Jon L. Mills, New Media-Old Law

Jon L. Mills, New Media-Old Law

Comment by: William McGeveran

PLSC 2011

Workshop draft abstract:

Throughout the evolution of what we now call “media law”, several characteristics of the media were a constant, and legal tests were based on those realities. Since the times have changed radically, should those tests and assumptions also change?

1.      Gatekeepers — Since the invention of writing there have been barriers to mass distribution of information. With the advent of the printing press and broadcast media there continued to be practical, legal and financial barriers to mass communications. The barriers have included cost, government licenses and editors. Those barriers are gone because of the internet and the new press.

2.      Community Standards and Mores — Legal tests for obscenity and privacy intrusions, such as public disclosure of private facts, include references to community standards. But, who is the community for judging internet distributions? The courts are struggling to determine whether the test should still be community based to a limited geographic area. For example, parts of opinions in Ashcroft v. ACLU suggest that a national standard may be appropriate because the community is now national. Is that appropriate and how would that standard work?

3.      Anonymity — Free speech and press policies have protected and respected anonymity from the earliest times.  Whistle blowers and anonymous political commentary are part of our culture. Should that protection change based on wide distribution of intrusive comments on the internet. There are cases where courts have protected the identity of bloggers even when the statements were highly offensive and intrusive. In the Krinsky case out of California an anonymous poster on a financial message board insulted a number of officers of a Florida corporation, calling them names that included “cockroach,” “mega scum bag,” and “boobs, losers and crooks.”  The court protected the identity of the blogger

The new media has no gatekeepers, amorphous community standards and allows total anonymity. Add to this an instant news cycle and the Shirley Sherrod incident occurs.  An innocent person is slandered and fired by the President of the United States within twenty four hours. The reports are based on an altered YouTube distribution.  How should the law react?

As a further example of the evolution of media, I will describe the media involvement in five high profile cases that have occurred over the last twenty years. I served as counsel in four of those cases.

1.      Rolling Student Murders — Danny Harold Rolling murdered seven University of Florida students in 1990.  He tortured and mutilated the bodies.  Media sought access to the crime scene photos and autopsy photos.

2.      Death of Dale Earnhardt — NASCAR star Dale Earnhardt died during the Daytona 500 race in 2001.  National, global and electronic media sought access to his autopsy photos.

3.      Murder of Gianni Versace — In 1997, world famous designer Gianni Versace was murdered on Miami Beach. Press sought autopsy photos and investigatory materials.

4.      Death of Nicole Catsouras — Teenager Nicole Catsouras died in an auto crash in 2008.  Graphic accident scene photos were distributed by members of the California Highway Patrol.

5.      Death of SeaWorld Trainer Dawn Brancheau- In February 2010, Dawn Brancheau was killed at SeaWorld by a killer whale. The incident was recorded on video cameras. The media sought access to the videos.

Each of these instances involved all of the legal issues described above and involved a balancing of privacy and press interests.