Feiser, Craig D.

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Emerging Issues in Media and Communications Law

University of Florida Levin College of Law

University of Florida Journal of Law & Public Policy Volume 24 Issue 1 Article 1 2013 Emerging Issues in Media and Communications Law Craig D. Feiser Follow this and additional works at: https://scholarship.law.ufl.edu/jlpp Recommended Citation Feiser, Craig D. (2013) "Emerging Issues in Media and Communications Law," University of Florida Journal of Law & Public Policy: Vol. 24: Iss. 1, Article 1. Available at: https://scholarship.law.ufl.edu/jlpp/vol24/iss1/1 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in University of Florida Journal of Law & Public Policy by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. INTRODUCTIONEMERGING ISSUES IN MEDIA ANDCOMMUNICATIONS LAWCraig D. Feiser*When I graduated from the University of Florida College of Law in1998 and entered the practice of law, focusing on media law litigation, Icertainly could not have imagined the whole host of new and emergingtechnological issues that would need to be addressed under traditionalconstitutional and statutory laws, as reflected in this issue of theUniversity of Florida Journal of Law and Public Policy and otherscholarly journals around the country. Without a doubt, not only inpractice but since becoming a professor of both Media Law and FirstAmendment Law, these issues have presented immense challenges forme. It is often like placing the traditional square peg into a round hole.In any event, that square peg has to be adapted to fit.Having been a frequent teacher of Media and Communications Law,I have found more and more in recent years that students' concerns andquestions about media and First Amendment Law issues often take mewell outside of the case law and examples in current textbooks. Just likethe Founding Fathers did not fathom the reach of free speech when theydrafted the Bill of Rights, we as professors and practitioners could nothave fathomed the need to stretch existing concepts to unimaginabletechnological advances, as little as ten years ago. This issue of theUniversity ofFlorida Journal ofLaw and Public Policy contains articlestouching on a number of these emerging issues and how they maypotentially fit within the existing media and First Amendment lawjurisprudence.A good example of this is use by practitioners, judges and litigantsof social networking sites such as Facebook and Twitter. Oneparticularly high profile example of this emerging phenomenon is theState of Florida v. George Zimmerman case, involving the shootingdeath of Trayvon Martin. Professional ethics rules and rules governinglitigation are often insufficiently drafted to completely cover the use ofsocial-networking sites during pending cases. Nonetheless, ethical andCraig D. Feiser is Assistant General Counsel for the City of Jacksonville, Office of GeneralCounsel. He previously served as Deputy Solicitor General with the State of Florida, and as aProfessor of Law at Florida Coastal School of Law and Adjunct Professor at the Florida StateUniversity College of Law. He also practiced in the areas of general litigation and Media Law atHolland & Knight LLP and is an alumnus of the University of Florida Journal of Law andPublic Policy.UNIVERSITY OF FLORIDA JOURNAL OFLA WAND PUBLIC POLICYlegal principles need to be complied with in this rapidly advancingtechnological world. Certainly, practitioners and others have a freespeech right to access and use such sites, but they present a whole hostof new ethical challenges. Courts are struggling with these issues asmore and more judges, jurors and practitioners use such resources forboth personal and professional purposes. The struggle is exemplified bywhat the use of such sites by government practitioners such as myselfmeans for compliance with the state's strong public records and openmeetings laws.Even a concept as old in First Amendment terms as prior restraintrequires a reexamination in light of new technology and new ways ofboth gathering and publishing news. In fact, as discussed in this issue ofthe Journal, the traditional prior restraint verses subsequent punishmentdoctrine reflected in decades-old case law may be insufficient, as policydistinctions between prior restraints and subsequent punishments aresimply no longer applicable in this rapidly changing world. Both priorrestraint by the government and subsequent punishment throughexisting laws have the same major impact on free speech, as evidencedby the recent Wikileaks case. Certainly, concerns over national securityare highly magnified in this landscape where almost anyone can be aninstant publisher of secrets, as the WikiLeaks phenomenondemonstrated. The government's critical interest in protecting the nationis all the more in conflict with the public's interest in free speech andholding the government accountable. Traditional focus on establishedlegal doctrine will often not be sufficient to address these ever changingconflicting interests.Shield laws, often called the journalist's privilege, are another goodexample of the difficulty in their application to new media, as discussedin this issue. How and whether to extend existing shield law protectionto bloggers and other digital newsgatherers is a critical issue in today'snew media world, if traditional principles of free speech are to beprotected. Even so, extending such laws too far tips the balance unfairlyto one side. In fact, as discussed in this issue, online media are oftenexcluded from journalist's privilege and shield law protection in manystates, despite its growing importance in terms of how the vast majorityof the public receives information. The lack of legislative recognition ofdigital newsgathering creates challenges for newsgatherers seekingprotection as well as for courts that must assess whether bloggers andother online reporters should be able to invoke the privilege. Withoutsuch protection, the public's right to know could be seriously impacted.Too much protection, and the line between professional journalist andconsumer ceases to exist.Forty states have shield laws and they are not uniform to cover newforms of media, which often stretch beyond any borders, making for2 [Vol. 24EMERGING ISSUES IN MEDIA AND COMMUNICATIONS LAWinconsistent application of any journalist's privilege. Several courtshave attempted to address whether and how to apply the existingprivilege laws to news websites and bloggers, with inherentlyinconsistent results. One author in this issue addresses a morenewsgathering-focused model for deciding when to apply the privilege,as opposed to focusing on the medium; but even deciding whensomething is "newsgathering" can be increasingly difficult given theproliferation of new forms of media.Overall, as this issue of the University ofFlorida Journal ofLaw andPublic Policy amply demonstrates, the host of emerging technologicalissues, of which this introduction provides merely a few examples,demonstrates that the law affecting media and the First Amendment isfar from static as reflected in rapidly aging textbooks. Both the practiceand teaching of law have had to adapt to this ever changing mediaworld, and certainly more First Amendment and statutory challengesawait as new engines of information gathering challenge our way ofthinking how existing laws, meant for newspapers and more traditionalforms of newsgathering, will apply to how information is gathered anddisseminated to the media and public in the 21st Century.32013]4 UNIVERSITY OF FLORIDA JOURNAL OF LA WAND PUBLIC POLICY [Vol. 24

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Emerging Issues in Media and Communications Law

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