14: CHAPTER COMMUNICATION LAW AND REGULATION IN THE DIGITAL AGE
LEARNING OBJECTIVES
After studying this chapter, students should know:
1. The legal framework for understanding the nature of freedom of speech and press and how
media are regulated in the United States.
2. The key concepts in law protecting and restricting freedom of speech and press, including
threats to national security, libel and censorship.
3. The regulation of content in the United States, especially regarding commercial speech and
political speech.
4. The principal legislation that defines communication regulation in the United States and the
principal federal communications regulatory agency, the Federal Communications
Commission.
5. Details of intellectual property issues, especially copyright, and how it is affected in the digital
age.
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CHAPTER SUMMARY/LECTURE OUTLINE
I. Vignette: A look at Josh Wolfs fight for First Amendment protections from demands by
federal authorities that he appear before a grand jury and hand over his footage of an antiG8 demonstration held in San Francisco. The self-described blogger served 226 days in
jail.
II. The Legal Framework
A. Ever since the invention of the printing press, there has always been a tension
between authorities and people wanting to publish information opposed to authority.
B. The First Amendment protects the rights of free speech, although it does not mean
there is unlimited free speech. The U.S. government has attempted to limit speech at
various times during its history.
C. Fourth estate is another term for the press, or journalism, in which it acts as a fourth
branch of government and one that watches the other branchesexecutive,
legislative, and judicial.
1. Print media have much more freedom than film or electronic media, which are
more heavily regulated.
2. Most legal scholars agree that there should be some limitations on free speech,
and a preferred balancing theory has been proposed that attempts to maintain most
free speech rights while protecting others when free speech is practiced.
a. Media Quiz: Legal Limits: Questions test students legal knowledge as it
relates to the First Amendment, media regulations, and copyright.
III. The Foundations of Freedom of Expression
A. National Security: U.S. Congress passed a series of four acts in 1798 limiting
freedom of speech. The Alien and Sedition Acts were passed as a response to a threat
of war with France. The Acts prohibited spoken or written criticism of the U.S.
government, and imposed penalties of a fine or imprisonment upon conviction.
1. Clear and present danger is one restriction on free speech, and must meet two
criteria.
a. It is likely to incite or produce dangerous activity (such as yelling fire in a
crowded theater).
b. It is likely to succeed in achieving the purported result.
c. The clear and present danger test emerged in the case of Schenk v. United
States (1919), in which Schenk was convicted for violating the Espionage Act
when he distributed handbills protesting U.S. involvement in World War I.
2. The illegality of prior restraint was established in the 1931 Supreme Court
decision in Near v. Minnesota, meaning authorities cannot suppress printed
material prior to publication.
a. A preferred position balancing theory, described by Don Pember in his book
Mass Media Law, is that a balance must be struck between speech and other
rights, but speech is given a preferred position. The burden of proof falls on
the government to show that some speech is harmful to national security.
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B. Libel: This is a type of defamation, such as an attack on a persons character, that
damages his reputation. It is different from slander, which is spoken defamation.
Libel cases have helped define legal boundaries, beginning in precolonial times with
the Zenger case (1734).
1. The most important libel case to establish a free press in the U.S. was New York
Times v. Sullivan (1964).
a. The Supreme Court defined actual malice as either the intent of the defendant
was malicious, or that he or she knew the statement was false, or acted with
reckless disregard for the truth, and published it regardless. This is known as
the actual malice test.
b. The court ruled that the common law of defamation violated the guarantee of
free speech under the First Amendment and ruled the citizens right to
criticize government officials is too important to be intolerant of speech that
could contain even harmful falsehoods.
2. Protecting Journalists Against Libel
a. Most publications have libel insurance, but freelancers are rarely protected,
and journalists can be imprisoned for contempt of court for doing things like
protecting sources.
b. Five steps journalists can take to minimize their chances of committing an act
of libel include engaging in thorough research, confirming the identity of the
target of the report, using quotations and attribute statements to sources,
reporting facts only, and avoiding bias in reports.
3. Shield laws are meant to protect journalists from being forced to divulge
confidential sources, although not all states have them and their effectiveness has
been questionable.
C. Censorship: This is the act of prohibiting certain expressions or content. In the United
States, censorship has most often occurred during wartime or regarding pornographic
or obscene content. But not all people have the same First Amendment rights, as
proven in Hazelwood School District v. Kuhlmeier (1988), which found that students
have limited rights of expression regarding school publications.
1. Indecent Content
a. Indecent speech is regulated, not prohibited, and it has been challenged by a
number of celebrities.
b. The Supreme Court thwarted efforts to curb indecent speech online in 1998.
c. In late 2008 and early 2009, Facebook found itself the subject of lactivists
who protested its policy of removing photos of breastfeeding mothers from
member pages. Facebook refused to change the policy.
2. Obscenity, or pornography, is not protected by the First Amendment, and is
defined by three elements.
a. An average individual applying her or his contemporary community standards
must believe the content, taken as a whole, appeals to prurient interest.
b. The content must show or describe in an offensive manner sexual conduct.
c. The content on the whole must lack serious literary, artistic, political, or
scientific value.
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d. Free speech principles apply online, the Supreme Court ruled in April 2002
when it struck down provisions in the Child Pornography Prevention Act of
1996.
3. Criticism, Ridicule, or Humor: Even if they are extremely offensive and
perpetuate harmful stereotypes, these forms of communication are protected by
the U.S. Constitution.
IV. The Evolution of Regulating Electronic Media
A. Early Days and the Radio Act of 1912 (19111926)
1. Before 1911, there was no regulatory authority for radio transmission.
2. Radio emerged as a vital medium for ships at sea, especially for making distress
calls. So the Commerce Departments Bureau of Navigation was put in control of
radio until 1927.
3. The Radio Act of 1912 required all large ships to maintain radio contact with
ships or shore stations. The law assigned three- and-four letter codes to radio
stations and assigned frequencies to the stations.
B. Increasing Regulation and the Federal Radio Commission (19271933)
1. The radio airwaves were clogged with thousands of small and large stations
broadcasting by 1927.
2. The Radio Act of 1927 replaced the Radio Act of 1912 and created the Federal
Radio Commission (FRC), which cancelled most licenses and gave the advantage
to fewer, high-powered stations rather than many smaller, low-powered ones.
a.
Convergence Culture: (Low) Power to the People: A look at the Radio
Broadcasting Preservation Act passed by Congress in 2000 and how it
has encouraged low-power FM (LPFM) stations.
C. The Communications Act and Spectrum Scarcity (19341995)
1. The Communications Act in 1934 became the basis for U.S. communications
policy for the next sixty-two years.
2. The FCC was created.
D. The Telecommunications Act and Its Effects (1996Present)
1. Congress enacted the Telecommunications Act of 1996 as a new framework for
the convergence of telecommunications, computing, and traditional media in a
digital, networked environment.
2. The law was designed to foster competition in the communications marketplace.
It allowed for an expansion of ownership limits, so companies can own stations
within the same market.
3. Legal barriers are eliminated in the act that once prevented telephone and
television companies from competing in the areas of telephone and video services.
The result is that consumers can see more options for phone and television
services.
4. The FCC is mandated in the law to evaluate the use of video captioning for people
with disabilities.
E. Electronic Media Regulation Internationally
1. In many countries, the development of radio as a mass communication was an
extension of the already existing telegraph services, which were generally run by
the government.
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2.
3.
4.
In Europe and European colonies, the principle of public service encouraged
programming content that tended to emphasize news, education, and cultural
shows.
In the European Union in the last twenty years, there has been a steady and
increasing trend toward privatization and less regulation of the radio and
television industries.
Asian countries each have their own types of regulations and laws, but with the
exception of Japan, India, the Philippines, and South Korea, most Asian countries
have stronger degrees of government control of electronic media than seen in the
EU or the United States.
a.
International Perspectives: Rise The and Fall of Russian Media: A
look at Russias clampdown on journalists, despite optimism in 1991
for a democratic Russia.
V. The Federal Communications Commission (FCC): The FCC is the principal
communications regulatory body at the federal level in the United States. It consists of
five presidentially appointed commissioners who are confirmed by the Senate.
A. Regulating Radio and Television
1. The FCCs principal mandate is to regulate television and radio by awarding
licenses to new stations and renewing licenses of existing stations that meet FCC
requirements.
2. The FCC evaluates the relative needs of communities for additional broadcast
outlets and considers various engineering standards that eliminate interference
between stations.
3. Cable and satellite television are not under the same FCC rules as broadcast, or
those transmitted via terrestrial frequencies.
B. Universal Service: The FCC abides by six principles to assure universal service,
including quality services at reasonable and affordable rates and access to advanced
telecommunications and information services throughout the United States.
C. Spectrum Auction: The FCC, since 1994, has held auctions for available
electromagnetic spectrum, which are open to any individual or company that makes
an upfront payment and that the FCC deems a qualified bidder.
D. The FCC, Station ID, and License Renewal: To foster a certain level of uniformity in
programming style in the broadcast media, each station must air identification
announcements as they sign on and off each day, and must air announcements hourly,
at what the Commission calls a natural programming break.
1. Stations are licensed as commercial or noncommercial-educational (public)
broadcasters for up to eight years, after which the stations must review their
licenses.
2. To renew, stations must meet basic requirements that they have served in the
public interest and met all legal requirements, including responding to viewer or
listener complaints.
E. FCC Limits on Stations
1. Federal law regulates or prohibits a variety of station activities, including stationconducted contests and television games or quiz shows, and broadcasting
telephone calls. Full disclosure is expected of all the contest rules and terms.
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2.
3.
If a licensee violates the rules, the FCC is authorized to levy a fine or even to
revoke a stations license.
Radio and TV broadcasting must abide by more regulations than print media.
VI. Regulating Content
A. Commercial Speech: Whether in print or electronic media, commercial speech has
generally been afforded less protection than news or political speech.
1. Tobacco and alcohol advertising are forbidden by broadcasters, and there have
been restrictions on advertising alcohol products as well. There are no federal
laws or FCC regulations prohibiting the advertising of alcoholic beverages, such
as beer, wine, or liquor, on television and radio.
2. False Advertising: False or deceptive advertising is subject to restrictions by the
FCC, and advertising techniques such as subliminal advertising are forbidden.
B. Political Speech: Federal regulations on political speech have been extensive, and
political speech has been an important part of freedom of speech.
1. The equal-time provision was outlined in the 1934 Communications Act to give
political opponents equal on-air time.
2. The equal-time provision was part of the Fairness Doctrine, but it required
broadcasters to seek out and present all sides of an issue when covering a
controversy.
a. Today the Fairness Doctrine is no longer used because the government says
there are not the same limits on broadcasting with the proliferation of
channels and programming.
VII. Childrens Programming Protections
A. The Childrens Television Act of 1990 placed restrictions on the amounts of commercial
content that could be placed in childrens programming and mandates that there must be
a required amount of educational and informational programming.
B. Violent and Sexual Programming: The V-Chip: The V-chip, or violence chip, was
required to be included in all TV sets thirteen inches or larger. It is a computer device
that lets adults block out certain programs that contain sex or violence.
C. TV Parental Guidelines: There also now is a ratings system that allows for better judging
of potentially unsuitable content for children of various ages.
VIII. Intellectual Property Rights: This consists of two types: copyright, which extends to
creative and artistic works, and patent law, which covers inventions. Copyright law
protects the expression of copyright holders on a range of written and recorded works. For
digitally created work, there is the Digital Millennium Copyright Act.
A. Fair Use: People are allowed to use copyrighted works for no charge under certain
circumstances, including for educational purposes or for the news.
IX. Legal Issues in the Digital World: Digital media have certain characteristics unlike
analog media, so there have been a host of new issues that our legal system has been illequipped to deal with.
A. Digital Rights Management (DRM) is about finding ways using technology to reign
in copyright infringement of digital content.
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1. Encryption has had some success in curtaining copyright infringement.
2. Digital watermarks are a way to protect digital content. Watermarks are computer
code (usually invisible) inserted into any digital content, whether images,
graphics, audio, video, or even text documents, that authenticate the source of that
content.
a. Convergence Context: Creative Commons License: A look at the nonprofit
organization founded in 2001 that seeks to make it easier for people to share
and build upon the work of others
B. Privacy: With the Internet and digital media, privacy issues have become more
important.
1.
Websites track users and often can insert code, called a cookie, onto users
computers and track them even after they have left that particular website.
2.
Third-party cookies track your Web usage and send information directly to the
advertisers, who can determine how long youve stayed on a page, what pages
youve visited, and where you went after that page.
C. Content Rights and Responsibilities: The courts have provided a safe haven provision
for content providers, protecting them to some extent from libel lawsuits as long as
they promptly remove offending content placed on the Web. And, Internet service
providers (ISPs) have been considered largely immune from responsibility regarding
the type of content that is sent over their networks.
X. Conclusion: Looking Back and Moving Forward
A. The legal system is generally far behind in dealing with legal and regulatory issues
dealing with the Internet, as questions on the hyperlink and publishing arise.
B. The global nature of the Internet also raises questions on which laws should be
followed if content that is offensive or illegal in one country can be viewed online.
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LECTURE LAUNCHERS/DISCUSSION TOPICS
1. Have the class briefly research recent libel cases involving media. Discuss the details,
picking out key aspects of laws protecting journalists freedom of expression.
2. Show the parody website The Onion (www.theonion.com) or clips from The Daily Show that
attack or make fun of a person or subject. Now show a clip of a David Chapelle skit where he
mocks race relations in the United States. Lead a discussion on press freedoms and why the
material in the three instances is or is not libelous.
3. Discuss the regulation of false or deceptive advertising in electronic media and then discuss
whether the same rules should apply to product placement, and if so, how exactly they would
be applied. Should it be forbidden for a company to show a competitors product being used
by a bad or evil character, for example?
4. Divide the class into groups and ask them to select a foreign country with an electronic media
system they would like to investigate. Look at the business models, geography, global
politics, and culture and discuss their influences on the national systems. How similar and
how different are their laws that regulate electronic media?
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SUGGESTED ACTIVITIES
1. Bring several copies of tabloid newspapers to class and scan them for potentially libelous
stories. Now, have students take a case in which a celebrity has claimed he or she was libeled
by a publication and provide a brief background and overview of the case and whether the
celebrity won or not, as well as providing their opinion on whether they felt it was libel, even
if the case was settled.
2. Have students research libel laws in a foreign country and compare them to libel laws in the
United States. Have them examine how they think that countrys laws influence the type of
stories journalists do in that country.
3. Have students research one of the specialized functions or roles the FCC has and write about
the part it plays within the overall FCC.
4. Have students research the state of telecommunications convergence in their area or in their
hometown. What plans are available from what telephone or media companies? Which plan
seems best and which is most popular? Why do they think it is? They should try to predict
the direction the market might go for the area as well.
5. Have students research current news items about some important copyright issues and write
about them, putting them in a historical context and discussing what planned changes might
mean for media companies, creators, and the general public.
6. Have students write about the latest research on digital watermarks and write a brief
summary of how they work. What implications could digital watermarks have for media
companies and the general public?
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