Chapter 15; Legal Controls and Freedom of Expression

By Emma Mackoy

What Constitutes Free Speech?

In 1989, Supreme Court Justice William Brennan Jr. commented on his

favorite part of the constitution.“The First Amendment, I expect. Itsenforcement gives us this society. Theother provisions of the Constitution reallyonly embellish it.”

In the United States, we tend to take for granted our right to criticize the government and authority figures.

A 2010 Survey revealed that 47 nations allow virtually no freedom of the press.

Models of ExpressionSince the mid-1950s, four conventional models of speech have been used to catagorize ideas underlying

free speech... Authoritarian model

- Developed with the first printing press in 16 th century England. This model developed with the elite class controlling and censoring information to the illiterate general public. Publishers sympathetic to the government were issued printing licenses. This model still exists in developing countries in Asia, Latin America and Africa.

Communist or State Model - Under this model, the press is controlled by the government with the belief that the

press should serve the goals of the state. Ideas that challenge the basic premises of state author ity are not tolerated. Examples of this exist in Myanmar, Chine, Cuba and North Korea.

Social Responsibility Model- This model characterizes mainstream journalism in the United States. The 1947 Hutchins

Commission was formed to examine the increasing influence of the press. This report called for press watchdog groups to encourage comprehensive news reports that put issues and events in context. Under this model, the press supplies information to the citizens so they can make informed decisions regarding political and social issues. In essence, the press becomes a Fourth Estate, operating as an unofficial branch of the government to monitor abuses of power.

Libertarian Model- This model encourages vigorous government criticism and the highest level of individual press and

freedoms. This model tolerates the expression of any media, from pornography to anarchism. Libertarians believe that absolute freedom is the best way to fight injustice and find truth.

The First Amendment and the Constitution

Under the authoritarian model of 1600s Europe, governments tried to prevent, or even punish, the speech of editors and writers by requiring printers to obtain licenses.

John Milton, author of Paradise Lost, published his essay Areopagitica which supported freedom of the press, even in the case of false information, because in a democratic society the truth would eventually be discovered.

In 1965, England stopped licensing newspapers. The original U.S. Constitution didn't include a promise for freedom of the press.

However, 9 of the original 13 states had charters defending freedom of the press and pushed for federal guarantees.

In 1791 the Bill of Rights was included in the Constitution. In 1798 the Federalist party, led by John Adams, passed the Sedition Act to silence

opposition to an anticipated war against France. Ineffective to prevent opposition, even after 25 were arrested and 10 convicted, the Sedition Act ended in 1801 with Thomas Jefferson's presidency. The Sedition Act solidified American support of freedom of press, contrary to its original purpose. Michael Shudson, a journalism historian, said, “Only in the wake of the Sedition Act did Americans boldly embrace a free press as a necessary bulwark of a liberal civil order.

Censorship as Prior Restraint

Prior restraint means that “courts and governments cannot block any publication or speech before it actually occurs, on the principle that a law has not been broken until an illegal act has been committed.”

This still leaves open circumstances where the government can halt publication in extreme cases, such as any threats to national security.

The Pentagon Papers tested prior restraint when, in 1971 amidst the Vietnam War, Daniel Ellsberg (a former Defense Department employee) stole a copy of the report “History of U.S. Decision-Making Process on Vietnam Policy” and began to leak it to the press. 3 weeks after the New York Times published the first article, the case was brought to the Supreme Court with the Nixon Administration claiming the publication posed “a clear and present danger” . A 6 -3 vote sided with the newspaper.

Unprotected Forms of Expression

Seditious Expression; the principles of the Seditious Act reappear in modern times of war. The Espionage Act of 1917 and 1918, enforced during WW I and WW II, made it a federal crime to disrupt a nations war effort.

In Shnenk v. United States in 1919, the Supreme Court upheld conviction of a Socialist Party member, Charles T. Shnenk, for urging American men to protest the draft. Supreme Court Justice Oliver Wendell Holmes considered Socialist leaflets protected under free speech only at times when we weren't at war.

Copyright Infringement; a copywrite legally protects the right of authors and producers to their published or unpublished writing, music, lyrics, TV programs, movies or graphic art designs.

The first Copyright Act in 1970 gave authors the rights to protect their work for 14 years, after which they have the option of renewal or for their works to enter the public domain.

Libel; defamation of character in written or broadcast form which is different from slander, which is spoken.

Citizens with ordinary jobs, such as city sanitation employees or nurses, are considered private individuals and have to prove that

1. The public statement about them was false2. That damages or actual injury occurred.3. The publisher or broadcaster was negligent in determining truthfulness of statement.There are two catagories of public figures...1. Public celebrities and2. Individuals who have thrown themselves into the middle of controversy, like a lawyer taking a

high-profile case.-Public officials have to prove faslehood, damages, negligence and actual malice. Since

actual malice is hard to prove, it is harder for public figures to win cases of libel .

Obscenity; legislators argue that obscenity does not constitute a legitimate form of expression protected by the First Amendment. However, it has long been the problem that people cannot agree on what is obscene and nowadays most prosecutions of obscenity are aimed at child-pornography.

The Right to Privacy; the right to privacy protects a person's peace of mind and personal feelings. The news media have been granted wide protections unde the First Amendment, making it legal to reveal names and pictures of individuals for news stories and to report criminal reportings. However, most news agencies exercise discretion and have an ethical code in regards to what information or names they will reveal, such in cases of rape victims identities.

Many states have begun passing “anti-paparazzi” laws to protect people from unwanted scrutiny and/or surveillance.

First Amendment versus Sixth Amendment

Gag orders are meant to prohibit the press form releasing information or giving commentary that might prejudice jury selection or cause and unfair trial in court. In the United States, however, this seen as a prio-restraint violation and often get struck down.

Sheild laws allows reporters to conceal their sources for controversial information.

Cameras in the Courtroom were banned by the American Bar Association's code of ethics, Canon 35, claiming that they detracted from the “essential dignity of the proceedings”. However, now that cameras are less obtrusive courts have reassessed their stance on cameras in the courtrooms. Aside from the ban on cameras in the Supreme Court, courts exercise their own discretion on allowing cameras in their trials.

Social and Political Pressures on the Movies

The increasing popularity of movies began concerning citizens, seeing some ideas as a threat to their moral beliefs.

In 1907, the Chicago City Council allowed police authority to issue permits for movies.

In 1920, more than 90 cities had some type of movie censorship board.

In 1923, 22 states had established similar boards. In 1912, the government outlawed the transport of boxing movies across state lines. This occurred after Jack Johnson won the heavyweight championship in 1908. These laws has less to do with violence and more to do with Johnson's race; the victory of a black man was seen as a threat to white communities.

Self-Regulation in the Movie Industry

After the death of Virginia Rappe, an aspiring actress, at a San Francisco party hosted by Fatty Arbuckle, the comedian was indicted for rape and manslaughter. The Motion Picture Producers and Distributors of America was formed, and hired William Hays as it's president.

The “Hays Code” laid the groundwork for regulating content and scandal in the movies; such content discourages was “excessive and lustful kissing”, “traveling salesmen and farmer's daughters jokes” and “toilet gags”.

This code was soon adopted by most of the film industry.

The MPAA Ratings System

This ratings system was introduced in the 1960's after further discontent with movie content. Jack Valenti ran the MPAA and in 1968

established a board to rate movies. These ratings range from G, PG, R, and X. The 1984 release of Gremlins and Indiana Jones and The Temple of Doom encouraged the introduction of PG-13 rating.

The X rating gradually moved to only encompass the adult industry, and the MPAA adopted the NC-17 rating for particularly racy films.

The FCC Regulates Broadcasting The Communications Act of 1934 mandated that radio broadcasters operate in the public interest. Since the 1980s, however, cable stations have been arguing

that since the government cannot censor content in newspapers then they should not be allowed to be controlled.

Dirty Words, Indecent Speech, and Hefty Fines

The government cannot interfere with broadcasting, or apply prior restraint. However, it can punish broadcasters for indecency after it has been committed.

The FCC has periodically fined or reprimanded stations for indecency.

In 1973, WBAI, aired George Carlin's comedy sketch about the 7 dirty words that should not be uttered by broadcasters. A man and his 15-year-old son happened to be listening to the radio at the time. The mad complained to the FCC.

The 1978 FCC v. Pacifica Foundation case allowed for racier programming to be pushed to later times in the day, times when children would be less likely to listen.

The Demise of the Fairness Doctrine

In 1949, the Fairness Doctrine was initiated by the FCC. Under this doctrine stations...

had to air and engage in controversial-issue programs that affected their communities and

had to provide competing points of view Anti-smoking activist John Banzhaf used this to air anti-

smoking public service announcements to counter cigarette advertisements.

After several complaints that the Fairness Doctrine was a burden, it was deemed a regulation and not enforced after 1987.

Communication Policy and the Internet

The internet is considered the one true outlet for free speech.

Not regulated by government or subject to the Communications Act of 1934, it is difficult to regulate.

Most regulation revolves around civility and child pornography.

The current debate is whether the internet should be regarded as a public utility, an essential service thatshould be accessible to everyone, or as an information service, such as cable or telephone

services that can charge whatever they want. The result of this debate is still undecided.