Legal controls and freedom of expression
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Campbell, R., et al. (2011). Media Essentials: A Brief Introduction. Bedford/St.Martin’s. p.367-393

Campbell, R., et al. (2011). Media Essentials: A Brief Introduction. Bedford/St.Martin’s. p.367-393

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  • Changes in the Supreme Court – fewer First Amendment cases, and rulings in favor of free speech at a lower rate. (Art. p.1)
  • When would the “clear and present danger” criterion could apply?Can a company sell a product which exclusive use would be to copy music CDs and DVDs?Reluctance of the Court to impose 1st Amendment limitations on legislative expansion copyrights?
  • What its public concern?Video game law failed because it did not shoed a direct causal link, but instead correlation and it was over-inclusive – included children whose parents did not restricted their access.
  • The law was the latest attempt by the government to help protect real military heroes from phonies. The original iteration of the bill, the Stolen Valor Act of 2005, had been in effect for six years before the Supreme Court ruled it was unconstitutional.Now, according to the law if you lie about being awarded military honors for profit, you can now be subject to criminal prosecution.What would be the effects? Chilling effect?
  • MPPDA – Motion Pictures Producers and Distributors of America. MPAA – Motion Picture Association of America.Rating system help viewers avoid offensive material.
  • - Article p. 2
  • What are the effects of Section 315 – Stations started avoiding political programming entirely. What are the effects of the Fairness Doctrine – Stations started avoiding controversial issues entirely. Should broadcasting be more accountable to the public interest?
  • - Hot misappropriation news would not always be preempted by federal copyright law.
  • In our democracy, the news media – whether print, radio, or the Internet – plays a particularly important role. Shift in content – more as consumers than as citizensFrom long-term social and economic impacts to how business merger affects the immediate price of a product. More difficult for journalists to lead critical discussion about media ownership, media regulation, and business practices. “More important than ever for citizens to share the watchdog role with journalists.” “The First Amendment protects not only the news media’s free speech rights but also the rights of all of us to speak out.” We have to challenge government and business leaders – rather than assuming that journalists will do so.

Legal controls and freedom of expression Presentation Transcript

  • 1. Chapter 13: Legal Controls and Freedom of Expression Campbell, R., et al. (2011). Media Essentials: A Brief Introduction. Bedford/St.Martin’s. p.367-393 Aitza M. Haddad Nunez, J.D., LL.M. Introduction to Mass Communication
  • 2. First Amendment  What constitutes “Free Speech” or “Free Expression” and “Free Press”?  From licensing printers in England to the Sedition Act in U.S. John Milton – Areopagitica  “All sort of ideas – even false ones – should be allowed to circulate. Eventually […] the truth would emerge.”  Four Models:  Authoritarian Model  State or Communist Model  Social Responsibility Model  Libertarian Model  Who should fulfill the civic role of watchdog?
  • 3. Censorship and Prior Restraint “A law has not been broken until an illegal act has been committed.” Exception – A threat to national security Pentagon Papers Case Clear and Present Danger criterion Progressive Magazine Case First time in America that a prior restraint order imposed in the name of National Security stopped initial publication of a news report.
  • 4. Unprotected Forms of Expression Sedition Schenck v. United States (1919) – “Clear and present danger” criterion as a limit to 1st Amendment Copyright Infringement Public domain – Fair use Golan v. Holder (2012) – permits for foreign works published abroad after 1923 to be removed from the public domain. U.S. alignment with copyright protections of pother nations or violation of the Copyright and Patent Clause? Abridgment of pre-existing freedom to speak?
  • 5.  Obscenity  Miller v. California (1973) 1. The Average person, applying contemporary community standards, finds that the material as a whole appeals to prurient interests. 2. The material depicts or describes sexual conduct in a patently offensive way. 3. The material, as a whole, lacks serious literary, artistic, political and scientific value.  Offensive Speech?  Government may not regulate offensive speech. Court rejected the argument that “medium specific” characteristics may soften First Amendment protections or create new categories of unprotected speech.  Protect discourse on matters of “public concern.”  No “free-floating” power to restrict the ideas to which children may be exposed. Unprotected Forms of Expression
  • 6. New Unprotected Form of Expression? Libel New York v. Sullivan (1964) Private person – falsehood, damages and negligence. Public Officials – falsehood, damages and negligence, plus actual malice. Best defense: Truth Rule of opinion and fair comment – includes satire and comedy.
  • 7. New Unprotected Form of Expression? Stolen Valor Act 2005 - it was a crime simply to lie about military service and awards, even if the person making such claims obtains no material benefits as a result. Violated a person’s First Amendment right to free speech. 2008 - “Federal crime for an individual to fraudulently hold oneself out to be a recipient of any of several specified military decorations or medals with the intent to obtain money, property, or other tangible benefit.”
  • 8.  Right to Privacy Right to be left alone, without his or her name, image or daily activities becoming public property. Laws that protect regular citizens’ privacy: Privacy Act f 1974 The Electronic Communications Act of 1986 Laws weakening regular citizens’ privacy: The Patriot Act of 2001  Snyder v. Phelps (2011) Westboro Baptist Church protests at funeral protected by First Amendment because it’s a matter of public concern. Even when the church exploited the funeral for publicity. Privacy v. Public Concern
  • 9. The 1st versus the 6th Freedom of Expression and the accused’s right to a speedy trial. Gag orders Speech restrictions on lawyers and witnesses as a safeguard to ensure fair trial in heavily publicized cases. Court review in 1976 doomed them as a prior restraint violation. Shield laws Reporters obligation to reveal their sources of information used in news stories. Reporter’s privilege may be lost is the reporter fails to maintain sufficient independence from his source. No federal protection.
  • 10. The 1st versus the 6th  Laws regarding use of cameras in courtrooms  New Jersey vs. Hauptmann (1934) – electronic equipment so obtrusive that detracted the essential dignity of the proceedings.  Press-Enterprise Co. v. Superior Court (1984) – Broadcast equipment started to became less obtrusive. Fair trials not impossible. Each state will implement its own system. Supreme Court continues to ban TV but it 2000 broke its anti-radio rule.  Analogous application to all government institutions and activities?  Case-by-case  Historical tradition of public access.  Overriding interest.  Restriction narrowly tailored to serve those overriding interests.
  • 11. From 1890 to 1952 Films were subject to first to censorship by citizen groups and lawmakers, and then to the film industry’s self-censorship. Local Review Boards – determine moral suitable for the community. African American Jack Johnson 1908 Championship Mutual v. Ohio (1915) – “motion pictures a not a form a speech but a “business pure and simple”” with “a special capacity for evil.” The First Amendment and Film
  • 12. Auto regulation of the industry 1920s – Actors and extras required to have a “squeaky-clean reputations.” Republican Will Hays president of the MPPDA. 1930s to 1950 – Motion Picture Production Code – no production that would “lower the moral standards” of who sees it. Burstyn v. Wilson (1952) – Movies are n important vehicle for public opinion. 1960s – MPPDA, now MPAA, establish the movie-rating system. The First Amendment and Film
  • 13.  Limited broadcast signals – scarce national resource  Fewer constitutional protections = more governmental regulation  Communications Act f 1934 – public interest, convenience, or necessity Not free to air whatever you want.  Major differences between broadcast and print.  Red Lion Broadcasting Co. v. FCC (1969) – Public interest outweighs broadcasters’ rights over their content.  Miami Herald Publishing Co. v. Tornillo (1974) – Cant force a newspaper to give a candidate space. The First Amendment, Broadcasting, and the Internet
  • 14. Indecency Remains undefined today but government may punish broadcasters after the fact. FCC has the authority to require broadcasters to air adult programing at times when children are not likely to be listening. FCC v. Fox TV Stations, Inc. (2010) Indecency Regulation Regime Inconsistent and unconstitutionally Vague. Chilling Effect The First Amendment, Broadcasting, and the Internet
  • 15. Section 315 – Political Speech During elections, broadcast stations must provide equal opportunities and response time for qualified political candidates. If it qualifies as news, the opposing candidate cannot invoke Section 315 and demand free time Fairness Doctrine – Controversial Issues 1949 – required the airing of controversial issues affecting the community accompanied with competing point of views. It ended in1987 after a federal court ruled that it was just a regulation and not an extension of Section 315. The First Amendment, Broadcasting, and the Internet
  • 16.  Internet  One true venue for unlimited free speech. Perfect medium to fight political oppression.  Its global expansion outstrips laws and regulations.  Barclays Capital Inc. v. Theflyonthewall.com, Inc. (2011)  Bars hot news misappropriation claims in many but not all circumstances. Case-by-case. Copying factual information collected and shared by others.  Hot news is “quasi-property.” Right to uncover and report news deemed important through “substantial organizational effort.” Free-riding? Hot news misappropriation? The First Amendment, Broadcasting, and the Internet
  • 17.  Important role of the news media – whether print, radio, or the Internet.  Shift in content – more as consumers than as citizens  More difficult for journalists to lead critical discussion about media ownership, media regulation, and business practices.  “More important than ever for citizens to share the watchdog role with journalists.”  “The First Amendment protects not only the news media’s free speech rights but also the rights of all of us to speak out.”  We have to challenge government and business leaders – rather than assuming that journalists will do so. The First Amendment in a Democratic Society