Prior restraint states that the government cannot tell the press what they can’t publish due to the first amendment. The government is allowed to protect their secrets due to national security, but most prove it with evidence before it is ruled as a threat. They must prove a link with publishing the information to a specified harm, like death or injury to soldiers. Then they must prove that the harm will come immediately after publication. Lastly. they must prove that the nature of he harm will be irreparable like death, injury or destruction of property. Journalists are expected to know how their publications can function as watchdogs on the government, and how to avoid violating the individual rights of the people they cover.
The first amendment is not absolute, however. Laws concerning libel, privacy and copyright are not considered inconsistent with the first amendment guarantees. Offended people who think published statements infringed on their personal rights can take action again a publication. They can ask for a clarification, correction or retraction be published for their sake. Informal attempts are usually made with the offended people to resolve the conflict. If these approaches do not work, a civil lawsuit may result.
Libel is a false statement that exposes people to hatred, ridicule or contempt; lowers them in the esteem of their colleagues; causes them to be shunned; or injures them in their business or profession. A person who sues for libel must prove the following with evidence:
- The statement was published
- The plaintiff was identified in the statement
- The statement was defamatory
- The statement caused injury
- Publisher was at fault in publishing the statement
The defense against a libel case will typically argue every defense that potentially applies. Libel defendants advance the constitutional defense if the published statement is false but was published with insufficient fault. The following common laws defenses might be argued:
- Fair comment: Protects opinion about matters of public interest or things that have been put on public display
- Qualified privilege: allows the media to cover privileged situations
Another issue can stem from privacy laws, which are meant to give legal redress for mental anguish, and suffering caused by an invasion of personal privacy. Invasion of privacy has four legal wrongs:
- Intrusion upon physical solitude – can take several forms like trespassing, or using hidden cameras
- Publication of private information – publicizing a private matter that would be highly offensive to a reasonable person
- False Light – plaintiff must prove that publisher knew the information was false
- Appropriation – unauthorized use of a person’s name or likeliness for commercial gain
Copyright laws also provide opportunities for lawsuits. These laws provide the right to control or profit from a literary, artistic or intellectual production. They both protect and restrict the media. An important note is that facts and ideas cannot be copyrighted, and are therefore not a threat in articles. Issues can arise within the work place, due to the “work-made-for-hire” doctrine which states that the publication rather than an individual employee owns the copyright on published material. This hinders any employee who composed the work, and wanted to make money off of it by selling it themselves. There is some wiggle room, like that found in the “fair-use” defense, which allows publications to use brief quotations from a copyrighted work for the purposes of critical reviews or scholarly work.
To avoid lawsuit, a publication must be very diligent with its proofreading and fact-checking. There are a few things a copy editor can do when an article passes into their hands. They can publish the story, because it has no errors. They can choose to kill the story, because it is libelous, invades privacy, or infringes copyright. They can choose to edit the story, and remove any offending passages. Lastly, they can publish the story anyway, fully expecting a lawsuit to occur. The decision to publish a story that could bring on a lawsuit must be made with extreme planning and caution by the entire publication, going through the chain of command to receive approvals to proceed.
Source: “Creative Editing” by Dorothy A. Bowles and Diane L. Borden