Legal controls and freedom of expression

Legal controls and freedom of expression

• 1.
  Chapter 13: Legal Controlsand Freedom of Expression Campbell, R., et al. (2011). Media Essentials: A Brief Introduction. Bedford/St.Martin’s. p.367-393 Aitza M. Haddad Nunez, J.D., LL.M. Introduction to Mass Communication
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  First Amendment  Whatconstitutes “Free Speech” or “Free Expression” and “Free Press”?  From licensing printers in England to the Sedition Act in U.S. John Milton – Areopagitica  “All sort of ideas – even false ones – should be allowed to circulate. Eventually […] the truth would emerge.”  Four Models:  Authoritarian Model  State or Communist Model  Social Responsibility Model  Libertarian Model  Who should fulfill the civic role of watchdog?
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  Censorship and PriorRestraint “A law has not been broken until an illegal act has been committed.” Exception – A threat to national security Pentagon Papers Case Clear and Present Danger criterion Progressive Magazine Case First time in America that a prior restraint order imposed in the name of National Security stopped initial publication of a news report.
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  Unprotected Forms ofExpression Sedition Schenck v. United States (1919) – “Clear and present danger” criterion as a limit to 1st Amendment Copyright Infringement Public domain – Fair use Golan v. Holder (2012) – permits for foreign works published abroad after 1923 to be removed from the public domain. U.S. alignment with copyright protections of pother nations or violation of the Copyright and Patent Clause? Abridgment of pre-existing freedom to speak?
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   Obscenity  Millerv. California (1973) 1. The Average person, applying contemporary community standards, finds that the material as a whole appeals to prurient interests. 2. The material depicts or describes sexual conduct in a patently offensive way. 3. The material, as a whole, lacks serious literary, artistic, political and scientific value.  Offensive Speech?  Government may not regulate offensive speech. Court rejected the argument that “medium specific” characteristics may soften First Amendment protections or create new categories of unprotected speech.  Protect discourse on matters of “public concern.”  No “free-floating” power to restrict the ideas to which children may be exposed. Unprotected Forms of Expression
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  New Unprotected Formof Expression? Libel New York v. Sullivan (1964) Private person – falsehood, damages and negligence. Public Officials – falsehood, damages and negligence, plus actual malice. Best defense: Truth Rule of opinion and fair comment – includes satire and comedy.
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  New Unprotected Formof Expression? Stolen Valor Act 2005 - it was a crime simply to lie about military service and awards, even if the person making such claims obtains no material benefits as a result. Violated a person’s First Amendment right to free speech. 2008 - “Federal crime for an individual to fraudulently hold oneself out to be a recipient of any of several specified military decorations or medals with the intent to obtain money, property, or other tangible benefit.”
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   Right toPrivacy Right to be left alone, without his or her name, image or daily activities becoming public property. Laws that protect regular citizens’ privacy: Privacy Act f 1974 The Electronic Communications Act of 1986 Laws weakening regular citizens’ privacy: The Patriot Act of 2001  Snyder v. Phelps (2011) Westboro Baptist Church protests at funeral protected by First Amendment because it’s a matter of public concern. Even when the church exploited the funeral for publicity. Privacy v. Public Concern
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  The 1st versusthe 6th Freedom of Expression and the accused’s right to a speedy trial. Gag orders Speech restrictions on lawyers and witnesses as a safeguard to ensure fair trial in heavily publicized cases. Court review in 1976 doomed them as a prior restraint violation. Shield laws Reporters obligation to reveal their sources of information used in news stories. Reporter’s privilege may be lost is the reporter fails to maintain sufficient independence from his source. No federal protection.
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  The 1st versusthe 6th  Laws regarding use of cameras in courtrooms  New Jersey vs. Hauptmann (1934) – electronic equipment so obtrusive that detracted the essential dignity of the proceedings.  Press-Enterprise Co. v. Superior Court (1984) – Broadcast equipment started to became less obtrusive. Fair trials not impossible. Each state will implement its own system. Supreme Court continues to ban TV but it 2000 broke its anti-radio rule.  Analogous application to all government institutions and activities?  Case-by-case  Historical tradition of public access.  Overriding interest.  Restriction narrowly tailored to serve those overriding interests.
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  From 1890 to1952 Films were subject to first to censorship by citizen groups and lawmakers, and then to the film industry’s self-censorship. Local Review Boards – determine moral suitable for the community. African American Jack Johnson 1908 Championship Mutual v. Ohio (1915) – “motion pictures a not a form a speech but a “business pure and simple”” with “a special capacity for evil.” The First Amendment and Film
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  Auto regulation ofthe industry 1920s – Actors and extras required to have a “squeaky-clean reputations.” Republican Will Hays president of the MPPDA. 1930s to 1950 – Motion Picture Production Code – no production that would “lower the moral standards” of who sees it. Burstyn v. Wilson (1952) – Movies are n important vehicle for public opinion. 1960s – MPPDA, now MPAA, establish the movie-rating system. The First Amendment and Film
• 13.
   Limited broadcastsignals – scarce national resource  Fewer constitutional protections = more governmental regulation  Communications Act f 1934 – public interest, convenience, or necessity Not free to air whatever you want.  Major differences between broadcast and print.  Red Lion Broadcasting Co. v. FCC (1969) – Public interest outweighs broadcasters’ rights over their content.  Miami Herald Publishing Co. v. Tornillo (1974) – Cant force a newspaper to give a candidate space. The First Amendment, Broadcasting, and the Internet
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  Indecency Remains undefined todaybut government may punish broadcasters after the fact. FCC has the authority to require broadcasters to air adult programing at times when children are not likely to be listening. FCC v. Fox TV Stations, Inc. (2010) Indecency Regulation Regime Inconsistent and unconstitutionally Vague. Chilling Effect The First Amendment, Broadcasting, and the Internet
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  Section 315 –Political Speech During elections, broadcast stations must provide equal opportunities and response time for qualified political candidates. If it qualifies as news, the opposing candidate cannot invoke Section 315 and demand free time Fairness Doctrine – Controversial Issues 1949 – required the airing of controversial issues affecting the community accompanied with competing point of views. It ended in1987 after a federal court ruled that it was just a regulation and not an extension of Section 315. The First Amendment, Broadcasting, and the Internet
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   Internet  Onetrue venue for unlimited free speech. Perfect medium to fight political oppression.  Its global expansion outstrips laws and regulations.  Barclays Capital Inc. v. Theflyonthewall.com, Inc. (2011)  Bars hot news misappropriation claims in many but not all circumstances. Case-by-case. Copying factual information collected and shared by others.  Hot news is “quasi-property.” Right to uncover and report news deemed important through “substantial organizational effort.” Free-riding? Hot news misappropriation? The First Amendment, Broadcasting, and the Internet
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   Important roleof the news media – whether print, radio, or the Internet.  Shift in content – more as consumers than as citizens  More difficult for journalists to lead critical discussion about media ownership, media regulation, and business practices.  “More important than ever for citizens to share the watchdog role with journalists.”  “The First Amendment protects not only the news media’s free speech rights but also the rights of all of us to speak out.”  We have to challenge government and business leaders – rather than assuming that journalists will do so. The First Amendment in a Democratic Society