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    PR Principles & Practices Chapter 6

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    25 views21 pages

    PR Principles & Practices Chapter 6

    Uploaded by

    MME FTE
    PR Principles & Practices Chapter 6

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    ypter 6 j Considerations © m Summarize the basi structure oflaw in the United States. + jg-Outline the major principles ofthe First Amendment pertaining to freedom of speech and press and explain their relevance tothe practice of public relations. 1m Distinguish between commercial and political speech 1 Describe permissible federal regulation of First Amendment-protected expression in election communication, lobbying, communication between labor and management, and financial public rlations/ investor relations Outline constitutional protection and permissible federal regulation of copyright and trademark law. Mt Define and explain the major provisions of libel aw and privacy law relevant to public relations work. Itis the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, —SuPREME Courr JUSTICE BYRON WHITE evaluate situations involving legal issues if they want to succeed in their jobs. Ths may come asa surprise t0 those who subscribe tothe common misconceptions that law is incomprehensible to those who are not Jkwyers and that las only narrowly applicable or relevant to public relations Clearly, this chapter alone cannot provide everything a practitioner needs to know. Instead, it presents @ summary of major legal issues affecting public relations work. Public relations practitioners do not practice law, but knowedge of the law will help them avoid legal pitfalls and work with their organizations’ legal tf in sita- tions that requir collaboration. Ey relations practitioners do not operate in a societal vacuum, Accordingly, they need to know how to to Bot 0, WHAT IS Law? Fundamentally law is thet system of rules that governs society. Different societies have different laws, which is ne reason why public relations cannot be practiced in exactly the same way afound the world. Exhibits 6.1 and 6.5 show how legal considerations affect public relations practice outside the United States a3 128 Part It + Foundations EXHIBIT 6.1 The Law and Public Relations in Brazil ‘Maria do Fatima Olvera, Pho, Public Relations Research ‘Manager, Prime Researeh L Now York city 1n1814, the fst pubic relations department was created Bazi. Ht mas housed by a Canadian company—Light Co—that was ‘sponsible for public transportation and uti in the state of ‘Sao Paulo. Many years passed, however, ntl the implementation ‘of college exucaton in ho fel. Only in 1968 did th University of ‘Sto Paulo (USP) create the first college degree in pubic relations, ‘In 1967, the pubic relations profession in Brazil became legally reguated (Law No. 5377). Braz is one ofthe fow coun- ‘ties in the worid were, o exercise the profession, practitioners are required to hold a college degree in public relations and be ‘egistered ina public relations regional council There are six ofthese coun inthe country All of them ‘are afiiated with the Graziian Federal Cue of Public Relations __LGONFERP, which was created by the goverment in 1967 wth {he geal of mentoring and regulating the profession. in 1872, the CONFERP developed and implemented a code of ettics emphasizing respect foc the Universal Declaration o Human Fights, ‘commitment to tit, and the obligation to promote tee specch, ‘The prinoples stated in the CONFERP code of ethios ‘equlate the publc relations profession in Brazil, defining putts telations practitioners’ and agencies’ legal obligations ang fights. Lack of compliance can result in fines, lawsuits, eng en cancelation of the practitloner’s registration at the regions unc, whieh in urn bans the practioner fom practicing Public relations. The CONFERP code of etios has been amendos ‘throughout the years, withthe most recent update in 2008, ‘The code of ethics states that pubic lations profession- als have several key duties. They must strive for maximum eff. ienoy in their services, seek always to imorave and updato ther knowledge, and collaborate with the traning of futuro profes. freedoy fic info. Broadcast Media In an apparent contradiction of First Amendment principles, subject to government regulation since their inception, li relations practitioners to gain access to this medium, ;Dtoadeasting” means gnly over-the-air signals that ae capable of being received by television or radio with the use ofa simple antenna and are thus accessible to people wig have cable or satelite service. Federal government regulation ofthe technologictlaspecso' casting beyan early inthe twentieth century under the jurisdiction of the Secretary of Commer and Labor with the original justification for government oversight borrowed from the nena Commerce Commission—publc interest, convenience, and necesiy.” That standard conser ‘oday under the control ofthe Federal Communications Commission (www.fec gov). ‘The FCC was created by the Communications Act of 1934, which gave the agency the Power to make and enforce programming polices for broadcasting and to issue, reners or fare tcenses to individual station operators. An early challenge tothe FOC's power to regulate pn gram content, on the grounds that this violated the First Amendment, was rejected by the tre Supreme Court, which ruled, the right of free speech does not include. the right vo we he faclities of radio without a license "™ The basic justification for regulating broadcast content that the Supreme Court has accepted over the yeas is based on the 1934 Congressional assertion thatthe US. airwaves ne owned by the public and area scarce resource that needs tobe protected. Accordingly, those who receive licenses to use this limited resource must be trustees fr all those who do not get to ope. ate a broadcast station. US, broadcast media have been providing several opportunities for pup do not broad. Cable Systems Cable technology was developed inthe late 1940s and applied to broadcasting by Community Antenna Television (CATV) systems, whose primary purpose was to improve a commulys reception of available but hard to receive over-the-air broadcast signals. The CATVe were aol licensed bythe BCC, but instead were awarded state and local government franchises tse a particular geographic location. There was no specific cable legislation at that time and FCC had statutory authority only to regulate broadcasting, The U.S. Supreme Court ruled cable regulation was necessary to ensure “fair, efficient, and equitable” broadcasting se and thatthe FCC had the authority to do so because the Communications Act of 1934 real the commission to take action “reasonably ancillary” (connected) ta its responsibilty 10 ulate broadcasting.’ Ultimately, the courts made it clear that cable operators have more Amendment rights than do broadcasters, though cable stil falls far short ofthe constitu freedom of expression rights granted the print media.!? 4 Jn 1984, Congress enacted the Cable Communication Policy Aet, giving the FCC dictional authority over cable, deregulating rates and program choices, and providing be for cities and counties regarding franchise fees. This act also required cable applicant aside channels on its systems for public, educational, and governmental access. These access channels also provide valuable tools for public relations practitioners who need "i (Chapter 6 + Legal Considerations 131 prough @ mass medium, such as giving citizens opportunities to jirecty th re her local government activities. lies lar PU neil meetings and ot coun ine cour decision Reno y. American Chi Liberties Union made cles thet 5997 SuPre ie was fully protected by the First Amendment. 1 The decision overturned phon te Tere ry Act (CDA) of 1996, n which Congress tried to regulate inde scans bing the operation f certain websites, The Cour found thatthe on the Internet Ayal content regulation was both vague and overbroad. The justices et as more lke the traditional public forum, concuding, “AS eco form of mass apech yet develope the Internet deserves the highest pro- sit ntruson."* This gives public relations practitioners “fee rein’ to use 2 anediatedconsniestn fo varios pubis ert sn tere Protection Act (CTPA) of 200 egies pic shols and Ter Che er money for nee! seo instal technology prevention measures” post patil jn from govel ene, cid pornography, of “harmful to minors? The Supreme Court upheld this eeslting internet speech as conitutional Libraries that donot comply risk losing pidation Pee reo federal funding for computers in libraries. GOVERNMENT ACCESS AND PUBLIC AFFAIRS bs us coneptof fe press originated in the ele that media should serve as public watchdogs onto and hepa aval to cen information bout goverment acts and Deseo government ongoidinformation is importat to every cen because he on ina democracy that such accounts Belong othe people, not he government Gr rage open goverment and an informed ectoat, the federal government an all Pe aciece governing open records and meetings, although the extent of acess varies Be shy irom state to state. Accordingly, this section will discuss only the US. federal laws, Tpiceltons practitioners must tudy-on their own the access as ofthe particular state or Sere ncehch they do business A compilation of access laws forall 50 states is avalable online Miu the avon Brecher Citizen Acces Project (woriizenaces or) argh surprise some that dhe heaviest users of open access laws are not journalist. E Yarious estimates over the years of who requests government records the most agree that it s Toxins, with approximately one-half ofall requests each year Journalist requests make up only hoot one quarter ofthe requests, with the remaining one-quarter made by the general clizenry. hdeed, the US, Supreme Court has ruled in several decisions that the media's right of access to [government sources of information is only as extensive as that ofthe public!” Most important the fact hat the US, Supreme Court has ruled there is no First Amendment or other federal tional right of media access to government-controlled information. The federal Freedom of Information Act (FOTA) of 1966 vasa bipartisan effort in the U'S Congress to promote full disclosure from the executive branch of government. It applies to “any [Poss department, milary department, goverament corporation, government conzlled {tno te etulchmetin th execute ranch ofthe eal grvement fy independent replatry agency” Theat applies onl to records, meaning tangible items of Ita sich as docunent, but oto intangible information, mening gency employes ps sure oansyer any questions. The 196 HetrnicFredom of Information Act Pees ss. sig infomation (eg computer databases) bed those feral government subject to the OLA. The federal FOIA specifies nine categories of exemptions from one, Ge, Sine genes employers Gren tds ey soul de acces Part Il + Foundations Public relations practitioners in government organizations must be fully informed abo, both federal and state open access legislation because they are responsible for responding apy Pratly to requests for access to information and meetings relevant to thet particular ageneye Practitioners must also make sure that the officials with whom they work are aware of they obligations under both federal and state laws. CORPORATE EXPRESSION First Amendment protection is considered to be an individual right in our democracy. Howeve 4 mote complex question of great importance to public relations practitioners is whether the ‘organizations they represent also have constitutional rights for “speech.” Historically, Us Supreme Court decisions have afforded corporations some ofthe same legal rights as indivi als, but courts have also upheld many restrictions on corporate legal rights. The same is ire g First Amendment jurisprudence. Inthe legal sense, “corporate expression” deals with commun, cation by any organization, not just corporations. Commercial Speech Commercial speech deals with commerce, or the buying and selling of things. The Firs ‘Amendment right to commercial speech was extended in limited form to organizations by the US. Supreme Court ease Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, This court case formed the basis ofthe modem practice of advertising As fans of the television show Mad Men can attest, advertising in the 19608 was very different from advertising today. Ths isin part because the 1976 case Virginia Stnte Board of Pharmacy v. Virginia Citizens Consumer Courcil laid out two conditions for commercial speech: First, the commercial speech must be about a legal activity (which is one reason vy cocaine dealers don’t advertise in local newspapers). Second, the commercial speech cannot be tisleading,!® This second condition is particularly important for public relations practitioners to remember, As discussed in Chapter 1, advertising is often used in public relations, so prac tioners have a legal duty to verify the accuracy ofthe commercial messages they place on behal ofemployers and clients ‘The Federal Trade Commission (www.ftegov) has primary authority to regulate adverts ing, making sue that itis truthful. In April 2011, the BTC filed complaints against 10 companies for allegedly making false claims about the health benefits of acai berries. The companies were operating websites designed to mimic the sites of real news organizations, making it appear tht losing weight using acai berries was “news.” According to the government slatemient, “The FTC seeks to permanently stop this misleading practice and has asked courts to freeze the operations assets pening trial"? Political Speech Political speech deals with politics and government, including legislation and elections. In the precedent-setting decision defining corporate political speech rights, First National Bank of Boston y, Bellotti, the Supreme Court ruled that the First Amendment protects “political speech regardless of who (individual or corporation) is speaking. In this case, First National Bank and four other companies wanted to buy advertising to oppose a referendum on establishing * state personal income tax. The U.S. Supreme Court ruled that the inherent worth of speech thst informs the public or helps it make democratic decisions “does not depend upon the identity! its source, whether corporation, association, union, or individual”? Two other important Supreme Court decisions regarding corporate speech rights dealt with energy utility companies that were subject to state regulations. Both cases involved sendi9g ‘messages to customers using monthly bill mailings. In one case the Court ruled that Consolidate? Edison Company in New York could publish its perspective advocating nuclear power as he b= 7 infor ed ostve Cr TS spondin, pestve rs on this controversial topi rege epi we anat *8td i Compan ware of i , ations to not speak. sen hou — es justi Ions mean the £0 cal speech and securities trading ph management, and re an Campaign Reform Act (BCRA) of 2002 in eect since er 6, 2002] Honey Pronibition {sot money” donated to poltical es for "party building” purposes} orations and labor unions may not ontridute or make tures on behalf ofthe national political party com- ites or Leadership PACs (set up by federal candidates i offeholders @s nonprofit organizations rasing funds forthe campalans of those particular federal candidates or bfceholdes). Dri individuals and federal PACs, subect to federal limit, conttute tothe national parties and Leadership PACs, ous stale partes may continue to give $25,000 unde fed hard dolar its to the national parties, moctions and labor unions may stil contribute to state ol rganizations as permitted under stat aw although “hese organizations are limited in how they cen use money Tce outside tne federal mts. Pambers of Congress may no longer solicit funds for soft joey eccouns, cluding for thle oun Leadership PACs and for state en ocal patties, lonbers of Conaress may rise no more than $20,000 per ind- al donor for voter reglstraton and get-out-the-vota (GOT) fons. In 3 nal Bank torts by 501(c) (general nonprofit) and Section 527, (nonprofit ieee _felica) organization, but they may continue to soit funds ional Bat . "8 Nonprofit organizations non-political activities. ablishing: Post-BCRA contribution Limits sree {rail may contribute more than $2,000 per election {Qe ary and general count separately) ay oe feral Sate twice the previous limi). ights ‘4 Biren int ta egal cand ‘may be increased cd send tee Section ifthe candidate's opponent spends 2 Tete amount ot sor her personal fund on he aco (Chapter 6 + Legal Considerations 133 In another case, the Court ruled that Pacific Gas win Calf ld not ned to averiate mates wh whch td a isi dont for nda the Fe Amendment le poets he ean sn the Supreme Court has recognized some speech rights for corporations, in which such rights are restricted by government regulations that have od by the long-standing fear of the potential corrupting influence of business. Such ee iment has demonstrated a compelling interest to regulate corporate Four major areas of federal legislation limiting corporate speech that are rel- ito pubic relations include political elections, lobbying, labor organization communication "The Bipartisan Campaign Reform Act of 2002 (BCRA)—commonly referred to as in-Feingold” regulates political election contributions. As Exhibit 6.3 shows, the three ‘An inva may contribute no more than $5,000 por calendar ‘year oan oe adr PAC (no change). ‘An individual may contribute no more than $25,000 per ‘calendar year oa tical ‘An individual may contribute no more than $10,000/calondar Year tothe federal account of state politcal party. During the two-year election cycle, an individual may contnib- ute no more than $95,000, of wich No more than $37/500 may be conrbuted to federal candi- dates, and No more than $57,600 maybe contributed to national plitical parties an ederal PACs, of which no more than $37,500 may ‘be contributed to federal PACs, state/iocal party committee. ‘Contribution mits to candidates and national party commit {oes ere indexed for inflation wile contribution mits to PACs are nt. Limits on “lctongning Communications sue ad) | | ‘explicitly urging that candidate's election or defeat) noua, | Corporations, trade associations, and labor unions may only see oe, Saaeacse ‘1,000 forthe communication and those who received mare than ‘200 relative othe advertisement. Copyright © 2008 Barbara K. Petersen, Ph.D. Used with permission, 134 Part IT + Foundations ‘main provisions ofthe BCRA are “soft money” prohibitions (money donated to political arty Gr Paty building” purposes), increases in contribution limits and limits on “lectonger® rareaniations (Commercial that support or oppose a candidate without explicitly wr that candidate's election or defeat, 8 LOBBYING Pecauts of the fear that lobbyists for groups could corrupt the laymaking process, Congrey passed several laws regulating lobbyists’ attempts to influence legislation and regulations dire {bring has been one ofthe fastest growing specialties in pubic relations practice so kage? {hese regulations i important to practitioners. Lobbyists for organizations were first required © feclose their activities under the Federal Regulation of Lobbying Act of 19462 Later to moc fiectively regulate lobbying and protect pubic confidence in government, Congress enacia {he Lobbying Disclosure Act of 1995, with updated definitions, disclosure requirements a restrictions. A lobbyists someone employed or retuned bya client who makes more than one contat on behalf of that clint and spends atleast 20 percent of her/his time during a six-moch, Period providing that service tothe client, A lobbying firm isan entity that has at leat one person who was hired to represent Someone other than her/his employer. The term also applies to self-employed individna ‘ho represent other people or entities A lobbying contact is defined as « communication, either oral or written, on behalf ofa client toa covered executive or legislative branch official regarding legislation, len regulations, grants, loans, permits, programs, or the nomination of anyone subject Senate confirmation. Lobbying includes direct pressure on members of Congress through an “artificially stimu : 5 lated letter writing campaign,”** But lobbying does not include general public relations cam Paigns designed to sway public opinion and to activate constituents, thereby increasing pressure on legislators and government agencies. So-called “grassroots lobbying” is part of an organi. tion's First Amendment right to express itself on public issues * It is distinguished from the tye of lobbying that requires registration by the fact that it is not “direct” contact with government officials. Nor does lobbying include testimony before a committee of Congress (becatse sich testimony is invited by the legislators) or magazines and newspapers that in the ordinary couse ‘of business publish news items and editorials urging the passage or defeat of legislation” Lobbyists and lobbying firms must register with the Secretary of the Senate and the Clesk cof the House and must report names, addresses, places of business, and phone numbers oftheir own business, their clients, and anyone else who contributes more than $10,000 in a six-mdath period to lobbying activities conducted by the registrant. In addition, all registrants must fle reports twice a year, providing “good faith estimates” of the amounts paid by clients or spent 08 lobbying. Lobbying laws also apply to nonprofit charitable, educational, and other tax-exempt organizations. Nonprofit organizations that engage in lobbying are prohibited from receiving federal grants, awards, contracts, and loans.¥ ‘The number of lobbyists has increased dramatically. Based on data from the Senate Office of Public Records, the Center for Responsive Politics counted 12,986 active lobbyists (individual) + lobbying firms registered with the federal government in January 2010. The Center estima the total spent on lobbying in 2010 to be almost $35 billion” That means lobbying costs av@ aged almost $644 million per legislator. Lobbyists spent more than $3 billion to lobby stat governments, with an average of five lobbyists for every legislator spending more than $200,000, for each state legisiator.”! According to the nonprofit Campaign Legal Center, “lobby{ing] 4 closure enforcement is notoriously lax.” The Senate received more than 130,000 “Lobby (Chapter 6 + Legal Considerations 135 ita + forms in 2009, but only four staff members deal with lobbying disclosure *stlong + ns or cetlements have been pursued by the US. Attomey’s Office since 2005 ity See Center’s spokesperson, “Nobody's looking”? eco prattonets working fr “foreign principals” mast register under the So of 908 FARA), whe hey ody S ovement Be pers al persons who work as gens of foreign gorernments, compa Be oer wii 0 days wt he US. Atorey General The Lobbying 3 poltca Pas also apples to the Foreign Agents Registration Act. The law defines a ned Se nthe United Sates who work publ elation counsel, public shad get syed employee or oll consultant, ating'at the ode, es oF re ee contl of “eein pina which could bea goverment, pola hess or other orgeaization son materials produced by foreign agents are defingd as any communication ce the American public about political interests or policies of a foreign gov te nfuence US. foreign policy; to promote racial religious, oF social tensions; oto yng materials as “political propaganda” being distributed by a registered foreign agent. ico must provide copies to the US. Attorney General basi ena Inform PLOYEE AND LABOR RELATIONS + rations isa specific type of employee relations involving communication between unions ‘management, Practitioners in this area must comply with the provisions of the National thor Relations Act of 1935 (Wagner Act) and the Labor Management Relations Act of 1947 {flat Hartley Act). The 1935 statute created the independent, federal National Labor Relations cd (NLRB) to administer laws governing relations between unions and employers in the fvate sector. These prohibit both unions and management from engaging in unfair labor ces, primarily by forbidding coercive expression during political elections and also by for fidding management from interfering with labor's right to organize and to bargain collectively. jee union is established. epresentative Elections 1941, the US. Supreme Court ruled that an employer could not be barred “from expressing ts “View on labor policies.” The employer, the Court said, is free “to take any side it may choose” on Hepntroversial labor Issue as long as the employer does not restrain or coerce his employees. sruling has major implications for public relations work in employee communication. ‘Management doesnot engage in an unfair labor practice fit communicates to employees ‘emo Brough speeches, talks, and letters to tell workers about the strike history ofthe union, the ley dues and assessments, and the merits of working for a company without a union. But Bagemtent cannot threaten to fire or punish employees because of union activities, make ses of special benefits to influence votes, spy on union meetings, or call employees Fett to discuss the union. Management also cannot urge employees individually to vote f feins the union, Sees tee eee vd) ot Bargaining timat | The Labor timated ge bor Management Relations Act of 1947 also requires companies and unions to enter _Mzotations wit Pines g0"S With open minds and with a willingness to reach an agreement, Practitioners some. eo ‘with management that is unwilling to meet or is unreasonably firm in its offers, or pans that engage in unair labor practices or make equally unreasonable demands. The Ss Busty publishes fact shets, press releases, and case summaries of the Boar's actions bse (nal gow), 436. Part IT + Foundations Contract Law Although employers mist be careful in dealing with abor unions and union member, they alg must take cae in handling non-union employees, such as public rations professionals Fo ther par, practitioners should pay attention to thei employment paperwork, which in me

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