Media Law

A Practical Guide (Revised Edition)

by Ashley Messenger (Author)
©2019 Textbook XXII, 336 Pages


Media Law: A Practical Guide (Revised Edition) provides a clear and concise explanation of media law principles. It focuses on the practical aspects of how to protect oneself from claims and how to evaluate the likelihood of a successful claim. This new edition has been revised to reflect important changes and updates to the law, including recent developments relating to scandalous trademarks, embedding, fair use, drones, revenge porn laws, interpretation of emoji, GDPR, false statements laws, lies, and the libel implications of the #MeToo movement.
Media Law is divided into five sections that help non-lawyers understand how the principles apply to their actual behavior: background information about the legal system; things you can be sued for; how you actually gather information; ways the government can regulate speech; and practical issues that are related to media law. This book is perfect for courses in media and communications law or a combination course in journalism law and ethics, as it covers both the legal and ethical aspects of communication.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author(s)/editor(s)
  • About the book
  • This eBook can be cited
  • Table of Contents
  • List of Tables and Figures
  • Preface
  • Acknowledgements
  • Part I Introductory Material
  • 1 Court Systems, Citation, and Procedure
  • The Two Court Systems
  • In Which System Should a Case Be Filed?
  • The Two Kinds of Cases
  • How to Find “Law” and Understand Citation Systems
  • Constitutions
  • Statutes
  • Regulations
  • Executive Orders
  • Cases
  • Why Does All This Information Matter?
  • Practical Conclusions
  • 2 First Amendment–Theory and Practice
  • The First Amendment and the Scope of Its Coverage
  • Why the U.S. Started With a Presumption of Freedom
  • Theories of the First Amendment
  • First Amendment Doctrine
  • First Amendment Rights
  • Practical Effects
  • Practical Conclusions
  • Part II What Can You Be Sued For? (And Are There Related Criminal Charges?)
  • 3 Libel: The Risk of Criticism, Insults, and Trash Talk
  • Elements
  • Is the Statement Defamatory?
  • What Kind of Statements Are Defamatory?
  • Statements Can Be Obviously Defamatory or Not Obviously So
  • Defamation by Omission
  • Headlines and Captions
  • Is the Statement False?
  • What Constitutes a “False” Statement?
  • The Burden of Proof
  • The Exception: True Statements As a Basis for Libel in Massachusetts
  • Is There a Factual Assertion?
  • What Kind of Statements Are Typically Protected?
  • Jokes
  • Rhetoric and Hyperbole
  • Insults and Other Poorly Defined Terms
  • Aesthetic Judgments and Reviews
  • Speculation
  • Conclusions
  • When Might “Opinion” Not Be Protected?
  • Liar Libel and the #MeToo Movement
  • Does the Statement Identify a Valid Plaintiff?
  • Who Is a Valid Plaintiff?
  • Ways a Person Can Be Identified by a Statement
  • Was the Statement Published?
  • Did the Defendant Act With the Requisite Level of Fault?
  • What Is Negligence?
  • What Exactly Constitutes Actual Malice?
  • Which Standard Applies to Whom?
  • Did the Plaintiff Suffer Damages?
  • How Do the Elements Work Together?
  • Defenses
  • The “Libel-Proof” Plaintiff
  • Statute of Limitations
  • Absolute Privilege for Statements Made in the Official Course of Government Business
  • Consent
  • Fair & Accurate Report Privilege
  • Neutral Reportage
  • Wire Service Defense
  • Common Interest Privilege
  • Anti-SLAPP Statutes
  • Retraction Statutes and Other Statutory Defenses
  • The SPEECH Act
  • Related Claims
  • False Light
  • Intentional Infliction of Emotional Distress (IIED)
  • Criminal Libel
  • Additional Practical Considerations for Journalists
  • Ethical Considerations
  • The Risk of Hoaxes
  • Corrections, Clarifications, and Retractions
  • How Long Should I Keep My Notes?
  • Prior Restraints
  • Practical Conclusions
  • 4 Privacy: Publishing Private, Embarrassing, or Sensitive Information
  • Publication of Private Facts
  • Is the Information Private?
  • To Whom Was the Information Disclosed?
  • Was the Disclosure “Highly Offensive to a Reasonable Person”?
  • Was the Information Newsworthy or of Legitimate Public Concern?
  • Does the Information Concern or Derive From the Kind of Thing That Is Typically “News”?
  • Is the Person Involved a Celebrity or Otherwise Noteworthy?
  • Is It the Person Who Is Newsworthy or the Topic That Is Newsworthy?
  • Is There a Sufficient Nexus Between the Private Information Disclosed and the Newsworthiness of the Person or Event at Issue?
  • What Happens When a Person Voluntarily Reveals Facts About Themselves That Involve Others?
  • What Is Not Newsworthy?
  • Are There Any Additional Defenses?
  • The Overlap of Ethical and Legal Issues When Posting “Private” Information Online
  • Trade Secrets: A Version of “Privacy” for Businesses
  • Practical Conclusions
  • 5 Publicity: Using Someone’s Name or Likeness
  • What Is the Right of Publicity?
  • What Does It Mean to “Appropriate” Someone’s Name or Likeness?
  • What Constitutes a “Commercial Purpose”?
  • Is the Right of Publicity Descendible?
  • Are There Any Defenses to Publicity Claims?
  • Practical Conclusions
  • 6 Copyright: Issues With Creating Content or Using Other People’s Content
  • Types of Intellectual Property
  • Principles of Copyright Law
  • What Is Copyrightable (And What Is Not Copyrightable)?
  • How Does One Obtain a Copyright?
  • What Does a Copyright Protect and for How Long?
  • If a Copyright Holder Sues for Infringement, What Do They Need to Prove?
  • Under What Conditions Can Someone Use Copyrighted Material?
  • License
  • Alternative License
  • Fair Use
  • Other Exceptions
  • Are There Any Defenses to Copyright Infringement Claims?
  • Is It Copyright Infringement to Link or Embed Material Online?
  • What Are the Consequences of Copyright Infringement?
  • What Is the Relationship of Copyright Law to “Moral Rights” and Plagiarism?
  • Moral Rights
  • Plagiarism
  • Do I Have to Credit the Creator of a Work If I Use It?
  • The “Hot News” Doctrine
  • Practical Conclusions
  • 7 Trademarks: The Use of Product Names and Logos
  • Trademarks
  • What Are the Requirements for a Trademark?
  • Is the Mark Already Taken?
  • Is the Mark Sufficiently Distinctive?
  • The Controversy Around Immoral and Scandalous Marks
  • How Long Will Protection Last?
  • What Is Infringement?
  • What Is Dilution?
  • What Is Cybersquatting?
  • Practical Conclusions
  • 8 Use of Photos, Illustrations, and Other Images
  • Is the Use of the Photo Legally and Ethically Proper?
  • Libel or False Light
  • Intentional Distortion
  • Juxtaposition
  • Conceptual but Not Factual Match
  • Accidental Mismatch
  • Privacy
  • Are There Special Considerations When Pictures Feature Children?
  • Right of Publicity
  • IIED
  • Do You Have the Rights Required to Use the Photo?
  • Per Use License
  • Agency Photos
  • Publicity Photos
  • Online Photos
  • Fair Use
  • Can I Use This Clip?
  • Who Should Be Contacted If Permission Is Required?
  • Can You Be Prosecuted or Fined?
  • Sexual Images of Children
  • Classified Images
  • Images of Stamps and Currency
  • Regulation of Image-editing Software
  • Practical Conclusions
  • 9 Use of Music
  • Different Kinds of Rights in Music
  • Getting the Right License for the Use
  • Fair Use
  • Other Provisions Related to the Use of Music Online
  • Practical Options for Using Music
  • Practical Conclusions
  • 10 Negligence Claims Against the Media: Content That May Result in Personal Injury
  • What Is Negligence?
  • How Does Negligence Apply to Copycats?
  • How Does Negligence Apply to Encouragement and Advice?
  • How Does Negligence Apply to Incorrect, Incomplete, or Otherwise Harmful Information?
  • How Does Negligence Apply to Other Media-Related Harm?
  • Practical Conclusions
  • Part III How Does One Get Information to Publish?
  • 11 Is There a Right of Access to Information, Places, or Events?
  • General Rules With Respect to Whether You Have a Right of Access to Information
  • Private Materials
  • Federal Agencies
  • What Does FOIA Cover?
  • Making a FOIA Request
  • Will the Requester Obtain the Requested Documents?
  • What Can You Do If the Government Ignores or Denies Your Request?
  • Sunshine Act of 1976
  • Federal Legislature
  • State Laws
  • Judicial Branch
  • Access to Criminal Proceedings
  • Access to Civil Proceedings
  • Access to Juvenile Proceedings
  • Access to Military Proceedings
  • Access to Alternative Dispute Resolution (ADR)
  • Access to Court Records and Electronic Court Records
  • Access to Discovery Documents
  • Pretrial Publicity and Gag Orders
  • Use of Cameras and Other Technology in Courtrooms
  • Social Media Use in the Courtroom
  • Access to Juror Names and Identities
  • Access to Jurors (Prohibitions on Juror Contact)
  • How Does the Press Challenge a Restrictive Order?
  • Specific Laws That Might Affect Your Ability to Access Particular Types of Information
  • The Privacy Act of 1974
  • The Family Educational Rights and Privacy Act
  • The Driver’s Privacy Protection Act
  • The Health Insurance Portability and Accountability Act
  • Rules That Govern Access to Places and Events
  • Is There a Right of Access to News Scenes?
  • Is There a Right of Access to Press Conferences?
  • Is There a Right of Access to Government Social Media Accounts?
  • Is There a Right of Access to Prisons?
  • Is There an Enforceable Right to Take Photographs or Use Video Cameras in Public Places or at Public Meetings or Events?
  • Practical Conclusions
  • 12 Can One Be Sued or Prosecuted for Gathering News?
  • Going on Property (Trespass)
  • Misrepresenting Oneself
  • Audio Recordings and Eavesdropping
  • Taking Photos/Video
  • Intrusion Into Seclusion
  • Failure to Obey Reasonable Orders by Police and Security
  • Violation of Criminal Prohibitions on Taking Photos and Video of Certain Federal Facilities Relating to National Security
  • Using Hidden Cameras or Microphones
  • Ag-Gag Laws: Does the First Amendment Protect Clandestine Investigations of the Agricultural Industry?
  • Accessing Emails, Voicemails, or Secure Electronic Systems; or Using Passwords, Badges, or Other Security Materials
  • Scraping, Bots, and Other Technology-based Newsgathering
  • Looking Through or Taking Someone’s Belongings
  • Violating Ordinary Criminal Laws
  • Getting Access to Subjects or Sources
  • Making Promises of Confidentiality
  • Practical Conclusions
  • Part IV How Does the Government Regulate or Interfere With Speech?
  • 13 Efforts to Subpoena or Search Journalists
  • Is There a “Reporters Privilege”?
  • Is There an Applicable Shield Law?
  • Is There Protection Based on Common Law?
  • Are There Procedural Rules That Might Apply?
  • What Happens If There Is No Applicable Privilege?
  • Practical Ways to Protect Sources
  • Search Warrants Against Journalists
  • Practical Conclusions
  • 14 Punishing or Restricting Protests and Other Public Speech
  • Will the First Amendment Protect Dissemination of “Dangerous” Ideas or Beliefs?
  • Where or How Can Ideas Be Disseminated?
  • Public Forums
  • Time/Place/Manner (TPM) Restrictions
  • The Internet as a Public Forum
  • Can Particular Methods of Expression Be Prohibited?
  • Profanity, Fighting Words, and Other Offensive Speech
  • Symbolic Speech
  • Practical Conclusions
  • 15 Punishing or Restricting Sensitive or Offensive Topics
  • Publication or Possession of Classified Information or Matters That Affect National Security
  • Attempts to Stop Publication
  • Criminal Prosecution
  • Spying on the Media
  • Hate Speech
  • Can the Government Punish Hate Speech?
  • Can Private Entities Punish Someone for Hate Speech?
  • Can a Speaker Be Civilly Liable in a Lawsuit Based on Hate Speech?
  • Sexual Content
  • Obscenity and Indecency
  • Child Pornography
  • Regulation of “Revenge Porn”
  • Civil Lawsuits
  • Violent Content
  • Threats
  • Can Emoji Be a Threat?
  • Lies
  • Practical Conclusions
  • 16 Regulating Political Speech, Elections, and Campaigns
  • The Constitutionality of Campaign Laws
  • Anonymity
  • Right of Reply Laws
  • False Statement Laws
  • Practical Conclusions
  • 17 Regulating Advertisements/Promotions/Marketing
  • Issues to Consider for Advertising Goods and Services
  • Government Regulation
  • False or Misleading Statements
  • Regulation of Endorsements and “Influencers”
  • Other Issues Relating to the Content of the Ad
  • Issues for Those Who Accept Advertising
  • Liability for False or Harmful Advertising
  • Liability for Discriminatory Housing Ads
  • Refusal of Ads
  • Ethical Issues With Native Advertising
  • Lotteries, Contests, Prizes, and Other Promotional Activities
  • Practical Conclusions
  • 18 Television and Radio—FCC Regulation
  • What Is the FCC and What Does It Do?
  • What Kinds of Entities Are Subject to FCC Regulation?
  • What Kinds of Regulations Can the FCC Enforce?
  • Indecency
  • Profanity
  • The Fairness Doctrine and Right of Reply
  • Political Elections
  • Children’s Programming
  • Other Advertising Regulations
  • Other Content Regulations
  • Emergency Alert Tones
  • Complaints Regarding Broadcast Content
  • What Are the Issues Pertaining to Public Broadcasting?
  • Political Opinions
  • Editorial Discretion
  • Sponsorship
  • Can the FCC Regulate the Internet?
  • Practical Conclusions
  • 19 Special Classes of Speakers
  • Students
  • Government Employees
  • Speakers Whose Speech Is Government Funded
  • Practical Conclusions
  • Part V What Practical Issues Are Related to Media Law?
  • 20 How the Internet Has Affected Publishing and the Law
  • Terms of Service
  • Privacy Policies
  • The GDPR (General Data Protection Regulation)
  • Gathering Information From Children
  • Immunity From Claims
  • Speaking Anonymously
  • International Aspects of Publishing Online
  • Foreign Censorship
  • Traditional Torts and Claims
  • Incitement of Racial or Religious Hatred
  • Protection of Cultural Values
  • Protection of Government Interests
  • Jurisdiction
  • Geo-Filtering and Other Potential Remedies
  • Cyberbullying, Cyberharrassment, and Cyberstalking
  • Social Media
  • Frequently Asked Questions About Social Media and the Law
  • Practical Conclusions
  • 21 Practical Issues Related to Media Law
  • Non-legal Consequences/Considerations
  • Business Consequences
  • Death Threats
  • Private Censorship
  • Assessing Risk
  • Media Liability Insurance
  • Journalism Ethics
  • The Relationship Between Legal and Ethical Considerations
  • An Overview of the Principles of Journalism Ethics
  • The Difference Between Ethics and Self-Censorship
  • Practical Conclusions
  • Case Index
  • Subject Index

| xvii →

Tables and Figures

Table 1.1: The Two Court Systems

Table 1.2: The Two Kinds of Cases

Table 1.3: Case Citations

Table 3.1: Who Is a Valid Plaintiff?

Table 3.2: Classification of Libel Plaintiffs

Table 6.1: Differences Between Copyright and Trademark Law

Table 9.1: Required Permissions for the Use of Music

Table 14.1: Development of U.S. Supreme Court Opinions on “Dangerous” Speech

Table 14.2: Types of Public Forums

Table 16.1: Developments in Campaign Finance Regulation

Table 18.1: Arguments For and Against Net Neutrality

Figure 1.1: The Federal Circuits

Figure 2.1: Evaluating First Amendment Rights

Figure 11.1: Understanding Whether a Right of Access to Information Exists

Figure 21.1: The Relationship Between Law and Ethics

| xix →


This book is written from a somewhat unique point of view. I am a practicing media lawyer, in-house with a national news organization, and I also happen to teach media law in journalism school. As an in-house lawyer, I have the opportunity to see how journalists do their jobs and the issues they actually face in their day-to-day workflow. I read court opinions on First Amendment and media law topics, but I am also sensitive to how the principles from those cases need to be applied in real life, to the realities of newsgathering and communication.

This book is intended to help non-lawyers understand the legal issues involved in modern communications and journalism. It is particularly useful for future journalists, who need to be trained in the legal issues that will affect their work; but it is also an excellent guide for anyone who communicates in any capacity: tweeting, Facebooking, commenting, blogging, posting photos, managing public relations, running a website, etc. It’s a training manual for the real world of communications.

I initially wrote this book to address some specific challenges I encountered while teaching media law to journalism students (or non-lawyers, generally). The main challenge is that, without a law school background, it can be difficult to understand some of the more subtle aspects of the cases and how to apply them to various factual scenarios. Issue-spotting can be challenging; students can be confused about the difference between civil and criminal principles; and procedural issues tend to create a lot of confusion. Although I have tried to provide students with the information they need, I have found that there is simply not enough time in one semester to teach the necessary background information and also teach the substantive legal principles that make up the body of media law. To overcome the students’ lack of legal background, I have found that it is useful to completely reorganize the way the subject is taught. Instead of “thinking like a lawyer,” I think like a journalist. In other words, I remove ← xix | xx → the things that are confusing, like issue-spotting, and supply the context to make legal principles applicable to the things journalists do.

I also divide the subject matter into themes that are easy to grasp: how people get sued, how to gather information, how the government interferes with speech, and other practical issues that are related to media law. I have found this organizational structure helps solve the problem of students getting confused about when certain claims are applicable to a particular factual scenario.

The beginning of each chapter provides a checklist of issues that might arise out of the topic covered; the remainder of the chapter explains the legal theories behind those issues and how they apply to various fact patterns. The book discusses cases to illustrate how the principles have been applied in real-life scenarios; however, the case descriptions are brief because the point is not to provide a full examination of the legal theories underlying the arguments, but to show how the legal principles can produce different outcomes based on different sets of facts. Students can supplement their knowledge by finding the court opinions online and reading them.

The law is not static; it is dynamic. Conversations about law should be equally dynamic, incorporating what is historically significant with the practical realities of the present situation. This book tries to balance all the competing interests in a way that will resonate with users and prompt thoughtful consideration of the kinds of issues that generate legal controversy.


The purpose of this book is to discuss how legal issues arise in the context of media or communications. It illustrates general legal principles with examples of how courts have decided cases in the past and draws general conclusions about what courts tend to do. However, the book should not be construed as providing legal advice. Any person who is faced with a legal issue should consult their own lawyer for advice specific to their factual situation. One thing this book should demonstrate is that the outcomes of any case will be highly dependent on the specific facts presented and the law of the applicable jurisdiction. Therefore, the general information provided herein should not be interpreted as suggesting that there would be any particular outcome in any particular case. This book is for general informational and educational purposes only. Consult a lawyer if you have specific questions or concerns.

| xxi →


I would like to thank many people for their suggestions for this edition of the textbook: John Zucker, Micah Ratner, Adam Marshall, Katie Townsend, Ruth Hochberger, Patrick File, and Carolyn Schurr Levin. Special thanks to Griffin Ferre for research assistance with portions of this edition.

I would also like to thank Pearson Education, Inc. for publishing the first edition of the book, and, of course, Peter Lang Publishing, Inc. for publishing this revised edition.

There are so many people who have offered encouragement and support over the years—too many to list here in full, but I am grateful for them all. Special thanks to Lucy Dalglish, Gregg Leslie, Kyu Youm, George Freeman, Barbara Wall, Len Niehoff, Bruce Brown, Lincoln Bandlow, Charles Glasser, John Watson, Wendell Cochran, Amy Eisman, Chris Johnson, Angie Holan, Terri Minatra, Joyce Slocum, Brian Duffy, Peter Dwoskin, Marty Krall, American University School of Communication, University of Michigan Law School, the professors who have adopted my book, all the reporters and editors with whom I have worked, and my friends and colleagues at NPR for their support and/or opportunities that have been provided to me, without which this book could never have existed.

Thanks to my son, Grayson, for his patience, thoughtfulness, and the suggestion that I reference the copyrightability of dance moves in Fortnite, and to all my friends who help me be my best (you know who you are).

Finally, I am, as always, grateful for my students and interns. I have learned at least as much from them as they have learned from me.

| 1 →


Introductory Material

| 3 →


Court Systems, Citation, and Procedure

There is some basic background information about the legal system that is necessary to understand the rest of the information in this book. This chapter outlines such material, including:

1. The two court systems used in the U.S. and how they relate to one another

2. The two primary kinds of cases: civil and criminal

3. The different sources of “law” and how to find them

4. The concept of precedent, which is why understanding case law matters

The Two Court Systems

The United States has two court systems: federal and state. These systems are separate but symmetrical. Each system has trial courts, appellate courts (meaning a court to which there is an automatic right of appeal), and a supreme court (meaning the highest level court to which an appeal is possible within the system).

In the federal system, the trial courts are called District Courts. They are organized by state. Some states are their own district, others are divided into multiple districts. So, for example, there is a District Court for the District of New Mexico, which is the federal trial court for the entire state of New Mexico. Virginia has two federal trial courts: the Eastern District of Virginia and the Western District of Virginia, each serving as the federal trial court for a portion of the state. The number of District Courts a state will have will depend on its population. ← 3 | 4 →

Table 1.1: The Two Court Systems.

The Federal Court System The State Court System
U.S. Supreme Court State supreme court
U.S. Court of Appeals (Circuit Courts) State appellate court
U.S. District Court State trial court

Any party who is unhappy with the outcome of a trial has a right of appeal to an appellate court. Each federal appellate court is called a U.S. Court of Appeals, or Circuit Court. The Circuits are numbered: First Circuit, Second Circuit, Third Circuit, etc., up to Eleventh Circuit. There is also a D.C. Circuit. The D.C. Circuit obviously hears appeals from the federal court in D.C., and the numbered circuits each represent a geographic region of the U.S. There is also a Federal Circuit and a U.S. Court of Appeals for the Armed Forces, but those are specialty courts. The federal system also has specialty courts for bankruptcy and tax issues. And, there are federal administrative hearings. For the sake of simplicity, this book focuses on the District and Circuit Courts, because the cases discussed herein have come from those courts.


Figure 1.1: The Federal Circuits.

As you can see from the map above, states fall within various Circuits. If a party to a trial in the District of New Mexico wishes to appeal, he must appeal to the Tenth Circuit, because New Mexico is in the Tenth Circuit. Similarly, a party to a trial in the Southern District of New York must appeal to the Second Circuit, because New York is in the Second Circuit. ← 4 | 5 →

Once the Circuit Court issues its opinion, a party can try to appeal to the U.S. Supreme Court. A request for an appeal is called a “petition for a writ of certiorari.” If the Supreme Court decides to hear the appeal, the Court grants a writ of certiorari to the court of appeals from which the case came. The Supreme Court, though, is not obligated to take a case. It receives, on average, 7000 to 10,000 petitions each year. It chooses which cases it wants, and typically hears fewer than 100 cases per year.

The state court system is similar to the federal court system insofar as each state has trial courts, appellate courts to which there is a right of appeal, and a highest court that has discretion to choose which cases it wants to hear. The main difference is that the names of the courts can vary, and sometimes the names can be confusing. For example, some states call their trial courts “circuit courts,” and those who are familiar with the federal system might mistakenly think that refers to a court of appeal. And while most states call their highest court the “Supreme Court” (as in the federal system), New York calls its highest court the “Court of Appeals,” which is what most states call the intermediate court. But other than the potential for confusion because of the names, the state system works very much like the federal system.

The two systems run parallel to each other. A case must proceed through one system or the other. You can’t file a case in state court and then appeal to a federal court, and vice-versa. The only exception is that if a state’s highest court decides a case that involves a constitutional issue, a party may attempt to appeal that decision to the U.S. Supreme Court. An example where that happened is Heffron v. ISKON, where a First Amendment case decided by the Minnesota Supreme Court was appealed to the U.S. Supreme Court. (That case is discussed in Chapter 14.)

In Which System Should a Case Be Filed?

The jurisdiction of the federal courts is limited. A case may be filed in federal court only if it is one of the following kinds of cases:

Prosecution of a federal crime

The case is based on a federal statute or the Constitution

The United States itself is a party to the lawsuit

There is diversity jurisdiction

Diversity jurisdiction means that the parties to the case are from different states. The traditional thought was that a state court might be biased in favor of the party from its own state, but federal courts are thought to be less likely to be biased. Diversity jurisdiction allows a party to choose federal court instead of state court to avoid being treated unfairly in favor of the “hometown” party. However, diversity jurisdiction is permitted only if the amount in controversy exceeds $75,000. There must be enough money at stake to justify the involvement of federal courts.

All other cases can be filed in state court. And, of course, state courts are the appropriate forum for the prosecution of state crimes.

Importantly, constitutional claims are not required to be filed in federal court. They may be filed in state court. In some cases, a state constitution might provide greater protection for speech than the federal constitution, in which case, seeking a resolution in state court might be a superior option. For ← 5 | 6 → example, in Sandals Resorts Int’l Ltd., v. Google, Inc., a New York state court acknowledged that New York law extends greater protection to speech in libel cases than the protection granted by the Supreme Court interpreting the federal constitution. Thus, the court extended protection to an email that raised questions about how Sandals Resorts treats Jamaican workers, even if the precedent of the U.S. Supreme Court did not clearly require protection.

When a case is filed, the parties have a certain time period (typically 30 days) to try to move the case from one system to the other, if appropriate. If a case is filed in state court, but diversity jurisdiction exists, the other party can try to “remove” the case to federal court. “Removal” is the name given to this process. If a case is improperly filed in federal court, the case can be “remanded” to state court. Once the time period for removal or remand expires, the case is fixed in either the federal or the state system and cannot be switched from one to the other.

The Two Kinds of Cases

The two primary kinds of cases are civil and criminal. Each type of case has its own procedures and terminology. The following table compares some basic differences between the two types:

Table 1.2: The Two Kinds of Cases.

Civil Criminal
Who are the parties? The “plaintiff” files the lawsuit against the “defendant.” If Jeffrey Masson sues The New Yorker magazine, then Masson is the plaintiff and the magazine is the defendant, and the case will be styled “Masson v. The New Yorker Magazine, Inc.” The case is brought by the “prosecutor” against a “defendant,” although the charging party is usually referred to as the “State” (e.g., State v. Matthews) or “People” (e.g., People v. Flynt).
What is sought? In most cases, a plaintiff is suing for money, but in some cases, the remedy is an injunction (for example, an order to stop publishing something) or a declaratory judgment (for example, an order declaring that a certain person holds the copyright to a work). If a person is found guilty of a crime, he will be sentenced, and the penalty is usually jail time or a fine, although there are other options, such as probation.
What rules apply? Courts will follow the Rules of Civil Procedure. (There are both state and federal versions, depending on whether the case is in state or federal court.) Courts will follow the Rules of Criminal Procedure. (There are both state and federal versions, depending on whether the case is in state or federal court.)
What is the burden of proof? In most cases, a plaintiff must prove the elements of a claim by a “preponderance of the evidence,” which essentially means it is more likely than not that the plaintiff’s claims are true. However, there are times when a plaintiff must prove something by “clear and convincing evidence,” which is a higher standard. A prosecutor must prove a defendant’s guilt “beyond a reasonable doubt.” That does not require 100% perfect, fool-proof evidence of guilt. It requires only that there be enough evidence so that reasonable people do not maintain doubts about guilt.
What subject matter is included? In general, civil claims include torts, contract claims, property disputes, and the like. “Tort” is a legal term that simply means “wrong,” and it is used to refer to a wide range of claims that plaintiffs can use to seek recovery when they feel they have been wronged somehow. When most people think of crimes, they think of things like murder, assault, burglary, and the like. However, there are many kinds of crimes, including petty violations like speeding, jaywalking, or trespassing. There are also numerous content-specific federal laws. ← 6 | 7 →
What kinds of media law issues are included? This book discusses several torts such as libel, invasion of privacy, right of publicity, and others. Breach of contract and fraud may also be civil claims. Copyright and trademark infringement may also be civil claims. Many legal concepts that create civil liability can also create criminal liability. Copyright and trademark infringement can be criminal (think of mass pirating of CDs or DVDs, for example). Obscenity laws and child pornography laws are criminal matters. Laws that regulate threats, harassment, profanity, or other kinds of speech may also be criminal matters.

In criminal cases, prosecutors have prosecutorial discretion, which means that they have the option to decide whether to charge someone with a crime and, if so, exactly which crime. For example, a prosecutor might choose to charge someone with manslaughter rather than murder if the prosecutor thinks that the evidence is not clear enough to prove the intent required to obtain a murder conviction. It also means that a prosecutor won’t spend the time and money to prosecute everything that might be considered a criminal act. Budgets are limited, so prosecutors sometimes have to choose where to focus their efforts. It may mean that they choose not to pursue pornography that might violate obscenity laws because they prefer to focus on the enforcement of drug laws. That doesn’t mean that the pornography isn’t obscene or that it deserves First Amendment protection; it simply means that the law isn’t being enforced.

In civil cases, the plaintiff chooses whom to sue. If the defendant feels that someone else is at fault, he can seek indemnity from that other party. Contracts sometimes have indemnity clauses, which are agreements that if one party gets sued, the other party will cover the cost of the suit and any damages that must be paid. For example, if a newspaper contracts with a freelancer to write an article, the freelance agreement may have an indemnity clause wherein the freelancer promises to reimburse the newspaper for any costs incurred as a result of a libel claim based on the freelancer’s article. Whether the freelancer has the money to actually cover those costs is a separate question, and it may not be practical for the newspaper to bother seeking reimbursement. But the concept of indemnity does arise from time to time.

Similarly, the concept of respondeat superior is important to understanding who is potentially liable in a civil case. In short, it means that the employer is responsible for the conduct of its employees. Thus, if a photo editor who works for a website posts someone else’s photograph without permission and infringes their copyright, both the photo editor and the website can be sued. The photo editor is directly liable and the website is responsible as respondeat superior. In many cases, the plaintiff sues the employer because, presumably, the employer has “deeper pockets” (i.e., more money) than the employee. But the plaintiff has the choice of suing one or the other or both.

How to Find “Law” and Understand Citation Systems

The legal profession is nothing if not organized. There is a coherent system for finding relevant laws or cases, but it does require some explanation.

There are five primary sources of law relevant to media law: constitutions, statutes, regulations, executive orders, and cases. ← 7 | 8 →


There is a federal constitution, and each state has its own constitution. All laws must comply with the provisions of the federal constitution; if they do not, they can be “struck down” as unconstitutional. As noted above, states are free to provide expanded protection to citizens, so sometimes a state constitution provides greater protection of certain rights than the federal constitution will. Sometimes, states grant greater protection for free speech than has been granted under the federal constitution. But states also sometimes provide greater protection for other rights, such as privacy rights. California, for example, has a state constitutional right of privacy that is fairly expansive and unlike any right protected by the federal constitution.


Federal statutes are the laws that are passed by Congress. They are codified in a book called the United States Code (U.S.C.). A reference to a statute will cite the title and section where the statute can be found. For example, 17 U.S.C. sec. 107 is the citation to the law that describes the “fair use” defense to copyright infringement. It can be found in the U.S. Code in Title 17, section 107. Each state has its own code as well, codifying all state laws. State citations systems tend to be similar to the federal system, although they may have their own quirks.



XXII, 336
ISBN (Softcover)
Publication date
2019 (June)
New York, Bern, Berlin, Bruxelles, Oxford, Wien, 2019. XXII, 336 pp., 4 b/w ill., 11 tables

Biographical notes

Ashley Messenger (Author)

Ashley Messenger is Senior Associate General Counsel at NPR, specializing in First Amendment and media law. She has previously worked for U.S. News & World Report, the Reporters Committee for Freedom of the Press, and NuCity Publications, Inc. She has taught First Amendment law at the University of Michigan Law School and media law courses for the journalism schools at American University, the George Washington University, and George Mason University. Early in her career, she was a commercial radio talk show host and writer and was awarded a Silver Gavel Award by the State Bar of New Mexico.


Title: Media Law
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360 pages