Communication Law in America

Preface
1 Introducing the American Legal System
An Overview of the American Judiciary
A Three-Tiered Hierarchy
The Scope of a Precedent
The Current U.S. Supreme Court
Going to Court: Civil or Criminal
The Appeals Process
Decisions and Opinions
Legal Citations– How to Find the Cases
Sources of Communication Law
Constitutions
The First Amendment
Other Sources of Communication Law in the Federal Constitution
State Constitutions and Communication Law
Statutes
Executive Orders
Administrative Agency Decisions
Common Law and the Law of Equity
Chapter Summary


2The Development of Freedom of Speech
Speech as the American Freedom?
Freedom of Speech from the Colonial Period through World War I
Freedom of Speech Doctrine Emerges
The Early 20^th Century Cases
The Brandenburg Test: Imminent Lawless Action
After 9/11
Theories of First Amendment Adjudication
Free Speech as the Absence of Prior Restraint?
First Amendment Absolutism
Access Theory
Balancing Theories
The Value of Freedom of Expression
Truth-Seeking
Self-Governing
Checking on Government Abuse
Letting Off Steam
Self-Fulfillment
Is Freedom of Expression Overrated?
Some Transcendent First Amendment Doctrines
A Right to Hear (and Read)
A Right not to Speak
Symbolic Conduct
Time, Place and Manner Restrictions
Public Forum Analysis
Quintessential Public Forums
Limited Public Forums
Nonpublic Forums
Regulating the Business of Communication
Antitrust Laws
Taxation
Workplace Law
Communication Law in Special Settings
Students
Government Employees
Soldiers
Chapter Summary

3Defamation: Common Law Elements
Elements of a Libel Suit
Defamation
Libel Per Se, Libel Per Quod, and Implied Libel
Who Has to Believe?
What Does It All Mean?
Headlines and Captions
Defaming People, Corporations, and Products
How Much Does It Hurt?
Publication
Identification
Naming and Identifying
Identification in Fiction
The Numbers Game
Fault
Some Common Law and Statutory Defenses to Libel
Chapter Summary

4Defamation: First Amendment Limitations
Introducing New York Times v. Sullivan
The Birth of the Actual Malice Rule
Applying the Rule
Libel and Sedition
Two Famous Metaphors
Some Unanswered Questions from Sullivan
Who 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 Decision
A Reaffirmation of the “Who Is the Plaintiff?” Question
Two Kinds of Public Figures
The Fault Element and Private Plaintiffs
Punitive or Presumed Damages and Actual Malice
Proof of Damages
Chapter Summary

5Invasion of Privacy
A Tale of Two Law Review Articles
Misappropriation
Two Actions or One?
What is a Likeness?
Look-Alikes and Sound-Alikes
The Political Figures Exception
Newsworthiness
The Booth Rule
Consent
Intrusion
Ride-Along Intrusions
Intrusions and Fraud
Wiretapping
False Light
The Hill family
Distortion
Fictionalization
Public Disclosure
Publicly Disclosing Information
Previously Private Information
Highly Offensive Revelations
A Defense Swallowing the Tort?
The Supreme Court and Public Disclosure
Chapter Summary

6Copyright and Trademark
The Law of Copyright
Scope
Things that Can’t be Copyrighted
Protecting Your Copyright
Who Owns a Copyright?
Elements of a Copyright Infringement Suit
Originality
Access
Substantial Similarity
Fair Use and the Supreme Court
Home Videotapers Are Not Criminals
Newsworthiness and Copyright Infringement
A Pretty (Hairy) Decision
Fair Use Inquiry #1: The Purpose and Character of the Use
Fair Use Inquiry #2: The Nature of the Work
Fair Use Inquiry #3: The Amount Taken
Fair Use Inquiry #4: The Effect of the Taking on the Copyright’s Value
The Law of Trademark
Kinds of Marks
What Makes a Mark Protectable
Likelihood of Confusion
Dilution
Trademark Parody
Use It or Lose It: The Fear of “Going Generic”
Chapter Summary

7Access to Information
A First Amendment Right to Receive Messages?
Access to Public Information: The Statutory Framework
The Federal Freedom of Information Act
What is an “Agency?”
What is a “Record?”
What is an “Agency Record?”
Making a FOIA Request
Exemptions from Disclosure
Exemption 1: National Security
Exemption 2: Internal Agency Personnel Rules
Exemption 3: Withholding Mandated by Other Federal Laws
Exemption 4: Confidential Commercial Information
Exemption 5: Internal Agency Policy Discussions and Memoranda
Exemption 6: Personnel, Medical, and Similar Files
Exemption 7: Law Enforcement
Exemption 8: Financial Institutions
Exemption 9: Geological and Geophysical Data
The Government in the Sunshine Act
The Federal Advisory Committee Act
State Freedom of Information Acts
State Open Meetings Laws
The (Mixed) Value of Being Nice: A Final Thought on Getting Information
Chapter Summary
8Reporting on the Judiciary
A Clash of Rights
The Contempt Power
Trial Judges’ Burden of Proof
The Supreme Court and the Fugitive
Remedies That Do Not Infringe upon Freedom of the Press
Continuance
Change of Venue or Venire
Sequestration of the Jury
Voir Dire
Preventing Prejudicial Publicity: Gag Orders
Gag Orders Applied to the Press
Gag Orders Applied to Trial Participants
Attorneys
Jurors and Witnesses
Barring Reporters from the Courtroom
Closing the Trial Itself
Closing Pre-trial Hearings
Suppression Hearings
Voir Dire Hearings
Preliminary Hearings
Lower Courts Apply the Press-Enterprise II Test
One-Sided Preliminary Hearings
Hearing on a Motion to Disqualify
Bail, Plea and Sentencing Hearings
Competency Hearings
Deportation Hearings
Access to Judicial Documents
TV Cameras in Court
Chapter Summary

9Protecting News Sources
The Dance of Confidentiality
The First Amendment and Confidential Sources: Branzburg v. Hayes
Counting the Votes
The Lower Courts Apply Branzburg
What Type of Judicial Proceeding?
Criminal Trials
Civil Proceedings
Grand Jury Proceedings
What Kind of Information?
From Whom is the Information Sought?
State Reporter Shield Laws
What Type of Proceedings?
What Kind of Information?
Who is Protected?
U.S. Department of Justice Guidelines
Newsroom Searches
No Constitutional Immunity: Zurcher v. Stanford Daily
The Privacy Protection Act
Betraying a Pledge of Confidentiality
Chapter Summary

10Regulation of Advertising
The Supreme Court and Commercial Speech
Saying Yes to Advertising
How Much Protection? The Central Hudson Test
Smoking, Drinking, Gambling, and Making Whoopee
Can’t Stop With Drugs: Advertising by Lawyers and Other Professionals
Statutory and Regulatory Approaches
State and Local Regulation
The Federal Trade Commission
Deceptive Advertising
Finding 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” Information
Procedures and Powers of the FTC
The Lanham Act: Suits by Competitors and Consumers
Industry Self-Regulation
Regulation of Political Advertising
Chapter Summary

11Sexually Oriented Speech
The Supreme Court Defines Obscenity– Miller v. California
Fine-Tuning the Legal Definition of Obscenity
What Kind of Sexual Conduct?
Thematic Obscenity
Smut at Home
Variable Obscenity
Child Pornography and “Sexting”
Pornography as a Civil Rights Issue: “The” Feminist Response
Other Means of Regulating Sexual Material
Zoning Laws
Public Nuisance Laws
Racketeering Statutes
Government Sponsorship of the Arts
Chapter Summary

12Regulation of Electronic Media
The Birth of Broadcast Regulation and the FCC
Rulemaking and Enforcement
Ancillary Powers
Licensure and Ownership
Requirements for Licensure
How Much Can You Own?
Consumers and Technology
Regulation of Content
Political Speech
Candidate Access Rule
Equal Time Rule
“Legally Qualified” Candidates
“Using” the Airwaves
Equal Time Rule Exemptions
Sexually Oriented Speech
Children’s Television
PBS and NPR
Cable TV
Congressional Action
First Amendment Issues
Direct Broadcast Satellite Services
The Internet
What Makes the Internet Different?
Infinite Number of Information Sources
Relative Lack of Gatekeepers
Parity among Senders and Receivers
Extraordinarily Low Cost
Jurisdictional Ambiguity
Tweaking Communication Law for the Internet
Libel Online
Trademark and Copyright Online
“Copying” in a Digital World
Trademark, URL Addresses, and Website Interactions
Databases and Authors’ Rights
Privacy Online
Online Privacy at Work
Online Privacy and the Government.
Online Privacy and the Private Sector
Advertising Online
Sexual Messages Online
Net Neutrality
Chapter Summary
Glossary
Case Index
Subject Index