Advertising & Media Law
Advertising and media law is concerned with the constitutional limitations placed on advertising, the rights of the media to collect information, and the limits placed on newsgathering. Both Illinois and federal laws come into play.
Commercial speech. The U.S. Constitution protects free speech. The right to free speech, however, has never been absolute. The most famous limitation is the rule that prohibits someone from screaming "fire" in a crowded theater. Over the years, in trying to develop a workable solution to the limits on free speech, the courts have treated certain categories of speech differently from other types of speech, such as commercial speech and political speech.
Commercial speech is speech undertaken for profit, including advertising and various forms of entertainment. The U.S. Supreme Court has ruled that commercial speech can be regulated where the government has a substantial interest in protecting public health and certain members of the public, such as children. Among the government regulations that have been enacted under this exception are ones banning pornography from public libraries; prohibiting tobacco advertising within 1000 feet of schools, playgrounds, and parks; banning liquor ads from television; and requiring surgeon warnings on cigarette packs.
Defamation. One whose reputation is harmed by another's statement can recover damages under the tort of defamation. If the defamatory statement is spoken, the tort is called slander. If the defamatory statement is printed or written, the tort is called libel. Defamation by radio broadcast or by photograph or picture is generally considered to be libel.
In order to prove slander or libel, the defamed person must prove the publishing of a false defamatory statement that identifies the defamed person and causes damages. The requirement that the statement be "published" does not mean that it has to appear in a magazine or a newspaper. "Published" in this sense is a legal term that means that the statement has to be communicated to at least one person other than the person who is defamed.
If the person making the statement is a private citizen, the defamed person need only prove that the statement was made negligently or carelessly. If, however, someone from the media makes the statement, the defamed person must prove actual malice, which means that the media person knew it was false and made it anyway. As a result of that rule, it's much harder to prove libel or slander against the media than it is against a private citizen. The rules are different because the law recognizes the importance of a free and unfettered media.
Invasion of privacy. Invasion of privacy is a recently developed tort that protects an individual from (1) intrusion upon seclusion, (2) publication of private embarrassing fact, and (3) appropriation of his name or likeness.
Intrusion upon seclusion protects someone from unwanted invasions, such as sneaking into a person's yard and taking an embarrassing picture of him. Publication of private embarrassing fact in available to someone who has information released to the public that he didn't want released, such as a non-contagious medical condition. Appropriation of name or likeness is a tort that gives a person the right to sue someone who misappropriates their picture for commercial gain, such as where a bicycle manufacturer uses Lance Armstrong's picture in advertisements without his permission.
Recording conversations. Both federal law and Illinois law regulate electronic eavesdropping. Under federal law, recording conversations is legal as long as one party to the conversation consents to it. Thus, a journalist can tape record a conversation with a source without the source's knowledge because one person has consented to it. The exception is where the recording is undertaken for a criminal or tortious purpose, such as to blackmail the other person.
Illinois law, however, requires both parties to consent. Thus, conversations cannot be taped in Illinois unless both parties consent to it.
Sunshine laws. State sunshine laws require that government meetings be open to the public. Only meetings of public governmental bodies for the purpose of discussing public business fall within the law's requirements.
Information access. The federal Freedom of Information Act is a law designed to hold government accountable and to deter corruption. It requires public agencies to give the public access to government records, unless the records request falls into one of nine exemptions listed in the statute. Although most requests are filed by the media or by government watchdog organizations, any citizen can file a request for information. If the request is denied, the citizen can file suit in federal district court to compel the release of the information. If suit is filed, the federal agency has the burden of establishing that the denial was legitimate.
Reporter's privilege. Illinois has enacted a reporter's shield law that gives reporters the right to withhold information from the courts, usually but not always the names of their sources. The privilege is not absolute and must be weighed against other rights involved. For example, in a criminal trial, the reporter's right to protect his sources must be weighed against the criminal defendant's right to a fair trial. Once a reporter is subpoenaed to testify, the burden is on the reporter to raise the privilege. Once the privilege is raised, the burden shifts to the party subpoenaing the reporter to overcome the privilege.
A federal law, the Privacy Protection Act, generally prohibits the government from issuing search warrants on the media, although there are some sections. The practical effect of the Privacy Protection Act is to force the government to issue a subpoena rather than a search warrant when it wants information from the media.