Media Liability Presentation by Eric Goldman



Media

Extent of Government Regulation

Obligation to Provide Access

Liability for Third Party Conduct or Speech

Newspapers and other print periodicals

Newspapers benefit from a number of protections (no prior restraint, exemption from monopoly rules, no differential taxes)

No obligation to provide access (Miami Herald v. Tornillo).  Newspapers have complete editorial control–and duty to use it

Newspapers are usually liable for what they publish, regardless of source.  But distributors often not liable (Smith v. CA)

Broadcasters

Broadcasting requires a license, which can be revoked based on regulatory standards.

Numerous obligations to provide access (equal opportunities doctrine, educational programming requirements, etc.)

Similar to newspapers, although there may be technological situations where the broadcaster lacked control (i.e., when broadcasting live)

Cable

Like broadcasting

The subject of significant debate, but less requirements than broadcasters

Similar to broadcasters

Telecommunications

Historically conceived of as a regulated monopoly, but deregulation rampant

As common carriers, required to take all comers

Telcos rarely liable for content disseminated over their wires

Real Property

Use of real property can be regulated, but too much regulation can be deemed a “taking”

Except in cases involving “company towns” and historic common carriage (i.e., inns), property owners have complete control over who can access their property

Property owners are liable for third party conduct generally only if they knew/should have known of the harmful conduct and failed to act

Online

Trend towards increased regulation

Some online services have claimed to be common carriers.  Recent case held not state actors

Defamation and porn–depends on editorial control

Copyright–currently generally liable

State actors

N/A

Depends on the type of public forum

Way too complicated!

 

By Eric Schlachter, Esq.
Cooley Godward, LLP
schlachtere@cooley.com

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