Chapter 16 LEGAL CONTROLS and Freedom of Expression

Some guiding questions zWhat is the American notion of free expression? zWhat is a free press? zHow does the First Amendment protect media expression? zWhat are special issues regarding broadcasting and the Internet?

Cultural and social struggles over free speech and press freedom 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 zauthoritarian model zcommunist or state model zlibertarian model zsocial-responsibility model

Censorship as prior restraint: Cases zNear vs. Minnesota, 1931 zPentagon Papers, 1971 zProgressive magazine, 1979

Unprotected forms of expression zSedition Act zEspionage Acts zfalse or misleading advertising zexpressions that threaten public safety zlibel (defamation of character in written expression)

Defenses against Libel Charges zchecking truthfulness and accuracy of statements zabsolute privilege and qualified privilege (in legal proceedings) zframing statements as “opinion and fair comment”

The Right of Privacy zprotection of celebrities and public figures from invasive media zanti-paparazzi laws in some states z1999 Supreme Court ruling prohibiting TV cameras from photographing crime raids without approval of occupants

INVASION OF PRIVACY includes zintrusion (recording or surveillance devices) zpublication of private matters zunauthorized appropriation of a person’s name or image for commercial purposes

Food for thought: What are some privacy issues regarding the Internet?

OBSCENITY zWhat is it? How to define it? zWho should define it? zShould it be protected as a legitimate form of expression? zShould purveyors of it be prosecuted as a criminal offense?

Roth v. United States, 1957 z1957 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 zthe average person, applying contemporary community standards, found that material as a whole appealed to prurient interests zit depicts or describes sexual conduct in a patently offensive way zit lacks serious literary, artistic, political or scientific value

FIRST vs. SIXTH AMENDMENT zSixth amendment guarantees accused the right to a speedy trial by an IMPARTIAL jury zcases occur in which news media heavily publicize details of a criminal case zin such cases, it becomes difficult to find an impartial jury

Some Sixth Amendment issues zsequestering juries zgag orders zshield laws zcameras in the courtroom zreports published on Internet

FILM and the First Amendment zearly 20th century: censorship groups formed to “protect” children and working- class immigrants from immoral images zlocal film review boards censored films z : federal law against boxing films z1915 Supreme Court decision (Mutual vs. Ohio) ruled that film was not a form of protected speech

Self-Regulation in Hollywood zPublic pressure, film review boards and industry scandals led to self-regulation zformed the MPPDA (Motion Picture Producers and Distributors of America), led by President Will Hays zin 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 zThe Communications Act of 1934 mandated that broadcasters operate to serve the PUBLIC INTEREST zWho controls the airwaves? zAre the airwaves different from newspaper pages?

BROADCASTING and FIRST AMENDMENT zCold War-era blacklisting of suspected “left-wing” performers and artists: fear of Communist influence in television zRed Lion v. FCC case (1969) zMiami Herald v. Tornillo (1974) zPacifica v. FCC ( ): George Carlin’s “Seven Dirty Words” case

POLITICS, BROADCASTING AND THE FIRST AMENDMENT zEqual time law in Section 315 of 1934 Communications Act zlaw amended in 1959 to exempt newscasts, press conferences, and political debates

THE FAIRNESS DOCTRINE zFCC rule initiated in 1949 zRequired stations to engage in controversial-issues programming and to provide competing points of view zRepealed in 1987 by federal court ruling zHowever, movements to revive Fairness Doctrine still exist

CYBERSPACE, EXPRESSION, and DEMOCRACY

Public debates about the Internet zFirst Amendment issues, such as allowing pornography or hate sites on Internet zSeeming 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?