Communication and Law

The phrase “communication and law” is used in this article to refer broadly to the general field of speech and press law. It is also used to denote multidisciplinary research done at the intersection of two distinctly separate disciplines of study (communication and law).

The study of communication and law has traditionally been nation-specific, with a few exceptions, i.e., “those areas where particular technologies or common goals mandated a degree of international cooperation” (Huffman & Trauth 2002, 73). This is still true today, although less so than in the past. Perhaps the best examples of contemporary areas where technology and a common goal has allowed for substantially greater global cooperation are in the areas of intellectual property and Internet regulation. The explosive use of the Internet as a “borderless technology with no international boundaries” has called into question the traditional, nation-specific approaches to communication law (Huffman & Trauth 2002, 91), although clearly nation-specific approaches still prevail.

Freedom of Expression

There is no such thing as absolute freedom of speech and the press, for freedom of expression is subject to various social, political, economic, or legal controls of its society. This is also true more broadly about freedom of expression, a term which many people use to refer to both free speech and free press. Fenwick and Phillipson put it another way: “Almost all free expression jurisprudence is, today, media jurisprudence” (2006, 2). Legal scholar Thomas David Jones has observed that free speech is a “general norm of customary international law” (1998, 37). The Universal Declaration of Human Rights, the European Convention on Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights all consider freedom of expression a fundamental human right. As Article 19 of the Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers” (Universal Declaration of Human Rights 1948).

In his influential essay “Toward a general theory of the First Amendment,” Yale law professor Thomas I. Emerson writes of the importance of free speech to a democracy, but takes the need for protection of expression a step further. Emerson suggests “the right to freedom of expression is justified first of all as the right of an individual purely in his capacity as an individual” (1963, 877). He argues that four broad categories encompass the societal values that free expression serves – assuring individual self-fulfillment, attaining truth, securing citizen participation in political decision-making processes, and maintaining social stability and societal change. “Every man . . . has the right to form his own belief and opinions. And, it also follows, that he has the right to express those beliefs and opinions” (1963, 877).

In a democratic society, free press is considered equally important as free speech. The First Amendment to the US Constitution offers separate guarantees for speech and press, but in the US the two concepts are intertwined by well-established case law. They are also intertwined in American legal theory. First Amendment philosopher Alexander Meiklejohn is often credited with articulating the self-governance theory as applied in the US, which holds that the primary purpose of free speech in a democracy is to allow citizens to effectively govern themselves. The focus is on advancing democracy and the collective public good, rather than on the rights of individuals. Meiklejohn writes, “The First Amendment . . . is not the guardian of unregulated talkativeness. It does not require that, on every occasion, every citizen shall take part in public debate. Nor can it even give assurance that everyone shall have opportunity to do so . . . What is essential is not that everyone shall speak, but that everything worth saying shall be said” (1948, 25). Put simply by the noted constitutional scholar Lee Bollinger, currently the president of Columbia University in New York, “the primary function of speech and the press is to advance the process of self-governance” (1983, 438).

To advance the process of self-governance, press and speech must be free from governmental interference. In the US, England, France, and Sweden, it took several centuries to move from an authoritarian model of free press to one that embraced libertarianism. The two main struggles in the move toward libertarianism in England and the US in the eighteenth century were with seditious libel (a libel against the government as a crime) and with the right of the press to publish governmental proceedings (more so in England than in America). The establishment of truth as a defense to libel in the US and England in the nineteenth century is what ultimately allowed libertarianism to triumph in those two nations. In some countries today, criminal or seditious libel continues as a major impediment to a free press.

The basic idea behind libertarianism is credited to English poet and philosopher John Milton. He had put forward the “marketplace of ideas” metaphor as early as 1644 in Areopagitica, Milton’s appeal to the English Parliament to rescind a licensing order that allowed the government to use official censors to approve publications. Legal historian Frederick Siebert writes that the libertarian system spread throughout the world in the nineteenth century: “Practically all democratic countries in the world adopted the libertarian theories and embodied them in their constitutions or fundamental laws” (1956, 51). Generally speaking, press and speech freedoms under the libertarian model are negative freedoms. That is, they are freedom from governmental restraint. Another model of press freedom exists in the positive form, which would focus on “the capacity to do or achieve certain ends” (Youm 2001, 5775).

An example of an international positive model of press freedom came in 1978, when the United Nations Educational, Scientific, and Cultural Organization, which includes nearly all independent nations in the world, adopted the “Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights, and to Countering Radicalism, Apartheid, and Incitement to War.” The declaration was called a landmark, albeit controversial, in the history of journalism and mass communication, because it was able to create a body of principles and ideals on which north, south, east and west agreed “at a time when ideological confrontations, rather than harmony, became characteristic of the international community” (Nordenstreng 1984, xi). The declaration, though, soon sparked heated debate about free press and the intention of the document.

In 1981, the US and Israel broke the consensus that had prevailed in the adoption of the UNESCO mass media declaration, claiming that the Soviet Union and some third world nations were using the declaration to legitimize governmental press controls. In his first speech on communication to the UN Committee on Information in 1982, UN SecretaryGeneral Javier Perez de Cuellar responded: “Critics of the Declaration, who express concern that national public authorities have been given an instrument to limit freedom of the press, are mistaken. Such a concept was not and could never be the intention of any United Nations deliberative body, in which free and open debate always prevails” (Nordenstreng 1984, xiii; see also Mowlana 1989). The UNESCO declaration was not legally binding. But the international, often cantankerous, debate about the declaration highlighted some political, social, and cultural differences in opinion about what constitutes a free press across the globe.

As communication law scholar Kyu Ho Youm writes, “Most discussions of freedom of the press center on the relationship of government and the press, and here the basic question is not whether government controls the press, but how and to what extent” (2001, 5775).

In the eighteenth century, Sir William Blackstone, the English Chief Justice whose commentaries on English law profoundly impacted American law, defined the limits of a free press thus: “The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publication” (Near v. Minnesota 1931, 713). The licensing of the press is considered by many as the most troubling form of prior restraint and is incompatible with freedom of the press as a fundamental human right. The Inter-American Court of Human Rights (IACHR) ruled in 1985 that licensing the press would violate not only individual rights to free expression, but also “the right of the public to receive information without any interference” (Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism 1985).

In 1992, the European Court of Human Rights, emphasizing the pre-eminent role of the press in ensuring the rule of law in a state, said: “Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate, which is at the very core of the concept of a democratic society.” While the United Nations Human Rights Committee has not issued an express condemnation of licensing requirements for printing presses, “it has on several occasions asked critical questions concerning the issue and has been satisfied only when country representatives confirmed that such requirements were no longer in place” (Article 19, 2007, 7). Specifically, this was the case with Azerbaijan and Uruguay in 2001. Article 19, a nonprofit group promoting global free expression, wrote a memorandum in January 2007 on the draft law of the Republic of Kazakhstan, condemning that draft law, which would include some provisions for licensing the press.

Meanwhile, since the end of the Cold War in the late 1980s, the positive concept of press freedom, more often than not, has defined the standard for quality journalism around the world. This is especially the case with the expanding press freedom in many newly independent countries and emerging democracies in Asia, former Eastern Europe, Latin America, and Africa.

Contemporary Issues

The degree to which a country guarantees freedom of expression is still an important area to study and monitor. But scholars should also consider less nation-specific ways to explore important communication law topics across the globe. Boston University law professor Pnina Lahav, whose book, Press law in modern democracies, is a seminal work on comparative press freedom, notes that the US often believes it has “a monopoly” over press freedom because it has a constitutional guarantee. “The United Kingdom and Israel have neither a constitution nor an explicit commitment to press freedom engraved on a basic charter. Sweden, France, and the Federal Republic of Germany have special press statutes . . . Yet all of these countries are generally recognized as democracies and their press is considered free. It is this [similarity] that triggers the need to compare the way by which different democratic legal systems treat their press” (1985, 1; for an example of another comparative study, see Couprie & Olsson 1987).

Future research in communication law should also account for changing trends in press ownership that could have implications for a free press around the world. Mass communication scholar Flew notes that while “the claim that the nation-state has been rendered increasingly irrelevant by media globalization is strongly questioned, it is at the same time noted that media globalization presents significant challenges for media and cultural policy as it has been traditionally understood” (2007, 28).

One other typical way that communication law issues are explored is by legal topic. This is often done in a nation-specific way (for example, you might look at libel law in the US or obscenity law in Canada), but it can also have a comparative aspect. Several freedom of expression issues have received a good amount of international and comparative law attention in recent years. Among them are defamation, privacy, and hate speech, which is not surprising, given that these three areas showcase important contemporary legal issues that have international dimensions worthy of comparative study.

Defamation

Communication law is more global than ever. A good illustration is defamation law because transnational media, along with the Internet, defy the traditional state-nation sovereignty of geography-bound communication. Where does the “publication” of defamation as a civil wrong take place when any statement is increasingly accessible via the Internet around the world? This question relates to which laws should govern in libel lawsuits involving transnational mass media, whether online or offline. In a 2002 libel case that pitted an Australian businessman against a US newspaper publisher, the High Court of Australia ruled that when defamatory statements are accessible to and read by ISP subscribers in an Australian state, a court of that state has jurisdiction to hear an action for defamation relating to the statements (Dow Jones & Co. v. Gutnick 2003).

From a First Amendment perspective, the foreign libel judgment like the one from the Australian High Court does not directly impact US media unless the judgment is brought to the US and enforced against the American media. American courts have invariably refused to enforce foreign libel judgments if the judgments were based on libel law incompatible with the First Amendment standards. In the early 1990s, for example, a New York state court rejected a libel plaintiff ’s request for enforcement of his English libel verdict against a newspaper publisher in New York. The court found England’s lack of an equivalent to the First Amendment to be crucial and ruled that enforcing a foreign libel judgment would seriously jeopardize the First Amendment protection of speech and the press (Bachchan v. India Abroad Publications, Inc. 1992).

It is still largely true that American libel law is more speech-friendly than the rest of the world. Nonetheless, an increasing number of countries are more willing to protect political expression – such as criticism of the government and government officials – than ever before. So, the actual or perceived gap between the US and other nations has narrowed. Since the mid-1970s, for example, the European Court of Human Rights (ECHR) has embraced the Meiklejohnian free speech theory. The ECHR’s cartographical principle of application is fundamentally shaped by the self-governance theory. Thus, the European Convention on Human Rights’ preference for political speech is clear-cut. The ECHR’s rejection of criticism of the government as a crime reflects the functional value of freedom of expression as crucial to an effective political democracy.

Privacy

In 1890, American lawyers Samuel Warren and Louis Brandeis (a future US Supreme Court Justice) wrote a law review article that served as the starting point for discussions about privacy law in the US. In “The right to privacy,” they argued that the Anglo American common law implicitly recognized a right to privacy. But, in the US, it was not until Griswold v. Connecticut (1965) that the US Supreme Court offered constitutional protection for privacy rights.

Privacy as a basic human right is acknowledged in most international human rights declarations. For example, Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) both say that “no one shall be subjected to arbitrary or unlawful interference with his privacy . . . everyone has the right to the protection of the law against such interference or attacks.” Privacy is a constitutional right in a number of countries, including Brazil, China, South Korea, Belgium, Germany, Spain, Italy, and Russia. Also, several common law nations such as Australia, Canada, Iceland, England, the US, and New Zealand recognize privacy in case law. Hong Kong also has privacy case law, some emerging when it was under British rule, some coming after it was returned to the People’s Republic of China.

One of the issues in contemporary privacy law that has garnered a great deal of contemporary attention has to do with the balance of the privacy right against the rights of the media to pursue information. A recent case in Germany, centered on a series of photographs of Princess Caroline of Monaco that were published in a German magazine, used ad hoc balancing to determine whether privacy or press rights prevailed. English judge Lord Wilberforce has suggested that Germany’s approach might help England as it strives to develop its privacy laws under the impetus of the Human Rights Act of 1999. Wilberforce notes that Germany’s ad hoc balancing approach and lack of code or statutory provision “has not led to a flood of litigation nor to any real or perceived restriction of speech rights… The German approach shows us the way, avoiding the brutal simplicity of the [US] First Amendment, to work out a balance between the right of free speech and the right of privacy” (Markesinis 2001).

With the increased use of the Internet, and increasing access to still and video cameras and technologies (for example, cameras in cell phones), privacy will become an increasingly important international communication law issue.

Hate Speech

International law allows regulations on hate speech, and there are two human rights instruments – the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination – that require governments to prohibit hate speech. Many countries proscribe it as well. In this regard, the First Amendment protection of hate speech in the US signifies American exceptionalism as a speech-protective nation. (see R. A. V. v. St Paul 1992).

Germany and France are perhaps best known for their hate speech prohibitions, based on the theory that “no one may engage in an activity aimed at destroying the rights of others” (Farrior 1996, 4). International law of hate speech generally requires a contextual analysis. For example, the European Commission of Human Rights held that the European Convention on Human Rights allows punishment of someone for hate speech aimed at destroying the rights of others (Glimmerveen v. Netherlands 1980). Article 19 wrote in 2007 that it had recorded increasing instances of violations of freedom of expression in regard to hate speech, “occurring alongside a growing number of racist attacks, and the acceptability of traditional forms of racism” (2007, 11). The organization called hate speech a “crucial topic on the contemporary freedom of expression and antiracist agenda.” The organization cited, as an example of a free speech violation, recent actions by Germany and France (despite their status as models for developing hate speech codes that promote a contextual analysis and respect for others). In 2006, Germany drafted a proposal and France’s parliament drafted a bill aimed at prohibiting speech that denied or trivialized the Holocaust and the 1915 Armenian genocide respectively. Critics have said this ignores the contextual analysis approach needed to insure that hate speech prohibitions do not infringe upon protected expression.

The contrast between the US and France on hate speech was highlighted in 2001, when Yahoo!, an Internet service provider in the US, was ordered by a French court to ban the display of Nazi insignia on its sites. The Yahoo! decision of the French court was challenged in the US. Yahoo! argued that the French court’s order should not be recognized and enforced in the US. A federal district court in California held that the French court order violated the First Amendment and was unenforceable in the US. The US court stressed the “fundamental judgment” embedded in the First Amendment that “it is preferable to permit the nonviolent expression of offensive viewpoints rather than to impose viewpoint-tbased governmental regulation upon speech. The government and people of France have made a different judgment based upon their own experience” (Yahoo v. La Ligue Contre le Racisme et l’Antisemitisme 2001).

In addition to considering issues of race, some more recent laws have begun to address religious hatred. Blasphemy law is linked to the area of incitement of religious hatred, and it is of ancient origin. Blasphemy, by definition, is the defamation of one or more Gods. In some ways, blasphemy is more connected to ideas about the separation (or lack of separation) of religion and government. For example, the Basic Law of Saudi Arabia denies any right to free expression that might counter Islamic tenets. Incitement of religious hatred is different from this, albeit connected, and these laws typically resemble hate speech prohibitions. For example, in 2006 England passed the Racial and Religious Hatred Act, which makes it illegal to incite hatred against a person on the grounds of their religion.

Multidisciplinary Approaches to Communication Law Research

As noted earlier, one way the term “communication and law” is used is to denote multidisciplinary research done at the intersection of two distinctly separate disciplines of study (communication and law). The two major questions that scholars debate when considering how useful an interdisciplinary approach to the study of communication and law are: “Which framework should prevail – law or communication?” and “Are the disciplines of legal studies and communication, as a field grounded in social science, compatible?”

Most scholarly approaches to legal research are grounded in traditional legal studies. Broadly speaking, this takes into account ideas of legal formalism or positivism, legal realism, critical legal studies, and law and society views, as well as some other, related schools of thought (Cate 2006). Legal formalism/positivism sees law and legal rules as important in their own right, requiring compliance without much regard for the effect or impact of laws. Legal realism, on the other hand, largely rejects positivism. It rejects the notion that law is objective or neutral and can be applied to achieve consistent, reliable results. Its focus is on evaluating factors such as judicial experience, bias, desirable public policy goals, and even some social science research as a way to better explain outcomes. Legal realism helped lay the groundwork for other legal schools of thought that followed in the twentieth century, including the economic analysis of law with its focus on the goal of wealth maximization. Legal realism also inspired critical legal studies, which builds on the more radical components of realism to assert that the study of law should include analyses of bias, ideology, power, status, and politics, and that social justice and measuring impacts on disenfranchised populations are most important. And it influences the law and society approach, which focuses broadly on how law and legal institutions operate in society.

In terms of communication studies today, most approaches are focused on evaluating communication processes and media effects. As mass communication scholars Guido Stempel III and Bruce Westley note, “When we speak of ‘the systematic study of mass communications,’ we mean any research discipline that can shed new light on mass communication processes, effects, institutions, and institutional change, its legal constraints, its constitutional imperatives, its technology, its changing response to new challenges” (2003, 3). As a field of its own, communication is not disconnected from a wide range of other disciplines.

Both law and communication as autonomous disciplines have their own set of assumptions, theories, and methodologies. Specific discussion about and promotion of greater interdisciplinary work between the two fields took off in the US in the early 1980s. By 1986, three strains of legal scholarship in mass communication had emerged – traditional documentary research, socio-behavioral research, and critical-qualitative research. These three strains reflect disciplinary overlap, particularly with respect to socio-behavioral research. Communication law scholars Jeremy Cohen and Tim Gleason wrote in their ground-breaking book, Social research in communication and law, that a new approach to communication and law research was needed. “A communication and law approach must distinguish itself from research generally recognized as within the traditional purview of law or legal studies. . . . It should be generated from the perspective of the communication scholar, not in competition with the legal scholar, but in recognition of the objectives of communication research” (1990, 8).

What is the difference between traditional legal research and communication research? Communication research grew from a social science foundation. But today communication research is eclectic: “Mass communication researchers have drawn on the methodological insights of scholars in such fields as sociology, political science, and psychology. Another linkage has grown up between journalism scholars interested broadly in communication processes and like-minded persons in departments of speech, communications, speech-communication, and the like. At the same time, those interested in historical and legal research in mass communication have found appropriate models in the base disciplines” (Cohen & Gleason 1990, 3). Generally speaking, the purpose of communication research is to build and test theory, and offer insight into a wide variety of communication processes, both at the macroand micro-level. Social science research intends to be neutral and objective.

Legal research, on the other hand, has its own methodology – one quite different from that which grows out of social science, even though the two fields may overlap. As media law scholars Eric Ugland, Everett Dennis, and Donald Gillmor observe, legal research will often “unabashedly advocate” a position based on “normative assumptions.” But the purpose of legal research is often quite different from that of the social scientist. The function of legal research is to clarify “the law through analysis of procedure, precedent, and doctrine” and to provide “a better understanding of how law operates in society” as well as to “furnish materials for legal education” (2003, 388).

Traditional legal research, like historical research, focuses on making a distinction between primary and secondary sources on which to base an analysis. Cases, statutes, and administrative codes are considered the primary sources (the actual source of law) at the disposal of the legal researcher. Secondary sources include someone else’s interpretation of the law, and these come in the forms of books, law review and journal articles, treatises, digests, encyclopedias, and annotated volumes.

The differences in methodology between communication and law as broad disciplines are vast. The same is true when you consider questions of theory. Within law, you first have to navigate through the broader ideas brought forth by legal formalism/positivism, legal realism, and other schools of thought, such as the economic analysis of law, the law and society approach, and the various critical legal theory approaches (including feminist legal studies and critical race theory). If you then consider questions of interest to scholars in communication, typically the focus is on free speech theory, other free expression models, or on human rights declarations.

While most scholars emphasize the importance of theory to all scholarship, within the field of law some debate about how to use theory exists. Communication theoretician Matthew Bunker refers to the two most common theoretical approaches as top-down and bottom-up theory. Top-down legal theory begins with a premise, value, or insight. A researcher would then explore the implications of the theory, and ultimately will bring these implications “down to earth to be operationalized in legal doctrine.” The bottom-up theory is also called doctrinal scholarship, or, legal formalism. This approach historically fits the roots of traditional legal research and involves the aggregation of case law and other textual evidence “to provide a theory about what courts are doing in practice” (2001, 185).

Bunker suggests that both models are problematic, arguing that “top-down theory is often disconnected from the concrete reality of constitutional law, and . . . so far removed from . . . history, text, and doctrine as to be of questionable legitimacy… Bottom-up theory, on the other hand, can be little more than descriptive of existing practice” (2001, 185).

In the field of communication, a wide variety of theories exist, including agenda setting, knowledge gap, cultivation theory, spiral of silence, hierarchy of influences and framing. All of these theories tend to be top-down, mostly because they come from social science models for conducting research.

It is within these vastly different theoretical and methodological approaches that research in communication and law occurs, sometimes connected and sometimes distinctly separate. A 2006 study of the US media law literature found that “mass communication scholars tend to cite theoretical, historical and philosophical works frequently” while “law school scholars tend to cite doctrinal works more often” (Pasadeos et al. 2006, 179). Its findings support the historical evolution of the two fields, and further highlight the challenges that scholars who work at the intersection of communication and law face.

In 2006, Amy Reynolds and Brooke Barnett, authors of Communication and law: Multidisciplinary approaches to research, argued for more interdisciplinary work and a better integration of theory and methods that come from communication and law, despite law’s heavily doctrinal approach. They note that, “Within the past two decades, these kinds of multidisciplinary approaches have become more creative and a little bit more common – traditional legal research combined with surveys, content analysis, experiments, or participant-observations, for example, as methodologies that answer questions and hypotheses that try to connect the law and mass communication rather than separate them” (2006, xv).

Not everyone embraces or sees value in a multidisciplinary approach. Matthew Bunker and David Perry (2004) have suggested that in American communication law research, First Amendment law is still considered by some legal scholars as the “last bastion” of legal formalism and that free speech theory, as well as jurisprudence, have resisted interdisciplinary efforts more than other areas of the law. Bunker further notes in his book, Critiquing free speech, that while there are “obvious advantages to legal disciplinarity,” interdisciplinarity is not “an unalloyed good. Much of the recent wave of interdisciplinarity seems to have been deployed to argue for greater limits on free speech rights” (2001, xiii).

Three of the major academic journalism and communication organizations in the US and abroad allow a variety of theoretical and methodological approaches to the study of communication and law. The International Association for Media and Communication Research (IAMCR), the International Communication Association (ICA), and the Association for Education in Journalism and Mass Communication (AEJMC) all have communication law and policy divisions, and all embrace methodologies that evolve from both disciplines, which aids in the promotion of multidisciplinary work.

The challenges ahead for scholars who work at the intersection of communication and law are many, given that law is not science and science has never really fit the courts. However, as Cohen and Gleason wrote: “Interest in communication and law has increased. Research scholars are regularly working beyond the limits of the single discipline approaches of law, history, psychology, and communication to develop richly textured portraits of the environment – legal, social, and cognitive, among others – that influence and are influenced by the regulation, practices, and philosophies of expression” (1990, 6).

For scholars who want to understand communication and law, and freedom of expression, the contemporary trends that include multidisciplinary study as well as global comparative analyses provide a number of challenges sufficient to attract attention for many years to come.

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