Pember18_ppt_ch02

Mass Media Law

18th Edition Don Pember Clay Calvert

Chapter 2 The First Amendment: The Meaning of Freedom McGraw-Hill/Irwin

© 2013 McGraw-Hill Companies. All Rights Reserved.

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 2-2

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

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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

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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 2-5

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) 2-6

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

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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

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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.

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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 2-10

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 2-11

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 2-12

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

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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

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The First Amendment Freedom of Expression Today – Seven First Amendment Theories 1. 2. 3. 4. 5. 6. 7.

Absolutist theory Ad hoc balancing theory Preferred position balancing theory Meiklejohnian theory Marketplace of ideas Access theory Self-realization 2-15

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)

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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

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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

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The First Amendment Meiklejohnian theory – Public 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 selfgovernance 2-19

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 2-20

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

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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 2-22

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

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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.

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The Meaning of Freedom Critical Dates in the History of Sedition Law – – – – – – – – – –

1735 1791 1917 1918 1919 1927 1940 1951 1957 1969

Acquittal of John Peter Zinger Adoption of First Amendment Espionage Act Sedition Act Clear and present danger test Brandeis sedition test in Whitney Smith Act adopted Smith Act ruled constitutional Scope of Smith Act narrowed Brandenburg decreases sedition prosecutions 2-25

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

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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 2-27

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 2-28

The Meaning of Freedom Sedition in World War I – Espionage Act of 1917 made it a crime to: 1. Willfully convey a false report with the intent to interfere with the war effort 2. Cause insubordination, disloyalty, mutiny or refusal of duty 3. Willfully obstruct recruiting or enlistment 2-29

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

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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 2-31

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

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The Meaning of Freedom The Smith Act (1940) – Made it a crime to: 1. Conspire to advocate the violent overthrow of the government 2. Organize a group that advocated the violent overthrow of the government 3. Be a member of a group that advocated the violent overthrow of government

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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. 2-34

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.” 2-35

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.” 2-36

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.” 2-37

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.” 2-38

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

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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 2-40

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.

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Under strict scrutiny, the state must prove: 1.

It has a compelling interest of the highest order to regulate the content, and

2.

The regulation restricts no more speech than necessary to advance that interest

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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 2-42

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 2-43

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

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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 2-45

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

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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 2-47

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” 2-48