Major changes in the law

The law changes on a daily basis.  This page traditionally has noted some of the most important new developments in communications law that have occurred since the most  recent edition of Major Principles of Media Law went to press.  The new 2009 edition is now in print; its preface is reproduced here.  As a service to those who may still be using the 2008 edition, the January, 2008 summary of recent developments appears at the end of this web page (see below).  For updates to the 2009 edition, please see Genelle Belmas' update page.



This is the 20th edition of Major Principles of Media Law and the 18th published on an annual revision cycle. This edition includes new developments through the end of the Supreme Court's 2007-2008 term and will be in print in time for fall, 2008 classes. 

This year has seen hundreds of changes in communications law, including several that were little noted in the news media but may signal major changes in broadcast content regulation.  Public attention was focused on the Federal Communications Commission's latest revision of the broadcast ownership rules and on the indecency controversy that is now before the Supreme Court. But the FCC also adopted new program reporting requirements for television stations that appear to reimpose de facto quotas for content as well as ascertainment requirements similar to those abandoned more than 20 years ago. The FCC also released its long-awaited localism report, proposing still more re-regulation of broadcast content. These rules and proposals apply only to over-the-air broadcasting, not its increasingly potent cable, satellite and online competitors, raising new questions about the First Amendment status of broadcasting. 

This year the Supreme Court carved out an exception to the First Amendment to uphold the PROTECT Act, a law that bans offers or solicitations of pornographic material purportedly involving children--regardless of whether the material in question actually involves children and is pornographic. The court's majority categorically excluded this kind of material from First Amendment protection over the objections of dissenting justices who said it wasn't necessary to curtail First Amendment rights in this way.  The high court also announced two other First Amendment and media-related decisions in 2008.

Two federal appellate courts recently reached opposite conclusions on the question of whether Internet services are liable for allegedly discriminatory messages posted by their users. One court said is exempt from liability under Section 230 of the Communications Decency Act, but another held that is not exempt because it requires users to create profiles by answering questions written by Roommates. 

The 20th edition of Major Principles also notes many other changes in the law, including a major expansion of the Freedom of Information Act and court decisions protecting employee e-mail and whistle-blowing rights. 

Here are some of the highlights of what is new in this edition. 

Chapter One (The Legal System) discusses: 
* The status of the federal appellate court system, with the ninth circuit 
apparently destined to remain intact for now. 

Chapter Two (The Legacy of Freedom) discusses: 
* The controversy about the USA PATRIOT Act after a federal judge again 
overturned one of its major provisions. 

Chapter Three (Prior Restraints) discusses: 
* A federal appellate court decision protecting the right of public employees 
to report allegations of corruption that do not involve their official duties; 
* A California Supreme Court decision upholding the right to picket at a 
private shopping mall; and 
* A Washington Supreme Court ruling that overturned a ban on allegedly 
false statements in political campaign literature. 

Chapter Four (Libel and Slander) discusses: 
* The evolving status of anti-SLAPP laws in various states. 

Chapter Five (Privacy) discusses: 
* The effect on privacy law of California's Supreme Court decision affirming 
the right of homosexuals to marry; 
* A federal appellate court decision protecting the privacy of employees' e-mail 
and text messages when they are routed through an outside provider; 
* An Ohio Supreme Court decision recognizing false light invasion of privacy 
as a legal wrong in that state; and 
* New legislation in New York and California that would protect the right of 
publicity of deceased celebrities. 

Chapter Six (Copyrights and Trademarks) discusses: 
* The protection of celebrities' names under trademark law; 
* A very large verdict against an individual for file-sharing; 
* The proposed Design Piracy Prevention Act; 
* Conflicts between bloggers and the Associated Press over the use of even 
very short excerpts from AP stories; 
* A federal appellate court decision protecting fantasy baseball providers 
from copyright liability for using the names and statistics of actual players; and 
* New developments in the Perfect 10 v. case, involving possible 
liability of search engines for posting "thumbnails" of copyrighted images and 
for helping web surfers find infringing images on other websites. 

Chapter Seven (Fair Trial - Free Press) discusses: 
* The new willingness of Supreme Court justices to grant media interviews. 

Chapter Eight (Newsgatherer's Privilege) discusses: 
* The status of the proposed federal shield law and the enactment of new shield 
laws or equivalent protections in several additional states. 

Chapter Nine (Freedom of Information) discusses: 
* Taylor v. Sturgell, a Supreme Court decision rejecting the doctrine of virtual 
representation, under which a lower court said an agency could dismiss an FoI 
request because a friend of the applicant had previously requested the same 
information from the same federal agency; 
* The Open Government Act of 2007, a major revision of the FoI Act; and
* The problem of public access to government officials' e-mail under state public 
records laws. 

Chapter 10 (Obscenity and Pornography) discusses: 
* The Supreme Court's U.S. v. Williams decision, upholding the constitutionality 
of the PROTECT Act. 

Chapter 11 (Regulation of the Electronic Media) discusses: 
* Fox Television Stations v. FCC, the case now before the Supreme Court that 
challenges the Federal Communications Commission's new indecency rules; 
* The FCC's Report on Broadcast Localism and related proposals for new 
regulation of broadcasters' programming; and 
* The FCC's new reporting form that television stations must complete every 
three months, a form that seemingly requires the airing of FCC-favored 
content and in effect restores the ascertainment rules that were eliminated 
in 1984. 

Chapter 12 (Ownership and Antitrust Issues) discusses: 
* The FCC's latest revision of its broadcast ownership rules; 
* Recent developments in the ongoing U.S. and European antitrust litigation 
targeting Microsoft Corporation; and 
* Changes in media business practices resulting from consolidation and cross- 

Chapter 13 (Advertising Regulation) discusses: 
*Davis v. FEC, a First-Amendment-based Supreme Court decision overturning a provision of the McCain-Feingold campaign finance law that allowed opponents of wealthy candidates to accept otherwise-illegal excess contributions; 
* The question of federal preemption of state tobacco advertising claims; 
* The and appellate court decisions, reaching 
opposite conclusions about the liability of Internet providers for discriminatory 
postings by their users; and 
* Liability of drug makers for allegedly failing to disclose the health hazards 
of prescription drugs, including bet-the-company lawsuits involving Merck. 

Chapter 14 (Student Press Law) discusses: 
* Lane v. Simon, a federal appellate court decision holding that a lawsuit by 
former university editors challenging the reassignment of their faculty adviser 
was moot because they had graduated. 

* * * 

This all happened in one year. As has been true ever since these annual revisions began, Major Principles of Media Law will be the first media law textbook in print with many of the year's new developments. 

As this Preface has noted in previous years, having a textbook this current is possible only because of the emergence of desktop publishing technology--and because there are publishers willing to throw out the old production schedules for textbooks. A media law textbook produced on the traditional timetable is at least a year out of date when it arrives in college bookstores for the first time; it may be four or five years out of date before it is replaced by a new edition. That leaves those teaching a communications law class in the position of having to cover a lot of new developments in lecture or assign the students to read about them in a supplement--and then disregard the outdated parts of the textbook. After teaching the basic principles of communications law to almost 14,000 students on five campuses over 38 years, I'm convinced that having an up-to-date textbook makes teaching (and learning) this subject much easier. 

Although much of the material is new, Major Principles of Media Law retains the primary goal it has had through 20 editions: to present a clear and concise summary of the law for mass communications students. If this book succeeds, much of the credit should go to the 60 reviewers who have offered so many helpful suggestions since the first edition was written almost 30 years ago. Special thanks should go to the most recent reviewers, including: Andy Alali, California State University, Bakersfield; Ron Allman, Indiana University Southeast; Jodi Bromley, Old Dominion University; Christopher Burnett, California State University, Long Beach; Michael Cavanagh, State University of New York at Brockport; Tom Dickson, Missouri State University; Thomas Gardner, Westfield State College; Thomas Gladney, University of Wyoming; Dale Grossman, Cornell University; Jake Highton, University of Nevada, Reno; James Landers, Colorado State University; Carole McNall, St. Bonaventure University; Fritz Messere, State University of New York at Oswego; Donald Mohr, Purdue University; Henry Ruminsky, Wright State University; Jeff Stein, Wartburg College; and Omar Swartz, University of Colorado at Denver. 

I particularly wish to thank Dean Rick Pullen of California State University, Fullerton, who was co-author of the first two editions of this book, and Genelle Belmas of Cal State Fullerton, who has served as both a reviewer and an editor of the last three editions and will assume the primary duties of authorship next year. 

It has been a joy, an honor and a challenge to have been involved with Major Principles of Media Law on a daily basis for nearly 30 years. 

Wayne Overbeck, Ph.D., J.D. 
June 27, 2008 

Recent developments (January, 2008)

Federal judge overturns part of USA PATRIOT Act (Ch. 2):  U.S. District Judge Victor Marrero ruled in September, 2007 that a controversial part of the Patriot Act requiring Internet providers to turn over personal records to federal investigators without informing the people being investigated is unconstitutional.
     Judge Marrero, who had ruled similarly in 2004 in a challenge to the original version of the Patriot Act, said the revised law still violates fundamental constitutional safeguards by requiring Internet providers and other entities to respond secretly to "national security letters" from the FBI and other investigators.  These letters are issued without a court order or a grand jury subpoena, demanding personal information about individual customers or clients.
     The federal government appealed Judge Marrero's decision.  The government continues to take the position that these demands for personal information under a procedure that bypasses the normal search and seizure safeguards of the Fourth Amendment are necessary to fight terrorism.

California Supreme Court upholds mall picketing rights (Ch. 3):  Ruling on Christmas Eve, 2007, the California Supreme Court gave a major victory to labor unions and others who want to picket at private shopping malls, reaffirming their right to do so even if they urge shoppers to boycott a store in the mall.
     In a closely contested 4-3 decision, the court declined to abandon its 1979 precedent allowing picketing at private malls, Pruneyard Shopping Center v. Robins.  In the new case, Fashion Valley Mall v. National Labor Relations Board, the court majority said the free-expression rights of protesters still outweigh the property rights of the mall's proprietors.
     The Fashion Valley case was especially important to free-speech advocates because the U.S. Supreme Court has held that there is no similar right under the First Amendment, and only a few other state courts have recognized such a right under their state constitutions as the California court did in Pruneyard.  In fact, even a number of California courts have interpreted Pruneyard narrowly in recent years, refusing to recognize similar free expression rights at stand-alone stores and in other private venues (as opposed to shopping malls).  Shortly before the Fashion Valley decision, a California appeals court even ruled against those who wanted to collect voters' signatures outside major stores that were grouped around a large parking lot--but without the central courtyard feature of a mall (Van v. Home Depot).
     Writing for the majority, Justice Carlos R. Moreno said, "The mall's purpose to maximize the profits of its merchants is not compelling compared to the union's right to free expression."
      That produced a surprisingly strong dissenting opinion by Justice Ming W. Chin, in which he attacked "the bankruptcy of the majority's position," noting how few other states' courts have followed the Pruneyard precedent since it was decided nearly 30 years ago.
     The new case involved picketing by unionists outside a Robinson-May store, urging customers not to shop there because the department store was a major advertiser in the San Diego Union-Tribune, which was involved in a labor dispute with the union.

Washington Supreme Court rejects law banning false political speech (Ch. 3):  The 
Washington State Supreme Court has overturned as unconstitutional a state law that allowed a government agency to punish political candidates for making what the agency deemed to be false statements in political campaign materials.  The court, in a 5-4 decision, said the law, which allowed political speech to be suppressed without any showing that it was defamatory and was made with actual malice, as required by the landmark New York Times v. Sullivan decision of the U.S. Supreme Court, violated both the First Amendment and the state constitution.
     In Rickert v. Public Disclosure Commission (168 P.3d 826, 2007), Justice James Johnson wrote for the majority, 'The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment."  The four dissenting justices said the court's decision was an "invitation to lie with impunity."
     Marilyn Rickert, a Green Party candidate for the state legislature, was fined $1,000 for making two statements that the Public Disclosure Commission determined to be false about State Sen. Tim Sheldon, who was easily re-elected despite Rickert's allegedly false campaign flier.   She challenged the fine, and eventually the Washington Supreme Court overturned the law under which she was punished.

Ninth circuit reaffirms Perfect 10 decision (Ch. 6):  The ninth circuit U.S. Court of Appeals 
again ruled against Perfect 10, an Internet purveyor of nude photographs, in a December, 2007  decision that essentially reaffirmed its earlier ruling (discussed in the text).  The court earlier overturned a trial judge's injunction against Google's use of small thumbnail images of Perfect 10's photos on its search engine, allowing the thumbnails to remain online.  In this follow-up ruling, the federal appeals court said the burden of establishing that its thumbnails are a fair use and not a copyright infringement should be on Google, even at this preliminary stage of a lawsuit.  But the appellate court also said Google had met this legal requirement. 
     The new ruling said a trial judge should reconsider whether Google or, also named in Perfect 10's lawsuit, was infringing Perfect 10's copyrights by providing links to the  full-size images on independent websites that displayed them without Perfect 10's consent.  In short, does helping Internet users find an infringing photograph on someone else's website constitute an infringement of Perfect 10's copyright?  (Perfect 10 v., 2007 U.S. App. Lexis 27843).

Webcasters and SoundExchange agree on music royalties (Ch. 6):  In August, 2007, a group representing online audio broadcasters reached a royalty agreement with SoundExchange Inc., which represents performers and record companies.  The deal allowed many Internet broadcasters to continue their programming.  Under royalty rates set earlier by the U.S. Copyright Royalty Board, a government agency, the fees were so high that many webcasters said they would be forced to shut down because they could not afford to pay them.  Separate royalty negotiations have been under way between webcasters and music licensing agencies that represent owners of the copyrights to the underlying music and lyrics, as opposed to the performance copyrights.

Jury fines Minnesota woman $222,000 for sharing music (Ch. 6):  In the largest award of its kind, a federal jury in October, 2007 ordered a Minnesota woman to pay a fine of $9,250 to record labels for each of 24 copyrighted songs she allegedly shared via the Internet.  Jammie Thomas, a 30-year-old single mother of two who earns $36,000 a year as an employee of an Indian reservation, was found by the jury to have shared songs via the Kazaa file-sharing site, although she denied it.  The jury could have awarded the record labels as much as $150,000 for each instance of file-sharing.
     Altogether, the record industry had filed about 30,000 lawsuits against those it accused of sharing music online by the end of 2007.  About 10,000 of those cases have been settled by payments by individuals to the industry of $5,000 or less.  This case was noteworthy because Thomas chose to fight instead of settling and because the jury nailed her with such a large verdict.
     Her atttorney later asked the judge to set aside the verdict and order a new trial, arguing that the 24 songs could have been purchased online for about $24, and that at the very most the recording industry suffered losses of $151 because of Thomas' file sharing.

House passes federal shield law (Ch. 8):  In October, 2007, the House of Representatives overwhelmingly approved a federal shield law.  The vote was 398-21, far more than sufficient to override a threatened presidential veto.  At about the same time, a similar proposal was approved by the Senate Judiciary Committee.  If ultimately enacted, the bill would cover professional journalists but not bloggers or others who do not earn substantial money by their journalistic work.  It would protect journalists from being required to reveal confidential information or the names of their sources under many circumstances.  Courts would be able to set aside the shield and force journalists to provide certain information that might assist in solving crimes, prevent an act of terrorism or track down leaks of information that would endanger national security.

Congress enacts new FoI law (Ch. 9):  Acting just before their holiday recess, both houses of Congress overwhelmingly approved the OPEN Government Act of 2007 and President Bush signed it into law at year-end.
     The bill reversed many of the Bush administration's efforts to increase government secrecy since the 2001 terrorist attacks.  It also restricted the scope of an order by then-Attorney General John Ashcroft directing federal agencies to resist requests for information under the Freedom of Information Act whenever there was a legal basis for doing so.
     Among other things, the 2007 law brought nonproprietary information held by government contractors within the scope of the FoI Act.  The new measure required agencies to meet a 20-day deadline for responding to FoI requests or else refund search and duplication fees paid by noncommercial requesters.  Also, agencies now have to explain instances where part of a document is blacked out before it is released to a requester.  In addition, the 2007 legislation set up a system for requesters to track the status of their queries and created an ombudsman in each agency to deal with disputes over information requests without litigation.

FCC appeals Fox TV decision on indecency (Ch. 11):  In late 2007 the Federal Communications Commission appealed the second circuit U.S. Court of Appeals decision in the Fox Television Stations v. FCC case, in which the court overturned a number of recent FCC fines against broadcasters for the airing of fleeting or spontaneous indecent language.  The U.S. Solicitor General, acting on the FCC's behalf, asked the U.S. Supreme Court to hear the case.

FCC again relaxes cross-ownership rules (Ch. 12):  Acting on an accelerated timetable in December, 2007, the FCC approved a new plan to deregulate the long-controversial newspaper-TV cross-ownership rules.  On a partisan 3-2 majority, the FCC modified the rules to allow one company to acquire both a newspaper and a TV station in the nation's 20 largest markets, provided the station is not one of the top four in the market in terms of revenue and also provided there are still eight different media "voices" (TV stations or newspapers) after the merger.
     The new rules, written and pushed through the commission by FCC Chairman Kevin Martin, would allow newspaper-broadcast combinations in smaller markets if the merger involves a failing newspaper or would result in at least seven hours per week of local news programming on a station that was not previously airing local news.
     Martin justified the liberalized rules by pointing to the widespread financial woes of the newspaper industry, which has experienced declining advertising revenue and readership in the Internet era.  Many local TV stations have also seen viewership decline in recent years, a reality that led the FCC to liberalize its duopoly rule to allow one company to own more than one TV station in larger metropolitan areas.  That rule was relaxed in several stages starting in the 1990s.
     The new rules were widely assailed by critics of corporate media ownership who said the rules would inevitably reduce the number of independent media voices.  They said they would appeal, as they did after the FCC's 2003 ownership deregulation, discussed in the text.
     Martin put the new rules on a fast track for approval apparently in part because of the pending change of ownership of a major media company--Tribune Corporation.  Real estate investor Sam Zell's, who negotiated an $8.2 billion plan to take Tribune private under a complex arrangement  involving employee ownership, said the deal had to close by the end of 2007.  Without approval of new rules or waivers in New York, Chicago, Los Angeles and other cities where the company already owns both a newspaper and a TV station, Zell was quoted as saying the financing of the deal would collapse.  In essence, he was saying that, even though Tribune previously received  waivers, investors would need the flexibility to spin off some of the Tribune stations and newspapers in the future without being bound by the old cross-ownership rules.  Such a sale of co-located media properties could trigger new cross-ownership problems.  Zell closed the deal to take Tribune private the day after the FCC adopted the new cross-ownership rules. 
     Tribune had been grandfathered in Chicago because the company owned both WGN-TV and the Chicago Tribune long before cross-ownership was banned in 1975.  It had acquired both newspapers and TV stations in a number of other markets under previous waivers or loopholes in the ownership restrictions.
     On the same day the FCC voted to relax the cross-ownership rules, the FCC also voted 3-2 to establish a new cap on the percentage of all U.S. cable TV households that may be served by any one company.  The new maximum was set at 30 percent.  Only Comcast is close to that limit, serving about 27 percent of all cable households.
     Comcast vowed to challenge the new cable cap in court, charging that it unfairly discriminates against cable in its competition with telephone companies that are rapidly moving into the subscription TV business.

Microsoft agrees to European antitrust regulators' demands (Ch. 12):  Ending a decade-long  battle with the European Union, Microsoft Corporation agreed in October, 2007 to comply with the EU's antitrust demands.  Facing fines that had soared past the billion-dollar level, Microsoft agreed to settle the dispute by offering much more information about how the Windows operating system works to competitors at a low cost.  This will allow competitors to develop products that work better with Windows.  Microsoft also agreed to drop its appeal of an adverse ruling by the EU's second highest court.

Federal court rejects student editors' appeal over adviser's dismissal (Ch. 14):  The tenth
circuit U.S. Court of Appeals has dismissed as moot an appeal by former student editors after their faculty adviser was reassigned to other duties at Kansas State University.
    In Lane v. Simon (495 F.3d 1182, 2007), the court said the case had to be dismissed because the plaintiffs, former editors of the KSU Collegian, had graduated.  In a brief opinion that focused on the mootness issue, the three-judge panel cited two earlier cases in which a student's graduation was held to render her/his constitutional rights claims moot.
     Former KSU Collegian editors Katie Lane and Sarah Rice alleged that the reassignment of their faculty adviser, Ron Johnson, violated their First Amendment rights.  Johnson was initially a party to the lawsuit, but his case was dismissed by a district court judge and he did not appeal.  The district judge had ruled that Johnson's First Amendment rights were not violated because he didn't engage in any activities that were protected by the First Amendment, such as editing the news.  He exercised no control over the newspaper's content.
     The two student editors appealed, but the tenth circuit said the entire case should be dismissed because the students had graduated by then.  The appellate court said:
     "Plaintiffs have not formally sued in a representative capacity, and there has been no effort on anyone's part to substitute current editors as parties.  Student Publications, Inc., the non-profit corporate publisher, was neither named initially as a party nor has it sought to join this litigation.  Amici urge us to confer third-party standing to plaintiffs on behalf of current and future Collegian editors.  Given that Johnson did not appeal, and neither the publisher nor the present editors have joined in this litigation, we cannot countenance this type of end-run around the general requirement that parties raise their own claims..."  The Student Press Law Center and others joined the case as amicus curiae.
     This case resulted from a decision of the director of the KSU School of Journalism and Mass Communications to remove Johnson as faculty adviser after a content analysis of the Collegian, commissioned by the J-school director, that compared it to six other university newspapers.  The content analysis led the J-school director to conclude that the "Collegian's news reporting and writing are demonstrably weaker than news coverage in peer college newspapers."  The content analysis showed that the Collegian had fewer hard news stories, fewer diversity stories and fewer sports news stories than the other newspapers analyzed.  The analysis also showed that the Collegian cited fewer sources per article.  Because the "sub par scope and quality of news coverage" extended back to 2000, the J-school director concluded that Johnson's advising, rather than the composition of the student staff, was to blame.
     The content analysis and reassignment of the faculty adviser followed a campus controversy after the paper did not send a reporter to cover a Big 12 Conference-wide Black Student Government gathering that was held locally.  Students held a protest rally and march calling for Johnson's removal for the paper's alleged lack of coverage of diversity issues.  The J-school director acted to reassign Johnson after the content analysis confirmed that charge as well as other alleged deficiencies of the Collegian.
     Editors Lane and Rice pointed out that the Collegian had won many awards, including three  Pacemaker Awards of the Associated Collegiate Press, during Johnson's tenure.
     Although this ruling makes it more difficult for students to litigate cases like this one, at least in the tenth circuit, the editors faced difficult legal hurdles to begin with.  Courts haven't often been sympathetic to the First Amendment claims of faculty advisers, as opposed to student editors.  In this appeal two editors were claiming that the reassignment of their adviser violated their rights even after they graduated.  But they served out their terms as editors without any incidents of administrative censorship, they faced no disciplinary action, and they graduated as planned.

Copyright 2008 by Wayne Overbeck

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