Media Law Textbook PDF

America has become a nation of laws, lawyers and lawsuits. Both the number of lawsuits being fifiled and the number of lawyers have doubled since the 1970s. California has about four times as many lawyers today as it had in 1975. Nationwide, there are more than a million attorneys. For good or ill,...

America has become a nation of laws, lawyers and lawsuits. Both the number of lawsuits being fifiled and the number of lawyers have doubled since the 1970s. California has about four times as many lawyers today as it had in 1975. Nationwide, there are more than a million attorneys. For good or ill, more people with grievances are suing somebody. The media have not escaped this flood of litigation. The nation's broadcasters, cable and satellite television providers, newspapers, magazines, wire services, Internet services and advertising agencies are constantly fighting legal battles. Today few media executives can do their jobs without consulting lawyers regularly. Moreover, legal problems are not just head- aches for top executives. Working media professionals run afoul of the law regularly, facing lawsuits and even jail sentences. Million-dollar verdicts against the media are no longer unusual. In 2016, a Florida jury ordered the website Gawker to pay \$140 million in damages to professional wrestler Hulk Hogan for posting a 90-second clip of a sex tape. Big national media are by no means the only targets. Individuals who post comments on Facebook, Twitter and Yelp have become targets of lawsuits. Likewise, anyone who works in journalism, public relations, advertising, entertainment or digital media may risk lawsuits, and threats of lawsuits, for anything from libel to copyright infringement to invasion of privacy. More than ever before, a knowledge of media law is essential for a successful career in mass communications. This textbook was written for communications students and media professionals, not for lawyers or law students. We will begin by explaining how the American legal system works. THE KEY ROLE OF THE COURTS Mass media law is largely based on court decisions. Even though Congress and the 50 state legislatures have enacted many laws affecting the media, the courts play the decisive role in interpreting those laws. For that matter, the courts also have the fififinal say in interpret- ing the meaning of our most important legal document, the U.S. Constitution. The courts have the power to modify or even overturn laws passed by state legislatures and Congress, particularly when a law conflicts with the Constitution. In so doing, the courts have the power to establish legal precedent, handing down rules that other courts must ordinarily follow in deciding similar cases. But not all court decisions establish legal precedents, and not all legal precedents are equally important as guidelines for later decisions. The Supreme Court of the United States is the highest court in the country; its rulings are generally binding on all lower courts. On matters of state law the highest court in each of the 50 states (usually called the state supreme court) has the final say---unless one of its rulings somehow violates the U.S. Consti- tution. On federal matters the U.S. Courts of Appeals rank just below the U.S. Supreme Court. All of these courts are appellate courts; cases are appealed to them from trial courts. Trial vs. appellate courts. There is an important difference between trial and appellate courts. While appellate courts make precedent-setting decisions that interpret the meaning of law, trial courts are responsible for deciding factual issues such as the guilt or innocence of a person accused of a crime. This fact-finding process does not normally establish legal prec- edents. The way a judge or jury decides a given murder trial, for instance, sets no precedent for the next murder trial. The fact that one alleged murderer may be guilty doesn't prove the guilt of the next murder suspect. In civil (i.e., non-criminal) lawsuits, this is also true. A trial court may have to decide whether a newspaper or broadcaster libeled the local mayor by falsely accusing the mayor of wrongdoing. Even if the media did---and if the mayor wins his or her lawsuit---that doesn't prove the next news story about a mayoral scandal is also libelous. Each person suing for libel---like each person charged with a crime---is entitled to his or her own day in court. Finding facts. The trial courts usually have the final say about these questions of fact. An appellate court might rule that a trial court misapplied the law to a given factual situation, but the appellate court doesn't ordinarily reevaluate the facts on its own. Instead, it sends the case back (remands) to the trial court with instructions to reassess the facts under new legal rules written by the appellate court. For instance, an appellate court might decide that a certain piece of evidence was illegally obtained and cannot be used in a murder trial. It will order the trial court to reevaluate the factual issue of guilt or innocence, this time completely disregarding the illegally obtained evidence. The appellate court's ruling may well affect the outcome of the case, but it is still the job of the trial court to decide the factual question of guilt or innocence, just as it is the job of the appellate court to set down rules on such legal issues as the admissibility of evidence. This is not to say trial courts never make legal (as opposed to fact-finding) decisions: they do so every time they apply the law to a factual situation. But when a trial court issues an opinion on a legal issue, that opinion usually carries little weight as legal precedent. Sometimes there is high drama in the trial courtroom, and that may result in extensive media coverage. One trial verdict may even inspire (or discourage) more lawsuits of the same kind. Still, the outcome of a trial rarely has long-term legal significance. On the other hand, a little-noticed appellate court decision may funda- mentally alter the way we live. That is why law textbooks such as this one concentrate on appellate court decisions, especially U.S. Supreme Court decisions. STRUCTURE OF THE U.S. COURT SYSTEM Because the courts play such an important role in shaping the law, the structure of the court system itself deserves some explana- tion. Fig. 1 shows how the state and federal courts are organized. In the federal system, there is a nationwide network of trial courts at the bottom of the structure. Next higher are 12 intermediate appellate courts serving various regions of the country, with the Supreme Court at the top of the system. U.S. District Courts United States Supreme Court In the federal system there is at least one trial court called the U.S. District Court in each of the 50 states and the District of Columbia. Some of the more populous states have more than one federal judicial district, and each district has its own trial court or courts. As trial courts, the U.S. District Courts have limited precedent-setting authority. Nevertheless, a U.S. District Court decision occasionally sets an important precedent. The primary duty of these courts, however, is to serve as trial courts of general jurisdiction in the federal system; that is, they handle a variety of federal civil and criminal matters, ranging from civil disputes over copyrights to criminal trials of persons accused of acts of terrorism against the United States. U.S. Courts of Appeals At the next level up in the federal court system, there are U.S. Courts of Appeals, often called the circuit courts because the nation is divided into geographic circuits. That term, inci- dentally, originated in an era when all federal judges (including the justices of the Supreme Court) were required to be "circuit riders." They traveled from town to town, holding court sessions wherever there were federal cases to be heard. Each circuit court today serves a specific region of the country, and most still hear cases in various cities within their regions. There are 11 regional circuit courts. Fig. 2 shows how the United States is divided into judicial circuits. In addition, a separate circuit court (the U.S. Court of Appeals for the D.C. circuit) exists solely to serve Washington, D.C.; it often hears appeals of decisions by federal agencies, many of them involving high-profile issues. Many "D.C. circuit" judges have been promoted to the Supreme Court. There is also a U.S. Court of Appeals for the Federal Circuit. Unlike the other circuit courts, this one serves no single geographic area. Instead, it has nationwide jurisdiction over certain special kinds of cases, including patent and customs appeals and some claims against the federal government. This court is the product of a merger of the old Court of Claims and the Court of Customs and Patent Appeals. This book will generally refer to these courts by their numbers (e.g., First Circuit, Ninth Circuit). Some of the circuits have been divided over the years as the population grew. Until 1981, the Fifth Circuit included Alabama, Georgia and Florida, the states that now comprise the Eleventh Circuit. Legislation has been proposed repeatedly to divide the far-flung Ninth Circuit, which serves Alaska, Hawaii and the entire west coast (nine states with a total population of about 60 million people). Although critics say it is too large and too Cali- fornia-oriented because California's huge population has resulted in many of the Ninth Circuit's judges coming from one state, Congress has never agreed upon a plan to divide it. The Ninth Circuit has 29 active judges, by far the largest number of any circuit. The second largest circuit is the Fifth, which has 17 active judges. Each court also has senior judges who are officially retired but volunteer to continue hearing cases. Appeals process. The losing party in most U.S. District Court trials may appeal the decision to the circuit court serving that region of the country. The decisions of the circuit courts produce many important legal precedents; on federal questions the rulings of these courts are second in importance only to U.S. Supreme Court decisions. Although each circuit court has a large number of judges, most cases are heard by panels of three judges. Two of the three constitute a majority and may issue the majority opinion, which sets forth the court's legal reasoning. Sometimes a case is considered so important or controversial that a larger panel of judges decides the case, usually reconsidering an earlier decision by a three-judge panel. When that happens, it is called deciding a case en banc. Ordinarily, an en banc panel consists of all of the judges serving on a particular circuit court. As the circuit courts grew larger, Congress authorized smaller en banc panels in some instances. The Ninth Circuit used panels of 15 judges to hear cases en banc for a time and now uses panels of 11. Since these appellate courts decide only matters of law, there are no juries in these courts. Juries serve only in trial courts, and even there juries only decide factual issues (such as the guilt or innocence of a criminal defendant), not legal issues. Appellate cases are decided by judges alone, unassisted by a jury---both in the federal and state court systems. Circuit splits. One point should be explained about the significance of the legal prec- edents established by the U.S. circuit courts. As long as the decision does not conflict with any U.S. Supreme Court ruling, each circuit court is free to arrive at its own conclusions on issues of law, which are then binding on lower courts in that circuit. A circuit court is not required to follow precedents established by other circuit courts around the country, although precedents from other circuits usually carry considerable weight and are often followed. Occasionally two different circuit courts will rule differently on the same legal issue, called a circuit split. When that happens, the trial courts in each region have no choice but to follow the local circuit court's ruling. Trial courts located in other circuits may choose to follow either of the two conflicting precedents, or they may follow neither. Since this kind of uncertainty about the law is obviously bad for everyone, the U.S. Supreme Court often inter- venes, establishing a uniform rule of law all over the country. As well as hearing appeals of federal trial court decisions, the circuit courts also hear appeals from special-purpose courts and federal administrative agencies. For instance, decisions of both the Federal Trade Commission and the Federal Communications Commission may be appealed to the federal circuit courts. Such cases are often heard by the U.S. Court of Appeals for the D.C. circuit, giving that court a major role in communications law. It bears noting that even though there are many judges serving in federal courts below the Supreme Court, some empty judicial seats go unfilled for months. Sometimes appointments to these seats are politically charged. A snapshot of the current state of vacancies in the federal judiciary, on June 30, 2016, showed a total of 89 judicial vacancies and 58 pending nominees (including seven in the appellate courts). This information is tracked by the Admin- istrative Office of the U.S. Courts (www.uscourts.gov). The U.S. Supreme Court The U.S. Supreme Court is the highest court in the country. Its nine justices are the highest-ranking judges in the nation, and its decisions represent the most influential legal precedents, binding on all lower courts. Limited caseload. Because of this court's vast authority, it is common for people involved in a lawsuit to threaten to "fight this all the way to the Supreme Court." However, very few cases have any real chance to make it that far. The U.S. Supreme Court is, after all, only one court, and it can decide only a limited number of cases each year. The Supreme Court accepts at most a few hundred cases annually for review---out of about 10,000 petitions for a hearing. In the end, the court issues formal signed opinions in no more than about 100 cases each year. In recent years the Court has produced even fewer: often only 80 or 90 per term. Obviously, some screen- ing is required to determine which cases will get that far. In doing the screening, the Supreme Court tries to hear those cases that raise the most significant legal issues, those where the lower courts have flagrantly erred, and those where conflicting lower court decisions must be reconciled. However, the fact that the Supreme Court declines to hear a given case does not mean it necessarily agrees with the decision of a lower court. To the contrary, the Supreme Court may disagree with it, but it may choose to leave the decision undisturbed because it has a heavy caseload of more important matters. The fact that the Supreme Court declines to review a lower court decision establishes no precedent: for the Supreme Court to refuse to hear a case is not the same as the Supreme Court taking up the case and then affirming the lower court's ruling. When the Supreme Court declines to take a case, the lower court ruling on that case remains in force---but it is still just the decision of a lower court. There are occasions, however, when the Supreme Court accepts a case and then affirms the opinion of a lower court instead of issuing its own opinion, giving the lower court's opinion the legal weight of a Supreme Court decision. The nine justices vote to decide which cases they will hear of the many appealed to them. Under the Supreme Court's rules of procedure, it takes four votes to get a case on the high court's calendar (commonly called "the rule of four.") Getting to the Court. Cases reach the U.S. Supreme Court by several routes. The Consti- tution gives the Supreme Court original jurisdiction over a few types of cases (the fifirst court to hear those cases). Disputes between states and cases involving ambassadors of foreign coun- tries are examples of cases in which the Supreme Court has original jurisdiction. Even these cases may sometimes be heard in lower courts instead---with the blessing of the Supreme Court's nine overworked justices. In disputes between states, the Court may appoint Special Masters to hear evidence and prepare factual findings prior to oral argument. Then there are a few cases in which the losing party in the lower courts has an auto- matic right to appeal to the Supreme Court. For example, when a lower federal court or the highest court in a state rules an Act of Congress unconstitutional, the U.S. Supreme Court must hear an appeal if asked to do so by the government. The Supreme Court is required to accept these cases for review. Finally, there are a vast number of cases that the Supreme Court may or may not choose to review; it is not required to hear these cases, but some raise very important questions. In these cases the losing party in a lower court asks the Supreme Court to issue a writ of certiorari (often abbreviated cert). Technically, a writ of certiorari is an order from the Supreme Court to a lower court to send up the records of the case. Certiorari granted means the Court has agreed to hear an appeal, while certiorari denied means the Court has decided not to hear the case. (This book will use the terms "cert granted" or "cert denied.") For the Court to grant cert, according to the rule of four, four of the nine justices must vote to hear the case. This certiorari procedure is by far the most common way cases reach the Supreme Court, although many more petitions for cert are denied than granted. Cases may reach the Supreme Court in such appeals from both lower federal courts and from state courts. The Supreme Court often hears cases that originated in a state court, but only when an important federal question, such as the First Amendment's guarantee of freedom of the press, is involved. Most of the Supreme Court decisions on libel and invasion of priva- cy that will be discussed later reached the high court in this way. The Supreme Court will consider an appeal of a state case only when the case has gone as far as possible in the state court system. That normally means the state's highest court must have either ruled on the case or refused to hear it. The justices. It would be difficult to overstate the importance of the nine justices of the U.S. Supreme Court in shaping American law. That is why bitter battles are so often fought in the U.S. Senate over the confirmation of those nominated to be Supreme Court justices. In 2016, the U.S. Senate refused to even hold confififirma- tion hearings for President Barack Obama's nomination of Merrick Garland, the chief judge on the D.C. Circuit Court of Appeals, leav- ing the Court with only eight justices following the death of Justice Antonin Scalia. As a result, one of the most anticipated Supreme Court opinions of the 2015 term was a 4-4 tie. When a tie occurs, the lower court's ruling stands. The case involved a challenge to President Obama's executive authority over immigration policy, and as a result of the tie, the Fifth Circuit Court of Appeals decision ruling against Obama was left to stand. Republicans in the Senate aimed to delay Garland's nomination hearings until after the end of Obama's second term, hoping that a Republican president, if elected, would nominate a justice more to their liking. It was not the first time that Supreme Court nominations garnered public attention. Clarence Thomas's nomination hear- ings in 1991 were broadcast live on television after he was accused of sexually harassing former employee Anita Hill. President George W. Bush was forced to withdraw one his nominees, Harri- et Miers, in 2005 after senators from both parties questioned her qualifications. While Supreme Court justices are appointed through a political process, justices do not always vote in the traditional liberal-conser- vative mold of the presidents who nominated them. As Chapter Five explains, in 1992 the Supreme Court upheld the basic principle of Roe v. Wade, the landmark abortion decision, by a 5-4 vote. Three justices appointed by presidents who opposed abortions (Anthony original jurisdiction: the first court with jurisdiction to hear a case; in the case of the Supreme Court, its findings in original jurisdiction cases are final. writ of certiorari: the order issued by the Supreme Court when it agrees to hear a case. rule of four: four justices must agree to grant certiorari to hear a case before the case is permitted to be argued before the Court. M. Kennedy and Sandra Day O'Connor, appointed by Ronald Reagan, and David H. Souter, appointed by George H.W. Bush) formed the nucleus of the majority that upheld Roe v. Wade. Had any of them voted as the president who nominated them probably expected, Roe v. Wade would have been overturned. But no one can predict how a jurist will vote once on the high court. Souter, considered a conservative when he replaced the liberal William Bren- nan, has written some surprisingly liberal opinions, including a stirring defense of the free press (see Chapter Eight). In contrast, Clarence Thomas, who replaced Thurgood Marshall (the first African-American ever to serve on the Supreme Court and an avowed liberal), has taken a decidedly more conservative course as a jurist than his predecessor. The "Roberts Court." The Supreme Court is sometimes closely identified with its chief justice, who often sets the tone for the entire court. For example, the "Warren Court," named for Earl Warren, who served as chief justice from 1953 to 1969, had an enormous influence on the modern interpretation of the First Amendment. Later in this chapter and in Chapter Four there are references to the Warren Court's major role in reshaping American libel law. But the Warren Court did far more than that: it also rewrote American obscenity law and greatly expanded the rights of those who are accused of crimes, to cite just two examples. Since the era of the liberal Warren Court ended, more conservative justices have dominated the Court. Under Chief Justice William Rehnquist, the Court began to overturn some of the precedents established by the Warren Court, particularly in such fields as criminal law. The current court is known as the "Roberts Court," named for Chief Justice John G. Roberts Jr., appointed by George W. Bush to replace Rehnquist as chief justice when Rehnquist died in 2005. Chief Justice Roberts is one of two appointees of George W. Bush, the other being Samuel A. Alito, who replaced Sandra Day O'Connor in 2006. Roberts' record during his first years as chief justice seemed to mark him more as a consensus builder than a doctrinaire conservative, while Alito's early voting record was more conservative than O'Connor's. O'Connor had wielded great influence as a centrist. Roberts, Alito and Thomas make up the "conservative" bloc on the Court. The current "centrist" on the Court is Justice Anthony Kennedy, appointed by President Reagan in 1987. His vote is often sought by the conservative and liberal blocs on the Court, and he often is the author of 5-4 decisions. President Bill Clinton's appointees include Ruth Bader Ginsburg and Stephen G. Breyer. President Barack Obama got his first chance to appoint a justice to the Supreme Court in 2009 when Justice David Souter announced his retirement after 19 years on the Court. He appointed Judge Sonia Sotomayor, a federal judge from the Second Circuit, who is the first Hispanic justice and the third woman to serve on the Supreme Court. Obama also made history with his appointment of Elena Kagan, dean of Harvard Law School, as solicitor general, the first woman to hold that office. The solicitor general argues for the government of the United States before the Supreme Court. When Justice John Paul Stevens announced his retirement in 2010, after nearly 35 years on the Court, Obama chose Kagan as his second Supreme Court appointment. At the time of this writing, it remains to be seen who will replace Scalia on the Court. Whoever it is will likely reshape the Court for many years to come. Stay tuned. The State Courts Each of the 50 states has its own court system, as already indicated. Larger states such as California, New York, Ohio, Pennsylvania, Texas, Illinois and Michigan have two levels of state appellate courts plus various trial courts, duplicating the federal structure. In these states, the intermediate appellate courts (usually called simply "courts of appeal") handle cases that the state supreme court has no time to consider. The state supreme court reviews only the most important cases. Worth special note is the New York system, which is structurally similar to the systems in other populous states, but with opposite nomenclature. In New York, the "supreme court" is a trial court that also has intermediate appellate jurisdiction; there are many such courts in the state. New York's highest court is called the Court of Appeals. Maryland also calls its highest court the Court of Appeals. In smaller states, the trial courts send cases directly to the state supreme court, which may have from three to nine or more justices to hear all state appeals. As both the population and the volume of lawsuits increase, more and more states are adding intermediate appellate courts. The states tend to have a greater variety of trial courts than does the federal government, since the state courts must handle many minor legal matters that are of no concern to the federal courts. A typical state court system includes some kind of local court that handles minor traffic and civil matters and perhaps minor crimes. Such courts are sometimes called municipal courts, county or city courts, justice courts, or the like. In some states the highest trial courts not only hear the most important trials but also perform some appellate functions, review- ing the verdicts of the lower trial courts. State and Federal Jurisdiction It may seem inefficient to have two complete judicial systems operating side by side. Wouldn't it be simpler and less expensive to consolidate the state and federal courts that operate in each state? Perhaps it would, but one of our strongest traditions is power sharing between the federal government and the states. We'll have separate state and federal laws---and separate court systems--- throughout the foreseeable future. How then is authority divided between the federal and state courts? State jurisdiction and federal jurisdiction sometimes over- lap, but basically the state courts are courts of residual jurisdiction; that is, they have authority over all legal matters that are not specifi- cally placed under federal control. Anything that isn't a federal ques- tion automatically falls within the jurisdiction of the state courts. In addition, the state courts may also rule on some issues that are federal questions (for instance, First Amendment rights). Federal questions. What makes an issue a federal question? The Constitution declares that certain areas of law are inherently feder- al questions. For instance, the Constitution specifically authorized Congress to make copyright law a federal question. And Congress, acting under the authority of the Constitution, has declared copy- rights and many other matters to be federal questions. Congress has used its constitutional power to regulate interstate commerce as a basis for federal regu- lation of broadcasting, for instance. Legal issues such as copyrights and broadcast regulation are federal questions because of their subject matter. In addition, federal courts may intervene in state cases if a state court ruling conflicts with the U.S. Constitution. Much of mass communications law is based on cases of this type. In almost every area of state law discussed in this textbook, the U.S. Supreme Court has intervened at one time or another, interposing federal constitutional requirements on the states. Most often, of course, the constitutional issue is freedom of expression as protected by the First Amendment; the Supreme Court has often overruled state laws and court deci- sions that violated the First Amendment. Diversity issues. In addition to these federal questions, there is another reason the feder- al courts will sometimes agree to hear a case: diversity of citizenship. This principle applies only when a citizen of one state sues a citizen of another state. For example, if a New Yorker and a Pennsylvanian are involved in a serious auto accident, each may be able to avoid a lawsuit in the other's state courts under the diversity principle. If there is a lawsuit, it may well be removed to a federal court instead of being heard in a state court. The framers of the Constitution felt it would be unfair to force anyone to fight a lawsuit on someone else's "home turf," so they ordered the federal courts to provide a neutral forum to hear these disputes involving citizens of two different states. The theory is that a state court might be biased in favor of its own citizens and against outsiders. When a federal court hears a case that would be a state matter if it involved two citizens of the same state, the federal court's right to hear the case is based on diversity jurisdiction rather than federal question jurisdiction. In diversity lawsuits, the trial may still occur in the home state of one of the litigants, but in a federal rather than a state court. There are limits on diversity jurisdiction. If there were not, the federal courts might be overwhelmed by minor cases. To avoid that problem, federal courts accept diversity-of-citi- zenship cases only when the dispute involves more than \$75,000. This jurisdictional thresh- old has been increased repeatedly over the years. Until it was raised from \$10,000 to \$50,000 in 1988, the federal courts had to handle many relatively minor civil lawsuits---cases that federal judges felt should rightfully be left to the state courts. Another limitation on diversity jurisdiction is the requirement of complete diversity. That is, all of the parties on one side of a lawsuit must come from a different state than anyone on the other side. That means, for instance, that a suit by a New Yorker against both an indi- vidual from Pennsylvania and an insurance company in New York would not usually qualify as a diversity case. Sometimes there is considerable legal maneuvering when a case does qualify for federal jurisdiction, either because a federal question is involved or because there is diversity of citizenship. One side may want the case kept in state court, while the other prefers a federal court. Such a case may be filed in a state court, removed to federal court, and eventually sent back to a state court. Federal preemption. One more point about federal-state relationships bears explain- ing. Certain legal matters are exclusively federal concerns, either under the Constitution or an act of Congress. In those areas, the federal government is said to have preempted the field. That is, no state law in this area is valid; the federal government has exclusive jurisdiction. Copyright law is one such area. In certain other areas of law, Congress has enacted some federal laws without preempt- ing the field. The states may also enact laws in these areas, providing that the state laws do not conflict with any federal laws. These are called areas of concurrent jurisdiction. Examples in media law include the regulation of advertising, antitrust law and trademark regulation. A typical dividing line in such an area of law is the one that exists in trademark regula- tion, where the federal Lanham Act protects trademarks of businesses engaged in interstate commerce, while many states have laws to protect the trademarks of local businesses. In addition to the areas of law preempted by the federal government and areas of concurrent jurisdiction, of course, a large number of legal matters are left to the states--- unless a state should violate some federal principle in the exercise of that authority. Libel and invasion of privacy are two areas of media law that are essentially state matters. Recently the U.S. Supreme Court has been refining the concept of federalism by limiting the power of Congress to curtail the traditional authority of the states, a trend that is discussed later. Judicial Behavior In recent years, the public has cast a far more suspicious eye on the judiciary than once it did. Because in three-quarters of the states, judges are elected rather than appointed, considerations about judicial impartiality and electoral processes have arisen. Recusal. The Supreme Court has paid more attention in recent years to questions about whether judges should recuse (remove) themselves from cases. Campaign donations to judi- cial elections are on the rise, and in 2009 the Supreme Court said that a judge's failure to recuse himself from a case in which he received significant campaign donations from one litigant violated the due process rights of the other litigant. At issue in Caperton v. A.T. Massey Coal Company Inc. (556 U.S. 868) was the decision of West Virginia Supreme Court of Appeals chief justice Brent Benjamin not to recuse himself in a case in which one of the liti- gants, Massey Coal, had given him \$3 million in campaign donations. Justice Benjamin had refused several times to remove himself from the case, and his court reversed a \$50 million award against Massey Coal. In a 5-4 decision, the Supreme Court said that the due process clause of the Fourteenth Amendment was violated by Justice Benjamin's participation in this case. Justice Anthony Kennedy wrote, "We conclude that there is a serious risk of actual bias---based on objective and reasonable perceptions---when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent." Kennedy also pointed out that the extreme facts in this case would likely limit any potential of increased recusal demands or interference with judicial elections. The Supreme Court has applied the Caperton holding to other cases. In 2016, the Court ruled that judges must recuse themselves if they played a significant role in the prosecution of the case before they became judges. In Williams v. Pennsylvania (No. 15-5040), the Court ruled that Pennsylvania Supreme Court Justice Ronald Castille should have recused himself from an appeal involving Terrence William's death penalty conviction because Castille was the district attorney at the time Williams was prosecuted. "(U)nder the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case," Justice Anthony Kennedy wrote for the Court in a 5-3 decision. Judicial elections. Judicial elections continue to raise questions beyond recusal. How are judges to raise money for campaigning when many state bar rules forbid direct solicitations by the candidate? In 2015, the Court took on this question of whether the state bar rules that forbid a judge from soliciting contributions passed First Amendment muster. Lanell Williams-Yulee, a candidate for judicial office, posted online and mailed a letter asking for financial contributions for her campaign. She was censured by the Florida Bar under Canon 7C(1) of the bar rules, which states that candidates "shall not personally solicit campaign funds, or solicit attorneys for publicly stated support" but allows committees formed for that purpose to do so. Yulee alleged that this canon violated the First Amendment, but the Supreme Court said no (Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656). Writing for the Court, Chief Justice John Roberts said that there is a compelling interest for states to ensure that their judges are unbiased and fair. Judges are not politicians, Roberts said, and "\[i\]n decid- ing cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors." Canon 7C(1), then, is appropriately tailored to protect this important interest. Other judicial appointments. Who has say over other elements of judgeships? Often commissions or councils either make recommendations or appointments to state judicial positions (a process called merit selection); sometimes the governor has appointment power. In 2012, the Tenth Circuit declined to grant a group of non-lawyer citizens the power to directly affect this method in Kansas (Dool v. Burke, 497 Fed. Appx. 782). In Kansas, a commis- sion, made up mostly of attorneys, gives recommendations to the governor, who ultimately makes the appointment decision. Non-attorneys filed suit, saying that the 5-4 majority of attorneys on the commission was an equal protection violation. The Tenth Circuit, in a per curiam (unsigned) opinion, said there was no violation. Contempt by opinion. The Third Circuit was asked in 2013 to answer for the first time the question of whether the First Amendment protected judges from prosecution for crimi- nal contempt stemming from their judicial opinions or recusals. The court said that it did: "the First Amendment protects a sitting judge from being criminally punished for his opinion unless that opinion presents a clear and present danger of prejudicing ongoing proceed- ings." In the case, In re The Honorable Leon A. Kendall (712 F.3d 814), Judge Kendall had been found in criminal contempt by the Virgin Islands Supreme Court for recusing himself from a criminal case. Earlier he had written an opinion criticizing a recent decision of the Virgin Islands Supreme Court and explaining why he had recused himself. That court thought he recused himself because he wanted to avoid complying with a writ of mandamus (an order to perform or not perform a particular act) from the court ordering him not to take a plea bargain from a defendant in the criminal case. TYPES OF LAW Although the courts play a major role in shaping the law, the other branches of govern- ment also have the power to make laws in various ways. In fact, the term law refers to several different types of rules and regulations, ranging from the bureaucratic edicts of administra- tive agencies to the unwritten legal principles we call the common law. This section explains how the courts interact with other agencies of government in shaping the various kinds of law that exist side by side in America. The Constitution The most important foundation of modern American law is the U.S. Constitution. No law that conflicts with the Constitution is valid. The U.S. Constitution is the basis for our legal system: it sets up the structure of the federal government and defines federal-state relationships. It divides authority among the three branches of the federal government and limits their powers, reserving a great many powers for the states and their subdivisions (such as cities and counties). The First Amendment to the Constitution is vital to the media. In just 45 words, it sets forth the principles of freedom of the press, freedom of speech and freedom of religion in America. The First Amendment says: Congress shall make no law respecting an establishment of religion, or prohib- iting 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. What do those words mean? The job of interpreting what they mean has fallen to the appellate courts, which have written millions of words in attempting to explain those 45 words. For instance, the First Amendment sounds absolute when it says "Congress shall make no law\...." However, the courts have repeatedly ruled that those words are not absolute, and that freedom of expression must be balanced against other rights. In practice, the First Amendment should really be read more like this: "Congress shall make almost no laws\..." or "Congress shall make as few laws as possible\...abridging freedom of speech, or of the press\...." The chapters to follow will discuss the many other rights that the courts have had to balance against the First Amendment. The First Amendment (as well as the other amendments in the Bill of Rights) originally applied only to Congress and to no one else. It was written that way because its authors did not think it was their place to tell the state governments not to deny basic civil liberties; their purpose was to reassure those citizens who feared that the new federal government might deny basic liberties. They felt that many basic liberties were so firmly rooted in the common law that no written declaration was needed to assure that the states would safeguard these liberties. However, it became clear over the years that state and local governments, like the federal government, may violate the rights of their citizens from time to time. Hence, the Supreme Court eventually ruled that the First Amendment's safeguards should apply to state and local governments as well, a concept called incorporation that will be discussed later. Constitutional supremacy. The U.S. Constitution plays the central role in American law. No law may be enacted or enforced if it violates the Constitution. The courts---particularly the U.S. Supreme Court---play the central role in interpreting what the Constitution means, often in practical situations that the founders never dreamed of when they wrote the docu- ment more than 200 years ago. Perhaps the Constitution has survived for so long because the courts do adapt it to meet changing needs, and because it can be amended when there is strong support for this step. The Sixteenth Amendment, for example, was approved in 1913, authorizing the federal income tax at a time when the federal government needed to find a way to bring in more revenue. And the Twenty-first Amendment, approved in 1933, abolished prohibition (thus ending an era that began when the Eighteenth Amendment was enacted to ban alcoholic beverages). The normal procedure for amending the Constitution is for each house of Congress to approve a proposed amendment by a two-thirds vote, after which it must be ratified by three-fourths of the states. State and local constitutions and rules. In addition to the federal Constitution, each state has its own constitution, and that document is the basic legal charter for the state. No state law may conflict with either the state's own constitution or the federal Constitution. Each state's courts must interpret the state constitu- tion, overturning laws that conflict with it. Likewise, many cities and counties have home rule charters that establish the fundamental structure and powers of local government. Like the state and feder- al constitutions (which local governments must also obey), local charters are basic sources of legal authority. On the other hand, many local governments operate under the general laws enacted by state legislatures instead of having their own local charters. In these circumstances, the courts must decide when a govern- ment action---be it an act of Congress or the behavior of the local police department---violates one of these basic government docu- ments. When that happens, it is the job of the courts to halt the violation. The Common Law The common law, which began to develop out of English court decisions hundreds of years ago, is our oldest form of law. It is an amorphous collection of legal principles based on thousands of court decisions handed down over the centuries. It is unwritten law in the sense that you cannot sit down and read it all in one place as you can with the statutory laws enacted by Congress. Starting nearly 1,000 years ago, English judges began to follow legal precedents from previous cases. Each new decision added a little bit to this accumu- lated body of law. As it grew, the common law came to include rules concerning everything from crimes such as murder and robbery to non-criminal matters such as breach of contract. When the American government took its present form with the ratification of the Constitution in 1789, the entire English common law as it then existed became the basis for the American common law. Since then, thousands of additional decisions of American courts have expanded and modified the common law in each state. It should be emphasized that the Supreme Court has ruled that the common law is mainly state law and not federal law. Each state's courts have developed their own judicial traditions, and those traditions form the basis for that state's common law, which may vary from the common law of other states. Sovereign immunity. Several controversial U.S. Supreme Court decisions underscored the continuing power of the common law as a force that even Congress cannot ignore. In Alden v. Maine (527 U.S. 706, 1999) and several other cases, the high court looked back to the status of the common law before statute: any law that is adopted by a legislature of a federal, state or local governmental body. sovereign immunity: the ability of a govern- ment to limit lawsuits against it. stare decisis: Latin for "let the law or the decision stand," the policy of courts to rely on precedents. distinguishing a case: declining to follow a precedent based on the precedential case differing from the case being decided. reversing/overruling a precedent: choosing not to follow precedent even if the facts of the case being decided are very similar. the Constitution was ratified in 1789 and concluded that a concept called sovereign immu- nity was fifirmly entrenched in the law then---and was not abrogated by the Constitution. Sovereign immunity exempts the "sovereign" from being sued in the courts. In eighteenth- century England, the sovereign was the king or queen. In the pre-constitutional United States, the individual states had sovereign immunity. How does sovereign immunity affect modern America? In these decisions, a 5-4 major- ity of the Supreme Court said the states still enjoy sovereign immunity, and Congress does not have the right to authorize lawsuits against the states either in federal courts or in state courts. The result: the Court held that states are largely exempt from various federal laws that purport to allow private parties (such as individuals and corporations) to sue a state. The Court has said the states (but not private parties) are exempt from many patent and copyright infringement lawsuits, for example, and also to some actions brought by federal regulatory agencies. These decisions were widely criticized in the media. They are based on an expansive view of common law concepts that are routinely taught in law school and that still apply today---in the opinion of the Supreme Court majority. However, the states have all voluntarily agreed to limit their own sovereign immunity by enacting laws to allow lawsuits against themselves under various circumstances. Evolution of the common law. Like federal constitutional law, the common law can grow and change without any formal act of a legislative body precisely because it is based on court decisions. When a new situation arises, the appellate courts may establish new legal rights, acting on their own authority. A good example of the way the common law develops a little at a time through court decisions is the emergence of the right of privacy. As Chapter Five explains, there was no legal right of privacy until the twentieth century. But as governments and the media (and eventually, the Internet) became more powerful and pervasive, the need for such a right became apparent. The courts in a number of states responded by allowing those whose privacy had been invaded to sue the invader, establishing precedents for other courts to follow. In addition to privacy law, several other major areas of mass media law had their begin- nings in common law, among them libel, slander and the earliest copyright protections. If this all happens through judicial precedent, with the courts expected to follow the example set by earlier decisions, how can the common law correct earlier errors? The importance of precedent. The common law system has survived for nearly a thou- sand years precisely because there are mechanisms to allow the law to change as the times change. Courts don't always follow legal precedent; they have other options. When a court does adhere to a previous decision, it is said to be observing the rule of stare decisis. That Latin term, roughly translated, means "Let the precedent stand." However, courts need not always adhere to stare decisis. Instead, a court faced with a new situation may decide that an old rule of the common law should not apply to the new facts. The new case may be sufficiently different to justify a different result. When a court declines to follow a precedent on the ground that the new case is different, that is called distinguishing the previ- ous case. When an appellate court does that, the common law keeps up with changing times. Another option, of course, is for a court to decline to follow precedent altogether, even though the factual circumstances and issues of law may be virtually identical. That is called reversing or overruling a precedent; it is considered appropriate when changing times or changing conditions have made it clear that the precedent is unfair or unworkable. A good example of the way this process works is the 1954 ruling of the U.S. Supreme Court in the famous school desegregation case, Brown v. Board of Education (347 U.S. 483). Although this case is based on an interpretation of the Constitution and is therefore an example of the development of constitutional law rather than the common law, it provides a good illustration of how law develops over time. When the Court took the Brown case, there was a precedent, an 1896 Supreme Court decision called Plessy v. Ferguson (163 U.S. 537). In that earlier case, racial segregation had been ruled constitutionally permissible as long as the facilities provided for different races were "separate but equal." But in 1954 the Supreme Court pointed out that more than half a century's experience proved that the "separate but equal" approach didn't work. The Court noted that segregated facilities were almost always unequal---and ruled that the public schools must be desegregated. As a result of that new decision, the precedent from the 1896 case was no longer binding, and a new precedent replaced it. In the end, the Brown case became one of the most important court decisions of the twentieth century.