Mass Media Law
18th Edition
Don Pember
Clay Calvert
Chapter 3
The First Amendment: Contemporary
Problems
McGraw-Hill/Irwin
© 2013 McGraw-Hill Companies. All Rights Reserved.
Prior Restraint During
Wartime
Modes of Censorship During Wartime
1. Denial of access to locations and individuals
2. Denial of access to documents and photographs
3. Punishment for publishing national security
information
4. Self-censorship by the news media
3-2
Prior Restraint During
Wartime
Access to Locations and Individuals
– In Vietnam, reporters could go wherever they wanted
– Many blamed this freedom for military failures
3-3
Prior Restraint During
Wartime
Access to Locations and Individuals
– In Iraq, the Department of Defense used a system
called embedding - where members of the press
were allowed to accompany military units
– In Flynt v. Rumsfeld (2004), a federal appellate court
found that “there is no constitutionally based right for
the media to embed with US. Military forces in
combat”
3-4
Prior Restraint During
Wartime
Access to Locations
– Journalists were not allowed direct access to
detainees at Guantanamo Bay, Cuba
– In 2009, the Department of Defense changed its
policy to allow access to Dover Air Force Base in
Delaware where coffins of soldiers killed overseas
arrive in the U.S.
• The families of those who died must agree to photographer’s
presence
3-5
Prior Restraint During
Wartime
Access to Locations
– In M.K.B. v. Warden (2004), the Supreme Court ruled
it was acceptable “to conduct certain federal court
cases in total secrecy.”
– State secrets privilege – allows the government to
block a lawsuit if any information disclosed during it
would adversely affect national security, including the
location of a trial or interrogation facility
3-6
Prior Restraints During
Wartime
Access to Documents and Photographs
– The FOIA national security exemption is sometimes
used by government officials to refuse release of
information that:
• Could jeopardize national security
• Was compiled for “law enforcement purposes”
3-7
Prior Restraints During
Wartime
Access to Documents and Photographs
– Classified Information Procedure Act – federal act
that details procedures for courts to consider when
the government argues classified information could
be publicly disclosed during a criminal procedure that
might jeopardize national security.
3-8
Prior Restraints During
Wartime
Punishment for Publishing National Security
Information
– It is possible that treason or espionage charges could
be filed against journalists for reporting on the war on
terrorism if the government believes national security
information is being revealed.
3-9
Prior Restraints During
Wartime
Self-Censorship by the News Media
– Self-censorship by the press may occur because
some members of the media:
• Fear government retaliations under espionage laws
• Feel a sense of duty not to reveal information that could
jeopardize U.S. soldiers
• Are concerned they could offend viewers or readers
• Fear their reports could hurt public support of the American
war effort
3-10
The First Amendment in
Schools
Censorship of Expression in Public High Schools
– Tinker v. Des Moines (1969)
• The U.S. Supreme Court ruled that students could
not be suspended for wearing black arm bands to
school in protest of the Vietnam War
• Students “do not shed their rights at the
schoolhouse gate”
3-11
The First Amendment in
Schools
Censorship of Expression in Public High Schools
– Barber v. Dearborn Public Schools (2003)
• Brentton Barber, a high school junior, was asked to remove a
t-shirt to school with a photo of President George W. Bush
and the words “International Terrorist” when one student
complained
• The court, applying the Tinker precedent, found that the
request was unconstitutional noting that “students benefit
when school officials provide an environment where thy can
openly express their diverging viewpoints and when the learn
to tolerate the opinions of others.”
3-12
The First Amendment in
Schools
Censorship of Expression in Public High Schools
– Hazelwood School District v. Kuhlmeier (1988)
• The U.S. Supreme Court ruled it was acceptable to
censor a high school newspaper produced as part of
a journalism class if material fell into one or more of
five categories:
3-13
The First Amendment in
Schools
Censorship of Expression in Public High Schools
– Five categories of acceptable censorship under
Hazelwood:
• 1) Publications or stories that materially and substantially
interfere with the requirements of appropriate discipline
• 2) Material that interferes with the rights of students
• 3) Material that fails to meet standards of academic propriety
• 4) Material that generates health and welfare concerns
• 5) Matters that are obscene, indecent or vulgar
3-14
The First Amendment in
Schools
Censorship of Expression in Public High Schools
– Dean v. Utica Community Schools (2004) – a district
court judge found that a student-authored article
questioning whether school buses were causing injury
and illness to local residents was not inaccurate and
therefore could not be censored under the Hazelwood
“legitimate pedagogical concerns” standard.
– The judge found the censorship to be unconstitutional
viewpoint-based discrimination.
3-15
The First Amendment in
Schools
Censorship of Expression in Public High Schools
– Bethel School District v. Fraser (1986) – the Supreme
Court found that officials at Bethel High School did
not violate the free speech rights of Matthew Fraser
when they suspended him for making a sexually
suggestive nomination speech for a fellow classmate
– The court refused to apply the political speech
standard in Tinker, ruling that society has an interest
“in teaching students the boundaries of socially
appropriate behavior.”
3-16
The First Amendment in
Schools
Censorship of Expression in Public High Schools
– Frederick v. Morse (2007)
• As the Olympic torch relay passed outside of his
school in Juneau, Alaska, Joseph Frederick
unfurled a sign that read “Bong Hits 4 Jesus”.
• The principle of the school felt the banner had a
pro-drug message, made him take it down, and
suspended Frederick for 10 days.
3-17
The First Amendment in
Schools
Censorship of Expression in Public High Schools
– Frederick v. Morse (2007)
• The 9th Circuit applied the Tinker standard noting
there was no substantial and material disruption of
educational activities when the banner was
unfurled.
3-18
The First Amendment in
Schools
Censorship of Expression in Public High Schools
– Frederick v. Morse (2007)
• The Supreme Court ruled that Frederick’s First
Amendment rights were not violated and that
“schools may take steps to safeguard those
entrusted to their care from speech that can
reasonably be regarded as encouraging illegal
drug use.”
3-19
The First Amendment in
Schools
Censorship of College Newspapers
– Kincaid v. Gibson (2001)
• The 6th U.S. Circuit Court of Appeals ruled
administrators at Kentucky State University could
not ban the distribution of the college yearbook
when they did not approve of its content
• The court ruled the yearbook was a designated
public forum
3-20
The First Amendment in
Schools
Censorship of College Newspapers
– Hosty v. Carter (2005)
• Administrators at Governors State University in
Illinois demanded prior review and approval of the
student newspaper before publication
• The case centered around whether the legitimate
pedagogical concerns standard of Hazelwood
could be applied to college newspapers.
3-21
The First Amendment in
Schools
Censorship of College Newspapers
– Hosty v. Carter (2005)
• The 7th Circuit ruled that “speech at a non-public forum, and
underwritten at public expense, may be open to reasonable
regulation even at the college level.”
3-22
The First Amendment in
Schools
Censorship of College Newspapers
– In 2006, California passed legislation prohibiting prior
restraints and censorship by university administrators
of public college and university newspapers.
3-23
The First Amendment in
Schools
Problems for College Journalists
–
–
–
Student journalists often have a difficult time
accessing information held by the university
There have been many attempts to censor
advertising for controversial products or ideas
Some universities have attempted to censor student
newspapers by cutting funding – this has rarely
worked
3-24
The First Amendment in
Schools
Problems for College Journalists
– Newspaper theft is becoming an increasingly
common practice for the censorship of speech in
college newspapers
– Three states – California, Colorado and Maryland –
have statutes specifically aimed at penalizing the theft
of free newspaper
3-25
The First Amendment in
Schools
Alcohol Advertisements and the College Press
– Pitt News v. Pappert (2004)
• The 3rd Circuit Court of Appeals ruled a
Pennsylvania law that banned advertisements
containing references to “the availability and/or
price of alcoholic beverages” in university
newspapers was unconstitutional because no
connection between the ads and underage
drinking could be made
3-26
The First Amendment in
Schools
Book Banning
– Book banning is a problem at both school and public
libraries
– Courts have failed to offer specific criteria to guide
librarians in censorship decisions
3-27
The First Amendment in
Schools
Book Banning
– While school boards have broad discretion about
what books to buy for their libraries, they may not
remove books already on the shelves just because
they do not agree with the ideas or viewpoints
expressed in them.
3-28
Time, Place and Manner
Restrictions
For a law to be constitutional:
– Rules must be content neutral on their face in in their
application
– Rules must not constitute a complete ban on one kind
of communication
– Rules must be justified by a substantial state interest
– Rules must be narrowly tailored
3-29
Time, Place and Manner
Restrictions
Judicial Review
– Strict scrutiny – requires the government to prove a
compelling interest (not simply a substantial state
interest) and that the statues restricts no more speech
than is absolutely necessary to serve that interest.
3-30
Forum Analysis
Traditional Public Forums
– Places long devoted to public speech
– Street corners, public parks
– Most First Amendment protection here
3-31
Forum Analysis
Designated Public Forums
– Places created by government for expressive
activities
– City-owned auditorium, fairgrounds
3-32
Forum Analysis
Designated Public Forums
– “The government must have an affirmative intent to
create a public forum in order for a designated public
forum to arise.” Intent may be determined by:
1. Explicit expressions of intent
2. Actual policy and history of practice in using the property
3. Natural compatibility of the property with expressive activity
3-33
Forum Analysis
Public Property That Is Not a Public Forum
– “Public property which is not by tradition or
designation a forum for public communication”
– Public property off-limits to expressive activities
– Prisons, military bases, airport terminals, postal
service mailboxes, utility poles
3-34
Forum Analysis
Private Property
– Places not owned by the government
– No First Amendment guarantees here
– Individual’s home, shopping mall
3-35
Other Prior Restraints
Son of Sam Laws
– 42 states and the federal government have laws that
stop felons from receiving money that might be
earned by selling stories about their crimes
3-36
Other Prior Restraints
Son of Sam Laws
– Simon and Schuster, Inc. v. New York Crime Victims
Board (1991)
• The 2nd Circuit ruled the purpose of the law was
not to suppress speech but to ensure criminals did
not profit from the exploitation of victims
3-37
Other Prior Restraints
Son of Sam Laws
– Simon and Schuster, Inc. v. New York Crime Victims
Board (1991)
• The U.S. Supreme Court disagreed, ruling that the
Son of Sam law in this case was a content-based
regulation that violated the First Amendment. The
law was not narrowly drawn to restrict as little
speech as possible
3-38
Other Prior Restraints
Prior Restraint and Protests
– The U.S. Supreme Court has ruled:
• Cities may not bar residents from posting signs on
their own property
• A buffer zone created between abortion clinics and
protesters is constitutional if the zone is small or if
there is a narrowly tailored restriction on the size or
duration of the demonstration
3-39
Other Prior Restraints
Prior Restraint and Protests
– The U.S. Supreme Court has ruled:
• States may not prohibit the distribution of
anonymous campaign literature
3-40
Hate Speech/Fighting Words
Chaplinsky v. New Hampshire (1942)
– The U.S. Supreme Court created the “fighting words
doctrine”
– Fighting words are “those which by their very utterance
inflict injury or tend to incite an immediate breach of
the peace”
– Fighting words may be prohibited if:
• There is a face-to-face encounter
• The encounter could result in an immediate breach
of the peace
3-41
Hate Speech/Fighting Words
Chaplinsky v. New Hampshire (1942)
– Fighting words may be prohibited if:
• There is a face-to-face encounter
• The encounter could result in an immediate breach
of the peace
3-42
Hate Speech/Fighting Words
R.A.V. v. St. Paul (1992)
– The U.S. Supreme Court struck down a city ordinance
that banned the display of a burning cross or Nazi
swastika
– The statute was invalid because it was not content
neutral; it targeted specific kinds of hate speech
3-43
Hate Speech/Fighting Words
Virginia v. Black (2003)
– The Supreme Court upheld an ordinance that made
cross burning illegal if its intent was to intimated the
victim
3-44
First Amendment and
Election Campaigns
Buckley v. Valeo (1976)
– The U.S. Supreme Court ruled that Congress could
not limit how much money candidates for federal
office could spend on their campaigns
– But, the Court upheld Congressional limits on
individual and organizational contributions to a
candidate for federal office
3-45
First Amendment and
Election Campaigns
Randall v. Sorrell (2006)
– The Supreme Court found unconstitutional a Vermont
campaign-finance statute limiting both the amounts
that candidates for state office could spend on their
campaigns and the amounts that individuals,
organizations and political parties could contribute
– These expenditure limits, the court said, are
“inconsistent with the First Amendment”
3-46
First Amendment and
Election Campaigns
Bipartisan Campaign Finance Reform Act (2003)
– The law prohibits companies, organizations and unions
from purchasing political TV and radio advertisements
30 days before a primary, and 60 days before federal
elections.
– In 2003, the U.S. Supreme Court upheld these
provisions as well as those restricting campaign
spending by large groups.
3-47
First Amendment and
Election Campaigns
Bipartisan Campaign Finance Reform Act (2003)
– In Federal Election Commission v. Wisconsin Right to
Life, Inc. (2007), the Supreme Court ruled that issue
advocacy ads that do not constitute such express
advocacy for or against a candidate are permissible
and do not fall within the reach of the Act.
3-48
First Amendment and the
Information Superhighway
Communication Decency Act (1996)
– The U.S. Supreme Court in 1997 ruled that key
provisions of the act were unconstitutional
– The Court ruled that the Internet should receive the
highest level of First Amendment protection, equal to
that granted to newspapers, magazines and books
3-49
First Amendment and the
Information Superhighway
Net Neutrality
– The concept that Internet service providers treat all
traffic and content similarly, and not charge more
money for or blocking access to faster services
3-50