Media |
Extent of Government Regulation |
Obligation to Provide Access |
Liability for Third Party Conduct or Speech |
|
Newspapers and other print periodicals |
Newspapers benefit from a number of protections (no prior restraint, exemption from monopoly rules, no differential taxes) |
No obligation to provide access (Miami Herald v. Tornillo). Newspapers have complete editorial control–and duty to use it |
Newspapers are usually liable for what they publish, regardless of source. But distributors often not liable (Smith v. CA) |
|
Broadcasters |
Broadcasting requires a license, which can be revoked based on regulatory standards. |
Numerous obligations to provide access (equal opportunities doctrine, educational programming requirements, etc.) |
Similar to newspapers, although there may be technological situations where the broadcaster lacked control (i.e., when broadcasting live) |
|
Cable |
Like broadcasting |
The subject of significant debate, but less requirements than broadcasters |
Similar to broadcasters |
|
Telecommunications |
Historically conceived of as a regulated monopoly, but deregulation rampant |
As common carriers, required to take all comers |
Telcos rarely liable for content disseminated over their wires |
|
Real Property |
Use of real property can be regulated, but too much regulation can be deemed a “taking” |
Except in cases involving “company towns” and historic common carriage (i.e., inns), property owners have complete control over who can access their property |
Property owners are liable for third party conduct generally only if they knew/should have known of the harmful conduct and failed to act |
|
Online |
Trend towards increased regulation |
Some online services have claimed to be common carriers. Recent case held not state actors |
Defamation and porn–depends on editorial control Copyright–currently generally liable |
|
State actors |
N/A |
Depends on the type of public forum |
Way too complicated! |
By Eric Schlachter, Esq.
Cooley Godward, LLP
schlachtere@cooley.com