Here are some notes on media law as it is relevant to student newspapers and to F Newsmagazine. But these notes do not tell you all you need to know, as practicing student journalists, on any of these issues. To learn more, follow the links. Especially good resources can be found on the websites of the Student Press Law Center, the American Civil Liberties Union, and the Digital Media Law Project (and, of course, Wikipedia).

You can jump to the sections on Copyright, Libel, and Privacy. And see the Copyright section for links to places you can get copyright-free images.

A page or two of detail follows — but there are common sense principles which can be a partial guide: Media law, ideally, balances the public’s right and need to know and the media’s right to publish, with the rights of the subject of the media work; the work’s creators also need to weigh in the balance the potential harm of publication, which may increase with the size of the audience, vast in the internet age.

Can student newspapers be censored by school officials?

The First Amendment to the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This applies to all public, but not to private, colleges and universities. SAIC is a private institution. The independence of student newspapers in private institutions can be supported by school policy, as stated, for example, in student, faculty and staff handbooks or in governing documents for student media. F Newsmagazine’s governing document states that the newspaper is student-run and editorially independent. These policy statements have legal force.

Copyright

Section 8 of the US Constitution is the constitutional source for copyright protection: “The Congress shall have power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. …”

For detailed explanation, go to the US Copyright Office’s Copyright Basics.

What is protected: Any tangible expression of an original work —published or unpublished, whether or not it is registered with the US Copyright Office. This includes anything you see on the Internet, including on social media.

Length of protection: The author’s life plus 70 years for all works published from 1978 on; for corporate ownership (“works for hire”), the copyright term is 95 years from publication or 120 years from creation whichever expires first. For details, see this or the many similar charts showing when works pass into the public domain.

Public domain: Not protected by copyright. This includes works whose copyright protection expired, older works which were never protected by copyright law, and government publications.

Fair use: Protected by copyright, but  may be reproduced for non-profit or educational use. The reproduced portion must be small enough not to affect the market value of the work. Other factors are whether the use is “transformative” (adds or changes the work) and the nature of the work (factual rather than “creative” and “imaginative.”

Parody. My favorite fair use cases are parodies and satire.

The Disneyland Memorial Orgy. Art by Wally Wood, from Paul Krassner’s The Realist. Find this among the complete archives of The Realist on the website of Ethan Persoff. Ethan was F Newsmagazine’s art director in … 1995 (? ancient history, around then), one of F Newsmagazine’s brilliant, wackiest, award-winning designers.

 

Here Jack Benny and Barbara Stanwyck imagining they are lesser versions of Charles Boyer and Ingrid Bergman in their parody of George Cukor’s “Gaslight.” Loews (MGM) won an injunction against CBS, claiming copyright infringement. Federal courts  upheld the injunction, deciding that too much of the original screenplay was used to justify fair use.

For a taste of fifties TV comedy, both stale and fresh, watch “From Here to Obscurity,”  Sid Caesar’s parody of “From Here to Eternity” in “Your Show of Shows.” Federal Judge James Marshall Carter, who decided both this case and the Gaslight parody, ruled that Caesar’s was fair use, using no more of the original screenplay than was necessary for the parody.

Caesar recollects:

The part of the film everyone remembers is the classic beach scene with Deborah Kerr and Burt Lancaster, where they are making ove on the beach and the waves roll in on them. It was a very passionate scene and for what they were allowed to show at the time, very evocative. It still is. But we saw it and thought, “How can you have sex with the water all over you? It’s ridicul0us.” So we did a takeoff on it. … I was wearing black socks … I was also holding a big inner tube .. .both of us were on a fake beach getting real water splashed on us by the stagehands to stimulate the incoming tide during the passionate love scene.

To viewers of the show, there was enough parody in the mere idea of Sid Caesar and Imogen Coca farcically replacing Burt Lancaster and Deborah Kerr (images below; guess which was Caesar and Coca and which Lancaster and Kerr, and whose love scene on the beach was all wet).

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For explanation of the rulings in the two cases, see Thomas Paul Demeter, Legal Perils of Parody and Burlesque.

Saturday Night Live did an equally crude parody of  New York’s ad campaign, “I Love New York,” the city’s effort to revive tourism after the 1975 financial crisis:  “I Love Sodom” distressed Mayor Koch, who learned that not all publicity is good publicity.  Elsmere Music, Inc. v. National Broadcasting Company.  (Art students: The “I ♥ New York” logo for the campaign was created by iconic graphic artist Milton Glaser.)

See “The Debate Over Parody in Copyright Law” for an unintentional self-parody of postmodern critique.

Licensing: Copyright belongs to the author, but the author can enter into a contract with others which allows them  to reproduce  the work and even to have the exclusive right to publish it.

Creative Commons:  a form of licensing that allows use without prior permission, subject to certain conditions.

Where to get copyright free images: SPLC’s guide to copyright-free sites and the Creative Commons search page.

Additional source on copyright law: The Student Media Guide to Copyright Law

Plagiarism is not the same as copyright violation. Plagiarism is using the work or ideas of others and passing it off as your own. That may or may not be a copyright violation also. SPLC has a guide for student media here also.

Libel

Libel is written defamation as opposed to slander, which is spoken defamation.

Criteria for libel:

• Falsehood
• Identification
• Publication
• Harm
• “Actual malice” (if a public figure)
• Negligence (if a private person)

That is, a statement must identify the person; it must be be false; it must be published, and not a private exchange between two people; it must harm the person. If the plaintiff is a public figure, the statement must also be made with “malice” (in this legal sense, “with malice” means knowingly publishing a false statement or publishing it with reckless disregard of the truth).  If the plaintiff is a private person, the reporter must be negligent — must have failed to do what a “reasonable” reporter would do to ascertain the truth.

Very important: The burden of proof in a libel case is on the accuser in the US, on the defendant in the UK.

SLAPP suits: Strategic Lawsuit Against Public Participation. Libel actions can be used to intimidate silence journalists and critics, who may not have the resources to defend a costly court case. Illinois has an anti-SLAPP law, the Citizen Participation Act.

Good example of a SLAPP suit is the McLibel case. McDonald’s Corp. threatened to sue activists in London Greenpeace (not part of Greenpeace International) for libel for handing out flyers accusing McDonald’s of a long list of offenses including unhealthy food, despoiling the environment, cruelty to animals, exploiting their workers and exploiting children with advertising … and more. In UK, libel law places the burden of proof on the defendant, so it is a choice venue for libel suits. McDonald’s offered to drop the libel suit if the activists apologized and agreed to end their campaign. Two refused — Helen Steel and David Morris; they went to court representing themselves and turned the tables on McDonalds, which ended up facing over 10 years of terrible publicity in a David v. Goliath contest, with Steel and Morris finally vindicated when they sued the UK government in the European Court of Human Rights, which ruled that UK violated the rights of the defendants to a fair trial and freedom of expression. Ken Loach and Franny Armstrong made a documentary about the story, available on YouTube.

Defenses against libel

• Truth. If the statement in question was true, it was not libelous.
• Opinion and fair comment. If the statement is clearly an opinion and not a statement of fact, it is not libelous. Example: A review can claim that a restaurant serves the worst food in Chicago, but can’t falsely claim that it is overrun with rats.
• No “actual malice.” Public figure. Public figures must prove that a statement is not only false, but made “with actual malice” (either knowledge that it was false or in reckless disregard of the truth).
• No negligence. If a private person, not a public figure, sues for libel, the reporter should have done everything a “reasonable” reporter would do.

A classic example, also an example of “intentional infliction of emotional distress”:  Hustler

magazine’s parody of the Campari ad campaign in which celebrities talked about “their first time.” In the parody, Rev. Jerry Falwell was interviewed about his first time (with his mother in an outhouse). Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). A lower court threw out the libel complaint, since the piece was satire and obviously not presented as factual, but found for Falwell’s claim for infliction of emotional distress. The Supreme Court decision which followed established that public figures could not recover damages for the infliction of emotional distress caused by a parody or satire, with conservative justices joining the liberals in the majority ruling. That’s very bad news for any, and especially particular, US presidents.

Privacy

For more details on privacy, go to the Student Press Law Center.

Public disclosure of private information. The material must be embarrassing and “highly offensive to a reasonable person.” Defenses: the material is already public; the information is newsworthy and the public has a right to know; it isn’t offensive to reasonable people.

Intrusion –physical trespassing, also surveillance.

Related: Intentional Infliction of Emotional Distress

Appropriation of a name or likeness. For example, if your newspaper publishes an ad that includes someone’s likeness without their permission — this includes images of celebrities found on the internet.

False light. This offense, unlike the other privacy violations, is publication of a falsehood. It is similar to libel, but more difficult to defend, because the information need not cause harm. It must be offensive to a “reasonable” person. Examples include misleading or false captions on photos or a photo of a person published next to a story about embarrassing or criminal activity. Public figures have less protection against false light publicity than private citizens — they would have to prove “actual malice.”

Hulk, Bubba the Love Sponge, Gawker and the billionaire’s revenge

A recent example of a high-impact privacy suit with serious implications for press freedom is Hulk Hogan’s suit against Gawker (Bollea v. Gawker), for publishing part of a video of Hogan (né Terry Gene Bollea) having sex with the wife of his friend Bubba the Love Sponge (né Todd Alan Clem). Paypal co-founder, Facebook investor and now Trump supporter Peter Thiel bankrolled Hogan and others to sue Gawker in order to drive it out of business, in retaliation for Gawker outing him as gay years before. Gawker did cease publication and Univision bought Gawker Media’s assets at a bankruptcy auction.

Note on reading the First Amendment: It specifically limits Congress but not state governments. Supreme Court decisions, especially since the 1920s, extended these protections to the states through application of the Fourteenth Amendment (called “incorporation”).

Ethical considerations

Journalists, especially student journalists, have to consider not only what is legal, but also what is right. Privacy law may not protect people in the school community who are “limited-purpose public figures” because they become subjects of news events. Reporting on cases of university discipline is especially risky and problematic. While stories naming or allowing identification of vulnerable individuals may be legal, they may do serious harm, and lasting harm, if the stories are published online or retold in social media.

The ethical calculus balances the school community’s right (and need) to know against the potential harms done by disclosure.

Example: Speech that creates a “hostile environment”

In particular cases, there can be complicated interplays of interest, politics and rights; the right to privacy or the right to protection from “a hostile environment” can conflict with the right to freedom of the press. This NY Times article explores some of the considerations in sexual assault cases; this Student Press Law Center article gives comprehensive review of conflicts between Title IX interpretation and student press freedom; this op-ed by Harvard Law prof. Noah Feldman defends constitutionality of school uses of “hostile environment” to regulate behavior and speech.