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. Its
enforcement gives us this society. The
other provisions of the Constitution really
only 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 Expression
Since 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 16th 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. DecisionMaking 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 false
2. 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 and
2. Individuals who have thrown themselves into the middle of controversy, like a lawyer taking a
high-profile case.
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 antismoking 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.