Media, Freedom, Regulation, and Ethics SEPTEMBER 27, 2013

A Short History of the First Amendment 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.

Defining and Refining the First Amendment 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 First Amendment. “The Press” defined: Movies, advertising or commercial speech, and entertainment content are all forms of protected expression. (Recently, video games included). Bloggers have redefined “press”; citizen journalism.

“Abridgement” 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 a.m. “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? Would Wikileaks pass the “clear and present danger” test? What other examples of contentious material can you think of? Slippery slope argument

Free Press vs. Fair Trial 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 and Slander 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 First 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.

Three Tests of Protection 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 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 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. Press could be wrong when critiquing a public official and yet still protected under First Amendment.

Prior Restraint 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. Near vs. Minnestoa. Saturday Post. Alleged cops were in cahoots with local gangsters in Minneapolis. Tried to have paper shut down. Supreme Court ruled against. Seen as worst offence to freedom of the press. Gazette example? Can also be termed censorhsip.

Obscenity and Pornography 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.

Problems with the Miller Test 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. Time, place, and manner restrictions especially relevant in this regard.

Indecency According to the Federal Communications Commission, 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). Now, significant delays on live network broadcasts. Is a delay censorship? Ethical? How far we trust networks?