Laws and Regulations
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Media law, and its impact on digital communication, is being shaped before society’s very eye. Outside of legal textbooks and beyond the lecture hall, many landmark cases are having an influence on the way in which media professionals communicate—from social posts to web articles, television segments to podcasts (Osman, 2011). Landmark cases that have involved issues like prior restraint, Near v. Minnesota (1931), the publication of defamatory statements, Gertz v. Welch (1974), and obscenity, Ginzburg v. U.S. (1966) have shaped the future of digital communication. With the road paved, media professionals can better identify adaptations to the field of digital communication, convey content and messages following these precedents, and identify best practices in their work.
A landmark case which has allowed modern journalists to freely publish their work involves a prior restraint case, Near v. Minnesota (1931). As the first prior restraint decision of the U.S. Supreme Court, no other case involving prior restraint has been cited as often—and the case is often used alongside modern opinions of the Supreme Court, even though it is more than a decade old (Moore & Murray, 2017).
The case involved a newspaper, The Saturday Press which published several articles detailing accusations of Minneapolis city officials (Moore & Murray, 2017). One of the law enforcement officers that was targeted, filed an action to restrain the publication of the newspaper—the state court agreed, enjoining further publication (Moore & Murray, 2017). The court’s decision was made under the Minnesota gag law—which allowed authorities to halt the publication as it deemed the newspapers action’s a public nuisance (Moore & Murray, 2017). However, a year later the Supreme Court reversed the decision—stating that officials could not restrain the press from publishing, as safeguarded by the Fourteenth Amendment (Moore & Murray, 2017).
The case shaped the First Amendment doctrine, opposing prior restraint and the decision delineated that any law banning someone from publishing was unconstitutional, especially if information that is disseminated is true (Moore & Murray, 2017). The decision established that prior restraint of the press was a direct violation of the First Amendment, what’s more fundamental, is it this case made clear that the Bill of Rights applied to states and not just the federal government (Alam, 2018). The ruling is thus considered a landmark case and has been cited regularly in other rulings dealing with censorship and freedom of the press (Alam, 2018). As a direct result of the outcome of this case, journalists are free to publish content and have the power to shape the public opinion (Alam, 2018). Furthermore, this decision puts the responsibility on the public to determine what is accurate, worth reading, and worth sharing (Alam, 2018).
While Near v. Minnesota brought forth a precedence for freedom of publication, Gertz v. Welch (1974) shaped the way in which the media publishes defamatory statements (Moore & Murray, 2017). Gertz was an attorney who was criticized in American Opinion after representing a civil suit for the Nelson family against a Chicago police officer who was convicted of second-degree murder in the death of the family’s son (Moore & Murray, 2017). The statements made about Gertz were false and there was no evidence to support the publication’s claims (Moore & Murray, 2017). Gertz won the jury’s verdict in the case but lost his libel suit because the judge found that the magazine had not violated the “actual malice test” for libel, which the Supreme Court had established in New York Times v. Sullivan (1964) (Moore & Murray, 2017). Under the court’s verdict, a standard was set to distinguish between public and private figures (Moore & Murray, 2017).
While these instances are rare, journalists must be aware that when reporting about people who have somehow been involuntarily shoved into the public spotlight that they are private figures, not public figures for libel purposes (Moore & Murray, 2017). The case also established that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye (Moore & Murray, 2017). Therefore, when a journalist publishes content and messaging involving ordinary citizens, those individuals have more protection than celebrities and people in the spotlight—private individuals have less of a chance for rebuttal than public figures (Moore & Murray, 2017). So, it is important for journalists to be cautious when publishing potentially libelous statements about ordinary people. The case remains significant for media professionals because the Court made clear that the actual-malice standard only applies to defamation cases for public individuals, not private people (Moore & Murray, 2017).
As Gertz v. Welch solidified how journalists should understand public or private individuals when publishing, Ginzburg v. U.S. (1966) furthered publication standards by setting a precedence for the way in which work is promoted or advertised in terms of obscenity (Moore & Murray 2017). In the case, Ginzburg was convicted and fined for engaging in business practices to openly advertise to the obscene appeal of customers (Moore & Murray, 2017). The Court extended the message that if distributors promote works in a manner that emphasizes non-redeeming social value or sexual provocativeness, the materials can be assumed to be obscene (Moore & Murray, 2017). While the content and messaging in this instance was not obscene, the promotion was. The takeaway for media professionals in this instance is to ensure that when openly advertising material that the promotion does not appeal to audience’s baser instincts—or, because this may not be an everyday circumstance, media professionals should at the very least take precautions to avoid pandering or exaggerating any materials to gain audience interest inappropriately.
A set of best practices that media professionals can follow when creating digital messaging is:
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- When publishing information that potentially defaces an authority figure, ensure that all facts are verified and that statements can live up to the data and information obtained from sources.
- While the press is free to publish potentially incriminating information it is always best to ensure that all information is held to a high degree of validity.
- Guarantee that when handling a story or content about a private individual that a professional must uphold due diligence as a private figure have more protection than public figures in terms of libel.
- When working with promotional materials—like that of content on social media—do not exaggerate to provoke the interests of the audience.
References
Alam, E. (2018, September 5). Rejecting prior restraint: 1931 'Near v. Minnesota' case set important First Amendment precedent. Retrieved May 15, 2020, from https://www.minnpost.com/mnopedia/2016/04/rejecting-prior-restraint-1931-near-v-minnesota-case-set-important-first-amendment/
Moore, R. L. Media Law and Ethics. [MBS Direct]. Retrieved from https://mbsdirect.vitalsource.com/#/books/9781351982900/
Osman, N. (2011, May 22). Diary of a budding journalist: the importance of media law. Retrieved May 15, 2020, from https://www.theguardian.com/careers/budding-journalist-media-law
Codes of Conduct: AMA Statement of Ethics. (n.d.). Retrieved April 17, 2020, from https://www.ama.org/codes-of-conduct/
Ethics Case Studies - Society of Professional Journalists. (n.d.). Retrieved April 17, 2020, from https://www.spj.org/ecs13.asp
Heilpern, W. (2016, March 31). 18 false advertising scandals that cost some brands millions. Retrieved April 17, 2020, from https://www.businessinsider.com/false-advertising-scandals-2016-3#activia-yogurt-said-it-had-special-bacterial-ingredients-2
Leonard, K. (2019, February 12). Importance of Creating a Code of Ethics for a Business. Retrieved April 17, 2020, from https://smallbusiness.chron.com/importance-creating-code-ethics-business-3094.html
Paige, A. (2017, November 21). Marketing Code of Ethics. Retrieved April 17, 2020, from https://smallbusiness.chron.com/marketing-code-ethics-1496.html
SPJ Code of Ethics - Society of Professional Journalists. (n.d.). Retrieved April 17, 2020, from https://www.spj.org/ethicscode.asp
Warcholinski, M. W. M. (2018, October 24). Benefits Of A Code Of Ethics. Retrieved April 17, 2020, from https://brainhub.eu/blog/benefits-of-code-of-ethics/
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