Digital Media Law
Digital Media Law
Second Edition
Ashley Packard
A John Wiley & Sons, Ltd., Publication
This edition first published 2013
© 2013 John Wiley & Sons, Inc
Edition history: 1e (Wiley-Blackwell, 2010)
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Library of Congress Cataloging-in-Publication Data
Packard, Ashley.
Digital media law / Ashley Packard. – 2nd ed.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-118-29072-9 (pbk. : alk. paper) 1. Digital media–Law and legislation–United
States. 2. Internet–Law and legislation–United States. 3. Telecommunication–Law and
legislation–United States. 4. Freedom of expression–United States. 5. Digital media–Law
and legislation. I. Title.
KF2750.P33 2012
343.7309'9–dc23
2012015389
A catalogue record for this book is available from the British Library.
Cover images: background © Ozerina Anna/Shutterstock; tablet © pressureUA/Shutterstock
Cover design by Richard Boxall Design Associates based on an original concept by Kalan Lyra
Set in 10/13 pt Minion by Toppan Best-set Premedia Limited
1
2013
Brief Contents
Detailed Contents
List of Sidebars
Preface
Acknowledgments
1.
2.
3.
4.
5.
6.
7.
8.
vi
ix
x
xii
Introduction to the Legal System
Freedom of Expression
Telecommunications Regulation
Internet Regulation
Conflict of Laws
Information Gathering
Intellectual Property: Copyright
Intellectual Property: Patents, Trademarks, and
Trade Secrets
9. Defamation
10. Invasion of Privacy
11. Sex and Violence
12. Commercial Speech and Antitrust Law
1
21
47
75
103
127
161
Appendix: How to Find the Law
Glossary
Table of Cases
Index
367
371
378
387
199
227
257
303
333
Detailed Contents
Detailed Contents
List of Sidebars
Preface
Acknowledgments
1.
2.
3.
4.
Introduction to the Legal System
vi
ix
x
xii
1
The Meaning of Law
Sources of Law in the United States
The Structure of Court Systems
Types of Law
Questions for Discussion
1
1
10
14
20
Freedom of Expression
21
The First Amendment
The First Amendment’s Purpose
Expanding the Meaning of the First Amendment
Limitations on Protection
No Compelled Speech
Questions for Discussion
21
22
30
32
43
45
Telecommunications Regulation
47
A Bird’s Eye View
Establishing a Regulatory Framework
Broadcast Regulation
Media Ownership Rules
Multi-Channel Video Program Distributors
Phone Companies
Questions for Discussion
47
48
51
54
66
73
74
Internet Regulation
75
ICANN, the Internet’s Manager
Network Neutrality
Voice over Internet Protocol
eAccessibility
Cybercrime
Internet Gambling
Virtual Law
Questions for Discussion
75
80
87
88
89
96
98
102
Detailed Contents
5.
Conflict of Laws
Jurisdiction, Choice of Law, and Enforcement of Judgments
Private International Law
Choice of Forum/Choice of Law Agreements
Treaties on Jurisdiction and Choice of Law
Alternative Dispute Resolution
Questions for Discussion
6.
Information Gathering
Access to Information
State Freedom of Information Laws
Access to Public Officials
Access to Legislative Information
Access to Judicial Information
Protection of Information
Questions for Discussion
7.
8.
Intellectual Property: Copyright
104
112
122
123
124
126
127
127
138
138
139
139
141
160
161
Source and Purpose of Intellectual Property Protection
What Can Be Copyrighted?
What Cannot Be Copyrighted?
Who Qualifies for Copyright Protection?
What Are a Copyright Holder’s Exclusive Rights?
Registering and Protecting Works
What is Copyright Infringement?
Digital Millennium Copyright Act
Remedies for Copyright Infringement
Balancing the Rights of Copyright Owners and Users
The Creative Commons
Questions for Discussion
161
162
164
168
169
172
175
179
183
184
196
198
Intellectual Property: Patents, Trademarks,
and Trade Secrets
199
Patents
Trademarks
Cybersquatting
Trade Secrets
Questions for Discussion
9.
103
Defamation
What is Defamation?
Types of Defamation
Who Can Be Defamed?
Elements of Libel
Defenses to Libel
Mitigation of Damages
How Has Defamation Changed?
The Single Publication Rule
Statutes of Limitation
199
204
216
221
225
227
228
229
229
231
236
240
241
244
244
vii
viii
Detailed Contents
Criminal Libel
Nontraditional Media and Non-Media Defendants
Immunity for Interactive Computer Services
Photo Illustrations/Digitally Altering Images
Libel in Fiction
Satire and Parody
Intentional Infliction of Emotional Distress
Questions for Discussion
10. Invasion of Privacy
Whose Privacy is Protected?
Constitutional Protections for Privacy
Privacy Protection Under Common Law
Defenses to Invasion of Privacy
Privacy Protection From Federal Statutes
State Privacy Statutes
Workplace Privacy
Marketplace Privacy
Privacy and Social Networking
Anonymity Online
Government Surveillance
Questions for Discussion
11. Sex and Violence
Obscenity and Indecency
Regulation of Indecency and Material Harmful to Minors
Violence
Incitement to Violence
Threats
Hate Speech
Questions for Discussion
12. Commercial Speech and Antitrust Law
What is Commercial Speech?
Advertising and First Amendment Protection
Regulation of Unfair and Deceptive Advertising
FTC Actions Against False Advertising
FTC Advertising Guidelines
Advertising and Foreseeable Harm
False Advertising and the Lanham Act
False Advertising and State Law
Advertising “Sin” Products and Services
Advertising to Children
Marketing Intrusions
Public Relations
Antitrust Law
Questions for Discussion
Appendix: How to Find the Law
Glossary
Table of Cases
Index
245
246
250
252
252
253
254
256
257
257
258
259
272
274
283
288
290
293
296
297
301
303
304
311
316
321
324
330
331
333
334
334
337
340
342
344
345
349
350
353
354
357
358
366
367
371
378
387
List of Sidebars
Chapter 1
The Difference Between Common and Civil Law Legal Systems
The Significance of Judicial Review
9
20
Chapter 2
Are Restrictions on Political Funding a Prior Restraint?
First Amendment Theories
27
44
Chapter 3
Broadcast Station Licensing
What is the Electromagnetic Spectrum?
54
74
Chapter 4
The First International Treaty on Cybercrime
101
Chapter 5
Jurisdictional Analysis
Geolocation Filtering: Code v. Law
106
125
Chapter 7
Myth of the Poor Man’s Copyright
The Difference between Copyright Permission and a Model Release
173
197
Chapter 12
Contracts and Electronic Signatures
364
Preface
It is time to stop thinking about media law as though it were the exclusive domain of
traditional media organizations. Our global shift to digital media has precipitated a shift
in information control. Meanwhile the affordability of digital media and their ease of
use has democratized media production. With the right equipment, anyone can produce
a website, listserv, blog or video with the potential to reach a mass audience. When
anyone can become a media producer, everyone should know something about media
law – both to protect their own rights and to avoid violating the rights of others.
This text focuses on digital media law, which like digital media, is characterized by
its general applicability. The information presented here is applicable to professionals
in fields such as publishing, public relations, advertising, marketing, e-commerce,
graphic art, web design, animation, photography, video and audio production, game
design, and instructional technology among others. But it is equally relevant to individuals who use digital media for personal interests – either to express themselves
through social networking sites, blogs, and discussion boards or to engage in file trading
or digital remixing.
As a field, digital media law is also characterized by its global impact. Digital media
are borderless. Material uploaded to the Internet enters every country. Material broadcast
via satellite reaches across entire continents. What does not travel internationally,
however, is the First Amendment. American publishing companies and writers have
been sued in courts all over the world for publishing information on the Internet that
violated the laws of other countries. Foreign courts will apply their laws to material
that is accessible within their borders through the Internet or via satellite if they
perceive that material to have caused harm there. Producers of digital media need to
understand how jurisdiction is determined and when foreign law can be applied to them.
Digital Media Law focuses on issues that are particularly relevant to the production
and use of digital media. Its cases and controversies are based on freedom of expression,
information access and protection, intellectual property, defamation, privacy, indecency,
and commercial speech in the context of new media. This growing area of law also
encompasses regulations imposed on the content and operation of telecommunications,
such as broadcast, cable and satellite media, cellular communications, and the Internet.
The material is framed to appeal to the broad audience of future media producers in
communication and digital media disciplines. Current examples bring legal concepts to
life. The text is also accompanied by a website (www.DigitalMediaLaw.us) that provides
updated information about new court decisions and legislation, links to cases, and supplementary material. A little computer icon ( ) appears in the text near cases and
Preface
controversies that are still in progress. You can visit the “What’s New” section on the
website for new information about them.
Chapter 1 provides an introduction to the legal system and a guide to locate primary
sources of law. Use it to gain a basic understanding of law before moving on to other topics.
Chapter 2 explores the First Amendment. Speech is presumed to be protected in the
United States unless proven otherwise. This chapter addresses the extent of that protection and its limitations.
Chapter 3 covers telecommunications law, including regulations for broadcast media,
cable, direct broadcast satellite, and phone service. It explores the varying levels of First
Amendment protection that apply to different media and the Federal Communications
Commission’s efforts to adapt its rules to converging technologies.
Chapter 4 discusses the Internet’s regulatory structure and explains the difference
between domestic and international concepts of net neutrality. It describes legislative
efforts to make the Internet more accessible to people with disabilities. It also details
statutes in place to combat cybercrime and introduces the concept of virtual law.
Chapter 5 provides an introduction to the legal area of procedure called conflict of
laws. It explains how jurisdiction, choice of law, and enforcement of foreign judgments
applies to transnational conflicts involving digitally disseminated content.
Chapter 6 describes federal and state guarantees of access to information and protections for information sources. This area of law, which has always been of particular
significance to traditional journalists, is now increasingly important to bloggers and
podcasters.
Chapters 7 and 8 provide an overview of intellectual property law. Chapter 7 explains
copyright law, a field that applies to every digital media producer’s work. Chapter 8
describes patent law, trademark protection, trade secret protection, and cybersquatting
legislation.
Chapter 9 addresses defamation law, which has always been the bane of traditional
media, but is now increasingly applied to “average people” who post damaging accusations on websites, blogs, and listservs. It explains how U.S. libel law differs from that of
other countries and the impact that difference has on the treatment of plaintiffs and
defendants.
Chapter 10 explores protections for privacy, scattered among state and federal
statutes, common law, and state constitutions. It addresses rights to privacy in the
marketplace, work, home, and electronic communications.
Chapter 11 delves into the regulation of sex and violence. In particular, it explores
varying protections accorded indecency v. obscenity and how states have tried to apply
these theories to control violence in media.
Chapter 12 explains differences in First Amendment protection accorded to commercial speech. It describes the efforts of regulatory agencies to control deceptive advertisements, spam, and antitrust violations.
A glossary is provided at the back of the book for looking up key terms. After you’ve
learned more about the law, you may be interested in doing some of your own research.
Look in the appendix for a simplified guide to legal research. It will help you find different sources of law and understand how to read legal citations.
xi
Acknowledgments
Without the dedicated editorial staff at Wiley-Blackwell, particularly Elizabeth Swayze
and Julia Kirk, you would not be reading this book. Their experience and generosity
guided me through its production. I also owe a debt of gratitude to the kind professors
who reviewed the book for Wiley and, through their insightful comments, made the
manuscript better. My deepest appreciation goes to my talented illustrator, Kalan Lyra,
who took abstract ideas and turned them into something visually meaningful. I also
want to thank three wonderful research assistants: Kyle Johnson, Jessica Casarez and
Nick Pavlow. I remain indebted to William Fisch and Martha Dragich, my professors of
constitutional law and legal research. Finally, my most sincere thanks goes to my
husband, Chris, and daughter, Eliza, who supported me even when they realized how
much time this book was taking away from them.
1
Introduction to the
Legal System
It makes no sense to dive into a particular area of law without understanding the basic
structure of the legal system and its terminology. This chapter describes the primary
sources of law in the United States and how to find them. It explains the structure of
the federal and state court systems, the basic differences between civil and criminal law,
and the role of judicial review in the United States. It can be used to establish a foundation before proceeding to other chapters and as a reference later when you need to
review a particular concept.
The Meaning of Law
Before discussing how law is made, it might be helpful to define it generally. Law is a
system to guide behavior, both to protect the rights of individuals and to ensure public
order. Although it may have a moral component, it differs from moral systems because
the penalties for its violation are carried out by the state.
Digital media law encompasses all statutes, administrative rules, and court decisions
that have an impact on digital technology. Because technology is always changing, digital
media law is in a state of continuous adaptation. But its basic structure and principles
are still grounded in the “brick-and-mortar” legal system.
Sources of Law in the United States
All students are taught in civics class that there are three branches of government and
that each serves a unique function in relation to the law. The legislative branch makes
Digital Media Law, Second Edition. Ashley Packard.
© 2013 John Wiley & Sons, Inc. Published 2013 by John Wiley & Sons, Inc.
2
Introduction to the Legal System
Figure 1.1 The legislative, executive and judicial branches of government make law.
Illustration: Kalan Lyra
law, the judicial branch interprets law, and the executive branch enforces law. Although
this is true, it is also a little misleading because it suggests that each branch is
completely compartmentalized. Actually, all three branches make law. The legislative
branch produces statutory law. The executive branch issues executive orders and
administrative rules. The judicial branch creates law through precedential decisions.
In the United States, sources of law include constitutions, statutes, executive orders,
administrative agencies, federal departments, and the common law and law of equity
developed by the judiciary. The most important source of law, however, is the U.S.
Constitution.
Introduction to the Legal System
3
Constitutions
A political entity’s constitution is the supreme law of the land because it is the foundation for government itself. The constitution specifies the organization, powers, and
limits of government, as well as the rights guaranteed to citizens. Because the legislative,
judicial, and executive branches of government draw their power from the U.S. Constitution, they cannot act in opposition to it. For this reason, federal courts will overturn
statutes and administrative rules that exceed constitutional boundaries. They will also
reverse lower courts when their decisions stray too far afield.
The only way to get around the Constitution is to alter the document. Ratification
of an amendment requires approval from three-fourths of the states. Twenty-seven
amendments have been ratified since the Constitution was signed. The first ten are
known as the Bill of Rights.
In addition to the federal Constitution, there are 50 state constitutions. States are
sovereign entities with the power to make their own laws. However, their laws must
operate in accord with federal law. The U.S. Constitution includes a supremacy clause
that requires state courts to follow federal law when conflicts arise between it and state
constitutions or state law.1 The federal constitution also requires that states give “full
faith and credit” to other states’ laws and judicial decisions.
The U.S. Constitution declares its
supremacy in Article XI: “This
Constitution . . . shall be the
supreme Law of the Land; and the
Judges in every state shall be
bound thereby, any Thing in the
Constitution or Laws of any State
to the Contrary notwithstanding.”
The Constitution Society provides
links to the U.S. Constitution and
all state constitutions at
www.constitution.org/.
Statutes
When we think about the word “law,” we generally have in mind the statutes passed by
our elected representatives as part of city councils, county commissions, state legislatures, and the U.S. Congress. These laws, called ordinances at the city level and statutes
at the state and federal level, are meant to serve as guidance to people before they act.
Criminal law, in particular, must give people fair warning that an act is illegal before
punishing them for violating it, so it is always statutory.
Statutes are intended to address potential social needs and problems, so they are
written broadly to apply to a variety of circumstances. But their broad language sometimes creates confusion regarding the meaning of particular terms. In such cases, it falls
to courts to interpret their meaning. Courts do this by looking at the statutory construction of laws, otherwise known as their legislative history. When laws are passed, they go
through a series of committees. Each committee files a report, documenting its actions
related to the law. This history of the legislative process usually includes the legislators’
intent regarding the law’s scope and interpretation. Judges may review the reports to
find out what was discussed when legislators were hammering out the legislation and
how they intended it to be applied.
As you read federal statutes, you will notice that many of them apply to activities
carried out through “interstate or foreign commerce.” For example, the federal stalking
statute applies to anyone who uses “a facility of interstate or foreign commerce to engage
in a course of conduct that causes substantial emotional distress.” Likewise, federal law
1
U.S. Const. art VI, § 2.
Federal statutes are found in the
United States Code, available at
http://uscode.house.gov/. State
codes may be found at http://
www.whpgs.org/f.htm.
4
Introduction to the Legal System
prohibits the transmission of obscene materials through interstate and foreign commerce.
This phraseology is added to bring activities within the federal government’s jurisdiction. The federal government does not have police power as states do. Police power – the
right to legislate to protect the health, safety and welfare of citizens – is reserved for
the states. So the federal government regulates activity related to these issues through
its exclusive jurisdiction over interstate commerce. Article 1, Section 8 of the U.S. Constitution gives Congress the power “To regulate Commerce with foreign Nations, and
among the several States . . . ” Application of the term “commerce” does not mean that
money must change hands. When the Constitution was written, commerce was also
used in a non-economic context to refer to conduct. Congress applies the term loosely
to conduct that crosses state and national borders. Activities carried on within a single
state must be regulated under state law.
Executive orders
Executive orders may be found
through the National Archives
website at http://
www.archives.gov/federal-register/
executive-orders/.
Within the executive branch of government, mayors, governors, and presidents have the
power to issue executive orders that are legally binding. Some executive orders are issued
to fill in the details of legislation passed by the legislative branch. For example, if Congress passes a bill requiring action on the part of federal agencies without providing
sufficient information about how its mandate is to be implemented, the president may
issue an executive order specifying procedure.
In other cases, executives issue orders of their own accord to promote their policies.
By directing federal agencies and officials to enforce their orders, presidents have created
national parks, integrated the armed services, desegregated schools, funded and defunded
stem cell research, and prohibited financial transactions with countries known for terrorism. Executive orders are also frequently used to regain order in the event of a threat
to security. Following a natural disaster like a hurricane, for example, a governor may
issue a state of emergency, which would empower him or her to make binding rules for
a certain period of time.
Executive orders are passed without the legislature’s consent, but the legislature may
override them with enough votes. Congress can override a presidential executive order
by passing legislation that contradicts it. If the president vetoes the legislation, Congress
can override the veto with a two-thirds vote. Executive orders also may be challenged
in court if they exceed the president’s constitutional authority. For example, Harry
Truman tried to avert a national strike of steel mill workers during the Korean War by
issuing an executive order to the Commerce Department to seize control of private steel
mills. The Supreme Court held the action unconstitutional.2
Administrative agencies and federal departments
Also within the executive branch, independent administrative agencies and federal
departments are empowered to make administrative rules that carry the force of law.
2
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
Introduction to the Legal System
5
Independent administrative agencies
Independent administrative agencies are so named because, although they are part of
the executive branch of government, they carry out the mandates of the legislative
branch in specific government-regulated industries. Agencies monitor technical areas
of law thought to be better handled by specialists than members of Congress. Not only
do they have the power to make rules and enforce them with fines and other retaliatory
measures, but federal agencies also serve a quasi-judicial function. Their administrative
courts are usually the first to hear cases related to violations of agency rules.
Congress provided the protocol for agency rule making and enforcement in the
Administrative Procedures Act.3 One of the Act’s purposes is to keep agency rule making
open to provide opportunities for public participation. To that end, the law requires
agencies to publish notices of proposed rule making, opinions, and statements of policy
in the Federal Register. Administrative rules are later codified in the Code of Federal
Regulations.
Another purpose of the Administrative Procedures Act is to keep the process for rule
making and adjudication across agencies relatively consistent by prescribing uniform
standards and a mechanism for judicial oversight. A federal court may set aside
an agency decision if the rule is “arbitrary and capricious, an abuse of discretion, or
otherwise not in accordance with the law.”4 It is not the court’s role to substitute its
judgment for that of the agency, but to ensure that when an agency creates a new rule
or modifies established policy that it articulates “a satisfactory explanation for its action
including a ‘rational connection between the facts found and the choice made.’ ”5 A court
may conclude that an agency action is arbitrary and capricious if the agency has:
•
•
•
•
relied on factors Congress did not intend it to consider;
failed to consider an important aspect of the problem;
offered an explanation for its decision that contradicts evidence before the
agency; or
is too implausible to be ascribed to a difference in view or agency expertise.6
Independent agencies most likely to be involved with digital media law are the Federal
Communications Commission and Federal Trade Commission. The Federal Communications Commission regulates interstate and international communication emanating
from the United States. The Federal Trade Commission enforces fair advertising, consumer protection, and antitrust rules.
3
5 U.S.C. § 551 et seq. (2011).
5 U.S.C. § 706(2)(A) (2011).
5
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
6
Id.
4
The Federal Register is a daily
digest of proposed and final
administrative regulations issued
by federal executive departments
and agencies in the United States.
It is available online at http://
www.gpo.gov/fdsys/.
After their initial publication in the
Federal Register, U.S. agency and
department rules are codified in
the Code of Federal Regulations,
available online at http://
www.gpo.gov/fdsys/.
6
Introduction to the Legal System
Federal departments
Federal departments also make administrative rules, but do not act independently of
the executive branch of government. Their leaders are appointed by the president and
make up the president’s cabinet.
The federal departments most likely to be involved with digital media law are the
Departments of Commerce and Justice. The Department of Commerce fosters economic development and technological advancement. Among its many bureaus, the
National Telecommunications and Information Administration, or NTIA, acts as the
administrative branch’s policy advisor for telecommunication issues. The Department
of Justice, led by the Attorney General, supervises federal law enforcement. As such, it
is involved in the prosecutions of crimes, such as incitement to violence, fraud, threats,
and distribution of obscenity, that may be carried out through digital media. The Justice
Department also represents the United States in suits against the government through
the Office of the Solicitor General. Cases challenging U.S. law before the Supreme Court
frequently include the Attorney General’s name as one of the parties.
Common Law and Law of Equity
There are a variety of sources for
locating caselaw. A useful free
resource is FindLaw, at
www.findlaw.com/casecode.
Additional sources are described in
the Legal Research Appendix.
The role of courts in all legal systems is to determine whether law is applied appropriately in particular cases. But in common law legal systems – like those of the United
Kingdom and its former colonies, such as the United States – courts also have the power
to make law. There are two types of judge-made law: common law and law of equity.
Common law, also known as caselaw, is a body of legal precedent established through
prior court decisions. Judges create common law when no statutory law covers the issue
before them. Later judges rely on those precedents for guidance in future legal disputes
based on similar circumstances.
The use of common law dates back to twelfth-century England. In order to wrest
power for legal decision-making from local officials, King Henry II dispatched judges
to travel in circuits around the country dispensing justice in the king’s name. Because
the king’s judges had no knowledge of events that had taken place prior to their arrival,
they assembled juries of local men to aid them in their decision-making. Jurors determined the facts of the case, while the judge determined the applicable law – a practice
that is still in use today. These circuit judges adopted the customary rules they considered most appropriate and shared their decisions with each other. Their precedents
eventually crystallized into a national common law dispensed by the Courts of the King’s
Bench, Common Pleas, and Exchequer – collectively known as the Common Law
Courts.7
In a modern context, most common law is created in the areas of tort and contract
law. Torts are civil wrongs that result in harm or injury and which act as grounds for
lawsuits. Contracts are agreements between two or more parties that are enforceable by
law. Within the context of digital media, for example, common law applies to such torts
7
William Searle Holdsworth, A History of English Law 204–31 (Little, Brown & Co. 1922) (1903).
Introduction to the Legal System
as libel, invasion of privacy, intentional infliction of emotional distress and misappropriation of trade secrets, and to “click to sign” contracts connected with Internet and
software use.
These types of cases are normally litigated at the state level, where most common
law is made. At the federal level, common law has largely been supplanted by statute.
However, federal courts still use it to delineate the boundaries of statutory and con
stitutional law. We see this occur when courts look back to previous decisions to
determine the meaning of a particular term or phrase used in a statute in an effort
to interpret the law.
When one party harms another through a practice prohibited by law, the wounded
party can turn to the courts for redress. Under common law, a court can provide
damages to compensate for that harm. However, this is not always what is needed to
remedy a situation. Sometimes, what a plaintiff needs is for a court to act before the
harm occurs, in order to prevent irreparable harm. Common law does not apply before
the fact. However, law of equity, which serves as a supplement to common law, provides
a mechanism for this.
Using law of equity, which also dates back to twelfth-century England, judges can
create more flexible remedies for plaintiffs than those available under common law.
Take, for example, a situation in which Apple learns that a disgruntled employee has
stolen plans for its yet-to-be-released iMind – a device that transmits data directly into
the human brain – and is threatening to upload them to the Internet. Once the plans
have been published online, Apple will be able to sue the employee for misappropriation
of it trade secrets under common law. It may even be able to collect a small portion of
its damages. But, by that time, Apple’s competitors will have access to its new product
plans, and the potential damages incurred will far outweigh any damages the employee
could repay. Equity fills the gap. Using the law of equity, a judge can issue a restraining
order or injunction to prevent the thief from acting before the harm occurs.
Within the media context, equitable relief most often takes the form of injunctions,
which are court orders that require someone to do something or not to do something.
But courts grant other forms of equitable relief as well. Parties in doubt of their rights
with regard to a particular legal issue may request a declaratory judgment from a court
as a precursor to further legal action. This legally binding opinion sets out the rights
and obligations of parties within a legal controversy. A party threatened with a lawsuit
for engaging in a particular behavior, for example, might seek a declaratory judgment
to assess his or her rights before acting.
Understanding precedents
The practice of following precedents under common law is known as stare decisis (pronounced “stair-ee da-sy-sis”), which literally means “to stand by that which is decided.”
The part of the case that sets the precedent is called the holding. This is the court’s decision regarding the legal question presented. In some cases, a court will be very helpful
by saying, “We hold that . . . ,” but other times you have to sift though a lot of text to
find the golden nugget.
7
8
Introduction to the Legal System
Collateral statements made by judges are referred to as obiter dictum or “dicta.” This
is all the rest of the text in a judicial opinion. Dicta (which often encompass a lot of
analogies, opinions, and explanation) can be interesting, but are not legally binding.
Dicta may be used to understand a court’s reasoning and provide an indication of how
it might rule in the future.
In appellate court cases, a panel of judges – usually three, but sometimes as many as
eleven – renders the decision. The opinion may be unanimous, but more commonly it is
subdivided into a majority opinion with concurring and dissenting opinions. The majority opinion, so named because it is issued by a majority of the judges on the panel, includes
the holding and the legal rationale to support it. To the extent that the opinion answers
a new legal question or offers a new legal interpretation, it carries precedential value.
Judges who support the majority’s conclusion based on an alternative rationale issue
a concurring opinion, explaining the legal rule they would prefer to use. Judges who disagree with the majority’s conclusion issue a dissenting opinion, explaining why they think
the majority has misinterpreted the law. Concurring and dissenting opinions are
published with the majority opinion, so someone reading the case can acquire a full
understanding of the court’s position on an issue.
In a small percentage of appellate cases, a majority of judges will reach consensus on
a conclusion, without agreeing on a rationale or legal rule to support it. In these cases,
the rationale that receives the most support is called the plurality opinion. Decisions in
these cases are reached by combining coalitions of judges, citing different legal rules. A
plurality decision in the Supreme Court, for example, might draw four justices supporting a conclusion with one rationale, two concurring with the decision, based on a
different rationale, and three justices dissenting. In the end, the case will be resolved
because six justices agree on a desired outcome, but its precedential value will be
limited because no majority supported a legal rule to justify the outcome. Consequently,
plurality opinions are narrowly interpreted. Only those aspects of the plurality opinion
that draw support from concurring judges are binding.
A binding precedent is one that a court must follow. Whether a precedent is binding
depends on the court’s hierarchy and jurisdiction. Courts must follow decisions rendered by higher courts in their own jurisdictions. But even if a precedent is not binding,
it still might be persuasive. A persuasive precedent is one that a court may use as guidance
but also has the prerogative to reject. For example, a Georgia court is not bound by the
decisions of other states. However, if the Georgia court is facing a new legal issue, with
no precedent to follow from its own state, it will look to other states for guidance. If it
finds that a Florida court has issued a well-reasoned opinion on the issue, the Georgia
court may elect to adopt it as its own.
Modifying, distinguishing, and overruling precedents
The concept of stare decisis may lead to the assumption that courts are always bound
by earlier precedents. In fact, they are not. The law is a lot like a coral reef. Precedents
build upon one another in some areas, while in other areas they remain relatively consistent or may even be torn down.
Introduction to the Legal System
9
Courts have the option of modifying, distinguishing, or overruling precedents.
Courts modify a precedent when they adapt it to fit a new situation. For example,
courts had to modify “print-based” precedents to fit the first copyright cases related to
the Internet. Courts distinguish a precedent when they determine that it does not fit the
particular case or situation under analysis. For example, when the Supreme Court
reviewed the Communications Decency Act, a law intended to control indecency on the
Internet, the government tried to persuade the Court that the Act’s restrictions
on Internet speech were analogous to restrictions imposed on “dial-a-porn” that had
already been upheld. The Court distinguished the dial-a-porn precedent from the Internet case because they dealt with different media. Courts overrule precedents when they
decide that the precedents are no longer good law. For example, the Supreme Court
decided in 1915 that films were public spectacles unworthy of First Amendment protection.8 The Court reversed its opinion in 1952, deciding that films, like other media, are
a form of protected expression.9
The Difference Between Common and Civil Law Legal Systems
Common law legal systems are unique to the United Kingdom
and her former colonies. Civil law systems are actually more
common. Civil law is used in most of Europe, all of Central
and South America, parts of Asia and Africa, and in some
states within common law countries, such as Louisiana in the
United States and Quebec in Canada.10 Judges do not make
law in civil law systems. They rely exclusively on statutory
law, usually set down in codes that are cohesively structured.
Civil law is based on deductive logic. There is one rule of law
and decisions for cases are drawn from the rule. In contrast,
common law relies on inductive logic. The rule is based on a
general conclusion from a number of cases.
Not only is civil law the dominant legal system, it is also the
oldest. Its heritage can be traced back to the early Roman
Empire. In the sixth century, the Emperor Justinian amassed all
law into a unified code called the Corpus Juris Civilis. More com-
8
monly known as the Justinian code, it included a dictate that
rejected precedent. It stated that “decisions should be rendered
in accordance, not with examples, but with the law.”11 This
policy can be traced back to Roman tradition, in which judges
were appointed on a case-by-case basis and magistrates were
appointed for no more than one year. As such, their individual
decisions were not accorded much weight.12
As an alternative to stare decisis, civil law judges follow
the doctrine of jurisprudence constante. The doctrine of jurisprudence constante does not require judges to follow earlier
precedents; nevertheless, judicial deference to earlier decisions
is commonplace. “Under civil law tradition, while a single
decision is not binding on courts, when a series of decisions
form a ‘constant stream of uniform and homogenous rulings
having the same reasoning,’ jurisprudence constante applies
and operates with ‘considerable persuasive authority.’ ”13
Mutual Film Corp. v. Industrial Comm’n of Ohio, 236 U.S. 230 (1915).
Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
10
James G. Apple and Robert P. Deyling, A Primer on the Civil Law System 1 (Federal Judicial Center,
1995), available at www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf.
11
Id. (citing John P. Dawson, Oracles of the Law 103, 123 (1968)).
12
Id. at 5.
13
Doerr v. Mobile Oil Co., 774 So.2d 119 (La. 2000) (citing Dennis, J. L., Interpretation and Application of the
Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 15 (1993)).
9
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Introduction to the Legal System
The Structure of Court Systems
A court’s jurisdiction and hierarchy determines whether the decision it renders will
be a binding precedent. So a basic knowledge of the structure of court systems, along
with their powers and limitations, is essential before reading particular cases. In the
United States there are two court systems: the federal system and the state system.
In order for a court to consider a case, three conditions must apply:
•
•
•
there must be a legitimate controversy that is ripe for review;
the parties in the case must have standing, which is a direct interest in the case; and
the case must fall within the court’s jurisdiction or sphere of influence.
There are two types of jurisdiction, personal jurisdiction and subject matter jurisdiction.
Personal jurisdiction, which is covered in greater detail in Chapter 5, refers to the court’s
right to exercise its control over the parties involved in a case, based on their residence
in or contacts with a particular area. Subject matter jurisdiction refers to the particular
issues that a court is empowered to decide.
The federal court system
The subject matter jurisdiction of federal courts is limited to actions described in Article
III, Section II of the Constitution and federal statutes passed by Congress. Federal courts
may consider:
•
•
•
•
•
•
•
•
•
controversies arising under the Constitution, laws of the United States, and
treaties;
cases in which the United States is a party;
cases between a state or its citizens and foreign states or their citizens;
cases involving ambassadors and representatives from foreign states as parties;
cases based on admiralty law (the law of the seas);
copyright and patent cases;
bankruptcy proceedings;
lawsuits involving the military; and
diversity cases, involving claims exceeding $75,000.
Diversity cases involve civil actions between citizens of different states.14 For example,
in 2011, actress Lindsay Lohan sued rapper Pitbull for defamation, intentional infliction
14
28 U.S.C. § 1332 (2010).
Introduction to the Legal System
of emotional distress and the use of her name for commercial benefit, in a New York
State court, for including the lyric “I got it locked up like Lindsay Lohan” in his popular
song “Give Me Everything.” The case was transferred to a federal court with diversity
jurisdiction because Lohan was a resident of California, Pitbull was a resident of Florida,
and the other defendants in the suit were residents of Georgia, New York, and the
Netherlands.15
A federal court also may assume jurisdiction over a case that began in a state court
if a constitutional or federal right is threatened during the course of litigation. For
example, a federal court may prevent a state court from enforcing an unconstitutional
state statute.
The federal court system includes the U.S. Supreme Court, U.S. Courts of Appeals,
U.S. District Courts and bankruptcy courts. Congress has also created legislative courts
with reduced powers. These include the U.S. Court of Military Appeals, U.S. Tax Court
and U.S. Court of Veterans Appeals.
Federal court hierarchy
The point of entry for a case in the federal system is the district court. This is the
trial level (that comes closest to television depictions of trials), where one judge
sits on the bench, witnesses take the stand, and a jury examines the evidence to
determine the facts of the case. The federal system is divided into 94 judicial
districts, each staffed with multiple judges. Each state, along with the District of
Columbia and U.S. territories, includes at least one district. Larger states, like
California and Texas, include as many as four districts located in different parts
of the state.
Above the trial level is the appellate level. Courts of appeals review lower court Figure 1.2
decisions to make sure the law was applied correctly. A panel of judges – usually
three – examines the case to make sure judicial rules were followed, that proper witnesses
were allowed, and that juries received correct instructions. A court of appeals normally
does not re-examine the facts of a case. If, in the course of its review, an appellate court
finds that a fact is still in dispute that could materially affect the outcome of the trial,
it will send the case back (called remanding it) for a retrial to resolve the issue. Because
there are no witnesses at the appellate level – only transcripts, lawyers, and judges –
courtroom drama is considerably diminished.
Federal courts of appeals are divided into autonomous circuits. A decision from an
appellate court is binding within its own circuit, but it does not bind courts in other
circuits. There are 13 federal circuits within the United States. Eleven of them are drawn
from clusters of states and U.S. territories.
15
Lohan v. Perez, a/k/a Pitbull (filed Nov. 4, 2011, E.D.N.Y.) Notice of removal.
Supreme
Court
Court of
Appeals
District
Court
11
12
Introduction to the Legal System
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
The Supreme Court issues a writ
of certiorari when it accepts a
case. The order requires a lower
court to deliver its records of the
case to the higher court for review.
In Latin certiorari means “to be
more fully informed.”
If you aren’t sure how to
pronounce it, you are in good
company. Justices on the Supreme
Court all pronounce it differently,
as “ser-shah-rair-eye,” “ser-she-orary,” and “ser-shah-rahr-ee.”
Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island
Connecticut, New York, Vermont
Delaware, New Jersey, Pennsylvania, Virgin Islands
Maryland, North Carolina, South Carolina, Virginia, West Virginia
Louisiana, Mississippi, Texas
Kentucky, Michigan, Ohio, Tennessee
Illinois, Indiana, Wisconsin
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota,
South Dakota
Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada,
N. Mariana Islands, Oregon, Washington
Colorado, Kansas, New Mexico, Utah, Oklahoma, Wyoming
Alabama, Florida, Georgia
The other two U.S. Courts of Appeals are located in Washington, D.C. The U.S.
Court of Appeals for the District of Columbia Circuit hears appeals from administrative
agencies in the nation’s capital. The U.S. Court of Appeals for the Federal Circuit
has nationwide jurisdiction for specialized cases. These include cases on patent law
or cases that come from the Court of International Trade and the Court of Federal
Claims.
In exceptional cases, the judges sitting on a circuit court of appeals may, at the request
of one of the litigants or a circuit judge, vote to vacate a three-judge panel’s decision
and review the case en banc. In an en banc hearing, the full court sits to rehear and
decide the case. Such reviews are rarely granted unless the panel’s judgment was out of
sync with the court’s earlier decisions or the case involves a legal question of particular
importance.
Decisions rendered by federal circuit courts may be appealed to the U.S. Supreme
Court, which binds every lower court on constitutional and federal law. When the
Supreme Court agrees to hear a case, it grants a writ of certiorari. The Court grants
certiorari only to those cases that pose a significant legal issue. Of the approximately
10,000 petitions it receives each year, the Court reviews only 75–100 cases.16
The Supreme Court has original jurisdiction (the right to be the first to hear a case)
in two types of cases: those involving ambassadors and those in which the United States
is a party. In all other cases, it has appellate jurisdiction. As with courts of appeals, cases
involve written briefs and oral arguments presented by attorneys, but no witnesses or
juries. Court justices issue written opinions, explaining their decisions, months after
hearing the case.
The Supreme Court has nine members – eight justices and a chief justice. They are,
in order of seniority, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth
Bader Ginsburg, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor, and
16
Supreme Court of the United States, Frequently Asked Questions, http://www.supremecourt.gov/faq.aspx.
Introduction to the Legal System
Elena Kagan. John Roberts is chief justice. Occasionally, one of the justices will have
a conflict of interest that makes it inappropriate to hear the case. For example, he or
she may have a prior relationship with one of the parties. In such a case, the justice
will voluntarily remove him or herself from the case, a process known as recusal.
This would leave eight justices to decide the case. In the event of a tie, the lower
court’s decision would stand but would carry no precedential value beyond its
own circuit.
The state court system
Although federal courts have produced more influential opinions regarding digital media
law, most litigation takes place in state courts. In fact, 95 percent of all cases are filed
there.17 As sovereign entities, states courts are independent of the federal court system
and independent of other states. They are the ultimate decision makers regarding their
own laws and constitutions, even binding federal courts on interpretations of state law.
Like their federal counterparts, state courts are limited by personal and subject matter
jurisdiction. There must be a connection between the litigants and the state to establish
personal jurisdiction. A Florida court could not, for example, hear a case involving two
residents of Mississippi about a matter that had nothing to do with Florida. State courts
are also limited to particular subject areas. These include matters that involve state
statutes, state constitutions or state common law. State courts handle most criminal
cases, probate (wills and estates), contracts, torts (personal injuries), family law (marriages, divorce and adoptions) and juvenile justice.
Most states have two levels of trial courts: courts of limited jurisdiction or courts of
general jurisdiction. Courts of limited jurisdiction handle cases involving misdemeanor
behavior in criminal matters and sums under $10,000 in civil matters. Examples include
municipal, justice of the peace, probate, family, juvenile and small claims courts.18 More
serious criminal and civil cases are tried in courts of general jurisdiction. These are commonly called district, circuit, or superior courts.
State court hierarchy
The decisions of these lower state courts may be appealed to intermediate appellate
courts, usually called courts of appeals. Most states have one appellate court, but larger
states like California have regional appellate courts. Because it is assumed that all cases
deserve at least one appeal, intermediate appellate courts have little discretion over
whether to accept cases from the trial level.
Each state also has a court of last resort, usually called its supreme court. However,
in New York and Maryland, the highest courts are called court of appeals. These courts,
17
18
National Center for State Courts, Examining the Work of State Courts, 2010, http://www.courtstatistics.org/.
Robert A. Carp and Ronald Stidham, Judicial Process in America 67 (4th ed. 1998).
13
14
Introduction to the Legal System
which range in size from three to nine judges (but most commonly have seven), are the
final arbiters on state law. Most courts of last resort sit in states with intermediate appellate courts and therefore have the power to exercise discretion over the cases they choose
to hear.19 Like the U.S. Supreme Court, they generally elect to review only those cases
that involve important policy issues.
Types of Law
Within the common law system, there are two different types of law: criminal law and
civil law. The term civil law can be confusing because it has two meanings. As discussed
earlier, civil law refers to a type of legal system that is distinct from the common law
system. Within the United States, the term civil law more commonly refers to the body
of law used to resolve disputes between private parties or organizations. In other areas
of the world it is called private law, while its counterpart, criminal law, is called public
law. Criminal law, prosecuted by the government, is probably more familiar to you
because it is more commonly depicted in books, movies, and television. Unfortunately,
these dramatic representations tend to gloss over the specifics.
Criminal law
Criminal law addresses violations against the state (government) that, even if directed
toward an individual, are considered an offense to society as a whole. It may include the
commission of an illegal act (like computer fraud or cyberstalking) or the omission of
a duty (through negligent conduct, for example) that causes public harm. A state may
sanction the violation of a criminal law using fines or imprisonment, as long as the
punishment, like the crime, was clearly outlined in a statute passed by a legislative body
before the act occurred.
Grand juries and preliminary hearings
Grand juries are distinct from trial
juries. Grand juries determine
whether there is enough evidence
to charge a person with a crime.
Trial juries determine whether a
person has committed a crime.
The Fifth Amendment guarantees a grand jury hearing to anyone accused of a federal
crime. Most grand juries consist of 16 to 23 citizens pulled from voter registration
lists, who are empanelled for a period ranging from one month to one year. The federal
prosecutor submits his or her evidence to the grand jurors, who determine whether
there is probable cause to believe the accused committed a federal crime. The accused
is not present at the time. If, after hearing the evidence, the grand jury is convinced
there is probable cause to warrant a trial, it will issue a formal accusation of a felony,
19
Id. at 71.
Introduction to the Legal System
called an indictment, against the accused. Grand jury hearings and records are closed
to the public. The Supreme Court has provided three justifications for this secrecy:
(1) disclosure of pre-indictment proceedings would make many prospective witnesses
“hesitant to come forward voluntarily, knowing that those against whom they testify would
be aware of that testimony”; (2) witnesses who did appear “would be less likely to testify
fully and frankly as they would be open to retribution as well as inducements”; and (3)
there “would be the risk that those about to be indicted would flee or would try to influence individual grand jurors to vote against indictment.”20
States have the option of using preliminary hearings led by a judge as an alternative to
a grand jury hearing. The accused may be present at a preliminary hearing and may
even present evidence in his or her favor, although most elect not to at that time. Preliminary hearings are also open to the public.
Arraignments
Once a grand jury or judge has determined there is probable cause for a trial, the accused
goes before a judge, where he or she is read the formal charge and issues a plea in a
proceeding called an arraignment. It is important to understand the distinction between
an arrest and an arraignment to avoid publishing inaccurate information that could
lead to a defamation suit. Only after an arraignment is it correct to publish that someone
was “charged” with a crime. If the defendant’s plea is “guilty,” the judge may issue a
sentence. If the plea is “not guilty,” a trial date is set. Typically fewer than 10 percent of
criminal cases make it to trial. Most are plea-bargained before trial, meaning the prosecutor and defendant agree to a deal that usually involves some form of leniency in
exchange for a guilty plea.
The Sixth Amendment to the Constitution guarantees “a speedy and public trial” by
an impartial jury in all criminal prosecutions. In the Speedy Trial Act of 1974, Congress
interpreted the term “speedy” to mean that a trial must ensue within 100 days after
criminal charges are filed or the case must be dismissed. States have enacted similar
measures.
The jury
Potential trial jurors are subjected to a process called voir dire (pronounced “vwahr
deer”) to assess their suitability for jury service. During this period, the prosecution
and defense ask potential jurors questions regarding their knowledge and attitudes
about the case, as well as any relevant personal experiences or connections that might
influence their decision. A common misperception is that potential jurors must not
have heard anything about the case to be selected. That is not a requirement. It is only
20
In re North (Omnibus Order), 16 F.3d 1234, 1242 (D.C. Cir. Spec. Div., 1994) (quoting Douglas Oil Co. v.
Petrol Stops Northwest, 441 U.S. 211, 218–19 (1979)).
15
16
Introduction to the Legal System
necessary that potential jurors believe themselves to be capable of impartiality. During
the selection process, each side is given a number of peremptory challenges, which are
opportunities to strike a person from the jury pool for no specific reason. These
are useful when a potential juror displays no overt biases, but the attorney still has a
bad feeling about the person. Peremptory challenges may not, however, be used to strike
a juror on the basis of race or gender.21 Strikes for cause are unlimited. Attorneys do
not have to use one of their peremptory strikes to exclude a juror who displays an
obvious bias regarding the case.
In a federal criminal trial, a jury must have twelve members who reach a unanimous
decision. Most states also use twelve-member juries in criminal trials, but are permitted
to use as few as six. A slight variation in votes is also permitted at the state level. The
Supreme Court has held that a guilty verdict from nine members of a twelve-member
jury is constitutionally permissible in state trials. However, a jury with only six members
must be unanimous. Oregon and Louisiana are the only states that still permit nonunanimous juries in felony cases.
It is the jury’s job to decide the facts of the case and render a verdict. It is the judge’s
job to make sure proper procedure is followed during the trial and to instruct the jurors
about the meaning of the law and how it is to be applied. In most states, and at the
federal level, the judge imposes the sentence.22 However, some states place this responsibility on the jury.
Grounds for appeal
Approximately one-third of criminal verdicts are appealed. The appeal must be based
on the contention that the law was misapplied, not that the facts were misinterpreted.
Acceptable reasons might be that inadmissible evidence was allowed, jury selection was
flawed, or the judge’s instructions were incorrect. A successful appeal usually results in
a new trial.
Civil law
Civil law seeks to resolve non-criminal disputes. These typically involve conflicts over
contracts, the ownership or use of property, inheritance, domestic relations (involving
marriage, divorce, child custody), and torts. These conflicts, between private people or
organizations, emerge when one party alleges that the other has violated a civil statute
or common law.
Civil cases are more common than criminal cases.23 In civil trials, the court’s role is
to help settle the dispute. The proscribed remedy may be an injunction that requires
someone to do something or prohibits someone from doing something, or the imposi21
See Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991) and J.E.B. v. Alabama ex rel. T.B., 511 U.S.
127 (1994).
22
Daniel E. Hall, Criminal Law and Procedure 490 (5th ed. 2009).
23
Id. at 184.
Introduction to the Legal System
tion of a fine. Civil penalties do not involve imprisonment. On rare occasions, a state
may be a party to a civil suit, but this is the exception rather than the rule.
Civil procedure
Civil procedure differs from criminal procedure in a number of respects. First, there is
no prosecutor in civil cases. One party (the plaintiff) brings a suit against another party
(the defendant or respondent). The plaintiff must have standing – a personal stake in the
outcome of the case – in order to initiate the suit. Without standing, there is no real
controversy between the parties for a court to settle. Second, the standard of proof
required to win a civil case is less stringent than in criminal cases. It is usually sufficient
for a plaintiff to show that the “preponderance of evidence” demonstrates the defendant’s guilt. Plaintiffs are not required to demonstrate guilt beyond a reasonable doubt,
the standard used in criminal trials. Third, due process protections are weaker in civil
trials. The court is not required to provide an attorney for a defendant who cannot
afford one, for example. Also, although the Seventh Amendment guarantees the right
to a jury in a civil trial, the litigants have the right to waive that option in favor of a
bench trial, in which the judge determines the facts of the case in addition to deciding
questions of law.24 When juries are used, they are frequently smaller than those used in
criminal trials. Fewer than half the states require twelve-person juries, and about half
permit nonunanimous verdicts.
To initiate a suit, the plaintiff or the plaintiff ’s attorney files a petition, called a
complaint, outlining the circumstances that led to the dispute, the damages alleged and
the compensation expected. After receiving a summons announcing the suit, the defendant or defendant’s attorney may file a motion with the court to strike parts of the suit
that are improper or irrelevant or to dismiss it entirely because it was improperly filed
or because there is no sound basis for the suit.25 If the court rejects the defendant’s
motions, the defendant will have to respond to the suit. The response, called the defendant’s answer, may contain an admission, denial, defense, or counterclaim.26
At that point, the trial will enter a discovery phase in which the litigants gather and
share information related to the dispute. Although surprises make good drama in television courtrooms, they are not appreciated in real trials. Opposing parties are obligated
to disclose their evidence to each other before the trial. Pre-trial discovery, which is used
in civil and criminal trials, gives each side the opportunity to search for new information
to explain or rebut the opposing party’s evidence, and minimizes opportunities to falsify
evidence.27 In civil trials, putting all of the evidence out on the table also encourages
settlements before the case can go to trial. Litigants use a variety of tools for discovery.
24
The Seventh Amendment is not deemed sufficiently fundamental to apply at the state level through the
Fourteenth Amendment’s due process clause. Thus defendants do not have a constitutional right to a jury in
a state civil trial. See Curtis v. Loether, 415 U.S. 189, 198 (1974) and Dairy Queen v. Wood, 369 U.S. 469, 471–2
(1962).
25
Curtis v. Loether, 415 U.S. 189, 196 (1974).
26
Id.
27
Comment, Pre-Trial Disclosure in Criminal Cases, 60 Yale L.J. 626–46 (1951).
17
18
Introduction to the Legal System
One of the most common is the deposition. In a deposition, potential witnesses describe
what they know, under oath, before the trial begins. Depositions normally occur in one
of the attorney’s offices. All parties are notified in advance so they can be present to hear
the witness’s testimony. The counsel for both the plaintiff and the defendant may question the witness during a deposition. Information is also gathered through interrogatives,
which are questionnaires that the opposing party answers under oath. Each party is also
entitled to request the opposition’s list of witnesses to be called at trial, a summary of
anticipated expert testimony, and any documents that may be used in the case as
evidence.
Summary judgment
Either party in the trial may motion for a summary judgment in his or her favor. A
summary judgment is a ruling that all factual issues have been discovered and the case
can be decided on the facts without a trial. If, after considering the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, the judge determines
that there is no genuine issue of material fact and that as a matter of law the motioning
party is entitled to a judgment, the judge may render a summary judgment in the case.28
If the court refuses to issue a summary judgment, the case will go to trial.
If the district court issues a summary judgment and the opposing party believes
material facts remain that justify a full trial, he or she may appeal the summary judgment. An appellate court may choose to review de novo (anew) the evidence leading to
the district court’s summary judgment. If it does so, it will review the evidence in the
light most favorable to the party who did not request summary judgment.
Remedies
Civil remedies usually come in the form of injunctions and/or fines, depending on the
circumstances.
If a case involves an issue of equity (a problem that cannot be remedied after-the-fact
by issuing damages), a judge may issue a preliminary injunction to prevent one party
from doing something that harms the other party until the case can be considered fully
at trial. Before granting a plaintiff a preliminary injunction, the court must be satisfied
that (1) there is a substantial likelihood that the plaintiff would win a case against the
defendant if it were to go to trial; (2) that the plaintiff would suffer “irreparable harm”
without the injunction; (3) that the harm the plaintiff suffers would be worse than any
harm the defendant would suffer from the injunction; and (4) that the injunction would
not harm the public’s interest.29 If a trial later shows that the preliminary injunction
was warranted, the court will replace it with a permanent injunction. If not, the preliminary injunction will be lifted.
28
29
Fed. R. Civ. P. 56.
See Johnson & Johnson Vision Care v. 1–800 Contacts, Inc., 299 F.3d 1242, 1246–47 (11th Cir. 2002).
Introduction to the Legal System
If, on the other hand, the damage is already done and the judge or jury finds that
the defendant is responsible, the defendant may be punished with a monetary fine. Civil
juries issue two types of damage awards: compensatory and punitive. Compensatory
damages compensate the victim for actual loss. Punitive damages, which may be awarded
in addition to compensatory damages, serve as punishment and to set an example for
future offenders.
Doctrine of respondeat superior
The civil liability doctrine of respondeat superior allows plaintiffs to sue not only the
person directly responsible for a tort, but also those who may be tangentially responsible.
Literally it comes from the ancient idea that the master is responsible for the servant.
In modern times, it means the employer is responsible for the employee. People take
advantage of the doctrine of respondeat superior when they are looking for deeper
pockets. This means that if you harm someone in the context of your work, your
company may also be liable for your actions. If you own a company, it means that you
may be liable for your employees’ actions and should have a good errors and omissions
insurance policy.
Appeals
If the losing party feels that the court’s judgment was reached in error because the law
was somehow misapplied, he or she can ask the court to set aside its verdict. If the court
refuses to do so, the losing party may appeal the decision. A losing party who is legally
entitled to a review will become the appellant, while the opposing party becomes the
appellee. If the higher court’s review is discretionary – which is the case in appellate
courts of last resort, usually called supreme courts – the losing party must petition the
court for a writ of certiorari, a court order granting a review. The party requesting
the review will be the petitioner. The opposing party will be the respondent. Case names
are likely to change on appeal. A lawsuit brought by Jones against Smith will begin life
as Jones v. Smith. If Smith loses and initiates an appeal, the case name will switch to
Smith v. Jones.
District
Court
Court of
Appeals
Supreme
Court
Petitioner v.
Respondant
Appellant v.
Appellee
Plaintiff v.
Defendant
Figure 1.3 The terms used for parties in a case change as they move from one court level up to the next.
19
20
Introduction to the Legal System
The Significance of Judicial Review
The power of judicial review refers to a court’s authority to
review the decisions of other branches of government. In the
United States, judicial review gives federal courts the power
to declare a law unconstitutional – in effect, to strike it down.
Theoretically, any federal court in the United States has this
power, but lower courts are reluctant to use it because it is
guaranteed to lead to an appeal and embarrassment if the
decision is overturned.
Although the framers of the Constitution never specifically
granted the Supreme Court the power of judicial review, the
Court nevertheless decided it must have that authority in
Marbury v. Madison (1803).30 The case involved a judicial
appointment that President Adams made before leaving office
following his loss to Thomas Jefferson. The Senate confirmed
several of Adams’ judicial appointees, but Adams’ secretary
of state did not have time to issue their commissions before
leaving office. When Jefferson assumed the presidency, he
asked his new secretary of state, James Madison, not to issue
the commissions because he wanted to appoint his own
judges to the bench.
William Marbury, who was in line for a federal judgeship,
asked the Supreme Court to issue a writ of mandamus, a court
order compelling a public official to do his duty, to force
Madison to turn over the commission. Congress gave
the Supreme Court the power to issue writs of mandamus
in the Judiciary Act of 1789. But the Constitution does not
give the Supreme Court original jurisdiction in such matters.
Facing an untenable position, the Court concluded that the
law must be unconstitutional and therefore invalid. In terms
of constitutional law, the decision is the most important the
Supreme Court has ever made. Shortly after, in Martin v.
Hunter’s Lessee (1816), the Court also held that it had the
power to determine whether the decision of a state’s legislature is constitutional.31
The Supreme Court’s assertion of judicial review was controversial because it vested the one branch of government
that is not democratically elected with the greatest power.
However, the Court has used that power to protect minority
rights that might otherwise have been trampled by the majority. Judicial review is particularly important to media law.
Without it, courts would not have the power to strike down
laws that impinge upon the First Amendment. Having that
power over states also means that the Court can prevent 50
inconsistent laws.
Questions for Discussion
1. What are the different sources of law in the United States? Which is paramount and
why?
2. How do hierarchy and jurisdiction determine whether a precedent is binding or
persuasive?
3. How do common law and civil law legal systems differ?
4. How do criminal and civil law differ?
5. What is the significance of judicial review and how does it make the U.S. legal system
different from other common law legal systems?
30
31
5 U.S. 137 (1803).
14 U.S. 304 (1816).
2
Freedom of
Expression
No other country in the world is more protective of expression than the United States.
In fact, some countries believe the United States takes speech protection too far, protecting expression at the expense of other equally important rights, such as personal rights
to reputation and privacy. It should not be surprising that nations balance speech
protections differently. Each nation forms concepts of what is acceptable in terms of
expression based on its own cultural and political heritage. Countries such as France
and Germany, for example, developed a particular sensitivity to the dangers of hate
speech following their experiences with Nazism during the 1930s and 1940s. European
countries in general are more sensitive to defamation. Their social structures grew out
of feudalism during the Middle Ages and subsequent class divisions that extended
through the nineteenth century. Historically, an accusation that marred the reputation
of a member of the aristocracy was likely to result in a duel. Strict laws against defamation reduced violence. In contrast, American colonists represented a range of social
strata, looking for religious, economic, and expressive freedom. The founding fathers
incorporated these values into the U.S. Constitution.
This chapter will explore the First Amendment, the primary means through which
expression is protected in the United States. It will consider the varying levels of protection accorded to different media; categories of speech without protection; and the
legitimate scope of time, place, and manner restrictions. It will also address questions
specifically related to Internet speech, such as whether the Internet is a public forum,
computer code is considered speech, and student websites are protected.
The First Amendment
Protection for free expression in the United States draws its power from the First
Amendment to the Constitution, which says:
Digital Media Law, Second Edition. Ashley Packard.
© 2013 John Wiley & Sons, Inc. Published 2013 by John Wiley & Sons, Inc.
22
Freedom of Expression
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
the people peaceably to assemble, and to petition the Government for a redress
of grievances.
In those 45 words, the founding fathers integrated a number of rights: the right to freely
exercise one’s religious beliefs, protection against state establishment of religion, protection for freedom of speech and the press, the right to assemble freely and with it an
implied freedom of association, and the right to petition for a redress of grievances.
The First Amendment’s protection for speech and press is foundational to U.S. media
law. It distinguishes our national approach to such issues as defamation, hate speech,
and obscenity from those of other commonwealth and civil law countries. Other nations
have included protections for expression in their constitutions, but no guarantee of
speech and press freedom is as broadly stated as the First Amendment.
Ironically, the First Amendment’s breadth is sometimes a source of confusion. The
Supreme Court and Congress have struggled with its admonition “to make no law
abridging freedom of speech.”1 On first reading the language seems clear enough, but
it is actually quite open to interpretation. Judges and scholars have debated its meaning
for two centuries. What exactly does freedom of speech mean? What does abridgement
mean? How far can Congress go before it abridges freedom of speech? Advances in
technology have also put the words “or of the press” in question. When the founding
fathers wrote the First Amendment, the meaning of press was clear: books and newspapers. In the twentieth century, the meaning of press expanded to include radio, film,
and television. In the twenty-first century, it encompasses websites, web logs, podcasts,
videos, and even social networking sites. What will be next?
There is also the question of how closely the text should be followed. First
Amendment absolutists, like Justices Hugo Black and William Douglas, interpreted the
admonition to make “no law” respecting speech or the press to mean no law whatsoever.2
Others have felt that the right of expression must be balanced against other rights and
societal interests.
The First Amendment’s Purpose
No matter how literally the First Amendment is interpreted, one thing is clear: it does
not protect all expression. A common misconception is that the First Amendment protects anything we have to say, anywhere we want to say it. Actually, the First Amendment
only protects against government suppression of expression. It does not prohibit private
suppression of expression. If, in a fit of anger, you were to post a video on YouTube
1
Judicial Review and the Supreme Court 141 (Leonard W. Levy ed., 1967).
Konigsberg v. State Bar of California, 366 U.S. 36, 61 (1961) (Black, J., dissenting) (“[T]he First Amendment’s
unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that
the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.”)
2
Freedom of Expression
mocking your boss and later find yourself out of a job, you could not turn to the First
Amendment for recourse.3 Nor could you count on it to protect your expression on
someone else’s private property. This includes private onramps to the Internet like web
hosts and social networking sites. If your posts venture into offensive territory, your
web host is entitled to ask you to remove the speech. If you refuse to do so, the company
may do it for you or close your account.
The situation gets trickier when government agencies retaliate against their employees for speech posted online. As government entities, public agencies must guard against
suppression of speech. As employers, they also have “a legitimate interest in promoting
the efficiency of their operations.”4 A public employee’s speech, made in his or her
capacity as an employee, is generally not protected if the speech is made “to further the
employee’s private interest.”5 However, speech made “as a citizen upon matters of public
concern” is protected. When that speech causes a disruption at work, a court is required
to balance the employee’s right of free speech against the interest of the public employer.
The First Amendment protects speech from government suppression at the federal,
state, and city level. This was not always thought to be the case. Because the First Amendment states “Congress shall make no law,” the Supreme Court initially interpreted the
First Amendment to apply only to the federal government.6 Circumstances changed,
however, when the Fourteenth Amendment was ratified in 1866. The Fourteenth
Amendment says:
No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
In 1925, the Supreme Court modified its position.7 The Court determined that the
Fourteenth Amendment’s concept of liberty incorporates freedom of expression and
that through the Fourteenth Amendment the First Amendment applies to the states.
The Fourteenth Amendment binds the states to other guarantees in the Bill of Rights
as well, under the theory that it incorporates the “fundamental principles of liberty and
justice, which lie at the base of all our civil and political institutions.”8 This notion has
3
However, the National Labor Relations Act does protect the rights of certain employees to engage in “protected concerted activity.” The National Labor Relations Board describes this as when “two or more employees
take action for their mutual aid or protection regarding terms and conditions of employment.” In September
2011, an NLRB administrative judge found that a New York company had violated the Act by firing five
employees who had been discussing job conditions on Facebook. See Administrative Law Judge Finds New
York Nonprofit Unlawfully Discharged Employees Following Facebook Posts, National Labor Relations Board,
Sept. 6, 2011, https://www.nlrb.gov/news/administrative-law-judge-finds-new-york-nonprofit-unlawfullydischarged-employees-following-fac.
4
Mattingly v. Milligan, No. 4:11CV00215 (E.D. Ark Nov. 1, 2011).
5
Sparr v. Ward, 306 F.3d 589, 594 (8th Cir. 2002).
6
Barron v. The Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1933).
7
Gitlow v. New York, 268 U.S. 652 (1925).
8
Gideon v. Wainwright, 372 U.S. 335 (1963).
23
24
Freedom of Expression
come to be known as the incorporation doctrine. In the landmark case Gideon v. Wainwright (1963), Justice Black outlined the amendment’s scope:
This Court has looked to the fundamental nature of original Bill of Rights guarantees to
decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly
recognized to be of this “fundamental nature” and therefore made immune from state
invasion by the Fourteenth, or some part of it, are the First Amendment’s freedoms of
speech, press, religion, assembly, association, and petition for redress of grievances. For the
same reason, though not always in precisely the same terminology, the Court has made
obligatory on the States the Fifth Amendment’s command that private property shall
not be taken for public use without just compensation, the Fourth Amendment’s
prohibition of unreasonable searches and seizures, and the Eighth’s ban on cruel and
unusual punishment.9
Through the Fourteenth Amendment, the First Amendment also applies in U.S. territories, such as Puerto Rico and Guam,10 and to aliens legally residing in the United
States.11 The Supreme Court has not incorporated the full Bill of Rights into the Fourteenth Amendment. Rights that the justices do not consider to be “fundamental” remain
outside the amendment’s reach. These include the Third Amendment’s prohibition
against quartering soldiers in private residences during peacetime, the Fifth Amendment’s requirement of grand jury indictments, and the Seventh Amendment’s right to
a jury in civil trials.
Prohibition on prior restraint
Prior restraint is censorship before
publication.
Constitutional historians have noted that the founding fathers’ understanding of press
freedom when the Bill of Rights was written probably mirrored the English definition
presented in the authoritative legal text used at the time, William Blackstone’s Commentaries on the Laws of England.12 Blackstone interpreted freedom of the press to mean
freedom from prior restraint. In other words, he understood it to mean the freedom to
publish without prior censorship, but not freedom from punishment after the fact.
There is support for the contention that the founding fathers also understood freedom
of the press as a limit on prior restraint. The First Amendment was ratified in 1791.
Only seven years afterward, many of the same men who voted for it passed The Sedition
Act of 1798. The Sedition Act made it a crime to “write, print, utter or publish . . . any
false, scandalous and malicious writing or writings against the government of the United
9
Id. at 341–42.
See Balzac v. Porto Rico, 258 U.S. 298, 313–14 (1922) and DeRoburt v. Gannett Co., 83 F.R.D. 574, 577–8
(D. Haw. 1979).
11
See Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) (holding that aliens who lawfully enter and are residing
in the United States are entitled to rights guaranteed by the Constitution, including rights protected by the
First Amendment) and Bridges v. Wixon, 326 U.S. 135 (1945) (holding that aliens residing in the United States
are accorded freedom of speech and press).
12
William Blackstone, Commentaries on the Laws of England (1769).
10
Freedom of Expression
States, or either house of the Congress of the United States, or the President of the
United States.”13 In the context of political discourse today, can you imagine it being
illegal to criticize Congress or the president?
Although the meaning of the First Amendment was narrowly understood when it
was first written, historian Leonard Levy observes that “it was boldly stated, and that
the bold statement, the principle of unqualified free speech, was written into fundamental law and was meant to endure.”14 A broad libertarian theory of expression did emerge
within a decade after the constitution’s ratification – a contention supported by the fact
that the Sedition Act was allowed to expire in 1801.15
However, it was not until the twentieth century that the power of the First Amendment began to take hold. In the years leading up to and immediately after World War
I, the Supreme Court struggled with the question of just how far people should be
allowed to go in their criticism of government, particularly in times of unrest. Political
activists were thrown in jail for what we might consider today to be mild attempts to
protest the war.16 Part of this response was due to a natural propensity to tighten restrictions on freedoms when danger is present, a cycle that has played out through our legal
history. But it is also helpful to understand that in the early part of the twentieth century,
the prevailing view among social scientists (and no doubt many judges) was that the
public was extremely vulnerable to political propaganda.17
A prohibition era case, divorced from the context of war, gave the Supreme Court
an opportunity to consider the issue of government criticism in a different light. The
Court confirmed that “The chief purpose of the guarantee of freedom of the press is to
prevent previous restraint on publication” in the landmark case Near v. Minnesota
(1931).18 Jay Near, the petitioner in the case, was the editor of a scandal sheet called The
Saturday Press, which vilified Jews and Catholics, among others. Shortly after the first
edition was published, his co-editor, Howard Guilford, was shot. Near did not think
authorities were doing enough to find his partner’s assailant and used his paper to make
his opinions known. He accused the chief of police of conspiring with Minneapolis
gangsters and the local prosecutor of ignoring the matter. Minnesota had an abatement
statute against “malicious, scandalous or defamatory newspapers, magazines or periodicals” and used it to enjoin publication of Near’s paper. The Supreme Court’s opinion,
written by Justice Hughs, stated, “it has been generally, if not universally, considered that
it is the chief purpose of the guaranty [of freedom of the press] to prevent previous
restraints upon publication.”19 The Court overturned the state statute as a violation of
13
An Act for the Punishment of Certain Crimes against the United States (Sedition Act), July 14, 1798 ch. 74,
1 Stat. 5.
14
Levy, supra note 1, at 143.
15
Id.
16
Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Frohwerk v. United
States, 249 U.S. 204 (1919).
17
Harold Laswell, Theories of Political Propaganda, 21 Am. Pol. Sci. Rev., 627–631 (Aug., 1927); Walter
Lipmann, Public Opinion, 1922.
18
283 U.S. 697 (1931).
19
Id. at 713.
25
26
Freedom of Expression
the First Amendment, noting the seriousness of censoring charges of misconduct among
public officers – which was a real concern during the Prohibition Era.
The Court concluded that prior restraint would only be allowed in four exceptional
cases:
1. obstruction of military recruitment or the publication of sailing dates, the number
or location of troops;
2. obscenity;
3. incitements to violent overthrow of government; and
4. protection of private rights according to equitable principles. (For example, prior
restraints have been upheld in order to protect defendants’ rights to a fair trail or
plaintiffs’ rights to protect their intellectual property.)
Courts have interpreted Near to mean that few circumstances other than national security can justify prior restraint on the press. In New York Times Co. v. United States (1971),
the Supreme Court lifted an injunction barring The New York Times from printing the
Pentagon’s classified record of the Vietnam conflict (otherwise known as the “Pentagon
Papers”) because the government had not met the heavy burden required to warrant an
injunction.20 In a concurring opinion, Justice Stewart explained that publication would
not clearly result in “direct, immediate, and irreparable damage to our Nation or its
people.”21 But in United States v. The Progressive (1979), a federal district court concluded
that the Near standard was met when it enjoined a magazine from publishing directions
to make a hydrogen bomb.22 Even though the information was available in the public
domain in bits and pieces, the court believed that, when synthesized, it was too dangerous. The injunction was lifted later, however, when other publications printed the secret.
The Supreme Court declared that “prior restraints on speech and publication are the
most serious and the least tolerable infringement on First Amendment rights” in
Nebraska Press Association v. Stuart (1976).23 The case involved a lower court’s attempt
to impose a gag order on the media to limit the potential damage of excessive press
coverage on the defendant’s right to a fair trail. The Supreme Court limited the circumstances in which a judge could issue a prior restraint to prevent excessive media coverage
to situations in which no other alternative could curb the damaging effect of the publicity and a restraining order would actually be effective.24
Types of prior restraint orders
On those occasions when courts do issue prior restraint orders, they come in
three forms: temporary restraining orders, preliminary injunctions, and permanent
20
403 U.S. 713 (1971).
Id. at 730 (Stewart, J., concurring).
22
United States v. The Progressive, 467 F. Supp. 990, 994 (1979).
23
437 U.S. 539 (1976).
24
Id. at 562.
21
Freedom of Expression
27
injunctions. A temporary restraining order is intended to supply immediate relief. An
aggrieved party files a complaint with a court, applying for an order to stop someone
from engaging in an action that if continued will result in “irreparable injury” before
the matter can be heard in a formal court proceeding. Because the defendant is not
present to defend his or her actions, the court may require the plaintiff to pay a bond
to mitigate against any harm that may ensue to the defendant from the TRO if the
plaintiff has misrepresented the circumstances. Along with the TRO, the court establishes a hearing date, so the defendant can come before the court to contest the order.
At the hearing, the court may replace the TRO with a preliminary injunction if the
plaintiff establishes both the potential for irreparable harm and the likelihood of
winning a suit at trial. The court will also establish a trial date to determine whether
issuing a permanent injunction is appropriate. A permanent injunction, established after
a trial, is a court’s final order to enjoin an action permanently.
Normally, the purpose of a temporary restraining order is to preserve the status quo
until the court has time to give the matter due consideration. But, according to the U.S.
Court of Appeals for the Sixth Circuit, a temporary restraining order “is a different beast
in the First Amendment context.”25 In the context of press freedom, the status quo is to
“publish news promptly that editors decide to publish. A restraining order disturbs the
status quo and impinges on the exercise of editorial discretion.”26 Therefore, a court is
obligated to deal with them on an emergency basis. Furthermore, while the criteria a
court normally considers before issuing a restraining order include the potential for
irreparable harm and the requesting party’s likelihood for success on the merits of the
suit, in a First Amendment context, “the hurdle is substantially higher: publication must
threaten an interest more fundamental than the First Amendment itself.”27
Are Restrictions on Political Funding a Prior Restraint?
In a representative democracy, people must be able to express
their political views to effect change. Consequently, political
speech is given the broadest protection under the First Amendment. The Supreme Court has even gone so far as to protect
political spending on First Amendment grounds, reasoning
that it is necessary to fund political speech, thus a restriction
on political spending constitutes a prior restraint.
In 2010, the U.S. Supreme Court determined that restrictions on political speech by corporations and unions also
counted as prior restraints in Citizens United v. FEC. In that
case, the Supreme Court said that imposing limits on corporate
spending to advocate for or against a particular candidate
immediately before an election violated corporations’ free
speech rights. This holding unsettled more than 100 years of
campaign finance restrictions intended to prohibit corruption
or the appearance of corruption in the political process.
It may seem odd to think of corporations as having free
speech rights. After all, they are not people. But in most legal
(Continued)
25
Procter & Gamble Co. v. Banker’s Trust Co., 78 F.3d 219, 226 (1996).
Id. (citing In re Providence Journal Co., 820 F.2d 1342, 1351 (1st Cir. 1986)).
27
Id. at 227.
26
28
Freedom of Expression
systems, corporations are considered “legal persons.” In legal
parlance, a “person” is an entity subject to legal rights and
duties. A legal person can own property, sue and be sued.
Natural persons (people) are also legal persons to the extent
that they are of sound mind and old enough to assume legal
responsibilities.
The notion that corporations deserved equal protection
under the Constitution entered American jurisprudence
through an 1854 Supreme Court case about corporate property rights. During oral arguments, the Chief Justice remarked
that the Court was of opinion that the Fourteenth Amendment,
which forbids a state to deny equal protection of the laws to
any person within its jurisdiction, applied to corporations.
Although this statement was not part of the legal holding in
the case, a clerk added it to the Court’s printed opinion.28 As
later decisions incorporated the fiction of corporate personhood, corporate rights expanded. But Congress has long been
wary of the influence of corporations on the political process.
As early as 1907, it passed the Tillman Act barring corporations from making monetary contributions to national
campaigns.
Following the Watergate scandal, Congress limited the
amount of money individuals or organizations could donate
to candidates for elections and required that donations above
a certain threshold be disclosed to the Federal Election
Commission, a regulatory agency it created to enforce the
restrictions. Congress also limited the amount of money that
candidates could spend on their campaigns.29 The new rules
were challenged as a violation of the First Amendment in
Buckley v. Valeo (1976). The Supreme Court upheld campaign
contribution limits and disclosure requirements, concluding
that large contributions could lead people to believe there was
some kind of quid pro quo arrangement between the contributor and candidate. But it struck down limits on campaign
spending. The Court observed that “A restriction on the
amount of money a person or group can spend on political
28
communication during a campaign necessarily reduces the
quantity of expression by restricting the number of issues
discussed, the depth of their exploration, and the size of the
audience reached.”30 Further, it found no evidence that campaign spending led to corruption.
The Supreme Court did, however, accept limits on corporate spending in Austin v. Michigan Chamber of Commerce
(1990). The Court upheld a Michigan law, challenged on First
Amendment grounds, which prevented corporations from
using their treasury funds for independent expenditures to
support or oppose a candidate’s election. The Court explained
that, “Corporate wealth can unfairly influence elections when
it is deployed in the form of independent expenditures, just
as it can when it assumes the guise of political contributions.”31 It also noted that corporations still had an outlet for
their political views because the law permitted them to
support political action committees or to set up segregated
funds to pay for political speech. What is the difference, you
might ask? PACs and segregated funds are supported by individuals who are aware of and agree with the organization’s
political purpose. Speech funded by a corporation’s treasury
comes from stockholders who may not share the same political
views.
In a continuing effort to combat the influence of “big
money” in national politics, Congress passed the Bipartisan
Campaign Reform Act in 1992. This law, better known as the
McCain-Feingold Act, was intended to close loopholes left by
earlier legislation. Among its many provisions, the law prevented corporations and unions from funding “electioneering
communications.”32 This was defined as any “broadcast, cable,
or satellite communication” that refers to “a clearly identified
candidate for federal office” and that is made either 60 days
before a general election or 30 days before a primary election.
Print and Internet communications are exempt. The Court later
interpreted electioneering communications as speech that
expressly advocates for the election or defeat of a particular
Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 396 (1886).
Federal Election Campaign Act (FECA) of 1974. (P.L. No. 93–443).
30
Buckley v. Valeo, 424 U.S. 1, 20 (1976).
31
494 U. S. 652 (1990).
32
2 U.S.C § 441b(c).
29
Freedom of Expression
candidate, but not speech that refers to a candidate in the
context of an issue ad.
The group Citizens United challenged the law when the
Federal Election Commission prevented it from running a
film on cable pay-per-view that disparaged Hilary Clinton’s
c...
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