✍️Newswriting Unit 9 – Journalism and the Law

Key Legal Concepts

• Understand the difference between criminal and civil law as it applies to journalism
• Familiarize yourself with the concept of jurisdiction and how it determines which laws apply in a given case
• Recognize the importance of the First Amendment in protecting freedom of the press
  • The First Amendment prohibits the government from restricting freedom of speech and the press
  • However, the First Amendment does not provide absolute protection for all forms of speech
• Grasp the concept of prior restraint and its limitations on government censorship of the press
• Learn about the role of the courts in interpreting and applying media law
• Appreciate the balance between individual rights and the public's right to know in media law cases
• Understand the potential consequences for journalists who violate media laws (fines, imprisonment)

First Amendment Basics

• The First Amendment protects freedom of speech and freedom of the press from government interference
  • This protection is not absolute and is subject to certain limitations
  • The government may restrict speech that poses a "clear and present danger" (incitement to violence)
• The First Amendment applies to both federal and state governments under the incorporation doctrine
• Freedom of the press includes the right to gather and publish news without government censorship
  • This includes the right to protect confidential sources and to refuse to reveal them in court
• The First Amendment does not protect defamatory speech, obscenity, or speech that violates intellectual property rights
• The Supreme Court has recognized several categories of unprotected speech (fighting words, true threats)
• Journalists should be familiar with the landmark First Amendment cases (New York Times v. Sullivan, Pentagon Papers case)
• The First Amendment does not guarantee access to government information or proceedings

Libel and Defamation

• Libel is a false statement of fact that damages a person's reputation, published in writing or other permanent form
• Slander is a false statement of fact that damages a person's reputation, spoken orally
• To prove libel, a plaintiff must show that the statement was false, defamatory, and published with negligence or actual malice
  • Actual malice means the defendant knew the statement was false or acted with reckless disregard for the truth
  • Public figures must prove actual malice to win a libel case, while private figures must only prove negligence
• Truth is an absolute defense to libel, but the burden of proof is on the defendant to prove the statement was true
• Opinion is protected by the First Amendment and cannot be the basis for a libel claim
  • However, an opinion based on false facts may be actionable
• Journalists should be careful to verify facts and use reliable sources to avoid libel claims
• Retraction statutes in some states allow defendants to mitigate damages by publishing a correction or retraction

Privacy Laws and Journalism

• Privacy laws protect individuals from unwanted intrusion into their personal lives and affairs
• The tort of intrusion protects against physical intrusion into private spaces (trespassing to obtain information)
• The tort of public disclosure of private facts protects against publication of truthful but embarrassing private information
  • To be actionable, the disclosure must be highly offensive to a reasonable person and not of legitimate public concern
• The tort of false light protects against publication of information that portrays an individual in a false and offensive light
• The tort of appropriation protects against the use of an individual's name or likeness for commercial purposes without consent
• Journalists should respect individual privacy rights and avoid intrusive newsgathering methods
• However, newsworthiness may be a defense to privacy claims if the information is of legitimate public concern
• Hidden cameras and recording devices may be legal in some circumstances but raise ethical concerns

Copyright and Fair Use

• Copyright law protects original works of authorship fixed in a tangible medium of expression
• Copyright gives the owner exclusive rights to reproduce, distribute, perform, display, and create derivative works
• Fair use is a defense to copyright infringement that allows limited use of copyrighted material without permission
  • Fair use is determined by a four-factor test that considers the purpose, nature, amount, and effect of the use
  • News reporting, criticism, commentary, and education are favored purposes under fair use
• Journalists should obtain permission or rely on fair use when using copyrighted material in their work
• Attribution and proper crediting of sources are important ethical considerations in using copyrighted material
• The Digital Millennium Copyright Act (DMCA) provides safe harbors for online service providers but requires takedown of infringing material upon notice

Access to Information

• The Freedom of Information Act (FOIA) provides public access to federal government records
  • FOIA requires agencies to disclose records upon request unless they fall under one of nine exemptions
  • Exemptions include national security, personal privacy, law enforcement, and confidential business information
• State open records laws provide similar access to state and local government records
• Journalists should be familiar with FOIA and state open records laws and how to make requests
• The government may charge fees for searching and copying records, but fee waivers are available for journalists
• Access to court records and proceedings is governed by the First Amendment and common law
  • The presumption is in favor of openness, but judges may close proceedings or seal records in certain circumstances
• Shield laws in some states protect journalists from being compelled to reveal confidential sources in court
• Journalists should be prepared to fight for access to information and challenge government secrecy

Ethical Considerations

• Journalists have a duty to seek and report the truth accurately, fairly, and impartially
• Journalists should avoid conflicts of interest and disclose any unavoidable conflicts to their audience
• Journalists should respect individual privacy and avoid intrusive newsgathering methods
• Journalists should be transparent about their methods and sources and correct errors promptly
• Journalists should be accountable to their audience and responsive to feedback and criticism
• Journalists should consider the potential harm of their reporting and weigh it against the public interest
• Journalists should be aware of their own biases and strive to overcome them in their reporting
• Plagiarism and fabrication are serious ethical breaches that can damage credibility and trust

Legal Challenges in Digital Journalism

• The internet has created new legal challenges for journalists in areas such as libel, privacy, and copyright
• Online publications may be subject to jurisdiction in multiple states or countries, making legal compliance complex
• User-generated content (comments, social media posts) can create liability for online publishers
  • Section 230 of the Communications Decency Act provides some protection for online publishers but has limitations
• The spread of "fake news" and misinformation online has led to calls for regulation of social media platforms
• Encryption and cybersecurity are important tools for protecting journalist-source communications and data
• Anti-SLAPP laws in some states provide protections against frivolous libel lawsuits targeting online speech
• The use of drones and other new technologies for newsgathering raises privacy and safety concerns
• Journalists should stay informed about legal developments affecting digital journalism and adapt their practices accordingly