Deciding Communication Law

Key Cases in Context

Susan Dente Ross

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781135620141
• Edition: 1
• Topic: Filología
• Subtopic: Estudios de comunicación

This clearly written and well-focused volume combines concise decisions of the primary areas of communication law with the foundational case decisions in those domains. Thus, in one volume, students of communication law, constitutional law, political science, and related fields find both the key rulings that define each area of law and a detailed summary of the legal concepts, doctrines, and policies so vital to understanding the rulings within their legal context. The text forgoes the tendency to provide encyclopedic treatment of all the relevant cases and focuses instead on the two or three cases most vital to an accurate and informed understanding of the current state of each field of communication law. The chapters provide readers with the most salient concepts and the necessary depth to understand the law while permitting most reading time to be directed to the law itself. Full-text rulings allow readers to immerse themselves in the law itself--to develop a feel for its complexity, its flexibility, and its language.
Useful as a quick reference to the landmark rulings and the jurisprudence of communication law, this book also serves well as the primary text in related undergraduate courses or as a supplemental text in graduate classes in the field.

Chapter 1

The System of Law

The sources and hierarchy of the law and the judicial system

The United States is a nation governed by the rule of law. The rule of law is the framework of this society in which pre-established norms and procedures provide for decisions to be made consistently and without favoritism. The law, after all, is simply a compact among the citizens to establish a system of rules to govern society. The law dictates acceptable behavior for citizens and government, and it settles disputes among members of society, and between citizens and their government. The law is not merely a friendly agreement, though; government enforces the law through sanctions against violators, and those penalties include the elimination of basic individual rights and liberties.

To function effectively, laws must be sufficiently specific to inform citizens of the line between proper and improper behavior. A vague or unclear law fails to provide adequate notice to people who would willingly obey laws they understood. Good laws are tailored carefully to achieve their goals; they regulate only those people or activities necessary to advance an identified government interest or to prevent a certain kind of harm. Finally, laws should be fairly stable. If laws change too rapidly, members of society have difficulty staying informed and adhering to the law.

Yet laws are subject to interpretation and to change. Laws take on new meaning, proliferate and evolve in response to changes in society. The body of law in this nation has expanded as American society has become more diverse and more complex, and laws have taken on new meaning through application to new and unique situations. Many laws that govern communications in the 21st Century did not exist in the 1700s; neither did the communications technologies themselves. Technology has not been the sole force driving legal change, however. Advertising is one area in which laws have emerged, exploded and evolved as society has developed different perceptions of the rights and responsibilities of corporations in society. Similarly, the law of defamation, a longstanding legal concept, has shifted to reflect altered societal priorities, new understanding of the power of mass media to affect the lives of individuals and a commitment to the role of mass communication in a democratic state.

SOURCES OF LAW

In the United States, communication law develops from five primary sources: constitutional law, statutory law, executive orders, administrative law and common law. Another source of law, equity, less frequently determines the outcome of communication law issues. Briefly, equity law empowers judges to ensure fairness by issuing decrees to remedy or prevent harms. Restraining orders and injunctions fall within the equity power of judges.

Constitutional Law

Constitutions at the city, state and federal levels establish the form and functions of government and guarantee fundamental rights to the people. Constitutions tend to provide broad outlines rather than detailed descriptions. In relatively few words, the U.S. Constitution, ratified in 1779, established the three branches of federal government, delegated powers among the executive, the judicial and the legislative branches, and established the relationship among citizens, the states and the federal government.

As the supreme law of the land, the U.S. Constitution is quite difficult to amend. Constitutional amendments must be proposed in either of two ways: by a two-thirds vote of both houses of Congress or by a special constitutional convention called by votes of two-thirds of the state legislatures. Amendments are ratified only after three-fourths of the states approve them. In more than two hundred years, Congress has approved only thirty-three of the thousands of proposed constitutional amendments, and only twenty-six amendments have been ratified. In fewer than five hundred words, the first ten amendments to the Constitution—generally known as the Bill of Rights—guarantee the fundamental rights and freedoms of Americans and limit the power of government. In particular, the First Amendment protects the people’s freedom of speech, assembly, petition and exercise of religion, and prevents government from abridging the freedom of the press.

Although the text of the Constitution is very stable, its meaning is not static. Constitutional law can evolve and change based on the decisions of the courts. Many view the Constitution as a living document because the courts continually give it new life and meaning by re-examining and reinterpreting the Constitution’s language. Through its self-appointed power of judicial review, the U.S. Supreme Court determines the meaning of the language of the First Amendment and all the provisions of the Constitution. State supreme courts also interpret their state constitutions, but no law—state or federal—may conflict with the U.S. Constitution. The Supreme Court reshapes the meaning of constitutional law by applying the Constitution to novel situations and by voiding any regulations or statutes “repugnant to the Constitution.”¹

Statutory Law

Under the terms of the U.S. Constitution, the popularly elected legislative branch of government—the U.S. Congress and state, county and city legislatures—makes an ever-increasing body of law by enacting statutes. Statutes, like the Constitution, are a form of black letter law; they are formally adopted and relatively stable because they are written down. In addition, like the Constitution, statutory law can be ambiguous and is subject to judicial interpretation and application. Court review of statutes is known as statutory construction. In general, courts prefer to limit the meaning and application of statutes to the dear letter and intent of the law and refuse to expand statutes by implication or inference.² Statutory law s form a hierarchy; some fe der pre-empt state laws, which in turn may pre-empt city statutes. Courts may invalidate state statutes that conflict with federal laws or city statutes that conflict with either state or federal law.

Unlike the Constitution, statutory law frequently responds to specific problems. Thus statutory law often is extremely detailed and fact specific. Statutes often define the limits of acceptable behavior. For example, all criminal laws are statutes. Statutes also establish the rules of electronic

copyright, broadcasting, advertising and access to government meetings and information. Statutes can also anticipate and prevent problems, such as when Congress prohibited all citizens from distributing child pornography over the Internet.

Executive Orders

Constitutions vest the executive branch of government with power to execute laws. Under this authority, local, county, state and federal executives may implement laws enacted by the legislature and may issue orders that have the power of law. These executives—the president, governors and mayors—also may delegate authority to administrative authorities to interpret and implement statutes (see Administrative Law below).

Recent executive orders from the U.S. president have limited media access to military zones, excluded media from meetings of groups advising the president on energy policy and redefined access to presidential records. Similarly, mayors and governors have issued orders—particularly under perceived emergency conditions—that severely limited public freedom of movement. In 1999, for example, the mayor of Seattle imposed a curfew on the city and excluded many citizens from a large section of downtown after individuals protesting the meeting of the World Trade Organization there became unruly and vandalized a number of downtown businesses. Although some executive orders may have dramatic effects on communications, they generally are not a major force in communication law.

Administrative Law

A vast array of state and federal administrative agencies established by statute in the executive branch of government oversees activities in specific areas of expertise. These agencies incorporate both legislative and judicial functions. Administrative agencies, like the Federal Communications Commission that oversees interstate electronic communication, propose and adopt orders, rules and regulations to carry out their delegated duties. Administrative agencies also enforce administrative law; they conduct hearings in which they grant relief, resolve disputes, and levy fines or penalties. This body of rules has the force of law. Administrative law may constitute the largest proportion of contemporary law in this country.

Administrative laws and agency dispute resolutions generally are subject to review by courts after administrative remedies have been exhausted. While courts may overturn unconstitutional agency actions and void agency decisions that violate agency rules or exceed agency authority, courts recognize that agencies have specialized knowledge and are vested by law with discretionary power to exercise authority over specified subjects. Therefore, courts frequently defer to the judgment of administrative agencies. Administrative agencies’ scope of authority and even their existence also are subject to reconsideration by the legislative bodies that granted them power. Legislatures may adopt new statutes or amend pre-existing laws to revise the purview of administrative agencies. Thus, Congress adopted the Telecommunications Act of 1996, which substantially clarified and revised the responsibilities of the Federal Communications Commission, originally established by the Communications Act of 1934.

Common Law

The common law consists of rules and principles developed through time from custom and the judgments of the courts. The common law is a vast and unwritten body of legal principles and precedents established through thousands of court rulings reaching back hundreds of years and across the Atlantic to England. For centuries before the settlement of the American colonies, English judges made the law. They resolved disputes based on custom and the legal precedents established by judges in previous court rulings. These judicial decisions, and the reasoning for them, formed the English common law, which became the foundation of American common law.

Common law rests on history, tradition and the presumption that precedent should guide future decisions. The Latin phrase for this fundamental premise of common law is stare decisis, which means stand by or adhere to the decision. The concept is that once a court has laid down a principle relevant to a certain set of facts, future courts will adhere to that principle when the facts of a new question are reasonably similar. In this way, courts exercise authority because their precedents direct the subsequent decisions of lower courts within their jurisdiction. This principle assures predictability and stability among different courts treating similar questions. Common law principles pervade the law, and common law strongly influences the contemporary law of privacy.

However, courts do not always adhere to precedent. The common law is adaptable because it is not written down and is subject to interpretation, and courts may depart from precedent with good reason. Courts examining a new but similar question may find it necessary to modify precedent to reflect new understanding. Courts also may distinguish the new set of facts from those in the precedent case and so free themselves from the strictures of stare decisis. Finally, courts may overturn a precedent outright to remedy past injustices, but courts rarely and very reluctantly overturn precedent because of the strength of the stare decisis doctrine.

THE COURT SYSTEM

It is important to understand the structure of the courts that are so central to communication law in America. The courts create the common law, and apply and interpret constitutions, statutes and orders. Through their judgments, courts can reshape the law or even throw out laws as unconstitutional.

Every state, the District of Columbia and the federal government each has its own court system. Each system of courts operates independently under the authority of the relevant constitution. For example, the U.S. Constitution requires the establishment of the Supreme Court of the United States and authorizes Congress to establish other courts it deems necessary to the proper functioning of the federal judiciary. Every court has its own jurisdiction; each has either a geographic or a topical area of responsibility and authority. Within their geographic regions, federal courts exercise authority over cases that involve the federal government, interstate or international controversies, and cases that interpret and apply federal laws, treaties and the U.S. Constitution.

The fifty-two separate court systems in this country are organized similarly; most court systems have three tiers. At the lowest level of the court systems are trial courts. Trial courts examine facts and apply existing law. They are the only courts to use juries, and they have original jurisdiction over a case. Trial courts base their decisions on the unique facts of the case before them and do not establish precedent. Each state houses at least one of the nation’s ninety-four trial-level federal courts; these courts are called federal district courts.

In contrast to the fact-based decisions of trial courts, courts of appeals generally do not review the facts. It is the responsibility of appellate courts to examine the procedure of the lower courts to determine whether the proper law was applied and whether the judicial process was fair and appropriate. Appellate courts review the law based on legal briefs and short oral arguments from attorneys representing the two sides of the question. Rather than consider facts de novo, courts of appeal generally remand cases to the trial courts when they determine the facts require review or a more complete record should be developed through additional fact finding. Courts of appeal establish precedent for lower courts within their jurisdiction; the precedent is binding on courts within the same court system and may be persuasive to courts in other court systems or jurisdictions.

There generally are two levels of appellate courts: the intermediate courts of appeal and the supreme courts. In the federal court system, there are thirteen intermediate-level appellate courts called circuit courts. A panel of three judges hears all except the most important cases in the federal circuit courts of appeal. In rare cases, all the judges of the circit court will sit en banc to hear an appeal. Twelve of the federal circuits represent geographic regions. For example, the U.S. Court of Appeals for the Ninth Circuit bears responsibility for the entire West Coast and Hawaii and Alaska, while the U.S. Court of Appeals for the D.C. Circuit covers the District of Columbia. The thirteenth circuit, the U.S. Court of Appeals for the Federal Circuit, handles specialized appeals.

The U.S. Supreme Court

The Supreme Court of the United States is the nation’s highest court and sits atop both the state and federal court systems. The president appoints and the Senate confirms the nine justices of the U.S. Supreme Court who hand down legal precedents that bind all lower courts in the country. The appointment of Supreme Court justices, who sit for life, gives the president influence over the Court’s political ideology.

Most cases reach the Supreme Court on petitions for review, which are called writs of certiorari. The Supreme Court receives thousands of petitions to hear appeals each year and accepts only a small fraction (usually less than five percent) of the petitioned cases. In the remaining cases, when the Court denies cert., the lower court ruling remains in place. By denying cert., the Supreme Court neither affirms nor rejects the lower court opinion, and the denial should not be interpreted to signal any orientation of the Court toward the issue under review. The Court also has original jurisdiction over a few kinds of legal problems (such as disputes between two states) and is required to accept a few cases in which the losing party has an automatic right of appeal. In recent years, the Supreme Court generally has issued fewer than a hundred signed opinions each year.

In deciding which writs of certiorari to accept and which to refuse, the Court may favor cases that raise unique or significant legal questions or cases in which lower courts are in conflict. The Court may also consider whether an issue is ripe for consideration, meaning that the case presents a real and present controversy rather than a hypothetical concern. In addition, the Court may reject some petitions as moot because the controversy is no longer “live” and their decision would have no real effect on the outcome of the dispute. Mootness may be an issue, for example, when a student who has challenged school policy graduates before the case ultimately has been resolved. Courts generally will not reject a case as moot if the issue involved is “capable of repetition, yet evading review.”³ In what is known as the rule of four, four justices must vote to grant a writ of cert. before the Supre...