what we don't know about the first amendment


I found this great piece from my friend Jonathan Peters the other day.  It’s a non-scientific survey of some media lawyers (and some other friends, among them Len Niehoff, Chuck Tobin, Mickey Osterreicher and Frank LoMonte) and academics discussing common misconceptions about the First Amendment that exist among journalists.  One might think reporters and editors on the front lines would have a pretty firm grasp on that particular Amendment, but that is not necessarily the case.  There are many interesting comments in Jonathan’s piece, but two in particular stick with me.

The first comes from Chip Stewart, a media law professor at Texas Christian University, who notes, “The thing I see the most that surprises me, still, is a journalist publishing a photo with ‘photo from Facebook’ or ‘Instagram’ as the attribution, as if that magically means s/he has received permission to publish [the photo] because [it] was posted on a social network. . . . Just because you found it online doesn’t mean you have a right to republish it, and there could be some serious copyright consequences.”

Amen.  I suppose the fact that it is so easy to cut and paste content from the internet leads some folks to conclude that it’s fair game, but that’s just not the case. When people upload content to a social media site, they give the site a license to use the content, but that doesn’t extend to anyone else.  And plenty of journalists have gotten themselves into trouble by thinking they have some sort of license.

The second comment comes from Jane Kirtley, a media law professor at the University of Minnesota, who notes that many reporters think “Thanks to New York Times v. Sullivan, I don’t have to call a public figure for comment before writing a story trashing her, because she’s a public figure and could never prove actual malice. This is how a little learning is a dangerous thing, illustrating how a reporter who probably took media law in college misinterpreted the Sullivan standard as an excuse for sloppy reporting, rather than a defense if you have the misfortune to be sued.”

I reiterate. Amen.  The actual malice standard is a shield not a sword.  It is intended to protect conscientious journalists from liability initiated by thin skinned public servants. But no journalist should ever use the standard to excuse inattention to accuracy or fairness.

It is always fun to read a piece by a smart guy quoting other smart folks!