CIMLAPS symposium addresses evolving First Amendment challenges
A few years ago, David Greene was called into the office of a prominent TV journalist in the Bay Area who had an idea to run by him. They talked about, among other things, having suffered the same back injury. And the idea in question.
He wanted to bring back the fairness doctrine. He thought it made journalists better at the work they do.
“In my memory, my jaw dropped, cartoonishly, to the floor,” Greene said.
Introduced in 1949, the Federal Communications Commission’s fairness doctrine was a policy requiring broadcast license holders to devote time to discussing controversial affairs in an unbiased and fair manner that gave equal weight to all or both sides. It was abolished in 1987 by a 4-0 vote from the FCC because it welcomed government intrusion into content programming and in practice discouraged the discussion of controversial issues, rather than encouraged it.
In his 21-plus years as a First Amendment lawyer, Greene, who is civil liberties director and senior staff attorney of the Electronic Frontier Foundation, had almost exclusively known journalists to consider the fairness doctrine a challenge to the free press.
“I told him it was a terrible idea, probably unconstitutional, and needless to say I was not invited to his conference,” Greene said.
Greene shared the story during his keynote speech at Friday’s Media Law and Policy in the Digital Age: Global Challenges and Opportunities symposium. Greene also teaches First Amendment and media law as an adjunct professor at the University of San Francisco School of Law. For 12 years prior to his work at the EFF, he served as executive director and lead staff counsel at the First Amendment Project.
The symposium, hosted by the Center for International Media Law and Policy Studies and its Barbara Restle Press Law Project, featured research presentations from graduate and undergraduate students. It sought to consider the way the digital age has challenged regulators of media law as precedents from the vanishing era of print journalism become increasingly obsolete.
The fairness doctrine and its constitutionality and continued irrelevance was just one of many media law issues Greene considered in his speech.
Increasingly, journalists and others on the periphery of the field are trying to figure out what journalism and news reporting might look like tomorrow and the day after. Social media has changed reporting and put more users than ever in the role of content creators. Local reporting has largely diminished. There’s less money for publications to fund public records requests and public access litigation. And lawsuits often fall to nonprofits.
But Greene doesn’t think abandoning traditional free press principles as we know them will help legacy media.
“To bring back the fairness doctrine and enforce it on all media would be a serious incursion on First Amendment rights,” he said.
Furthermore, he shared concerns over the prospects of converting journalistic ethics into law, because of the way ethical principles are intricately nuanced and vary on a case-by-case basis. They can sway greatly depending on a very legitimate and worthy set of priorities, he said.
Free press advocates are rightfully concerned about the transformation of ethical standards into legal code, Greene said, especially because of the potential that transition might have for creating a risk of legal liability. Under such a policy change, journalists would have to defend a lawsuit any time their ethics were even so much as called into question.
And most severely of all, the change might yield more direct governmental regulation of the press.
Greene also applied the ideas of his speech to more specific issues, local and national, as prompted by audience questions.
An audience member asked about Bloomington’s ongoing farmer’s market controversy, saying that although some traditional news outlets have hesitated to confirm vendor Sarah Dye’s ties to white nationalist organizations, message boards, blogs and other non-journalist content creators have called her out directly.
“The goal is to get important information to the public,” Greene said in response. “If that’s the end, I support the means of getting there.”
Another asked him about republication laws and the president.
Republication laws, Greene explained earlier in his speech, are among the most counterintuitive elements of media law he teaches.
In Little v. Consolidated Publishing Company, a reporter covering a local city council meeting reprinted statements by a council member alleging that another council member had a relationship with a recent hire that prompted him to push for her hiring. Despite having accurately reported on commotion at the council meeting, the reporter’s coverage still yielded a defamation suit, where it was ruled that the publisher is responsible for what is published.
“The mere idea is that if you republish something that someone else said, even if you attribute it to them, even if you establish doubt, that doesn’t necessarily absolve you of legal responsibility,” Greene explained.
So how, then, might the consequences of republishing contentious or untrue information, even if said by another party, apply to President Donald Trump?
The questioner wondered whether courts had contended with the issue yet and whether the newsworthiness of Trump’s nonfactual statements might outweigh the consequences of republishing falsities.
There’s no formal defense in the law, Greene said, beyond that the law stipulates for official statements. That includes things said by the president during official government proceedings. And it’s still important to report on what the president says, another factor likely responsible for the lack of legal conflict around the issue.
“A large amount of false information is still protected by the First Amendment,” Greene said.
Students present media law research
By Daniela Molina
Four students presented their research on media law and technology at the symposium.
Media School M.A. student Violet Baron won the Graduate Paper category for her paper, “The Exception or the Rule: Anti-BDS Laws and the First Amendment.”
She examined four district course cases challenging state laws prohibiting government contractors from boycotting the state of Israel. The pro-Palestinian Boycott, Divestment and Sanctions movement is commonly known as BDS.
Critics of anti-BDS laws argue that they violate the First Amendment.
Of the cases examined, three resulted in injunctions against enforcement, while one upheld the law. Baron’s paper considered the major legal factors and precedents for the decisions, the reasons for the differing outcomes and the likelihood of similar federal legislation.
Baron found that courts had to decide which of two landmark Supreme Court cases — both decided in 1982 — to use as precedent: NAACP v. Claiborne Hardware Co. case or International Longshoremen’s Association v. Allied International Inc.
“It’s an honor to be selected for the award,” Baron said. “I’m grateful to professor (Anthony) Fargo for making the topic interesting and engaging in his class last semester. I plan to donate a portion of the prize money to the American Civil Liberties Union, which offers legal defense for challenges to the laws in district court cases.”
Media School sophomore Lauren Fischer won the Undergraduate Paper category for her paper, “Citizens United v. FEC: How corporations gained control of America’s elections.”
Fischer examined the history of campaign finance in the U.S. and the prior cases that paved the way for the Citizens United v. FEC Supreme Court decision, as well as the role of corporate media. She argued that the court’s reasoning was flawed, because media corporations should be considered separately from other corporations due to the public service they provide.
Fischer advocated for a legislative remedy such as the For the People Act, which passed the House and is awaiting consideration in the Senate.
Social media privacy
Media School doctoral student Allison Brown placed second in the Graduate Paper category for her paper, “Young Adult Perceptions of a Social Media Privacy Breach: An Exploratory Story.”
The paper was a qualitative study on Facebook users’ responses to the revelation that Cambridge Analytica obtained and used the social networking site’s users’ personal data to target political ads. She interviewed 10 students ages 18-29.
While all respondents expressed privacy concerns, many said they accepted the expectation of an exchange of personal data for use of the service. None left Facebook because of the incident, but several reported reduced usage.
Third-year Maurer School of Law student Tayler Belinske placed third in the Graduate Paper category for her paper, “Refining the Commercial Speech Doctrine to Account for Modern Corporate Speech — ‘Just Do It’ Already!”
Her paper examined the Supreme Court decision in Nike v. Kasky, which considered whether Nike’s response to allegations of unfair labor conditions maintained by its contractors was commercial speech, which is subject to less First Amendment protection. Belinske said corporations have a “gray area” where it’s unclear what they can and cannot safely speak about.
Belinske argued that by declining the hear the case, the Supreme Court dismissed an important opportunity to explicitly define commercial speech.