Unit

communications law

  1. Why should it be so difficult for a public figure to win a libel action?

Libelis one of the two components of defamation with the other one beingslander. Libel is defined as defamation of a person, business groupor product that is visible in the sense that it is written in wordsor printed as an image while slander is just oral defamation. For alibel case or defamation to exist, the information must be falsewhile the source of such information publicizes with the intent ofimplying it is factual. On the other hand, a public figure is personwhose career or position attracts a certain degree of publicprominence. Such public figures do not enjoy the same rights toprivacy or libel same way as private citizens (Heymann 2011). For apublic figure, he or she as a plaintiff must prove that actual malicewas intended and that the information caused harm and that thestatement was made without interrogation of facts and without properresearch to assess validity of the statement. In Harte-HanksCommunications, Inc. v. Connaughton, 491 U.S. 657 (1989), the SupremeCourt ruled that deviation from professional standards in journalismand publishing of content does not amount to malice neither dopublication of stories to improve sales and circulation amount todefamation.

  1. Why should a reporter have a privilege to refuse to reveal the name of a source?

Reporters’privilege under what is known as shield laws does not exist at thefederal level in the US. However, several states have enacted theselaws that give reporters privilege to refuse to reveal or name asource. These laws protect reporters from being forced to revealsources or testify through court orders of subpoenas. Where theselaws do not exist, reporters can be forced to testify and revealsources through court orders. Failure to do so is interpreted ascontempt of court and can lead to conviction. Where the laws exist,their application and scope can vary such as being applicable tocivil but not criminal proceedings. The core reason why reportersneed this privilege is to protect the privacy and confidentiality oftheir sources as a key tenet of ethical and professional journalism.In practice, when a journalist receives information from a source andpromises to keep his or her identity anonymous, the journalist shouldstick to his word. Failure do so erodes the trust between the sourceand the journalist and cuts flow of future information. Where theprivilege to refuse to reveal a source do not exists, journalists areadvised to avoid using information from sources unless the sourcesare willing to be named (Thelimits of promising confidentiality n.d.).

  1. Why should court proceedings be presumed to be open?

Thefirst amendment provides for free speech which includes the right tolisten. Therefore, all court proceedings are assumed open to thepublic unless there the proceedings are specifically closed by law orthe involved parties prove an overriding interest in fairness. Although this ruling was first made in the California statement, itis expected to apply to other courts as per the ruling that “everylower court opinion of which we are aware that has addressed theissue of First Amendment access to civil trials and proceedings hasreached the conclusion that the constitutional right of accessapplies to civil as well as to criminal trials.” NBC Subsidiary(KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (The FirstAmendment presumption of access n.d). This initial ruling did notaddress the issue of access to court documents as part of access toinformation as per the first amendment. However, a second ruling inAssociated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir.1983) indicated the press and the public should have access topretrial documents as part of free speech and access to information.In other states such as North Carolina, there is a clause, “qualifiedright,” that limits the persons who can have access to civilproceedings (Mendenhall 2014).

References

Heymann,L. A. (2011). The law of reputation and the interest of the audience.BostonCollege Law Review52(4): 1341-1439.

Mendenhall, K. (2014). Can you keep a secret? The court’s role in protectingtrade secrets and

otherconfidential business information from disclosure in litigation.DrakeLaw Review.62(1): 885-917

Thelimits of promising confidentiality. Reporters Committee (n.d.).Retrieved from

http://www.rcfp.org/browse-media-law-resources/digital-journalists-legal-guide/limits-promising-confidentiality-0

TheFirst Amendment presumption of access. ReportersCommittee.Retrieved from

http://www.rcfp.org/north-carolina-open-courts-compendium/first-amendment-presumption-access