict coverage only as a last resort.

Court records are generally considered public records. Even grand jury records, generally considered secret, may sometimes be obtained given a good enough reason. In Carlson v. U.S., a 2016 case from the Seventh Circuit Court of Appeals, a journalist/historian and some scholarly, journalistic, and historic organizations sought access to grand jury records, sealed long ago, concerning an investigation into a 1942 Chicago Tribune article claiming, based on classified navy communications, that the US military had cracked certain Japanese codes. Although no one contended that secrecy was no longer necessary, the government still declined to allow access to the records, arguing that a criminal rule of court with respect to grand jury materials prohibited disclosure. The court ruled against the government, holding that the records belonged to the court, and thus, the trial court had the authority to release them. Further, the trial court was justified in doing so because of the exceptional circumstances presented, because of their historic importance, and because there was no good reason to keep them secret any longer.

The executive branch of the government is responsible for classifying information vital to national security as confidential. In late 2017, the United States released records related to the assassination of President Kennedy. These records had been withheld for reasons of national security. Among the interesting disclosures in those records was the fact that some unidentified person contacted the British Embassy shortly before the assassination to advise it of the fact that something significant would be happening very soon. The documents were released without the need for judicial intervention, since the government realized that these records would likely be made available if the court was involved and voluntarily making them available was less costly and more efficient. This illustrates that the court’s tendency to release documents once held jealously by the government has influenced the government’s policies and increased access to once-confidential information.

COMMERCIAL SPEECH

In areas outside of political speech, the court has been more tolerant of prior restraints. For example, prior restraints may be permissible when purely commercial speech, such as advertisements or other promotional material, is involved.

IN PLAIN ENGLISH

Commercial speech is defined as speech directed at actual or potential customers, where the speaker is offering to sell a product or service, or where the intent is to earn a profit. Publishing and selling books, newspapers, or magazines does not make the speech commercial and subject to prior restraint merely because it is sold in commerce. Rather, the content of the book, newspaper, or magazine will be evaluated to determine if that speech is intended to sell or promote a product or service.

Since commercial speech is generally comprised of objective statements, whether an advertisement is true or false can often be readily determined. Thus, there is little or no threat of prior restraints being arbitrarily imposed. Plus, commercial speech lacks the urgency that often accompanies noncommercial speech, so any delay caused by the restraint while its justification is being argued would be relatively harmless. Based on these considerations, regulation of commercial speech is generally permitted.

An aspect related to the regulation of commercial speech is whether governments may enact laws that protect commercial producers and manufacturers from the disparagement of their products. Although the common law tort of trade libel is available to address such concerns, some states have enacted laws that reduce the burden of proof needed to prevail in such a case. The government’s interest is to protect state economies from being harmed by irresponsible assertions about goods. These concerns are not without merit, since there have been instances in which industries have suffered severely following media reports of questionable reliability that claimed certain products were dangerous. On the other hand, such laws can suppress speech by imposing requirements, such as having to base assertions on reliable, scientific facts. Such standards have the practical effect of discouraging controversial statements and limiting the population of qualified writers to those with science or technical backgrounds.

The best-known examples of these kinds of laws are the food disparagement statutes that are in effect in more than a dozen states. These statutes vary in their legal elements but generally give producers of perishable foods the right to sue anyone who disseminates statements that impugn the safety of a food product without a reasonable scientific basis for the claim. The Texas food disparagement statute was used in 1997 as the basis of a lawsuit against talk show host Oprah Winfrey for remarks she made during a segment of her program about mad cow disease. She prevailed in the suit after the court ruled that the segment may have been hyperbolic but was not defamatory, as required by the statute. The applicability of the First Amendment was not decided in the case, and the constitutionality of these statutes remains undecided.

PORNOGRAPHY

Pornographic writing is another area where the government may regulate content, although the legal standards are more difficult to apply than with commercial speech. A variety of laws are involved in regulating pornographic materials, including federal laws that prohibit the transportation of obscene material across state lines and state laws that prohibit creating, publishing, and publicly displaying obscene material. The traditional legal basis under which pornography has been regulated is the belief that obscene materials are offensive and lack sufficient social utility to deserve protection under the First Amendment. Another basis advocated in more recent times is that pornography encourages crimes and harmful conduct toward women and minors and therefore is injurious.

IN PLAIN ENGLISH

Although there is a history of writers and publishers being prosecuted for material that was considered pornographic, most (if not all) prosecutions in the last forty years have involved visual images and not written text.

In 1973, the Supreme Court set forth the modern standard governing how pornography would be addressed under the First Amendment in Miller v. California. The standard created in Miller to determine if something is considered obscene is:

• whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals...