Mass Communication Law in a Nutshell 8th edition by Barton Carter, Juliet Lushbough Dee, Harvey Zuckman ISBN 1640204058 9781640204058

Part ONE THE FIRST AMENDMENT AND MASS COMMUNICATIONS

Chapter I The First Amendment in Perspective

A. Introduction

B. Background, Theories and Direction of the First Amendment

1. Background

2. Theories and Tests of the First Amendment

3. Present Direction of the Supreme Court

C. The Dichotomy Between Prior Restraint and Subsequent Punishment of Expression

D. Corporate Speech

Chapter II Defamation and Mass Communication

A. Interests in Conflict

B. The State Law of Defamation

1. Definition and Elements

2. The Contrast Between Libel and Slander

3. Theories of Liability

4. Remedies

C. The Common Law Defenses

1. Truth or “Justification”

2. Privilege

3. Incomplete Defenses

4. SLAPP Suits

D. Federal Defenses

1. Section 230 of the Communications Decency Act

2. Libel Tourism

E. The Constitutional Law of Defamation

1. New York Times Co. v. Sullivan

2. Effects of the New York Times Case

3. The New York Times Progeny

4. The Basic Public Figure-Private Person Distinction of Gertz v. Welch

5. The Broad Meaning of Gertz

6. The Public Figure-Private Person Distinction

7. The Fact-Opinion Dichotomy

8. Specific Problems for the Media Created by Gertz

9. Questions Raised by Gertz

10. Non-Media Defendants and Matters of Public Concern

11. Neutral Reportage

Chapter III Privacy and the Mass Media

A. Introduction

B. History and Development of the Common Law

C. The Common Law Today

1. Appropriation

2. Intrusion

3. False Light

4. Public Disclosure of Private Facts

5. Common Characteristics of the Four Types of Invasion of Privacy

D. Legislation Designed to Protect Personal Privacy

1. Privacy Act of 1974

2. Driver’s Privacy Protection Act

3. Family Educational Rights and Privacy Act

4. Privacy Protection in the European Union Compared with the United States

5. Children’s Online Privacy Protection Act (COPPA)

6. Data Mining and Pharmaceutical Manufacturers

7. Google: Problems with Street View Project and Apple’s Safari Browser

8. Proposed Consumer Privacy Bill of Rights

9. “Locational Privacy”

10. Cell Phones, Privacy and the Fourth Amendment

Chapter IV The First Amendment, True Threats, Emotional and Physical Harm and Cyberstalking

A. Infliction of Emotional Distress

B. Media Liability for Physical Harm

1. Cases in Which Individuals Accidentally Injure or Kill Themselves While Imitating TV Stunts or Suggestions in Entertainment Media

2. Cases in Which Media Content Allegedly Instigates Perpetrators to Injure Innocent Third Parties

3. Cases Involving Commercial Speech

C. Speech on the Internet: True Threats

D. New Issues Raised by Speech on the Internet: Cyberharassment, Cyberbullying and Cyberstalking

1. The Quartet of Student Speech Cases: Tinker, Fraser, Hazelwood and Morse

2. Cyberharassment

3. Cyberbullying

4. Attempted Murder by Tweet

5. Cyberstalking

6. Live-Streaming Murder on Facebook

Chapter V Copyright and Trademark

A. Introduction

B. Copyright Law

1. Fair Use

2. Copyright and the Internet

3. The Digital Millennium Copyright Act

C. Trademark

Chapter VI Restraint of Obscene and Indecent Expression

A. General Theory

1. The Definitional Problem

2. Background

3. Modern Doctrinal Development

4. The Last Word on Obscenity: Miller v. California

5. Difficulties After Miller, Paris Adult Theatre and Jenkins

6. Variable Obscenity Standards

7. Child Pornography

8. Feminist Proposals for Statutory Civil Actions to Counter Pornographic Depictions of Women

B. Important Special Areas of Restraint of Sexual Expression

1. Mail and Customs Censorship

2. Motion Pictures, Adult Businesses, and Zoning

3. Dial-a-Porn

4. Military Bases and Prisons

C. Subsequent Criminal Sanctions

D. Indecency

1. The Communications Decency Act and Child Online Protection Act

2. Filtering Software in Public Libraries

3. Broadcast Indecency

4. Indecency on Cable Television

Chapter VII Restraint of the Press for Purposes of National Security

A. The Conflict

B. Legal Background

C. The Pentagon Papers and the Progressive Magazine Cases

D. Other Inhibitions on Publication

1. Withholding Passports

2. Criminal Prosecutions Under the 1917 Espionage Act

3. Prohibition Against Revealing Identities of Covert CIA Agents

4. Contractual Prohibitions

5. Balancing National Security Against Access to Combat Zones Before September 11

6. Balancing National Security Against Access to Combat Zones in Afghanistan and Iraq

7. Legislative Restraints on the Press After September 11, 2001

Chapter VIII The Free Press-Fair Trial Conflict

A. The Problem

1. Introduction

2. A Case Study: Sheppard v. Maxwell

3. Court Decisions Reversing Convictions After Excessive Pretrial Publicity

4. Court Decisions Upholding Convictions Despite Pretrial Publicity

B. Approaches to the Problem

1. Resort to Judicial Procedural Devices

2. Limiting Access of the Media to Information on Pending Legal Matters

3. Prior Restraint of the News Media

4. Subsequent Criminal Punishment of the News Media

Chapter IX Freedom to Gather News and Information

A. Introduction

B. The Federal Freedom of Information Act (FOIA)

1. Historical Background

2. Operation of the Original Act in the Courts

3. Early Amendments to FOIA

4. The Electronic Freedom of Information Act

5. Litigation Involving the FOIA’s Nine Exemptions

6. Assessment of FOIA

C. Legislation Limiting Access in the Name of National Security

D. Legislation Limiting Access in the Name of Personal Privacy

E. Legislation Limiting Access to an Individual’s Medical Records

F. Open Meetings-Open Records Legislation

1. The Federal Government in the “Sunshine Act”

2. State Open Meetings and Open Records Laws

G. Media Access to Governmentally Restricted Places and Institutions

1. Access to Prisons

2. Access to Proceedings Related to Suspected Terrorists

3. Access to Accident Sites

H. Media Access to Courts and Judicial Records

1. Access to Trial Proceedings

2. Access to Trial Proceedings in the United States Senate

3. Access to Pretrial Proceedings

4. Access to Judicial Documents and Discovery Materials

5. Access to Sealed Documents

6. Access to Videotapes, Audiotapes or Still Photographs

I. Media Access to the White House and Social Media Accounts

1. Revoking White House Press Credentials of Reporters Who Ask Critical Questions

2. Attempts to Block Critics from Social Media Such as Twitter and Facebook

Chapter X The Reporter’s Privilege, Subpoenas, Contempt Citations and Searches and Seizures

A. Subpoenas Versus Claims of Privilege

1. The Contemporary Problem

2. Who Qualifies as a Journalist?

3. Legal Background

4. The Branzburg-Pappas-Caldwell Trilogy

B. Shield Laws

1. Attempts to Pass a Federal Shield Law

2. State Shield Laws

3. Administrative Protection for Journalists: Department of Justice Guidelines

C. Lawsuits by News Sources

D. Contempt for Unprivileged Refusal to Testify

1. The Real Importance of the Privilege

2. Types of Contempt

3. The Impact of Contempt on Journalists

4. Alternatives to Contempt Citations and Jailing of Journalists

E. The Effect on Newsgathering of Searches and Seizures in the Newsroom

1. Zurcher v. Stanford Daily

2. Federal Legislation in the Wake of Zurcher

Chapter XI Regulation of Commercial Speech

A. Constitutional History

B. The Four-Part Commercial Speech Analysis of Central Hudson

C. Attempts to Ban Advertising of Legal Products

D. Defining Commercial Speech

E. The Special Problem of Professional Advertising

1. Advertising by Lawyers: A Case Study

2. The Effect of the Lawyer Advertising Cases on the Other Professions

F. Access of the Public to the Private Advertising Media

G. State Statutory Regulation

H. Federal Statutory and Administrative Regulation

1. The Federal Trade Commission

2. The Federal Communications Commission

3. Spam

Part Two REGULATION OF THE ELECTRONIC MASS MEDIA

Chapter XII Regulation of Broadcasting

A. The Federal Communications Commission

1. Scope of the Commission’s Power

2. Structural Organization of the Commission

3. Juridical Basis for Commission Regulation of Broadcasting

B. Structural Regulation

1. Allocation of Frequencies

2. Broadcast Licensing

3. Diversity of Media Ownership

4. The Network Rules

C. FCC Control of Broadcast Content

1. Political Broadcasting

2. The “Fairness Doctrine”

3. Children’s Programming

4. Lotteries

5. Contests

6. Sponsorship Identification Rules: “Anti-Payola” and “Anti-Plugola” Requirements

7. Public Broadcasting

Chapter XIII Cable and Other Technologies

A. Television by Cable

1. Jurisdiction

2. Cable System Ownership

3. Copyright Problems

4. Signal Carriage Rules

5. Content Regulation

B. Direct Broadcast Satellites (DBS)

C. Convergence and the Future

Index