Media Law: Understanding Freedom of Expression

© 2008 The McGraw-Hill Companies, Inc. All rights reserved

Chapter OutlineHistoryToday’s Media LawControversies

What are the 5 clauses of the first amendment?

Name the different types of mass media that exist in our society

The Development of the Philosophy of Free Speech Freedom to protest was important to the founders U.S. colonies ▪ After breaking away from the Roman Catholic Church

Protestants made fun of under England’s licensing laws▪ Not allowed to express religious views for more than a 100 years.

The First Amendment to the U.S. Constitution guaranteed citizens of the new country five essential and related freedoms:

▪ Religion

▪ Speech

▪ Press

▪ Assembly

▪ Petition The First Amendment ignited a sometimes bitter debate about

free speech that continues to this day.

In 1798, The Alien and Sedition Acts, Illegal to criticize the government, through Congress. Lasted two years, helped Jefferson win the presidency in 1800

The Comstock Act, passed in 1873, Banned all sex education, birth control, and abortion information, Made illegal to send these materials through the mail.

Muckrakers influenced passage of laws ▪ Sherman Antitrust Act of 1890▪ Pure Food and Drug Act of 1906, ▪ Lead to restrictions in what and how the media could advertise.

▪ Espionage Act upheld the censorship of ideas considered injurious to the war effort.

Clear and Present Danger doctrine Justice Oliver Wendell Holmes wrote the in 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 the United States Congress has a right to prevent.”

Regulating Broadcasting FCC regulated more than radio stations on the frequency

spectrum.▪ The Equal Time Rule ▪ Stations must give equal opportunity for other candidates of same office.

▪ The Fairness Doctrine (1949-1987) ▪ Required broadcasters to give time for discussion of big public issues.

Telecommunications Act of 1996, ▪ Removed restrictions on a wide

range of communications industries▪ Allowing

Cable TV, Long distance carriers, Local phone companies, Information services Internet service providers to

merge at will.

In 1957, the Supreme Court decreed that a work could be declared obscene ▪ If, according to the perceptions of the average person applying

contemporary community standards, the dominant theme of the material taken as a whole appealed to the prurient (lustfully depraved) interest of the consumer.

▪ This definition tended to confuse rather than clarify.

In 1964 Justice Potter Stewart expressed frustration at the difficulties of defining obscenity ▪ He famously said “I can’t define it, but I know it when I see it”.

A new category, indecency, was created for broadcast controls. ▪ The FCC considers material indecent if it is “offensive to community

standards for broadcasting.”

New Technology In 1996, Congress passed the Communications Decency Act, Which made it a crime to transmit indecent material over the

Internet if minors had access to it ▪ But the Supreme Court found it unconstitutional

▪ Why would this be unconstitutional

New Technology Other laws had to be written for crimes that did not exist

before the Internet.

▪ A 1996 law made computer espionage illegal.

▪ In the 1990s, federal law made the development and purposeful transmission of computer viruses illegal.

The Legal System and Types of Law▪ In criminal law ▪ Criminal acts.

▪ In civil law ▪ Disputes between private parties

▪ Constitutional law ▪ The U.S. Constitution prevails, ▪ Any state or local law that contradicts the First Amendment cannot be

legally implemented.

Statutory law Collection of laws written by legislative bodies, such as the U.S. Congress,

Administrative law Made up of the rules and regulations of governmental agencies

Common law Made up of judges’ rulings which become precedents for future cases.

Defamation False communication that and injures the

reputation

Slander Defamation that appears in spoken form, such

as speech.

Libel Published or broadcast defamation. In most cases, truth is the absolute defense

against a charge of libel.

A public figure must prove actual malice▪ Either knew it was false or had a reckless

disregard for the truth,.

The copyright sign ▪ Does not have to appear in a work for it to be protected.

Fair use ▪ Allows copying of a work for noncommercial use as long as it does

not exploit the copyright holder.

Digital Millennium Copyright Act▪ Made it a crime to break through any technology intended to secure

digital copies of software, literary works, videos, and music.

Some forms of speech are more protected than others.▪ Political speech ▪ Ideas and facts that backup the ideas about the meaning and correct

course of government is the most protected.

▪ Artistic speech ▪ Including creative work such as painting, dance and literature.

▪ Commercial speech ▪ includes advertising.

▪ Indecent speech ▪ Enjoys the least protection.