Legal Controls and Freedom of Expression Chapter 16 Legal Controls and Freedom of Expression

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The Campaign Spending Controversy “Do we really want Congress to have the power to exclude certain groups from participating in political speech?” -Gene Policinski, the First Amendment Center “If Congress doesn’t act, our electoral process will be more dominated by millionaires and billionaires and their concerns will drown out the voice of common Americans.” -California lawmaker

Models of Expression Four conventional models Authoritarian model Public guided by an educated ruling class Communist or state model Government controls the press Social responsibility model Press functions as a Fourth Estate Libertarian model No restrictions on speech

The First Amendment of the U.S. Constitution Freedom of the press not included Added by the Bill of Rights in 1791 Sedition Act (1798) Intended to silence opposition to an anticipated war with France Expired in 1801 during Thomas Jefferson’s presidency, and all convicted defendants were pardoned

Censorship as Prior Restraint Government cannot block speech or publication before it occurs. Pentagon Papers case Supreme Court ruled that the press “must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”

Censorship as Prior Restraint (cont.) Progressive magazine case National security as a cause for restraint Article offered “how-to” H-bomb guide. Judge Robert Warren sided with the government based on the national security factor. Case was dropped during appeal and the article was published.

Unprotected Forms of Expression Seditious expression Schenck v. United States established the “clear and present danger” criterion for expression. Copyright infringement Copyright protects the rights of authors and producers to their published or unpublished work.

Unprotected Forms of Expression (cont.) Libel Defamation of character in written or broadcast form More difficult to prove in cases involving public figures Defenses Qualified privilege Rule of opinion and fair comment Satire, comedy, and opinions expressed in reviews

Unprotected Forms of Expression (cont.) Obscenity Under Miller v. California (1973), material must meet three criteria: Average person would find that the material as a whole appeals to a prurient interest. The material depicts or describes sexual contact in a patently offensive way. The material, as a whole, lacks serious literary, artistic, political, or scientific value.

Unprotected Forms of Expression (cont.) Right to privacy Person’s right to be left alone, without his or her name, image, or daily activities becoming public property News media generally granted wide protections under the First Amendment Most journalism organizations use their own guidelines.

First Amendment versus Sixth Amendment Protections of speech and press Sixth Amendment Guarantees a speedy and public trial, by an impartial jury Gag orders place restrictions on lawyers and witnesses. Shield laws protect reporters from having to reveal sources.

First Amendment versus Sixth Amendment (cont.) Cameras in the courtroom Trial of Bruno Hauptmann (1930s) Supreme Court ruled that the presence of cameras does not make a fair trial impossible. All states now allow cameras (with certain restrictions). U.S. federal courts allow limited coverage. Supreme Court continues its ban.

Social and Political Pressures on the Movies Early twentieth century Censorship groups formed on the belief that movies would undermine morality. Film review boards were formed. Boxing films were targeted. Supreme Court ruled that movies were not a form of speech but “a business pure and simple” and merely a “spectacle” for entertainment.

Self-Regulation in the Movie Industry Motion Picture Producers and Distributors of America (MPPDA) Established the Motion Picture Production Code in the 1930s Miracle case Supreme Court decision granted films free speech protection and rendered most activities of film review boards unconstitutional

The MPAA Ratings System Established ratings as guideposts for the suitability of films for various age groups

Expression in the Media: Print, Broadcast, and Online McCarthy hearings during the Cold War Red Channels names those “sympathetic” to communist, left-wing causes. Among those scarred by witch-hunts: Lena Horne Dashiell Hammett Arthur Miller

The FCC Regulates Broadcasting Red Lion Broadcasting v. FCC Radio broadcasters’ responsibilities to public interest outweigh the right to choose programming. Miami Herald Publishing v. Tornillo Supreme Court ruled the right-to-reply law is unconstitutional for newspapers.

Dirty Words, Indecent Speech, and Hefty Fines Broadcasters may be punished for indecency or profanity. 1937: Mae West sketch 1960s: topless radio 1973: George Carlin’s Seven Dirty Words 1990s: Howard Stern 2004: Without a Trace and Janet Jackson’s Super Bowl performance

Political Broadcasts and Equal Opportunity Section 315 Stations must provide equal opportunities and response time for qualified political candidates during elections. Exempts news broadcasts Supporters of equal opportunity law argue that it has provided forums for lesser-known candidates.

The Demise of the Fairness Doctrine Required stations to: Air and engage in controversial-issue programs affecting their communities Provide competing points of view when offering such programming Broadcasters argued it created an unfair burden. Ended in 1987 Support periodically resurfaces.

Communication Policy and the Internet Internet regulation Internet regarded as the one true venue for unlimited free speech. Public conversation focuses on First Amendment issues. Battle over net neutrality rules Will determine whether broadband Internet connections will be defined as an essential utility or an information service

The First Amendment and Democracy As citizens, we must: Engage in public debate about media ownership Pay attention to those excluded from opportunities not only to buy products but to shape the cultural landscape Challenge journalists and leaders Become watchdogs and critical consumers