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
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 Craigslist.com is exempt
from liability under Section 230 of the Communications Decency Act, but
another held that Roommates.com 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
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
to report allegations of corruption that do not involve their official
* A California Supreme Court decision upholding the right to picket
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
the right of homosexuals to marry;
* A federal appellate court decision protecting the privacy of employees'
and text messages when they are routed through an outside provider;
* An Ohio Supreme Court decision recognizing false light invasion of
as a legal wrong in that state; and
* New legislation in New York and California that would protect the
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
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
* New developments in the Perfect 10 v. Amazon.com case, involving
liability of search engines for posting "thumbnails" of copyrighted
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
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
request because a friend of the applicant had previously requested
information from the same federal agency;
* The Open Government Act of 2007, a major revision of the FoI Act;
* The problem of public access to government officials' e-mail under
Chapter 10 (Obscenity and Pornography) discusses:
* The Supreme Court's U.S. v. Williams decision, upholding the
of the PROTECT Act.
Chapter 11 (Regulation of the Electronic Media) discusses:
* Fox Television Stations v. FCC, the case now before the Supreme
challenges the Federal Communications Commission's new indecency rules;
* The FCC's Report on Broadcast Localism and related proposals for
regulation of broadcasters' programming; and
* The FCC's new reporting form that television stations must complete
three months, a form that seemingly requires the airing of FCC-favored
content and in effect restores the ascertainment rules that were eliminated
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
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
* The question of federal preemption of state tobacco advertising claims;
* The Craigslist.com and Roommates.com appellate court decisions, reaching
opposite conclusions about the liability of Internet providers for
postings by their users; and
* Liability of drug makers for allegedly failing to disclose the health
of prescription drugs, including bet-the-company lawsuits involving
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
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
Principles of Media Law on a daily basis for nearly 30 years.
Wayne Overbeck, Ph.D., J.D.
June 27, 2008
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
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
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,
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 Amazon.com, 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. Amazon.com, 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
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
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
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
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
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
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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