Useful notes on the First Amendment, libel, and copyright

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The First Amendment to the United States Constitution

After the American colonists won their freedom from England in 1783, they could not agree on the form of their new government. Many were afraid that a strong central government would lead to tyranny again. So the colonists added ten amendments to their new constitution in 1787 guaranteeing a number of fundamental rights for the citizens of the new country. The first of these amendments protects, among other things, the right to free speech and a free press.

The government CAN regulate speech (or “expression” as it is now called) but only under certain conditions, the most important being obscenity, concern for public safety or national security. The Supreme Court requires that any regulation curbing free speech must be “content neutral.” In other words, the content of the message must not be the reason for the regulation unless the content is obscene, causes a danger to public safety (such as shouting “fire” in a crowded theater) or is a danger to national security (such as the battle plans or location of troops in a war zone). So, in other words, the police department can prohibit a protest in the middle of Mesa Street during rush hour but cannot interfere with the message the protestors are trying to convey unless that message is obscene, or a danger to public safety or national security.

There is no language in the First Amendment that distinguishes categories of people and their levels of protection but the courts have made that distinction over the years.

Adults: Adult, private citizens enjoy the most rights.

University students: For the most part, the First Amendment has the same force on public college campuses (those supported by state and federal government funds) as in the community at large. But students at private colleges and universities have fewer free speech rights because the First Amendment is aimed at the government.

High School Students: High school students have some fundamental free speech rights. But while students are at school, administrators may restrict free speech when, in their judgement, the speech disrupts class work or involves substantial disorder or invades the rights of others.

Government Employees: Government employees can speak as adult, private citizens on public issues. But they can be fired if they make comments which can harm the operations of their governmental agency.

Prisoners: Prison administrators can restrict much of the information that prisoners send or receive because of public safety issues.

U.S. Defamation Law

Defamation law protects the reputation of individuals who are the victims of statements made about them by others. If the defamation is published in some “fleeting form” such as spoken words or sign language, it is called slander. If it is published in a more permanent form such as written words, television, or blogs, it is called libel. To win a libel lawsuit in court, the plaintiff (the person claiming he or she was defamed) must prove that he or she was identified (such as a picture or name), the published statement was false (truth is an absolute defense against libel in most states); the published statement was not privileged (privileged communication involves the coverage of public meetings or trials); and the published statement caused actual injury (such as the loss of a job) if the plaintiff wants monetary compensation in addition to a published retraction of the defamation.

Private citizens receive the most protection against defamation. Public officials or public figures must show that not only were they identified and injured by the false publication but that the defamation was published with “actual malice” (the publisher of the defamation know the information was false or did not check to see if the information was false.)

U.S. Intellectual Property Law

Patent, trademark and copyright laws protect the right of people who own intellectual property to receive compensation from those who user their creative work.

Works of authorship are protected under copyright law. They include literary works, musical works, dramatic works, pictorial, graphic and sculptural works, motion pictures, audiovisual works, sound recordings, architectural works. A work’s copyright lasts for the life of the author plus 70 years; 95 years from publication or 120 years from creation, whichever is shorter for works made for hire, anonymous, or corporate author. After copyright expires, the work enters the “public domain” and does not require compensation for its use. The user, however, must acknowledge the authorship of the work or be guilty of paganism under copyright law. You are allowed to use copyrighted material in your job in media if you follow “fair use rules”: you must acknowledge the authorship; you must not use “substantial portions of the work”; the purpose of the use is in the “public interest.”

The rest of intellectual property law should be aware of in the media involves patents and trademarks. Patents concern inventions (a better mousetrap or a new kid of engine for example). The name of this mousetrap or engine might also become a “trademark.” Trademarks are not automatic. The name must be unique and widely used so that the public comes to identify them with the safety pin or the mousetrap. Some of the most famous trademarks are the words “Kleenex” or “Xerox” and the McDonald’s golden arches.

Source: Communication and the Law, Communication Law Writers Group, 2009.

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