Legal Controls and Freedom of Expression Chapter 14

“(T)here’s always been a tension between the notion of free expression and the idea that some expression (such as sexually explicit words or images) should perhaps be prohibited, or censored. Many people have wondered what free expression really means.”

A Closer Look at the First Amendment 1644 John Milton was the first to defend the rights of a free press in Areopagitica U.S. Constitution ratified without protections for free press 1791 Bill of Rights ratified with 10 amendments 1798 Sedition Act passed to silence war opposition

Four Interpretations of Free Expression Authoritarian model Government censorship of “threatening” expression State or Communist model Government controls press, which serves goals of the state Modern examples: Myanmar (Burma), China, Cuba, North Korea

Four Interpretations of Free Expression (cont.) Social responsibility model Captures ideals of mainstream journalism in U.S. Press functions as a Fourth Estate, or unofficial branch of government Libertarian model No restrictions on mass media or freedom of speech Encourages vigorous criticism of government

Prior Restraint Legal definition of censorship Government cannot block publication or speech before it occurs Two cases tested limits Pentagon Papers Supreme Court allows newspapers to publish secret documents. The Progressive Justice Warren blocks paper from printing H-bomb “how-to” guide.

Unprotected Forms of Expression Sedition Schenck v. United States established “clear and present danger” criterion for expression Copyright infringement Legally protects rights of authors and producers to their published or unpublished works Public domain gives public free access once copyright has expired Copyright lobby pressures lawmakers to criminalize infringement

Unprotected Forms of Expression (cont.) Libel Defamation of someone’s character in written or broadcast form Contrast “slander,” or spoken defamation Actual malice: knowingly printing or broadcasting a statement known to be false Defenses Truth, opinion, satire

Unprotected Forms of Expression (cont.) Obscenity Definitions change over time. Miller v. California established current definition Violation of privacy rights Person has right to be left alone, without name, image, or daily activities becoming public property Electronic Communications Privacy Act of 1986 and USA PATRIOT Act have weakened laws Do Not Track Me Online Act proposed, 2011

First Amendment vs. Sixth Amendment Gag orders Prohibit press from releasing information or giving commentary that might cause unfair trial Considered prior-restraint violation of First Amendment Shield laws Reporters don’t have to reveal sources used in news stories; no federal shield law Cameras in the courtroom Each state may implement own system

First Amendment and Film Citizens and lawmakers Film Review Boards State and local boards control film Federal government regulates boxing movies Reflected racial attitudes Film not protected by First Amendment Mutual v. Ohio decision

Movie Industry Regulates Self The Motion Picture Production Code No picture can lower moral standards. Burstyn v. Wilson placed movies on same footing as books in terms of First Amendment MPAA Rating System Established in response to public concerns over sexual language and imagery in movies

Regulating Broadcast Signals Red Lion v. FCC (1969) Radio broadcasters’ responsibilities to public interest outweigh rights to choose programming. Miami Herald Publishing v. Tornillo (1974) Supreme Court ruled the right-to-reply law is unconstitutional for newspapers

Indecency 1937 Mae West is banned from radio for “indecent speech” 1970s Radios stations lose licenses for broadcasting “topless radio” FCC v. Pacifica Foundation bans indecent programs between 6:00 a.m.. and 10:00 p.m.

Political Coverage Section 315 Stations must provide equal opportunity for response and counter. Only applies to broadcast Fairness Doctrine Required stations to offer balancing opinions on controversial issues Ended smoking ads No longer in effect May contribute to polarization, but also allows more views

Communication Policy and the Internet Internet unregulated by government Not subject to Communications Act of 1934 Currently serves as democratic forum for regional, national, global interest groups Debates continue about regulation Civility, pornography, government surveillance

The First Amendment in a Democratic Society News media play an important role Expose government abuse Journalism is difficult in corporate age Citizens must share watchdog role Challenge government and business Take part in debates Wikileaks raises troubling questions When does secrecy serve public?