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major principles of media law


Major Principles blog

I assumed primary editing and writing duties for Wayne Overbeck's Major Principles of Media Law in the fall of 2008. This section is devoted to updates between editions.

Click here for a January 2009 presentation on current developments in media law.

Preface to the 2010 Edition:

2010 coverThis is the 21st edition of Major Principles of Media Law, the 19th published on an annual revision cycle—and the first under a new author. Dr. Wayne Overbeck, the author for the past 20 years, has entrusted me with updating this text. I welcome the challenge, and I hope that this first year meets with readers’ approval. This edition includes new developments through the end of the Supreme Court’s 2008-2009 term and will be in print in time for fall 2009 classes; it sports a new layout, more pictures (all either public domain, U.S. Government work, out of copyright, or licensed by their owners under the Creative Commons attribution license), and new elements like “Focus On” sidebars and recommendations about what students should learn about their state law.

Hundreds of changes take place in media law every year. This year the major issues are a mixed bag of positive and, well, less positive outcomes. The theme for this year’s new developments could be summed up as “Media Technology and the Law.” New online technologies, including Google, MySpace, YouTube, Craigslist, Twitter, and blogs dominated much of media law news. Section 230 continues to be applied and interpreted, filesharing continues to be a hotly litigated area, and Turnitin.com won a copyright battle. The Child Online Protection Act (COPA) finally ended its decade-long tour through the federal courts, and analog television is virtually no more.

The change in administrations from George W. Bush to Barack Obama has resulted in many personnel and policy changes in the first six months of the year. President Obama promised more transparency in government and made steps in that direction (and perhaps a step or two back), and he appointed his first Supreme Court justice when Justice David Souter announced his retirement. His pick: Judge Sonia Sotomayor from the Second Circuit, whose confirmation is expected and who would be the third woman and first Hispanic to serve on the high court.

Broadcasters continue to labor under an indecency regime that some, including current Justices on the Supreme Court, think is unconstitutional. The Court said that the Federal Communications Commission had not violated administrative procedures in punishing so-called “fleeting expletives,” but Justice Clarence Thomas all but rolled out the red carpet to a case that would challenge the precedents on which indecency policy rests.

Perhaps the most frightening development this year comes from the First Circuit, which interpreted a state libel law to undercut the valuable and long-understood principle that truth is an absolute defense to a libel claim.

The 21st edition of Major Principles also notes many other changes in the law. Here are a few of the highlights of what is new in this edition.

Chapter One (The Legal System) discusses:
  • President Obama’s nomination of Sonia Sotomayor to the Supreme Court
  • The Supreme Court’s decision in Caperton v. A.T. Massey Coal Co., in which the Court said that a judge refusing to recuse himself from a case in which one of the parties had been a major campaign contributor to him was a denial of due process
Chapter Two (The Legacy of Freedom) discusses:
  • The Second Circuit’s decision in Doe v. Mukasey, in which it held that NSL gag orders were unconstitutional
Chapter Three (Prior Restraints) discusses:
  • The government speech issue in Pleasant Grove City v. Summum, in which the Supreme Court said that monuments in public parks are government speech, not subject to the First Amendment
  • The conflicting outcomes in two funeral protest cases in two separate circuits
  • The Third Circuit’s opinion in U.S. v. Stevens, in which the court said that videos of animal cruelty get no First Amendment protection (the Supreme Court granted cert)
Chapter Four (Libel and Slander) discusses:
  • The frightening case of Noonan v. Staples from the First Circuit, in which the court interpreted “actual malice” as the common law definition contained in an old state law
  • Several appellate cases involving Section 230: it does not prevent promissory estoppel claims, but it does prevent liability in a case brought by a minor who was raped by someone she met on MySpace
  • Libel on talk shows, to be expected, said the Ninth Circuit in Gardner v. Martino
Chapter Five (Privacy) discusses:
  • The continuing saga of gay marriage issues, from cases to state laws
  • A California appeals court case saying that MySpace is more like a bulletin board than a private room
  • A pending New Jersey case about a MySpace “gripe site” and whether it can be grounds for firing griping employees
Chapter Six (Copyrights and Trademarks) discusses:
  • Another win for fantasy sports, this time fantasy football
  • Google’s sale of trademarks as keyword searches
  • The ongoing story of filesharing and potentially unconstitutional damage awards
  • Turnitin.com’s win against students alleging copyright violations
  • The Associated Press’ suit against artist Shepard Fairey for the “Obama Hope” poster
  • Probable increase of copyright registration fees
Chapter Seven (Fair Trial-Free Press) discusses:
  • The attempt (and appellate rebuff) of a judge to allow webcasting of a filesharing case
  • “Perp walk” photos, not held to taint the jury pool
  • New technologies in the courtroom, like Twitter
Chapter Eight (Newsgatherer’s Privilege) discusses:
  • The federal shield law; it’s not dead yet, and the new attorney general says the Department of Justice can support it
  • David Ashenfelter’s fight to avoid testifying in a federal case
Chapter Nine (Freedom of Information) discusses:
  • Obama’s promises of open government, and his refusal to reveal torture photos
  • A mixed bag of FOIA outcomes, where OMB is required to reveal documents but the Office of Administration is not, as it’s not subject to FOIA
Chapter 10 (Obscenity and Pornography) discusses:
  • The end of COPA litigation
  • The application of the PROTECT Act to Japanese cartoons and comics
  • New issues raised by technology: “sexting” and nude pictures on social networking sites
Chapter 11 (Regulation of the Electronic Media) discusses:
  • The Supreme Court’s (limited) holding in FCC v. Fox, saying that the agency’s change in how it treated “fleeting expletives” was not arbitrary and capricious
  • The digital transition, postponed but done
  • Changes in FCC personnel
  • Developments in “white space” usage
Chapter 12 (Ownership and Antitrust Issues) discusses:
  • Cable companies’ loss of exclusive rights to wire apartment buildings
  • New technologies in the cross-hairs: Google’s settlement with book publishers, domain name registrar’s problems with antitrust
Chapter 13 (Advertising Regulation) discusses:
  • The Supreme Court’s opinion in Altria Group v. Good, clearing the way for state class action fraud suits
  • Online blogs targeted by the FTC for compliance with endorsement policies
  • Data mining’s loss in IMS Health v. Ayotte
  • Text message spam violating consumer protection acts
  • Craigslist’s elimination of its “erotic services” category
  • The Supreme Court’s surprise announcement to postpone a decision in Citizens United v. FEC, a campaign finance case centered on a film
Chapter 14 (Student Press Law) discusses:
  • A California law protecting journalism teachers and advisers from retaliation
  • The return of black armbands in the Eighth Circuit

* * * 

All this and more happened in one year. As has been true ever since these annual revisions began, Major Principles of Media Law will be the first media law textbook in print with many of the year’s new developments.

As Wayne has written in this Preface in previous years, having a textbook this current is possible only because of the emergence of desktop publishing technology--and because there are publishers willing to throw out the old production schedules for textbooks. A media law textbook produced on the traditional timetable is at least a year out of date when it arrives in college bookstores for the first time; it may be four or five years out of date before it is replaced by a new edition. I share Wayne’s belief that having an up-to-date textbook makes teaching (and learning) this subject much easier.

Although much of the material is new, Major Principles of Media Law retains the primary goal it has had through 20 editions: to present a clear and concise summary of the law for mass communications students. If this book succeeds, much of the credit should go to the 60 reviewers who have offered so many helpful suggestions since the first edition was written almost 30 years ago. Special thanks should go to the most recent reviewers, including Andy Alali, California State University, Bakersfield; Ron Allman, Indiana University Southeast; Jodi Bromley, Old Dominion University; Christopher Burnett, California State University, Long Beach; Michael Cavanagh, State University of New York at Brockport; Tom Dickson, Missouri State University; Thomas Gardner, Westfield State College; Thomas Gladney, University of Wyoming; Dale Grossman, Cornell University; Jake Highton, University of Nevada, Reno; James Landers, Colorado State University; Carole McNall, St. Bonaventure University; Fritz Messere, State University of New York at Oswego; Donald Mohr, Purdue University; Henry Ruminsky, Wright State University; Jeff Stein, Wartburg College; and Omar Swartz, University of Colorado at Denver.

I echo Wayne’s thanks to Dean Rick Pullen of California State University, Fullerton, who was co-author of the first two editions of this book. I add a few names to the list of individuals to whom I’m indebted, for whom a mere “thanks” seems hardly enough:

  • Wayne Overbeck for many excellent lunch conversations and for trusting me with the ongoing success of the book he so ably shepherded through so many editions. I hope I make him proud. He deserves nothing less.
  • xtine burrough for the wonderfully fresh and uncluttered redesign. I am fortunate indeed to work with x, whose talent and inspiration are matched only by her generosity of spirit.
  • Rachel Craig for the hours she spent reading the book word-for-word and catching places where updates were necessary, for her marvelous wit while doing it, and for reminding me daily that students like her are why I keep doing what I’m doing.
  • Hanna Huang for her work making suggestions for both this text and the workbook, for making teaching the joy that it is, and for making me laugh with her charming e-mails.

I would be remiss in not thanking Gene and Ginner Belmas, my parents, for always believing in my abilities and nurturing them now as they always have. And lastly, I thank my husband, Douglas Bornemann, Ph.D., J.D., for his intelligence, patience and love throughout this year. Doug put up with many late nights and life disruptions during the course of this year as I struggled with both paper and information overload. I can’t promise him it will get better next year, but I can promise him I’ll try to make it so.

Genelle Belmas, Ph.D.
July 1, 2009

for Doug, for Nero my hero, and for Shane A., because he knew I’d keep my word.