1. Mass Media Law 18th Edition
Don Pember
Clay Calvert
Chapter 2
The First Amendment: The Meaning of Freedom
© 2013 McGraw-Hill Companies. All Rights Reserved.
McGraw-Hill/Irwin

2. Historical Development
Freedom of the Press in England
The British devised several means to restrict press:
Seditious libel laws – punished citizens who criticized the government
Licensing/prior restraint laws – required printers to obtain prior approval from the government or church before printing

3. Historical Development
Freedom of the Press in England
The British devised several means to restrict press:
Bonds – money deposited with the government that would be forfeited if the government felt material should not be printed

4. Historical Development
Freedom of the Press in Colonial America
Licensing lasted until the 1720s in the colonies
Taxation, though part of the colonial system, was often ignored by printers

5. Historical Development
Freedom of the Press in Colonial America
Trial of John Peter Zenger
Zenger was the publisher of the New York Weekly Journal
His paper was supported by Lewis Morris and James Alexander, opponents of the unpopular colonial governor, William Cosby

6. Historical Development
Freedom of the Press in Colonial America
Trial of John Peter Zenger
Zenger was jailed in November 1734 after publishing several articles critical of Cosby
Although Zenger was clearly guilty under the seditious libel laws in place at the time, a jury acquitted him (today called jury nullification)

7. Historical Development
Community Censorship Then and Now
Proceeding the Revolutionary War
The content of pro-British newspapers was limited by community pressure after 1770
Pro-British printers were attacked, their shops wrecked, and papers destroyed

8. Historical Development
Community Censorship Then and Now
Contemporary examples:
Censored episode of “South Park” involving the Prophet Muhammad
Removal of art depicting the Prophet Muhammad from the Islamic collection at New York’s Metropolitan Museum of Art

9. Historical Development
Community Censorship Then and Now
Heckler’s veto – when a crowd or audience’s reaction to a speech or message is allowed to control and silence that speech or message.

10. The First Amendment The New Constitution
A Bill of Rights was not discussed until very late in the Constitutional Convention
Many delegates thought a Bill of Rights was unnecessary as the state constitutions guaranteed such rights
The Bill of Rights was introduced and advocated by James Madison of Virginia during the First Congress

11. The First Amendment The New Constitution
The First Amendment to the United States Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

12. The First Amendment Freedom of Expression in the 18th Century
Original Intent – the meaning intended by the framers of the Constitution
What did the First Amendment mean in 1791?
No prior restraint
No licensing
No punishment for seditious libel

13. The First Amendment Freedom of Expression in the 18th Century
Generally, freedom of expression in the late 1700s protected the rights of the speaker

14. The First Amendment Freedom of Expression Today
Some scholars argue that freedom of expression today protects the public’s right to know -- society’s right to be informed

15. The First Amendment Freedom of Expression Today
Seven First Amendment Theories
Absolutist theory
Ad hoc balancing theory
Preferred position balancing theory
Meiklejohnian theory
Marketplace of ideas
Access theory
Self-realization

16. The First Amendment Absolutist theory
“No law” means no law; an absolute protection against censorship
Few Supreme Court justices have adopted this position (Black and Douglas)

17. The First Amendment Ad hoc balancing theory
When free speech and press rights conflict with other important rights, courts must balance these freedoms
Determined on a case-by-case basis

18. The First Amendment Preferred position balancing theory
When balancing conflicting rights, speech and press are preferred – given greater weight – than other rights
Today, courts use this theory more often than any other

19. The First Amendment Meiklejohnian theory Public Speech Private Speech
Speech or press that advances self-governance
Should always be protected
Private Speech
Speech or press that addresses anything other than self-governance
Should not be protected; not essential to self-governance

20. The First Amendment Marketplace of ideas
All information and opinions should be allowed to compete in a marketplace, with the best ideas chosen from among the many
This metaphor, first introduced in the Supreme Court by Oliver Wendell Holmes, Jr., currently dominates the Court’s discussion of freedom of speech

21. The First Amendment Marketplace of ideas
Critics of the marketplace of ideas say:
It allows harmful speech and speech with little value to be circulated
Those with the most resources have more and louder voices in the marketplace of ideas

22. The First Amendment Access theory
Free speech and press rights are not meaningful to citizens unless they have access to media outlets
If media will not voluntarily allow use of airwaves or print, then government should force this access
Access theory was struck down in Miami Herald v. Tornillo by the U.S. Supreme Court

23. The First Amendment Self-Realization/Self-Fulfillment theory
Speech can be inherently valuable to a person regardless of its effects on others – it is an end in itself
Expressing one’s identity through speech

24. The Meaning of Freedom
Seditious Libel and the Right to Criticize the Government
The rights to discuss, criticize and oppose the government is at the center of our political philosophy today.

25. The Meaning of Freedom Critical Dates in the History of Sedition Law
1735 Acquittal of John Peter Zinger
1791 Adoption of First Amendment
1917 Espionage Act
1918 Sedition Act
1919 Clear and present danger test
1927 Brandeis sedition test in Whitney
1940 Smith Act adopted
1951 Smith Act ruled constitutional
1957 Scope of Smith Act narrowed
1969 Brandenburg decreases sedition prosecutions

26. The Meaning of Freedom Alien and Sedition Acts of 1798
Extended the period prior to naturalization, and gave the president power to detail and deport non-citizen residents
Forbade false, scandalous or malicious publications against the U.S. government, Congress or the president

27. The Meaning of Freedom Alien and Sedition Acts of 1798
John Adams (a Federalist) was president at time law was passed
Law aimed at silencing criticism in Jeffersonian newspapers
There were 15 prosecutions under the Sedition Act; 8 of those prosecuted were editors of Jeffersonian newspapers

28. The Meaning of Freedom Alien and Sedition Acts of 1798
Adams lost his bid for re-election in 1800 in large part due to his attempts at silencing critics with the Sedition Act
The Sedition Act expired in 1801
Jefferson, now president, pardoned all those who had been convicted under the Act

29. The Meaning of Freedom Sedition in World War I
Espionage Act of 1917 made it a crime to:
Willfully convey a false report with the intent to interfere with the war effort
Cause insubordination, disloyalty, mutiny or refusal of duty
Willfully obstruct recruiting or enlistment

30. The Meaning of Freedom Sedition in World War I
Sedition Act of 1918 made it a crime to:
cause contempt of or scorn for the federal government, the Constitution, the flag or the uniform of the armed services

31. The Meaning of Freedom Sedition in World War I Sedition Act of 1918
Under the Act, the U.S. Post Office Department censored thousands of newspapers, books and pamphlets
Those found to violate the Act, often lost second class mailing privileges or found their mail was never delivered

32. The Meaning of Freedom Sedition in World War I
States also adopted statutes aimed at war dissenters.
States passed criminal syndicalism statutes that forbid the display of a red or black flag

33. The Meaning of Freedom The Smith Act (1940) Made it a crime to:
Conspire to advocate the violent overthrow of the government
Organize a group that advocated the violent overthrow of the government
Be a member of a group that advocated the violent overthrow of government

34. The Meaning of Freedom Sedition Today
In the 1990s, state sedition acts were used to prosecute those involved with the first World Trade Center bombing as they “conspir[ed] to overthrow, put down, or to destroy by force the Government of the United States.”
In 2006, a federal judge allowed charges to proceed under the Espionage Act of 1917 when two former lobbyists allegedly obtained classified information and then communicated it.

35. Defining the Limits of Freedom of Expression
The Clear and Present Danger Test
Holmes in Schenck (1919): “The question in every case is whether the words used, are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

36. Defining the Limits of Freedom of Expression
The Clear and Present Danger Test
Brandeis in Whitney (1927): “In order to to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was them contemplated.”

37. Defining the Limits of Freedom of Expression
The Clear and Present Danger Test
Vinson in Dennis (1951):
Clear and probable danger test
“In each case [courts] must ask whether the gravity of the ‘evil’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”

38. Defining the Limits of Freedom of Expression
The Clear and Present Danger Test
Brandenburg v. Ohio (1969):
The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.”

39. Defining the Limits of Freedom of Expression
Real-Life Violence – Blaming Movies, Video Games and Books
The Brandenburg test for incitement to violence has also been used in wrongful death, negligence and product liability suits arising from the use of media products

40. Defining the Limits of Free Expression
Real-Life Violence – Blaming Movies, Video Games and Books
Media products that have been challenged in court include:
Movies: The Basketball Diaries
Video Games: Grand Theft Auto, Mortal Kombat, Resident Evil
Books: Hit Man

41. Defining the Limits of Free Expression
Real-Life Violence – Blaming Movies, Video Games and Books
To justify regulations based on content, the strict scrutiny standard of judicial review must be satisfied.
Under strict scrutiny, the state must prove:
It has a compelling interest of the highest order to regulate the content, and
The regulation restricts no more speech than necessary to advance that interest

42. Defining the Limits of Freedom of Expression
The Gitlow Ruling and the Incorporation Doctrine
In Gitlow v. New York, the U.S. Supreme Court established the incorporation doctrine
the free speech and free press clauses of the First Amendment are “incorporated” through the 14th Amendment due process clause as fundamental liberties that apply to all levels of government

43. Prior Restraint Near v. Minnesota (1931)
Jay M. Near, publisher of the Saturday Press published articles that attacked city corruption and government officials
A Minnesota statute empowered courts to declare a newspaper a public nuisance
The Saturday Press was declared public nuisance, and was enjoined from printing any further editions

44. Prior Restraint Near v. Minnesota (1931)
The U.S. Supreme Court ruled the Minnesota statute was an unconstitutional prior restraint on free press
The Court also ruled that prior restraint is unconstitutional except in extreme situations, and the government carries the burden of proof to prove validity of exceptions

45. Prior Restraint The Pentagon Papers (1971)
The Supreme Court ruled the New York Times and Washington Post could publish historical documents that lead the U.S. intervention in the Vietnam conflict
The Court here did not say the Times and Post had a First Amendment right to print this story, just that the government failed to make a strong enough case for prior restraint

46. Prior Restraint U.S. v. Progressive (1979)
A reporter gathered information from unclassified sources on how to build an H-Bomb to run in the April 1979 issue of Progressive magazine
The U.S. government found out about publication before release of magazine, and asked courts for a permanent injunction against publication

47. Prior Restraint U.S. v. Progressive (1979)
The U.S. District Court ruled Progressive magazine could be enjoined from publishing the article as specific details were not necessary to carry out an informed debate on nuclear issues
Progressive appealed its case, but before an appellate court could hear the case, a Wisconsin newspaper ran the same story, and the government withdrew its case, leaving the case with little precedential value

48. Prior Restraint U.S. v. Bell (2005)
A federal appellate court upheld a permanent injunction barring Thurston Paul Bell from promoting and selling unlawful tax advice on his website
Ruled that the usually heavy presumption against prior restraint here “does not apply to restriction on unprotected speech, including false or unlawful commercial speech”