With breakneck changes occurring in the communications industry - from mega-mergers to deregulation to the internet explosion - the regulatory and First Amendment boundaries governing the media are in transition.
Among those struggling to keep abreast of these developments are media lawyers, many of whom were in attendance at the most recent Communications Law conference in November in New York City. The Conference, sponsored by the Practising Law Institute, is the largest annual gathering of media lawyers in the country.
While there were no media-related U.S. Supreme Court cases to discuss this year, there were several other court battles to dissect, the most significant being the government's antitrust lawsuit against Microsoft. While this case does not directly involve the news media, attorney James Goodale insisted that journalists pay attention to the case, because the internet will eventually become the dominant conduit for all communication, and because those companies who control access to the net can potentially control its content.
In terms of industry structure, most panelists conceded that the post-Telecom Act convergence of media will continue for several more years. Attorney Richard Wiley argued that we are headed unavoidably toward a world in which most media are controlled by a handful of major conglomerates, but he added that even in that environment there will still be room for smaller, niche providers.
Among the issues directly affecting journalists, the most widely discussed involved newsgathering. Courts are showing increasing intolerance for a variety of newsgathering tactics, as evidenced most prominently by the fraud and trespass judgment against ABC for its investigation of Food Lion. That decision may have also affected the Cincinnati Inquirer's recent decision to settle a lawsuit brought last year by Chiquita Brands, Inc. against the Inquirer for its investigation of the company. While one Inquirer reporter did admit to illegally accessing Chiquita's corporate voice mail, some panelists wondered whether the paper was getting gun shy in the wake of Food Lion.
The courts' growing impatience with newsgathering tactics were also revealed in a series of cases this past year involving police ride-alongs. Several courts have refused to provide legal protections for journalists involved in ride-alongs, and nearly all of the conference participants indicated that in the current legal climate, they would advise their media clients against participating.