Chapter 15 Legal Controls andFreedom of Expression
Copyright Law and Digital Culture “The uneven and unclear rules for the use of sound, images, video, and texthave become one of the most contentious issues of today’s digital culture. As digital media make it easier than ever to create and re-create cultural content, copyright law has yet to catch up with these new forms of expression.”
Copyright Law and Digital Culture DJ Drama and Girl Talk Fair Use Exemption – allows fortransformative use – creating new work from bits of copyrighted work.
Models for Expression• Authoritarian model• Communist model
Models for Expression•Social responsibility model•Libertarian model
Censorship as Prior Restraint• Government cannot block publication or speech before it occurs.• Pentagon Papers • Daniel Ellsberg Vietnam War – Clear and Present Danger to National Security
Censorship as Prior Restraint• The Progressive • National security as a cause for restraint • Article offered “how-to” H-bomb guide
Unprotected Forms of Expression• Libel: defamation of character in written or broadcast form NY Times v. Sullivan • Different from slander
Libel• Public Officials vs Private CitizensPrivate1.That the public statement about them was false2.That Damages or actual injury occurred (such as the loss of a job, harm to reputation, public humiliation, or mental anguish)3. That the publisher or broadcaster was negligent in failing to determine the truthfulness of the statement.
Libel• Public Figures• Also have to prove malice on the part of the medium
Unprotected Forms of Expression (cont.)• Defenses against libel charges • Can be protected by qualified privilege or rule of opinion and fair comment
Unprotected Forms of Expression (cont.)• Obscenity • Miller v. California (1973) • Acknowledges differing community standards • Must judge the work as a whole
Unprotected Forms of Expression (cont.)1. The average person, applying contemporary community standards, would find that the material as a whole appeals to purient interest2. The material depicts or describes sexual conduct in patently offensive way.3. The material, as a whole, lacks serious literary, artistic, or scientific value.
Unprotected Forms of Expression (cont.)• Right to privacy • Most journalism organizations use their own guidelines. • Rights for public and private citizens
Unprotected Forms of Expression• Seditious expression • Clear and present danger established with Schenck v. United States• Copyright legally protects the rights of authors and producers to their published or unpublished work.
First Amendment versus Sixth Amendment• First Amendment’s protections of speech and the press clash with the Sixth Amendment’s guarantees of a speedy and public trial, by an impartial jury. • Gag orders and shield laws regulate trials, protect reporters and their sources.• Cameras in the courtroom still debated • Limited TV coverage of U.S. federal trials • Supreme Court still bans all cameras
Film and the Film Industry• Film review boards • State and local boards try to control film. • Jack Johnson and boxing films• Fatty Arbuckle and the MPPDA• Industry self-regulation • The Motion Picture Production Code• 1952: The Miracle Case, Burstyn v. Wilson
Expression in the Media: Print, Broadcast, and Online• McCarthy hearings• Red Channels names those “sympathetic” to communist, left-wing causes• “Red scare”• Among those scarred by witch-hunts: • Lena Horne • Dashiell Hammett • Arthur Miller
The FCC Regulates Broadcasting• Red Lion v. FCC: Radio broadcasters’ responsibilities to public interest outweigh right to choose programming.• Miami Herald Publishing v. Tornillo: Supreme Court ruled the right-to-reply law is unconstitutional for newspapers.
Political Broadcasts and Equal Opportunity• Section 315 • Stations must provide equal opportunity for response and counter. • Only applies to broadcast • Supporters of equal opportunity law argue that it has provided forums for lesser-known candidates.
The Demise of the Fairness Doctrine• The Fairness Doctrine required stations to offer balancing opinions on controversial issues.• By 1987, broadcasters argued that mandating opposing views every time a program covered a controversial issue was an unfair burden.
Communication Policy and the Internet • Internet regarded as the one true venue for unlimited free speech • Public conversation about the Internet focuses on First Amendment issues. • 2010: Debate over classification of Internet continues. • Can be considered an essential utility or 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 to buy products and shape the cultural landscape • Challenge journalists and leaders • Become watchdogs and critical consumers