A Century of JMCQ Legal Issues in Media: Scholarly Commitment to Free Press,Free Speech,and More

Free Press

It perhaps should not be surprising that over the course of JMCQ’s first century, research on free press has been one of the most dominant categories within scholarship on legal issues in media. From the first decade of the journal, the work of scholars has made clear the level of interest in the subject of press freedom and how seriously they understood the subject as central to the advancement of democracy and justice.

“In the evolution of human liberties,” a 1951 Journalism Quarterly (JQ) article highlighted, “the concept of freedom of the press dawned upon a world in which those in power feared this threat of communication” (Thayer, 1951, p. 24). In that article—making the case that legal challenges to the concept of freedom of the press are both historical reality and ongoing battle—as well as in others published in JMCQ, scholarship provided reminders that the fight for freedom of the press should not be assumed to be an inheritance but a continuing fight to be preserved.

Just a few years after Journalism Bulletin, as JMCQ was originally named, had commenced, scholarship on press freedom began to emphasize the theme of how intrinsic the subject was, for example, to the most fundamental functioning of law and order: “The right of the newspaper to report, criticize, and comment on the courts, the judges, and their decisions is a very delicate balance between the principle of free speech and the right of the courts to be free from unwarranted interference” (Siebert, 1928, p. 22). That article, titled “Contempt of the Court and the Press,” from the journal’s first decade examined the coinciding spheres representing the right of the press in a democracy to report on government and the right of courts to administer justice—and how carefully restrictions concerning that reporting must be scrutinized.

The way that the subject would be returned again and again reflects one of the strongest patterns in this body of work in JMCQ. A 1949 JQ article characterized many judges’ views of the problem as “trial by newspaper,” in which so much would get reported from courtroom activity day-to-day that “they make Rocco guilty even before the jury has heard all the facts” (Wicklein, 1949, p. 51). The analysis found, however, that such abuses by the press had become relatively rare and that was reflected in recent U.S. Supreme Court decisions that had given it more freedom to comment on judges and courts, “so long as they make responsible reporting and comment their aim” (p. 52). “In the ultimate analysis, the two props of democracy are the press and the judiciary,” concluded an article further considering that free press vs. fair trial balance a few years later. “Both are means to an end, the end being the achievement of a free society” (Murthy, 1959, p. 313).

Examining the effect of media reporting on trials more closely, experimental research in 1966 indicated that the more news stories jurors are aware of, the more likely they are to prejudge defendants—with the study finding “no evidence that . . . a suspect is considered innocent until proven guilty” (Tans & Chaffee, 1966, p. 654). The next year, research utilizing a Q-sort methodology to explore the general public’s views on the conflict between protecting the right to a fair trial and the public’s interest in newsworthy information in a democracy, suggested that a range of views were held, reflecting the complexity of the problem (Rucker, 1967). And 3 years later, an empirical study of the crimes and trials from one community during a specified period that received attention from mass media concluded the number of such trials is much greater than previously estimated, but also found no evidence that the press interfered with the accused’s right to a fair trial (Eimermann & Simon, 1970).

Scholarship pointed to other key elements of the press-court relationship that would continue to be more problematic than clear-cut in the years ahead. Analysis 5 years after Branzburg v. Hayes, the definitive Supreme Court ruling on the reporter’s privilege to protect sources found inconsistency but also flexibility in lower and state courts, suggesting somewhat more hope for the future of qualified privilege than the original ruling seemed to offer (Killenberg, 1978). A 1982 analysis of the then-recent Estes v. Texas and Chandler v. Florida rulings on cameras in the courtroom found contradictions between the two opinions that were not resolved by the Court and concluded that while the doors of the American courtroom may have been opened to television coverage, the status of that access remained uncertain (Jennings, 1982). Two years later, a survey of Indiana judges, prosecuting attorneys, Bar Association presidents, and General Assembly members indicated that most opposed cameras in the courtroom, primarily over concerns about effects on trial participants and doubts about the abilities and objectives of media representatives (Stefaniak, 1984).

A 1981 review of recent Supreme Court rulings found that protection for press freedom from government intrusion and interference remained intact, but the right to gather news had suffered at the hands of the Burger Court (Stonecipher, 1981). Research conducted at about the same time concluded that each justice’s rulings on press freedom were determined by a single factor—likely but not conclusively political philosophy, based on the assessment of 47 press cases at the Supreme Court during its 1970s terms, utilizing Guttman scaling, an item-analysis widely used in social science (Stempel, 1982). That study was repeated in the mid-1980s on cases from the first half of that decade, again utilizing Guttman scaling and finding further indications that political philosophy was most likely to determine each justice’s rulings on press freedom (Stempel, 1987).

Other studies found patterns in incomplete press coverage of the legal system. A 1985 study concluded that newspaper readers generally would not learn the consequences of more than three-fourths of court decisions because the way the press defined newsworthiness ruled out coverage of most court cases (Larson, 1985). Finding that news media give disproportionately more coverage to civil rights and First Amendment cases, in comparison to economic and other cases, a 1992 content analysis of the coverage asserted that the public esteem surveys often found of the Supreme Court was based on an incomplete look at its rulings (O’Callaghan & Dukes, 1992). Analysis of newsmagazine coverage of Supreme Court cases during the 1980s Reagan administration found that a reduced percentage of overall rulings were reported on, with emphasis on cases involving the First Amendment and discussion of judicial personalities (Bowles & Bromley, 1992).

Among other scholarly articles on press freedom could be found a broad range of work on shield laws for the press, colonial press freedoms, retraction laws, protections for newsrooms from police searches, right of access to government information, newsgathering rights, use of hidden recording devices, infliction of emotional distress suits against the press, news councils for alternative dispute resolution, and reporter-source agreements. However, while scholarship on press freedom has been published regularly since the earliest years of the journal, the frequency of such articles has declined since the name change from Journalism Quarterly to Journalism & Mass Communication Quarterly in 1997.

Certainly, it is a reasonable assumption that the scholars whose work was intended to be reflected more accurately by the adding of Mass Communication to the title might in many cases be relatively less likely to develop research focused on the institutional press than were the scholars whose work was already reflected by the previous title. And yet, going forward, press questions remain central to a functioning democracy, even in an age of digitally networked technology having made popular the notion that “everyone” is now part of the press that was once limited to those with financial or professional access to it. In the era now unfolding, more research is vitally needed on subjects such as audiences’ use of digital news media, journalistic and social implications of automated journalism, the interconnection between digital media use and democratic engagement, and other aspects of digital news media’s role in the future of press freedoms.

As articulated in 1951, “The constitutional fathers did not define what liberty of the press actually means; the fight to determine its import still exists in the United States” (Thayer, 1951, p. 30). The body of scholarship on press freedom over the course of JMCQ’s first century points us to an understanding that that fight continues as the second century unfolds.

Free Speech

In contrast to the way the subject of free press consistently generated substantial scholarship over the entirety of JMCQ’s first century, the body of relevant work, as identified for this study, indicates that free speech—First Amendment concerns as a distinct subject beyond those strictly of the institutional press—began to do so only in the second half of that century. But during that latter period, research focused on freedom of speech proliferated regularly within the broader scholarship on legal issues in media.

The body of relevant work included six articles on free press in the 1970s, six in the 1980s, ten in the 1990s (with most of those part of one special 1992 issue), four in the 2000s, two in the 2010s, and one in the 2020s. That data reflects the way the high water mark for free-speech scholarship in JMCQ arguably can be seen in the final three decades of the 20th century.

The arc of that body of media scholarship can be marked as clearly beginning with a two-part article published in consecutive issues of the journal in 1972, arguing that “what must bother all of us concerned with the First Amendment is the inadequate protection hitherto afforded freedom of expression by the Supreme Court” (Robbins, 1972, p. 263). The article proposed in detail applying a more justifiable First Amendment theory that would ground free-speech jurisprudence consistently in evidence showing merit for any decision upholding the constitutionality of restrictions on expression.

The same year, that theme continued with scholarship asserting broader and more consistent protection of symbolic expression by the Court (Pfaff, 1972). A few years later, survey research suggested freedom of speech could benefit from better education on the First Amendment protections for student editors and advisors, and especially for principals (Broussard & Blackmon, 1978).

Another theme reflected regularly over time in JMCQ free-speech scholarship was a focus on deeper analysis of the jurisprudence of individual Supreme Court justices and particular eras at the Court. Assessment of Justice Byron White’s broader record argued he was not a First Amendment foe, as his position in some media cases could suggest, but rather a centrist focused on balancing competing interests (McLean, 1979). Quantitative analysis of the record of Justice Potter Stewart, an appointee of President Dwight Eisenhower, found that his record was much closer than expected to that of better-known champions of free speech Justices William O. Douglas, Hugo Black, and William Brennan (Padgett, 1982). Analysis of Brennan’s record concluded his greatest contribution to free-speech jurisprudence to be advancing First Amendment theory grounded in the structure of communication and the functions required by a democratic society (Leeper, 1993).

A body of research on the free-speech record of Chief Justice William H. Rehnquist reflected less encouraging trends for freedom of expression. A 1992 study found that the first five years of the Rehnquist Court demonstrated more support for free-expression issues than the preceding Burger Court, but as retirements altered the justices on the bench, that support declined significantly (F. D. Hale, 1992). A separate analysis of the Rehnquist Court the same year suggested a future in which government restrictions on expression would be more likely to be embraced at the Court than arguments for greater freedom (Simon, 1992). A decade and a half later, further analysis found that Rehnquist departed from the free-speech jurisprudence of the two previous chief justices at the Supreme Court, infrequently protecting individual or minority expression rights but characterizing his jurisprudence as protecting speech rights of the majority (Carter & Clark, 2006).

Scholarship in JMCQ warned as early as 1981 that, despite the strong, clear language of the landmark Tinker v. Des Moines Independent Community School District ruling in 1969 establishing First Amendment protections for expression by high school students, the courts were regularly allowing censorship that contradicted Tinker (Huffman & Trauth, 1981). Two decades later, scholarship showed censorship of student expression continued (Kopenhaver & Click, 2001), and three decades later, analysis documented how the courts by then had rendered Tinker so “toothless” that it offered scant protection for students’ freedom of speech (Kozlowski, 2011). Survey research also found that high-school media advisors most likely to censor student expression were also consistently uncomfortable with student reporting on controversial subjects (Filak et al., 2009). Most recently, the argument has been made that courts will more likely apply increased scrutiny to university officials’ attempts to regulate student-athlete expression on public issues (Park, 2022).

Scholarship in JMCQ has also examined the way some lower courts have applied the Supreme Court’s rationale for punishing speech encouraging drug use to punish other student expression (Kozlowski et al., 2009) and showed that since state universities are constitutionally prohibited from interfering with the content of student media, they are immune from related defamation and privacy suits (Walden, 1988); and documented the way case law offered little hope for student speech rights in private schools (G. E. Stevens, 1981).

Free-speech scholarship on the Supreme Court’s flurry of cases beginning in the 1970s that expanded First Amendment protections for commercial speech and went on to establish the parameters of those protections showed how unexpected future developments at the court can be. A review of the early cases in that body of jurisprudence—after Virginia Pharmacy Board v. Virginia Consumer Council in 1976 but before Central Hudson Gas & Electric Corp. v. Public Service Commission in 1980, the landmark rulings that would become the respective advertiser and consumer cornerstones of the commercial-speech doctrine—concluded they conflicted with broader interests favoring protection of consumers (Trauth & Huffman, 1979). A 1990 article—arguing that then-recent commercial-speech rulings had made it more likely that truthful advertising of lawful products like tobacco and alcohol would receive less First Amendment protection—similarly was published without the benefit of knowing a series of later rulings would hold exactly the opposite (Hovland & Taylor, 1990).

Research in JMCQ has documented the way the Supreme Court increasingly relied on marketplace-of-ideas theory as the rationale for free-speech decisions over the course of the 20th century but in varying ways (Hopkins, 1996). That being the case, the argument was made a few years later for how the Court could more consistently ground such analysis in the historically influential marketplace principles of 18th-century moral philosopher Adam Smith (Kerr, 2002).

The range of research on legal issues in media has also examined free-speech protections in prisons (Sneed & Stonecipher, 1986); freedom of expression provided by state constitutions (Copple, 1987); the degree to which newspapers have supported freedom of speech for other segments of society (Bowles, 1989); and efforts by plaintiffs to use intentional infliction of emotional distress to creatively circumvent constitutional free-speech protections (Drechsel & Gleason, 1990).

Proposals have been made in JMCQ for deciding First Amendment cases primarily in terms of government action rather than content, communication modes, or speaker identities (Walden, 1992); and for understanding government speech only in terms of speech germane to the government’s core function (Carter, 2005). Examination of the Supreme Court’s increasing use of the analytic concept of originalism by many Supreme Court justices showed that it has come to represent more of a blank slate than a consistent form of analysis (Silver, 2011).

A special 1992 edition of JMCQ was highlighted by essays that looked to the past for insights into freedom of speech going forward. Reflecting on the way repression on freedom of expression in 18th- and 19th-century wars—such as censorship, news manipulation by government sources, and unwillingness to tolerate dissent at home—reappeared in the late-20th century Persian Gulf War, led to warning that the need to defend First Amendment rights remained unchanged (Blanchard, 1992). That was reinforced by analysis signaling that free speech remained threatened by problems that helped spawn the First Amendment’s adoption, such as prior restraint and seditious libel (Teeter, 1992).

And yet, also in that special issue, historical analysis of the First Amendment in the Progressive Era (1900–1914) showed that although it was a time rich with dissent, violence, censorship, and suppression, it produced the first significant theoretical body of legal literature on the meaning of free speech (Cobb-Reiley, 1992). It was the work then of early 20th-century legal scholars that gave new interpretations to constitutional free-speech guarantees and that work continues as the pages of JMCQ regularly attest. It shows that it is hardly only the Progressive Era that was critical to the evolution of free-speech understandings. Because every era is—by necessity.

Defamation

In the mid-1940s, the press law scholar Fred S. Siebert identified several specific problems on which American journalism and law should collaborate to address. One of the problems related to defamation. While lamenting the “sorry state” of defamation law that served neither institution, Siebert (1946a, p. 773) wrote, “An overhaul is desperately needed. The combined scholarship of law and journalism might tackle this problem with satisfactory results; neither can do it alone.”As was the case nearly 80 years ago, defamation law remains a challenge for journalism scholars as much as for media law practitioners.

JMCQ has offered journalism and communication researchers a forum for scholarship in defamation. One of the earlier articles in JQ focused on newspaper libel laws (Tanner, 1935). It was probably the earliest research article on defamation law, and it examined the milestone press freedom cases and the contempt of statutes and case law. Did this ten-page case analysis set the agenda for the majority of future JQ and JMCQ articles on defamation? There is no way to answer this question definitively.

However the trend in defamation law articles for JQ and JMCQ was unmistakable. An overwhelming number of authors writing about defamation law have paid attention to court cases and their impact on freedom of the press and speech. (In this connection, some discerning readers might remember Siebert’s admonition of 1942 [p. 70]: “[T]hat we have more case studies and fewer studies of cases. By this I mean thorough analyses of individual instances rather than digests of a number of instances.”) Nonetheless, there are different lenses through which authors have viewed the topic of defamation law in JQ and JMCQ: case analysis; statutory analysis; case comments and notes; historical analysis; survey and empirical analysis; internet law; and international, foreign, and comparative law.

Case analyses published in JMCQ often revolve around the landmark cases of the U.S. Supreme Court and influential federal circuit cases: for example, New York Times v. Sullivan, Gertz v. Robert Welch, Edwards v. National Audubon Society (2d Cir.), and Ollman v. Evans (D.C. Cir.). How have these cases been interpreted by courts in the ensuing years? This broad question is analyzed from a substantive or procedural perspective.

Among the notable substantive examples are the extension of Sullivan’s “actual malice” to public issues, Gertz’s impact on public figure interpretations and on the liability standard for private figures, and presumed harm in Sullivan (Anderson, 1985). Included in the procedural case analyses is what standard of care (“reasonably prudent person” vs. “reasonably prudent publisher”) is applied in private figure defamation (Caudill, 1989). One article on “neutral reportage” and the other on fact versus opinion, respectively, anchor on Edwards, the seminal case on the First Amendment libel defense (Hart, 1979), and on Ollman, the most influential case on fact vs. opinion (Stonecipher & Sneed, 1987).

Standing in contrast with the landmark-case–oriented approach are the case analyses of defamation law topics. Such topical case analyses concern cases of varying significance, but they are not dictated by one predominant case around which all of the cases discussed pivot. More case analyses tend to be topical than landmark in nature, and they are more narrowly focused, as showcased in some selected titles (Bunker, 1995; Drechsel & Moon, 1983; Gilbert, 1986; Gillmor, 1982; Haberman, 1984; Krahling, 1961; McLean, 1989; Parsons, 1985; Pasternack, 1983; Riley, 1982; G. E. Stevens, 1974; Stonecipher, 1982; Watkins, 1975; Youm, 1989, 1993).

A subset of the topical category includes the analyses of defamation lawsuits involving famed (or notorious) journalists or dogged litigants. The standout two articles deal with the cases involving the muckraking journalist Drew Pearson (Anderson, 1979; Davis, 1944).

Statutory analyses in toto are few and far between. This was an unexpected finding, as was the discovery of just how lopsidedly outnumbered statutory analyses are by case law analyses. Several articles analyze both statutory and judicial frameworks. Examples include an article on flag desecration as seditious libel (Hopkins, 1991) and an article on the reputational harm of men vs. women (Borden, 1998). In a similar vein, another JMCQ article (G. E. Stevens, 1991) examines criminal libel cases and statutes in the wake of Garrison v. Louisiana.

Only a few articles are devoted specifically to statutory issues in defamation law. For example, “Combating the Practical Joker: A Potential Source of Libel” (Steigleman, 1945) and “California’s Retraction Statutes: License to Libel?” (Newell & Pickerell, 1951) are, respectively, a survey of “false information” statutes and an informed critique of the California retraction statute, along with a brief comparison with the Minnesota retraction statute. A third article, a 1986 critical look at state libel statutes protecting radio broadcasting but not print media, is a concise overview of “traditional” state libel laws at the time and a four-type analysis of 37 statutes and proposed directions for the statutes (Hughes, 1986).

As illustrated by a 1955 JQ article on South Carolina libel statutes, statutory analyses feature a comparative perspective on state statutes, with an end goal of possible reforms. In terms of possible reforms, one author proposed a federal libel statute to resolve the ever-complex, inconsistent, and treacherous defamation law in America (Hughes, 1985).

Whether it’s called a case note or a case comment, few authors have turned to JMCQ to discuss defamation cases in the in-depth and wide-ranging way typical of American law journals. But three landmark libel cases—that is, Sullivan, Rosenbloom v. Metromedia, and Gertz—were treated in a case-note style. The authors of these articles delved into “public interest,” as articulated by Gertz (Helle, 1984), and presumed harm as Sullivan’s “unfinished agenda” (Anderson, 1985). All of the articles are enlightening as they elucidate the “why” and “how” questions with profundity and clarity.

As Edward Carter (2017) wrote, “historical free-speech values can inform contemporary understanding.” In this vein, several JMCQ libel articles have helped inform understandings in the field by epitomizing the scholarly ambition of remembering the past and imagining the future (G. E. Stevens, 1979; J. D. Stevens et al., 1966; Teeter, 1968).

The 1985 article “Origins of the Actual Malice Test,” for example, challenged the widely shared misconception that actual malice is a concept created by the Sullivan Court (McLean, 1985). JMCQ published articles about the chilling impact of libel lawsuits on the muckraking journalism of the early 20th century (Miraldi, 1988). Equally notable is media-law historian Timothy Gleason’s (1993) analysis of libel litigation in late-19th-century America in comparison with the U.S. “libel climate” of the late 20th century. His conclusion is sobering: “[M]inor changes in modern libel doctrine will not resolve current conflicts in libel law.”

In 1990, empirical research was urged on mass communication law and policy (Cohen & Gleason, 1990). When compared with other areas of law and policy research like free press versus fair trial, defamation has less often been the subject for empirical study. But several scholars have used an empirical approach—specifically, experiment, content analysis, survey, or Media Law Reporter data analysis. Defamation topics addressed empirically for JMCQ include the following:

The revolutionary impact of the internet on mass communication law as a whole and on defamation law in particular has emerged as a timely topic for JMCQ research. Some scholars have identified new defamation law issues in the cyber era and at the same time reexamined old defamation law issues in the context of online communication. A 2013 article, for example, has examined whether the common-law republication doctrine could be invoked against social media, especially Twitter (Stewart, 2013). The article points out that several libel rules and defenses in state law, as well as the Communications Decency Act § 230, are exceptions to the common-law doctrine. More recently, Lewis et al. (2019) examined questions relating to algorithms, including factors to consider when determining fault for libel in cases involving algorithm-generated libelous news statements and whether news organizations can utilize the libel defenses available to Google and ISPs offering such content.

Among the earlier scholarly pieces were foreign and comparative articles on libel law. As early as 1943, JQ published a threshold article on libel damages in U.K. law. Nine months later, JQ published an article that, despite its Canada-centric title, compared Canadian and U.S. libel laws (Swindler, 1944). Nearly 20 years later, JQ ran a comparative study of who is responsible for libel in the United States, France, Italy, and Egypt (Batroukha, 1962). In the 1970s and 1990s, Japan’s libel law was the topic for JQ and JMCQ articles, one of which compared Japan with South Korea (Mowlana & Chin, 1971; Youm, 1990).

The growing relevance of international, foreign, and comparative studies in the globally interconnected 21st century is undeniable. In 2020, Communication Law and Policy devoted a special issue to international and comparative communication law issues. Four full-length articles, in addition to an introductory essay, “International and Comparative Law as a Reverse Perspective,” appeared in the issue of 150+ pages. Nonetheless, for the past 30 years, few international, foreign, or comparative studies of defamation law have appeared in JMCQ. And a 2017 JMCQ article on mass communication law and policy noted the need to once again turn attention to international, foreign, and comparative studies: “One fruitful area for exploring free-speech values involves foreign, international and comparative law” (Carter, 2017, p. 653).

Privacy

Privacy is relatively new as a legal right when compared with reputation, so articles about privacy are of more recent vintage—but there is no dearth of them. Invasion of privacy as a tort did not receive full-length-article treatment in JQ until 1940 (Hulten, 1940). This article was in no small measure inspired by the seminal privacy case in California, Melvin v. Reid. A dozen years later, a case analysis of privacy law found that court decisions were contradictory and not a model of justice (Davis, 1953).

Probably the most comprehensive and detailed study of privacy up to 1967 for JQ appeared in 1968 (Pember, 1968). It was an excellent examination of more than 60 privacy cases, including the U.S. Supreme Court case of Time, Inc. v. Hill. The article laid out seven guidelines that have informed courts in considering newsworthiness in news media litigated for invasion of privacy.

After the 1968 JQ study, several articles focused on the systematic articulation of the right of privacy by Melville Nimmer on the right of publicity and by William L. Prosser on four types of privacy torts. For instance, several articles in JQ and JMCQ examined how the Prosser typology and the Nimmer publicity right had been recognized by various state courts (Lashner, 1976; Riley & Shandle, 1974). Even more fascinating was the 1988 application of Prosser’s privacy torts to the invasive satellite communication technology (Lipschultz, 1988).

Meanwhile, alternatives to defamation and invasion of privacy were used in claiming damages against journalists and news media. In the 1970s and 1980s, the infliction of emotional distress emerged as a cause of action against mass media, and articles scrutinized the emotional distress cases and their implications for news media (Drechsel, 1985; G. E. Stevens, 1977). Plopper (1990) examined emotional distress in relation to intrusion—that is, how they are interrelated as a common law liability for reporters and where they are both recognized, or one or the other is recognized, as a cause of action.

Intrusion, which is beyond the traditional legal doctrine of trespassing, has been less a concern than other privacy torts (i.e., disclosure of embarrassing facts or false light). When news media started being sued for intrusion in the 1970s, however, journalistic trespassing in media law led scholars to provide an analytical framework (Watkins, 1977) or a practical solution for photojournalists for unauthorized intrusion (Sherer, 1985).

Threshold cases of the First Amendment significance of the right to know vs. right of privacy often stimulated journalism scholars to revisit this seemingly unending confrontation. Florida Star v. B.J.F. resulted in a detailed study of the Supreme Court case law on sexual assault victims’ right not to be identified by the press—a study in which all of the major common law and Supreme Court cases, including those on access to courtroom and court records, were examined in depth (Arant, 1991).

The right of privacy is not necessarily personal in the sense of “the right to be let alone.” In the 21st century, informational privacy designed to allow individuals to control information about themselves is fast being established as a new right in privacy law. The so-called right to be forgotten (RTBF), which originated from a European Court of Justice’s ruling in 2014, is illustrative (Youm & Park, 2016). In the era of mobile streaming video technologies (MSVT), people are more interested in how their expectations of privacy in public places should be reconciled with abuse by the ubiquitous MSVT. Stewart and Littau (2016) focused on this fast-evolving new issue of privacy in digital law. The RTBF and MSVT studies were part of the JMCQ’s 2016 special issue of eight articles, titled “Information Access and Control in an Age of Big Data.” This special issue resulted from the laudable effort of JMCQ to expand the variety of published topics in the journal.

Copyright

Copyright was among the important topics covered in the earliest media law book in America. In The Law of the Press (W. G. Hale, 1923), more than 40 pages were devoted to the constitutional and statutory provisions of copyright. Not surprisingly, then, JQ and JMCQ have featured numerous articles on copyright.

In fact, copyright law was examined in 1927, just 3 years after Journalism Bulletin became JQ. In “Rights in News,” the piracy of news was analyzed as a legal issue in America (Siebert, 1927). In the article, a number of relevant U.S. cases were dissected, and it looked at the continuing validity of the landmark U.S. Supreme Court case Associated Press v. International News Service as the ruling precedent. In addition, the article took note of foreign laws, such as those of Germany, Spain, Austria, and the United Kingdom. That international perspective has been a frequent one, as reflected almost half a century later, for example, in a specific and policy-oriented prescriptive article on copyright issues in satellite transmission that was solidly grounded in a global approach (Siebert, 1971).

One of the fundamental copyright-law principles centers on fact/expression and idea/expression dichotomies. In this regard, JMCQ published a thoughtful case analysis of the problematic judicial interpretations of Feist Publications, Inc. v. Rural Telephone Service Co., Inc. Bunker and Bolger (2003, p. 183) examined the “most influential” lower federal court cases that “may pose a danger to the continued vibrancy of the idea/expression and fact/expression doctrines.”

The doctrine of “moral rights” remains an afterthought to American copyright law, although it’s an important part of intellectual property law globally. This in no way means that it has been completely ignored by JQ and JMCQ. Chaney (1977) concentrated on moral rights in the United States: it is a case study of nearly all of the moral rights rulings of American courts. More recently, the doctrine of moral rights was analyzed in the context of colorizing black-and-white films and television shows (Cooper, 1991).

The U.S. Copyright Act of 1976 has been an important topic for JMCQ. Concerns related to that copyright revision included its elimination of broader protections often available through state common-law copyright (Chaney, 1978), ambiguities it left as to what extent educators could legally videotape television programs for classroom use (Francois, 1980), the need for free-lance authors to avoid giving up rights they could otherwise retain with the new revision (Middleton, 1979), and its argued inadequate protection of computer programs such as the type used to generate commercials (Collins, 1987).

Other copyright topics in JMCQ varied considerably, from alerting U.S. authors in 1962 of the relatively limited reach of international copyright laws (Mooradian, 1962), to analysis of how 1960s litigation over a Howard Hughes biography expanded understandings of the legal concept of fair use (Gross, 1973), to later arguments that misuse of copyright law to assert privacy interests could endanger access to unpublished materials involving matters of public interest (Carter, 2008).

In 2010 came a warning that the emergence of the transformative-use doctrine as the courts’ dominant approach to fair use had produced a functional-context interpretation that could create even more indeterminacy in an already confused fair-use landscape (Bunker, 2010). Just over a decade later, such fears seem to have come to pass with the published argument that all use of copyrighted material in internet memes should receive fair-use protection as transformative work (Mielczarek & Hopkins, 2021).

Other Media

Since the early 1920s, radio broadcasting has been used as a cutting-edge media technology in the United States to distribute news and entertainment to a national audience. Few publishers predicted that radio would overtake newspapers as the primary source of news during the early stages of radio broadcasting. But its rapid growth in audience and advertising revenue posed a threat to the newspaper industry.

As radio news evolved, various legal issues emerged. Siebert (1946b) provided a brief overview of the legal challenges that radio newsrooms might face, including defamation, privacy, censorship, and obscenity. Historical and legal methodology was employed in radio research. In the 1920s, the Radio Act of 1912 proved insufficient to regulate broadcasting largely because the Department of Commerce lacked the authority to regulate the medium. Broadcasters invoked a quasi-property right to resolve the issue of station signal interference. A 1990 JQ article on Tribune Co. v. Oak Leaves Broadcasting in 1926 explored a right of priority by investigating the lawsuit by an established broadcaster against a “wave jumper or wave pirate” (Benjamin, 1990). Although this case faded into obscurity following the passage of the 1927 Radio Act, Benjamin contended that case law based on a quasi-property right could have established the parameters of broadcasting.

During the 1940s, scholars forecast that television and facsimile technology would pose new competition to newspapers. Some JQ authors proposed a positive outlook for these new media on the grounds that they would increase the public’s knowledge and understanding of social issues and contribute to democracy (Seville, 1948; Wagner, 1946). Broadcast facsimile, for which no government license was necessary, was anticipated to promote more press freedom, whereas broadcasters under the licensing system could not enjoy the same freedom of speech as newspapers (Hotaling, 1948).

Initially, facsimile was viewed as a potential competitor against newspapers and as a means of increasing press freedom in the 1940s. But the literature on this medium of communication has since been sparse. Facsimile has undergone a “profound rebirth as a communication medium” (Webb, 1971, p. 495) and has been embraced by private common carriers, particularly AT&T and its telephone operations, as well as by equipment manufacturers. Webb (1971) has suggested that future historians of communications may look back on the 1960s as the era of facsimile. Overall, while facsimile did not ultimately become a major competitor to newspapers, it has significantly impacted the way businesses share information.

How traditional media have reported on court decisions has been further studied in JQ and JMCQ. F. D. Hale (1978) examined the relationship between press releases and news coverage, analyzing 139 final decisions of the California Supreme Court in 1972 and ten California newspapers. It found that press releases influenced the types of decisions reported, but not the overall quantity of coverage by newspapers. Another study analyzed three newsmagazine coverages of the Supreme Court from October 1978 to June 1981, revealing that the newsmagazines mainly focused on significant First Amendment decisions, leaving many court decisions unreported (Tarpley, 1984).

Scholarly research has explored broadcasting with a focus on ownership regulation and licensing. As early as 1941, radio and newspapers were predicted to compete with, and compensate for each other, through the use of station-owned newspapers and newspaper-owned stations (Lazarsfeld, 1941). In 1976 and 1983, two JQ articles on television ownership discovered a significant increase in radio station ownership by companies that also own newspaper properties in markets where they do not publish newspapers (H. H. Howard, 1976, 1983). The research showed the existence of media companies that own TV stations and publishes newspapers in different markets. These studies proved the need for ownership regulation, although there appeared no follow-up studies in JQ.

The diversity in media ownership (or lack thereof) has attracted attention from JMCQ authors. P. N. Howard and Smith (2007) measured how minority participation decreased during the qualification stage of the FCC auctioning for both media broadcast and communication service licenses by analyzing data from 12 years of license auctions. The lack of diversity in media ownership, its authors suggested, is not only apparent in mass-communication systems such as radio and television, but it will be even more visible in other services like mobile phones and wireless internet. Seven years later, Huntsberger (2014) discovered that, despite its significant role in establishing public broadcasting, the Public Telecommunications Facilities Program (PTFP) served the policymakers’ short-term interests due to the partisan politics of public broadcasting and federal fiscal policy.

Discussion and Conclusion

From the earliest days of the journal now known as Journalism & Mass Communication Quarterly, media law scholars who once focused most of all on matters of concern for freedom of the press have steadily refocused their work across the entire landscape of legal issues in media. The subject of press freedom as central to the advancement of democracy and justice has been a fundamental concern of those scholars. In relation to that, they have devoted considerable attention to the free press vs. fair trial balance and other examinations of the press and the judiciary as the ultimate pillars of democracy, justice, and a free society. Among a number of other related topics, those scholars assessed the way the right to gather news suffered at the hands of the Burger Court and growing indications that political philosophy was the most likely determinant of each justice’s rulings on press freedom.

It wasn’t until the second half of the 20^th century that scholarship on free speech—concerns for First Amendment protections as a distinct subject beyond those only of the institutional press—began to flourish in the journal. The final three decades of that century can arguably be seen as the high water mark for free-speech scholarship in JMCQ, a period that included research supporting the need for broader and more consistent protection of symbolic expression, as well as for better education on the First Amendment protections for student editors, their advisors, and especially for their principals. That body of research also included documenting of the contributions to greater protections for freedom of speech by justices like Potter Stewart and William Brennan, as well as declining support for free-expression issues as the Court of Chief Justice William Rehnquist evolved.

Scholarship in JMCQ warned relatively early that despite the landmark Tinker v. Des Moines Independent Community School District ruling in 1969 clearly established First Amendment protections for expression by high school students, the courts were regularly allowing censorship that contradicted Tinker—a trend that subsequent research has documented as worsening into the 21st century. Roughly over the same period, a body of scholarship has tracked how the establishment of constitutional protections for commercial speech has evolved unevenly but on balance toward ever greater expansion of those protections.

Research on the recently developed body of privacy law—in comparison to press and speech law, defamation law, etc.—has evolved beyond the early sense of “the right to be let alone” into considerations of 21st century informational privacy designed to allow individuals to control information about themselves and the so-called “right to be forgotten.” Scholarship on copyright law appeared early in the journal but particularly expanded after the enactment of the U.S. Copyright Act of 1976. However, there remains a scarcity of legal articles addressing emerging platforms and technologies such as social media and artificial intelligence, which deserve closer examination in the days ahead.

There was an overall decline in the amount of media law articles published in JMCQ over time. One possible explanation for that trend could be the real and perceived impact of Communication Law and Policy, the journal launched by the AEJMC Law and Policy Division in 1996. Another factor might be the considerably more restrictive manuscript length for JMCQ submission. To enable that research to reach the broader audience of journalism and communication scholars, JMCQ could consider adjusting its manuscript-length limits for media law submissions that merit such consideration. The proliferation of alternative publication outlets may have also contributed to the decline in media law articles within JMCQ. The decline also likely relates to another element purely of chosen editorial style—that all JMCQ articles must adhere to the APA stylebook. Legal scholars almost never voluntarily use APA. Thus, JMCQ could consider allowing exceptions to the APA-style requirement for media law submissions.

What media law scholars have contributed over the course of a century provides a distinct and necessary perspective on media law issues, seeking to offer understanding beyond the clamor of related popular and social-media commentary. They consider topics that are frequently of interest to more general audiences—the rowdy clashes between competing visions of freedom of speech, the ongoing efforts to walk the tightrope between fair-trial and free-press tensions, the push and pull between commercial and consumer interests in advertising, the struggle between intellectual property and fair use, the grappling between what is defamatory and what is robust debate on issues of public interest.

The work of media law scholars over the course of JMCQ’s first century is not complete by any means. But the arc of its evolution to date makes clear that their work will continue to provide needed insights for readers of the journal on the most relevant legal issues in media unfolding in the century ahead.