1. Freedom of Press

2. “The press was to serve the governed, not the governors.” – Justice Black (NYTimes vs. U.S.) What does this statement mean?

3. Hustler Magazine v. Falwell (1988) The State's interest in protecting public figures from emotional distress is not enough to deny First Amendment protection to speech that is offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here it is clear that Falwell is a "public figure" for purposes of First Amendment law. The jury found against Falwell on his libel claim when it decided that the Hustler ad parody could not "reasonably be understood as describing actual facts about Falwell or actual events in which he participated.” The Supreme Court agrees and sides with Hustler.

4. Court Considerations/Questions for Free Press: Public figure or official? Intentional malice to ruin reputation? Presented as truth?

5. Supreme Court Decisions – free press standards (A) New York Times v. US 1971 The Pentagon Papers The Court held that the government had not proven that publishing the Pentagon Papers would jeopardize national security, thus not overcoming the “heavy presumption” against prior restraints. Wrote Justice Hugo Black: “In the First Amendment, the Founders gave the free press and protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.”

6. When can prior restraint be used? Circumstances of protection of national security. National security in conjunction with times of war. There is a presumption against use of prior restraint!

7. (B) Nebraska Press Association v. Stuart (1976) The Supreme Court held that defendants’ right to a fair trial does not justify prior restraint. The Supreme Court struck down the gag order, noting that “a prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutionality.” Judges may take certain measures to ensure a fair trial, such as keeping the jury isolation or changing the location of the trial, but they are not allowed to use prior restraints on the media.

8. (C) New York Times v. Sullivan (1946), the Supreme Court made libel harder to prove when public officials are involved. The Supreme Court unanimously overturned the libel judgment. The Court held that in cases where a public official was criticized for official conduct, errors of fact alone were not enough to prove libel, nor was carelessness in printing the error. To win a libel suit, a public official had to prove the error was made with actual malice, “that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Actual malice is very difficult to prove in libel cases. In later decisions, the Court extended the actual malice standard in libel cases to public figures, as well as public officials.

9. (3) Red Lion Broadcasting v. FCC (1969), the Court said “of all forms of communication, it is broadcasting that has received the most limited First Amendment protection.” The Court upheld the power of the FCC to regulate broadcasting more than newspapers and other public property that may be controlled by the government. While the First Amendment applies to broadcasting, the Court held, “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount (most important).” The courts reasoned that the scarcity of the broadcast spectrum, which limited the opportunity for access to the airwaves, created a need for the Doctrine. Broadcasting = considered press and gets protection! BUT FCC has the right to regulate, and they do so for the people – according to social expectations. Currently: The proliferation of cable television, multiple channels within cable, public-access channels, and the Internet has eroded this argument, since there are plenty of places for ordinary individuals to make public comments on controversial issues at low or no cost. The FCC decided to eliminate the Doctrine in 1987, and in August 2011 the FCC formally removed the language that implemented the Doctrine.

10. HUSTLER MAGAZINE v. FALWELL (1988) Falwell, a nationally known minister and commentator on politics and public affairs, filed a suit in Federal District Court against Hustler magazine, a nationally circulated magazine and its publisher, to recover damages for libel and intentional infliction of emotional distress arising from the publication of an advertisement "parody" which showed Falwell as having engaged in a drunken incestuous behavior with his mother in an outhouse. The jury found against Falwell on the libel claim, specifically finding that the parody could not "reasonably be understood as describing actual facts... or events," but ruled in his favor on the emotional distress claim, stating that he should be awarded compensatory and punitive damages. The Court of Appeals affirmed, rejecting petitioners' argument that the "actual malice" standard of New York Times Co. v. Sullivan, must be met before Falwell can recover for emotional distress. Should the Court give Falwell damages, or is the cartoon protected under the free press clause of the First Amendment?

11. Hustler and Flynt vs. Falwell Holding: In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, and the lower courts' finding that the ad parody was not reasonably believable must be accepted.