Communication Law in America (eBook)

Paul Siegel is professor of communication at the University of Hartford. He has been teaching course work in media law for over 30 years—at American University, Catholic University, Gallaudet University, George Mason University, Illinois State University, Keene State College, Tulane University, the University of Connecticut, the University of Missouri, and the University of North Carolina. He has also published dozens of book chapters and law review and communication journal articles on various subjects related to communication law. Siegel was the founding executive director of the American Civil Liberties Union of Kansas and Western Missouri.

Preface1 Introducing the American Legal SystemAn Overview of the American JudiciaryA Three-Tiered HierarchyThe Scope of a PrecedentThe Current U.S. Supreme CourtGoing to Court: Civil or CriminalThe Appeals ProcessDecisions and OpinionsLegal Citations– How to Find the CasesSources of Communication LawConstitutionsThe First AmendmentOther Sources of Communication Law in the Federal ConstitutionState Constitutions and Communication LawStatutesExecutive OrdersAdministrative Agency DecisionsCommon Law and the Law of EquityChapter Summary2The Development of Freedom of SpeechSpeech as the American Freedom?Freedom of Speech from the Colonial Period through World War IFreedom of Speech Doctrine EmergesThe Early 20th Century CasesThe Brandenburg Test: Imminent Lawless ActionAfter 9/11Theories of First Amendment AdjudicationFree Speech as the Absence of Prior Restraint?First Amendment AbsolutismAccess TheoryBalancing TheoriesThe Value of Freedom of ExpressionTruth-SeekingSelf-GoverningChecking on Government AbuseLetting Off SteamSelf-FulfillmentIs Freedom of Expression Overrated?Some Transcendent First Amendment DoctrinesA Right to Hear (and Read)A Right not to SpeakSymbolic ConductTime, Place and Manner RestrictionsPublic Forum AnalysisQuintessential Public ForumsLimited Public ForumsNonpublic ForumsRegulating the Business of CommunicationAntitrust LawsTaxationWorkplace LawCommunication Law in Special SettingsStudentsGovernment EmployeesSoldiersChapter Summary3Defamation: Common Law ElementsElements of a Libel SuitDefamationLibel Per Se, Libel Per Quod, and Implied LibelWho Has to Believe?What Does It All Mean?Headlines and CaptionsDefaming People, Corporations, and ProductsHow Much Does It Hurt?PublicationIdentificationNaming and IdentifyingIdentification in FictionThe Numbers GameFaultSome Common Law and Statutory Defenses to LibelChapter Summary4Defamation: First Amendment LimitationsIntroducing New York Times v. SullivanThe Birth of the Actual Malice RuleApplying the RuleLibel and SeditionTwo Famous MetaphorsSome Unanswered Questions from SullivanWho is a “Public Official?”What is “Official Conduct?”Who Else Should Be Required to Prove Actual Malice?What Are Sullivan’s Implications for the Truth Defense?A Legal or Factual Question?What Journalistic Excesses Constitute Actual Malice?Is There Such a Thing as a Defamatory Opinion?Can Libel Plaintiffs Sue for Intentional Infliction of Emotional Distress?Is a Reporter’s “State of Mind” Relevant?In what other ways has the Court “Fine Tuned” the Actual Malice Rule?Gertz v. Robert Welch, Inc.: The Other Landmark Libel DecisionA Reaffirmation of the “Who Is the Plaintiff?” QuestionTwo Kinds of Public FiguresThe Fault Element and Private PlaintiffsPunitive or Presumed Damages and Actual MaliceProof of DamagesChapter Summary5Invasion of PrivacyA Tale of Two Law Review ArticlesMisappropriationTwo Actions or One?What is a Likeness?Look-Alikes and Sound-AlikesThe Political Figures ExceptionNewsworthinessThe Booth RuleConsentIntrusionRide-Along IntrusionsIntrusions and FraudWiretappingFalse LightThe Hill familyDistortionFictionalizationPublic DisclosurePublicly Disclosing InformationPreviously Private InformationHighly Offensive RevelationsA Defense Swallowing the Tort?The Supreme Court and Public DisclosureChapter Summary6Copyright and TrademarkThe Law of CopyrightScopeThings that Can’t be CopyrightedProtecting Your CopyrightWho Owns a Copyright?Elements of a Copyright Infringement SuitOriginalityAccessSubstantial SimilarityFair Use and the Supreme CourtHome Videotapers Are Not CriminalsNewsworthiness and Copyright Infringement A Pretty (Hairy) DecisionFair Use Inquiry #1: The Purpose and Character of the Use Fair Use Inquiry #2: The Nature of the WorkFair Use Inquiry #3: The Amount TakenFair Use Inquiry #4: The Effect of the Taking on the Copyright’s Value The Law of TrademarkKinds of MarksWhat Makes a Mark ProtectableLikelihood of ConfusionDilutionTrademark ParodyUse It or Lose It: The Fear of “Going Generic”Chapter Summary7Access to InformationA First Amendment Right to Receive Messages?Access to Public Information: The Statutory FrameworkThe Federal Freedom of Information ActWhat is an “Agency?”What is a “Record?”What is an “Agency Record?”Making a FOIA RequestExemptions from DisclosureExemption 1: National SecurityExemption 2: Internal Agency Personnel RulesExemption 3: Withholding Mandated by Other Federal LawsExemption 4: Confidential Commercial InformationExemption 5: Internal Agency Policy Discussions and MemorandaExemption 6: Personnel, Medical, and Similar FilesExemption 7: Law EnforcementExemption 8: Financial InstitutionsExemption 9: Geological and Geophysical DataThe Government in the Sunshine ActThe Federal Advisory Committee ActState Freedom of Information ActsState Open Meetings LawsThe (Mixed) Value of Being Nice: A Final Thought on Getting InformationChapter Summary8Reporting on the JudiciaryA Clash of RightsThe Contempt PowerTrial Judges’ Burden of ProofThe Supreme Court and the FugitiveRemedies That Do Not Infringe upon Freedom of the PressContinuanceChange of Venue or VenireSequestration of the JuryVoir DirePreventing Prejudicial Publicity: Gag OrdersGag Orders Applied to the PressGag Orders Applied to Trial ParticipantsAttorneysJurors and WitnessesBarring Reporters from the CourtroomClosing the Trial ItselfClosing Pre-trial HearingsSuppression HearingsVoir Dire HearingsPreliminary HearingsLower Courts Apply the Press-Enterprise II TestOne-Sided Preliminary Hearings Hearing on a Motion to DisqualifyBail, Plea and Sentencing HearingsCompetency HearingsDeportation HearingsAccess to Judicial DocumentsTV Cameras in CourtChapter Summary9Protecting News SourcesThe Dance of ConfidentialityThe First Amendment and Confidential Sources: Branzburg v. HayesCounting the VotesThe Lower Courts Apply BranzburgWhat Type of Judicial Proceeding? Criminal TrialsCivil ProceedingsGrand Jury ProceedingsWhat Kind of Information?From Whom is the Information Sought?State Reporter Shield LawsWhat Type of Proceedings?What Kind of Information?Who is Protected?U.S. Department of Justice GuidelinesNewsroom SearchesNo Constitutional Immunity: Zurcher v. Stanford DailyThe Privacy Protection ActBetraying a Pledge of ConfidentialityChapter Summary10Regulation of AdvertisingThe Supreme Court and Commercial SpeechSaying Yes to AdvertisingHow Much Protection? The Central Hudson TestSmoking, Drinking, Gambling, and Making WhoopeeCan’t Stop With Drugs: Advertising by Lawyers and Other ProfessionalsStatutory and Regulatory ApproachesState and Local RegulationThe Federal Trade CommissionDeceptive AdvertisingFinding the Meaning of the Ad“And I Can Prove It!”“More Than I Can Say”“Did I Hear That Right?”“Who Said That?”Deceptive to a “Reasonable” Consumer?“Material” InformationProcedures and Powers of the FTCThe Lanham Act: Suits by Competitors and ConsumersIndustry Self-RegulationRegulation of Political AdvertisingChapter Summary11Sexually Oriented SpeechThe Supreme Court Defines Obscenity– Miller v. CaliforniaFine-Tuning the Legal Definition of ObscenityWhat Kind of Sexual Conduct?Thematic ObscenitySmut at HomeVariable ObscenityChild Pornography and “Sexting”Pornography as a Civil Rights Issue: “The” Feminist ResponseOther Means of Regulating Sexual MaterialZoning LawsPublic Nuisance LawsRacketeering StatutesGovernment Sponsorship of the ArtsChapter Summary12Regulation of Electronic MediaThe Birth of Broadcast Regulation and the FCCRulemaking and EnforcementAncillary PowersLicensure and OwnershipRequirements for LicensureHow Much Can You Own?Consumers and TechnologyRegulation of ContentPolitical SpeechCandidate Access RuleEqual Time Rule“Legally Qualified” Candidates“Using” the AirwavesEqual Time Rule ExemptionsSexually Oriented SpeechChildren’s TelevisionPBS and NPRCable TVCongressional ActionFirst Amendment IssuesDirect Broadcast Satellite ServicesThe InternetWhat Makes the Internet Different?Infinite Number of Information SourcesRelative Lack of GatekeepersParity among Senders and Receivers Extraordinarily Low Cost Jurisdictional Ambiguity Tweaking Communication Law for the InternetLibel OnlineTrademark and Copyright Online“Copying” in a Digital WorldTrademark, URL Addresses, and Website InteractionsDatabases and Authors’ RightsPrivacy OnlineOnline Privacy at WorkOnline Privacy and the Government.Online Privacy and the Private SectorAdvertising OnlineSexual Messages OnlineNet NeutralityChapter SummaryGlossaryCase IndexSubject Index