The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the Government for a redress of grievances.”

It does NOT apply to: Unprotected Speech

• Unprotected speech is printed material which is libelous, obscene, an invasion of privacy or material which substantially interferes with the requirements of national security or appropriate discipline

Libel

• Definition: A false, printed statement of fact that attacks a person’s reputation or good name. (Slander is spoken defamation)

Four Basic Elements to Libel

1| Publication: that material was published publicly

2| Identification: libeled individual must be clearly identifiable–name is not necessary

3| Injury: was defamatory with actual damages, does not mean everyone had to understand/believe the libel–even a small part of the community can constitute damages

4| Fault: most controversial element, based on circumstance

-private individual can claim damages if a reporter did not adequately verify facts

-public figure/official must show actual malice (knowingly printing a lie, repeating a known libel, showing reckless disregard for the truth, personal ill will)

Three Primary Defenses

1| Truth-no publication held responsible for libel if story is true

2| Privilege-press has accurately reported facts obtained from official public records or public bodies (gvt. meetings/court proceedings etc.)

3| Fair Comment-(especially for opinion material) journalists have the right to publish fair comment and criticism about anything of public interest as long as facts are accurate

Secondary Defenses

1| retraction and apology

2| settlement

3| reply

4| proof of previous bad reputation

5| reliance on a usually reliable source

Obscenity

In 1973, the Supreme Court ruled on three criteria for determining obscenity:

1| Does the average person using his/her own community standards find the work as a whole obscene?

2| Does the work in question depict/describe in a patently offensive way sexual conduct or situations defined by state law?

3| Does the work as a whole lack serious literary, artistic, political or scientific value?

Invasion of Privacy

1| Intrusion: physical intrusion into private property-bugs, taps, intrusion, peeking; you may photography people in public areas without consent; also includes quoting someone without their knowledge they are being interviewed, informed minors can give consent, but it has been challenged in court so for controversial topics, get consent from a parent or guardian

2| Appropriation: unauthorized use of someone’s name or likeness for commercial purposes without written consent

3| False Light: using true information in such a way that it implies something false

4| Private/Embarrassing Info: reporting embarrassing, private facts-sexual assault victims, juveniles, school records etc.

Copyright

Right of authors to control the reproduction and use of their creative expressions which have been fixed in tangible form (literary, graphic, photographic, audio-visual and musical)

Trademark-word, name, symbol used to identify a product

Fair Use Doctrine (allows in some cases the use of material without author permission)

1| work is informational rather than fictional

2| copyrighted work is published already

3| small amounts are used

4| new use doesn’t decrease potential market for expression

Fair use authorizes the use of limited amounts of copyrighted works for purposes like news reporting and education if the use does not destroy the commercial value of the copyrighted work.

The Four Factor Analysis

What is the purpose and character of the use?

A nonprofit, educational use is more likely to be fair than commercial use.

What is the nature of the copyrighted work?

Works containing a higher degree of factual material from the public domain is more likely to be fair use that works containing mostly creative and original material.

How much of the copyrighted work is used?

Only use what is reasonable necessary to accomplish the fair use—less than 20 percent is considered fair use in education.

What is the potential effect of the use on the market value of the original?

If consumers are willing to use the substitute for the original, then the use is probably not fair use.

Journalistic Ethics (from the Society of Professional Journalists)

Seek Truth & Report It

Be honest, fair & courageous in gathering, reporting and interpreting information.

Journalists should:

• Test the accuracy of information from all sources & exercise care to avoid error. Deliberate distortion is never permissible.
• Diligently seek out subjects of news stories to give them the opportunity to respond to allegations of wrongdoing.
• Identify sources whenever feasible. The public is entitled to as much information as possible on sources’ reliability.
• Always question sources’ motives before promising anonymity. Clarify conditions attached to any promise made in exchange for information. Keep promises.
• Make certain that headlines, news teases and promotional material, photos, video, audio, graphics, sound bites and quotations do not misrepresent. They should not oversimplify or highlight incidents out of context.
• Never distort the content of news photos or video. Image enhancement for technical clarity is always permissible. Label montages and photo illustrations.
• Avoid misleading re-enactments or staged news events. If re-enactment is necessary to tell a story, label it.
• Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story
• Never plagiarize.
• Tell the story of the diversity and magnitude of the human experience boldly, even when it is unpopular to do so.
• Examine their own cultural values and avoid imposing those values on others.
• Avoid stereotyping by race, gender, age, religion, ethnicity, geography, sexual orientation, disability, physical appearance or social status.
• Support the open exchange of views, even views they find repugnant.
• Give voice to the voiceless; official and unofficial sources of information can be equally valid.
• Distinguish between advocacy and news reporting. Analysis and commentary should be labeled and not misrepresent fact or context.
• Distinguish news from advertising and shun hybrids that blur the lines between the two.
• Recognize a special obligation to ensure that the public’s business is conducted in the open and that government records are open to inspection.

Minimize Harm

Treat sources, subjects and colleagues as human beings deserving of respect.

Journalists should:

• Show compassion for those who may be affected adversely by news coverage. Use special sensitivity when dealing with children and inexperienced sources or subjects.
• Be sensitive when seeking or using interviews or photographs of those affected by tragedy or grief.
• Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.
• Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone’s privacy.
• Show good taste. Avoid pandering to lurid curiosity.
• Be cautious about identifying juvenile suspects or victims of sex crimes.
• Be judicious about naming criminal suspects before the formal filing of charges.
• Balance a criminal suspect’s fair trial rights with the public’s right to be informed.

Act Independently

Journalists should be free of obligation to any interest other than the public’s right to know.

Journalists should:

• Avoid conflicts of interest, real or perceived.
• Remain free of associations and activities that may compromise integrity or damage credibility.
• Refuse gifts, favors, fees, free travel and special treatment, and shun secondary employment, political involvement, public office and service in community organizations if they compromise journalistic integrity.
• Disclose unavoidable conflicts.
• Be vigilant and courageous about holding those with power accountable.
• Deny favored treatment to advertisers and special interests and resist their pressure to influence news coverage.
• Be wary of sources offering information for favors or money; avoid bidding for news.

Be Accountable and Transparent

Journalists are accountable to their readers, listeners, viewers and each other.

Journalists should:

• Clarify and explain news coverage and invite dialogue with the public over journalistic conduct.
• Encourage the public to voice grievances against the news media.
• Admit mistakes and correct them promptly.
• Expose unethical practices of journalists and the news media.
• Abide by the same high standards to which they hold others.