||Chapter 24 - Law and the Journalist
The First Amendment to the United States Constitution guarantees the nation "freedom of the press," but what does that mean? Most of us have at least a vague notion of freedom of the press, but even after 200 years of the republic, we still have not nailed it down definitively. This chapter explores some of the history and precedents that have helped us arrive where we are today in our ideas of a free press.
One of the major ideas on which America operates is that the nation is an "open society." That is, we expect information to flow freely within the society, and we expect it to be available to us. The freedoms named in the First Amendment (the practice of religion, speech, press, assembly and petitioning the government) reflect this idea of openness. So do our education, social and economic systems. But the idea has its limits. Not everything is openly known or available.
Journalism, however, assumes this open environment, and many of the practices of journalism are based on the idea that information will (or should) be available. Another basic idea is that in America we are not restrained from speaking (or printing or posting on a web site) whatever we like. No government entity checks presses, broadcast outlets or web servers before information is disseminated. It is only after information is dissiminated (in most cases) that legal consequences of that dissimentation can be brought to bear.
Those consequences may include libel, copyright and trademark infringement, privacy violations, national security concerns and other torts. Generally, journalists understand the limits of these consequences and, for the most part, do not feel hindered by them. Still, society often entertains many proposals that would limit the free speech, free press and openness that we enjoy, and journalists should remain diligent in opposing these limits and should also work actively to make sure that society remains as open as possible.
- What are the five specific freedoms covered by the First Amendment?
- What are the legal lessons to be learned from the story of the Cherry sisters? the Saturday Press in Minneapolis?
- What is the significance of a legal precedent?
- What is defamation? What must be proven in a defamation case? What are the defenses against defamation?
- What is actual malice and how did the concept develop?
- What is "fair use" in terms of copyright law?
- How much does the concept of privacy mean to journalists legally?
- What is a shield law?
Shield laws. Most states have laws that protect reporters, under certain circumstances, from having to reveal their confidential sources to courts or law enforcement officials. (No such law exists at the federal level.) These laws do not offer absolute protection, however, and reporters live in fear that they will be subpoenaed and asked to name their sources. The first years of this century have been perilous for reporters in this regard. The Reporters Committee for Freedom of the Press has put together a report about journalists being subpoenaed. Here’s how it starts:
In 2001, freelance book author Vanessa Leggett broke a record she never aspired to challenge. Serving what would turn out to be a 168-day prison term, she became the longest-jailed journalist in U.S. history held for refusing to disclose a confidential source.
Leggett chose to go to prison rather than comply with a subpoena from a federal grand jury. She had claimed that a reporter's privilege protected her from having to disclose her confidential sources for a book she was writing about a murder case in Texas. After a U.S. District Court judge and an appeals court ordered her to disclose her interviews or go to jail, Leggett stood her ground and turned herself in to prison officials.
"I just feel like I'm doing what I have to do to protect my First Amendment right to freedom of the press," Leggett told an Associated Press reporter on her way to jail. "I feel like what they are doing is wrong."
After her release almost six months later, Leggett said she would be more than willing to go back to jail if she were subpoenaed again. (More) http://www.rcfp.org/agents/intro.html
Open records, open government. Many governmental bodies particularly on the local level like to operate in secret. That is, bodies such as school boards and zoning authorities find it easier to make decisions when they are not under public scrutiny. Sometimes these decisions are questionable, and those serving on these boards would rather not be questioned. Such an attitude, however, runs counter to how Americans view their government and in fact limits the First Amendment right to petition the government. The National Freedom of Information Center (http://www.nfoic.org/) is an organization set up to fight secrecy in government. Check out NFOIC’s web site, and see if there is a Freedom of Information center in your state.
Student Press Law Center. The Student Press Law Center is one of the most valuable legal resources in the field of journalism. The center keeps up with the many challenges to student press freedom throughout the country. It also offers advice to those who might be facing such a challenge. The web site has many resources for students, plus a good list of links (http://splc.org/links.asp) to other organizations with the same interests.
State of the First Amendment. A sidebar on page 452 of the book talks about public opinion toward the First Amendment. The survey cited there, conducted by the First Amendment Center (http://www.firstamendmentcenter.org/), has been updated. The following is the introduction to the report on that survey:
In 2004, Americans’ support for their First Amendment freedoms deeply shaken by the terrorist attacks of Sept. 11, 2001 continues to rebound and is back at pre-9/11 levels, according to the annual State of the First Amendment survey, conducted by the First Amendment Center in collaboration with American Journalism Review magazine.
“The 2004 survey found that just 30 percent of those surveyed agreed with the statement, ‘The First Amendment goes too far in the rights it guarantees,’ with 65 percent disagreeing. The nation was split evenly, 49 percent to 49 percent, on that same question two years ago, in the survey following the ‘9/11’ attacks,” said Gene Policinski, acting director of the First Amendment Center.
The entire report is available on this site as a PDF file.
Need to know more about copyright and fair use? Chances are, you do (even if you have read the section on fair use on page 457). If so, you can take the University of Texas’ crash course in copyright online. Another good web site concerning copyright and fair use is the Stanford University Center for Copyright and Fair Use . Make sure you understand the concepts of copyright and fair use before you use something that you did not create yourself. Being involved with an educational institution does not mean that you can use anything you want to use.
James Madison. The author of the First Amendment was James Madison, one of the brightest and most politically astute of the Founding Fathers. Madison studied and thought deeply about many of the political issues confronting the young republic. Here are a couple of the things he wrote about the value of the press in a free society:
Whatever facilitates a general intercourse of sentiments, as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people ... is favorable to liberty.
National Gazette, 1791
It is to the press mankind are indebted for having dispelled the clouds which long encompassed religion, for disclosing her genuine lustre, and disseminating her salutary doctrines.
Speech in the Virginia Assembly, 1799
Key concepts and terms
• The First Amendment to the U.S. Constitution guarantees the nation a right to free speech and to a free press; it is the central legal element that allows journalism to operate and develop in this country.
• Prior restraint the power of the government to stop dissemination of information that the news media has acquired; except in a few rare instances, prior restraint does not occur in the United States.
• American society generally operates as an open society; that is, we expect information to be available and we assume the right to distribute information.
• One of the major legal restraints on news organizations is libel, the damage done to a person's reputation by the publication of false information.
• New York Times v. Sullivan this 1964 decision by the Supreme Court gave the news media an extra measure of protection from being sued for libel by public officials.
• Actual malice the standard of proof that was established by the New York Times v. Sullivan decision; a public official or public figure has to prove that a news organization showed "reckless disregard" for the truth to win a libel case.
• Copyrights and trademarks protect "intellectual property" from unauthorized use.
• The right of privacy is not guaranteed by the U.S. Constitution, but most courts recognize this right, and news organizations have to consider the right of privacy for individuals in making some editorial decisions.
• News coverage of trials presents a problem for the news media and the legal system because of the feeling that too much publicity may prevent someone from getting a fair trial.