Digital Media Law

Ashley Packard

• Publisher: Wiley-Blackwell
• Year: 2012
• ISBN:
  9781118336786
• Edition: 2
• Topic: Derecho
• Subtopic: Derecho de los medios y el entretenimiento

Covering the latest legal updates and rulings, the second edition of Digital Media Law presents a comprehensive introduction to all the critical issues surrounding media law.

• Provides a solid foundation in media law
• Illustrates how digitization and globalization are constantly shifting the legal landscape
• Utilizes current and relevant examples to illustrate key concepts
• Revised section on legal research covers how and where to find the law
• Updated with new rulings relating to corporate political speech, student speech, indecency and Net neutrality, restrictions on libel tourism, cases filed against U.S. information providers, WikiLeaks and shield laws, file sharing, privacy issues, sexting, cyber-stalking, and many others

1

Introduction to the Legal System

It makes no sense to dive into a particular area of law without understanding the basic structure of the legal system and its terminology. This chapter describes the primary sources of law in the United States and how to find them. It explains the structure of the federal and state court systems, the basic differences between civil and criminal law, and the role of judicial review in the United States. It can be used to establish a foundation before proceeding to other chapters and as a reference later when you need to review a particular concept.

The Meaning of Law

Before discussing how law is made, it might be helpful to define it generally. Law is a system to guide behavior, both to protect the rights of individuals and to ensure public order. Although it may have a moral component, it differs from moral systems because the penalties for its violation are carried out by the state.

Digital media law encompasses all statutes, administrative rules, and court decisions that have an impact on digital technology. Because technology is always changing, digital media law is in a state of continuous adaptation. But its basic structure and principles are still grounded in the “brick-and-mortar” legal system.

Figure 1.1 The legislative, executive and judicial branches of government make law.

Illustration: Kalan Lyra

Sources of Law in the United States

All students are taught in civics class that there are three branches of government and that each serves a unique function in relation to the law. The legislative branch makes law, the judicial branch interprets law, and the executive branch enforces law. Although this is true, it is also a little misleading because it suggests that each branch is completely compartmentalized. Actually, all three branches make law. The legislative branch produces statutory law. The executive branch issues executive orders and administrative rules. The judicial branch creates law through precedential decisions. In the United States, sources of law include constitutions, statutes, executive orders, administrative agencies, federal departments, and the common law and law of equity developed by the judiciary. The most important source of law, however, is the U.S. Constitution.

Constitutions

A political entity’s constitution is the supreme law of the land because it is the foundation for government itself. The constitution specifies the organization, powers, and limits of government, as well as the rights guaranteed to citizens. Because the legislative, judicial, and executive branches of government draw their power from the U.S. Constitution, they cannot act in opposition to it. For this reason, federal courts will overturn statutes and administrative rules that exceed constitutional boundaries. They will also reverse lower courts when their decisions stray too far afield.

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The U.S. Constitution declares its supremacy in Article XI: “This Constitution … shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

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The Constitution Society provides links to the U.S. Constitution and all state constitutions at www.constitution.org/.

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The only way to get around the Constitution is to alter the document. Ratification of an amendment requires approval from three-fourths of the states. Twenty-seven amendments have been ratified since the Constitution was signed. The first ten are known as the Bill of Rights.

In addition to the federal Constitution, there are 50 state constitutions. States are sovereign entities with the power to make their own laws. However, their laws must operate in accord with federal law. The U.S. Constitution includes a supremacy clause that requires state courts to follow federal law when conflicts arise between it and state constitutions or state law.¹ The federal constitution also requires that states give “full faith and credit” to other states’ laws and judicial decisions.

Statutes

When we think about the word “law,” we generally have in mind the statutes passed by our elected representatives as part of city councils, county commissions, state legislatures, and the U.S. Congress. These laws, called ordinances at the city level and statutes at the state and federal level, are meant to serve as guidance to people before they act. Criminal law, in particular, must give people fair warning that an act is illegal before punishing them for violating it, so it is always statutory.

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Federal statutes are found in the United States Code, available at http://uscode.house.gov/. State codes may be found at http://www.whpgs.org/f.htm.

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Statutes are intended to address potential social needs and problems, so they are written broadly to apply to a variety of circumstances. But their broad language sometimes creates confusion regarding the meaning of particular terms. In such cases, it falls to courts to interpret their meaning. Courts do this by looking at the statutory construction of laws, otherwise known as their legislative history. When laws are passed, they go through a series of committees. Each committee files a report, documenting its actions related to the law. This history of the legislative process usually includes the legislators’ intent regarding the law’s scope and interpretation. Judges may review the reports to find out what was discussed when legislators were hammering out the legislation and how they intended it to be applied.

As you read federal statutes, you will notice that many of them apply to activities carried out through “interstate or foreign commerce.” For example, the federal stalking statute applies to anyone who uses “a facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress.” Likewise, federal law prohibits the transmission of obscene materials through interstate and foreign commerce. This phraseology is added to bring activities within the federal government’s jurisdiction. The federal government does not have police power as states do. Police power – the right to legislate to protect the health, safety and welfare of citizens – is reserved for the states. So the federal government regulates activity related to these issues through its exclusive jurisdiction over interstate commerce. Article 1, Section 8 of the U.S. Constitution gives Congress the power “To regulate Commerce with foreign Nations, and among the several States … ” Application of the term “commerce” does not mean that money must change hands. When the Constitution was written, commerce was also used in a non-economic context to refer to conduct. Congress applies the term loosely to conduct that crosses state and national borders. Activities carried on within a single state must be regulated under state law.

Executive Orders

Within the executive branch of government, mayors, governors, and presidents have the power to issue executive orders that are legally binding. Some executive orders are issued to fill in the details of legislation passed by the legislative branch. For example, if Congress passes a bill requiring action on the part of federal agencies without providing sufficient information about how its mandate is to be implemented, the president may issue an executive order specifying procedure.

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Executive orders may be found through the National Archives website at http://www.archives.gov/federal-register/executive-orders/.

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In other cases, executives issue orders of their own accord to promote their policies. By directing federal agencies and officials to enforce their orders, presidents have created national parks, integrated the armed services, desegregated schools, funded and defunded stem cell research, and prohibited financial transactions with countries known for terrorism. Executive orders are also frequently used to regain order in the event of a threat to security. Following a natural disaster like a hurricane, for example, a governor may issue a state of emergency, which would empower him or her to make binding rules for a certain period of time.

Executive orders are passed without the legislature’s consent, but the legislature may override them with enough votes. Congress can override a presidential executive order by passing legislation that contradicts it. If the president vetoes the legislation, Congress can override the veto with a two-thirds vote. Executive orders also may be challenged in court if they exceed the president’s constitutional authority. For example, Harry Truman tried to avert a national strike of steel mill workers during the Korean War by issuing an executive order to the Commerce Department to seize control of private steel mills. The Supreme Court held the action unconstitutional.²

Administrative Agencies and Federal Departments

Also within the executive branch, independent administrative agencies and federal departments are empowered to make administrative rules that carry the force of law.

Independent Administrative Agencies

Independent administrative agencies are so named because, although they are part of the executive branch of government, they carry out the mandates of the legislative branch in specific government-regulated industries. Agencies monitor technical areas of law thought to be better handled by specialists than members of Congress. Not only do they have the power to make rules and enforce them with fines and other retaliatory measures, but federal agencies also serve a quasi-judicial function. Their administrative courts are usually the first to hear cases related to violations of agency rules.

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The Federal Register is a daily digest of proposed and final administrative regulations issued by federal executive departments and agencies in the United States. It is available online at http://www.gpo.gov/fdsys/.

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After their initial publication in the Federal Register, U.S. agency ...