Chapter 16:

Legal Controls and Freedom of Expression

Some guiding questions

What is the American notion of free expression?

What is a free press?How does the First Amendment

protect media expression?What are special issues regarding

broadcasting and the Internet?

Cultural and social struggles over free

speech and freedom of the press have defined the nature of American

democracy.

FIRST AMENDMENT to the U.S. 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.

Food for thought:

To what degree should the

government regulate -- or protect -- forms of media expression?

Global Models for Expression of Ideas

Authoritarian modelCommunist or state

modelLibertarian modelSocial-responsibility

model

CENSORSHIP AS PRIOR RESTRAINT: CASES

Near vs. Minnesota, 1931

Pentagon Papers, 1971Progressive magazine,

1979

UNPROTECTED FORMS OF EXPRESSION

Sedition ActEspionage ActsFalse or misleading advertisingExpressions that threaten

public safetyLibel (defamation of character

in written expression)

Defenses against Libel Charges

Checking truthfulness and accuracy of statements

Absolute privilege and qualified privilege (in legal proceedings)

Framing statements as “opinion and fair comment”

The Right of Privacy

Protection of celebrities and public figures from invasive media

Anti-paparazzi laws in some states1999 Supreme Court ruling

prohibiting TV cameras from photographing crime raids without approval of occupants

INVASION OF PRIVACY includes

Intrusion (recording or surveillance devices)

Publication of private matters

Unauthorized appropriation of a person’s name or image for commercial purposes

Food for thought:

What are some privacy issues regarding the

Internet?

OBSCENITY

What is it? How to define it?Who should define it?Should it be protected as a

legitimate form of expression?Should purveyors of it be

prosecuted as a criminal offense?

Roth v. United States, 1957

1957 Supreme Court case defined obscenity as that which appealed to “prurient interests” when “taken as a whole” by the “average person” using “contemporary standards”

Miller v. California, 1973

A work was considered obscene if The average person, applying

contemporary community standards, found that material as a whole appealed to prurient interests

It depicts or describes sexual conduct in a patently offensive way

It lacks serious literary, artistic, political, or scientific value

FIRST V. SIXTH AMENDMENT

Sixth amendment guarantees accused the right to a speedy trial by an IMPARTIAL jury.

Cases occur in which news media heavily publicize details of a criminal case.

In such cases, it becomes difficult to find an impartial jury.

Some Sixth Amendment issues

Sequestering juries

Gag ordersShield lawsCameras in the

courtroomReports published

on Internet

FILM AND THE FIRST AMENDMENT

Early 20th century: censorship groups formed to “protect” children and working-class immigrants from immoral images.

Local film review boards censored films.1908-1912: federal law against boxing

films1915 Supreme Court decision (Mutual v.

Ohio) ruled that film was not a form of protected speech.

Self-Regulation in Hollywood

Public pressure, film review boards, and industry scandals led to self-regulation.

Formed the MPPDA (Motion Picture Producers and Distributors of America), led by President Will Hays.

In 1930s, established MOTION PICTURE PRODUCTION CODE to set moral standards.

RATING MOVIE CONTENT:

G, PG, R or X?

Movie rating system developed in late 1960s by Motion Picture Association of America (MPAA)

BROADCASTING and CENSORSHIP ISSUES

The Communications Act of 1934 mandated that broadcasters operate to serve the public interest.

Who controls the airwaves?Are the airwaves different

from newspaper pages?

BROADCASTING and the FIRST AMENDMENT

Cold War-era blacklisting of suspected “left-wing” performers and artists: fear of Communist influence in television

Red Lion v. FCC case (1969)Miami Herald v. Tornillo (1974)Pacifica v. FCC (1972-1979)

POLITICS, BROADCASTING AND THE FIRST AMENDMENT

Equal time law in Section 315 of 1934 Communications Act

Law amended in 1959 to exempt newscasts, press conferences, and political debates

THE FAIRNESS DOCTRINE

FCC rule initiated in 1949.Required stations to engage in

controversial-issues programming and to provide competing points of view

Repealed in 1987 by federal court ruling.

However, movements to revive Fairness Doctrine still exist.

Journalistic Ethics in the Age of Media Conglomerate

OwnershipCan news media run reports

critical of their parent companies?•ABC News and Disney•Time magazine and Time Warner•NBC News and General Electric•CBS News and Viacom

CYBERSPACE, EXPRESSION,

and DEMOCRACY

Public debates about the Internet

First Amendment issues, such as allowing pornography or hate sites on Internet

Seeming lack of public concern regarding implications of ownership issues as it becomes more privatized

Will the Internet continue to develop democratically rather than hierarchically?

To what degree will it be shaped by governments or

corporate interests?

Can the Internet fulfill its promise as a democratic forum

that enables and activates social

change?