 Democracy requires a free press.  The framers of the Bill of Rights based the concept of freedom of the press on libertarianism: The philosophy that people cannot govern themselves in a democracy unless they have access to the information they need for that governance.

 Absolutist position: That the government can make no law that abridges freedom of the press without exception.  “No law” explained: All levels of government (local, state, and federal), not just the Congress, are forbidden from passing laws violating the 1 st amendment.  “The Press” defined: Movies, advertising or commercial speech, and entertainment content are all forms of protected expression. (Recently, video games included).Recently, video games included  Bloggers have redefined “press”; citizen journalism.

 Even most absolutists support “time, place and manner” restrictions, as long as they do not interfere with the substance of the expression. i.e. Limiting the use of a sound truck to amplify political messages at 4 am.  What about “free speech zones”?  “Clear and present danger”: Justice Oliver Wendell Holmes in Schenck v. United States (1919). Ex: Is one protected by freedom of speech if they shout “fire” in a crowded theater causing a panic?  However, that decision used to justify Schenck’s criminal conviction for distributing anti-war/anti-draft material during WWI. Schenck was also a socialist.  Slippery slope argument

 Conflict of Interest:  Can pretrial publicity deny citizens judgment by 12 impartial peers, thereby denying them a fair trial? i.e. O.J. Simpson, Casey Anthony.  Should cameras be allowed in the courtroom, supporting the public’s right to know, or do they so alter the working of the court that a fair trial is impossible?  Today, all 50 states allow cameras in some courts.  Broadcast of federal trials is still banned.

Libel: The false or malicious publication of material that damages a person’s reputation.  Slander: The oral or spoken defamation of a person’s character.  Both are NOT protected by the 1 st Amendment.  Narrow distinction between the two: “Published defamation, whether it is in a newspaper, on radio or television, in the movies, or whatever, is regarded since the 1990s as libel.” (Pember, 1999)  Report must (1) defame a person, (2) identify that person, and (3) be published or broadcast.

 Truth: Even if a report damages someone’s reputation, if it is true, it is protected.  Privilege: Coverage of legislative, court or other public activities may contain information that is not true or that is damaging to someone’s reputation. However, the press cannot be deterred from covering these events.  Fair comment: The press has the right to express opinions or comment on public issues. i.e. Even film reviews are protected.

 Public figures are not afforded the same protection as private figures; they are subject to fair comment, and it is much more difficult to prove defamation.  i.e. Elected officials, celebrities, and business leaders.  Limited purpose public figure: a person who voluntarily and prominently participates in a public controversy for the purpose of influencing its outcome. i.e. Cindy Sheehan (anti-war activist), Candy Lightner (MADD)

 Actual malice: The standard for libel in coverage of public figures consisting of “knowledge of its falsity” or “reckless disregard” for whether or not it is true.  In order for a public figure to win a defamation case, actual malice must be proven.  New York Times v. Sullivan

 The power of the government to prevent the publication or broadcast of expression.  Use of prior restraint is relatively rare, i.e. national security.  New York Times v. United States (1971): National Security Council staff member Daniel Elsberg released the Pentagon Papers to the NYT. The Justice Department issued a court order to stop further publication. The Supreme Court ordered for the restraint to be stopped.

 Obscenity is not protected.  Basic guidelines in Miller v. State of California aka Miller Test for Obscenity:  (a)Whether the average person, applying contemporary community standards, would find that work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct especially defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

 Different individuals and communities have different standards, so then which standards should apply?  Pornography is protected expression.  Difficulty distinguishing between obscenity and pornography: It is protected until a court rules it obscene.  Larry Flynt: “If the first amendment will protect a scumbag like me, then it will protect all of you.”  Time, place, and manner restrictions especially relevant in this regard.

 According to the FCC, indecent language or material is that which depicts sexual or excretory activities in a way that is offensive to contemporary community standards.  Broadcasters are “guilty until proven innocent.” They are often met with hefty finds if indecent material is broadcast.  i.e. Janet Jackson Super Bowl incident and Bono swearing during his Golden Globe acceptance speech (both in 2004), 9/11 Documentary.  Now, significant delays on live network broadcasts.

 Fairness Doctrine: Requires broadcasters to cover issues of public importance and to be fair in that coverage; abolished in  Broadcast license renewal, which was previously a vigorous process, is now relatively easy.  Conflict between the public interest and market considerations.  News coverage, children’s programming, and broadcast standards in general are affected by deregulation.