Media Rights Prosper under Influence of States

Article excerpt

PERSONS WHO STUDIED constitutional law during the liberal and activist years of the Warren Court believe that state governments cannot be trusted to uphold basic liberties. But experience with freedom of the press demonstrates otherwise. American media enjoy more freedom than the press in any other country, thanks in part to the laws of the 50 states. Look at the O.J. Simpson trial. First television covered the lengthy, pretrial hearing. Then TV covered the entire criminal trial, including testimony that was presented when the jury was absent.

This television access was not mandated by Congress or the U.S. Supreme Court; it was created by the California Supreme Court which is an elected judiciary. State courts in 46 other states have created a similar right. If Simpson had been charged with federal and not state murder, none of the court activity would have been accessible to TV cameras.

TV court coverage is just one provision of media law that has been defined expansively by states:

* All 50 states today have open meeting laws and open record laws. In 1956, only 20 states had open record statutes and 10 had open meeting laws. As more federal programs are transferred to the states, these laws will grow in importance.

These state statutes provide the only leverage for access to state and local government; neither the First Amendment nor the federal Freedom of Information Act provide for access to state agencies.

* Most of the legal defenses which protect the news media from frivolous libel suits come from state supreme courts. The U.S. Supreme Court's actual malice rule limits libel suits by government leaders, celebrities and a narrow category of public figures. However, private individuals initiate most libel suits not public officials or public figures. And the major media defenses to these private libel suits -- retraction, fair comment and qualified privilege -- come from state courts.

* The states and public opinion -- not the federal government -- have to prosecute obscenity. made it difficult A few states such as Oregon and Hawaii have decriminalized obscenity; their courts ruled that state constitutional provisions on privacy and free speech protect the right of adults to purchase erotica.

In states with more restrictive obscenity laws, public opinion has stymied prosecutions. It is difficult to convince a jury that includes Penthouse readers and X-rated video renters to prosecute for obscenity. In 1973, the U.S. Supreme Court in Miller vs. California crafted a legal definition that, theoretically, made it easier to prosecute obscenity.

The court abolished the liberal rule that obscene works must be utterly without redeeming social value. But public opinion tolerant of erotica prevented Miller from increasing obscenity convictions.

* Journalists in six-sevenths of the states may refuse to divulge confidential information to courts thanks to state shield statutes and state supreme court decisions. In 28 states, the legislature created the right. In California, it was created by an overwhelming vote of the public on a state constitutional amendment.

Journalists' rights to shield confidential news sources are part of the right of the media to gather information. …