Media Law:
Understanding Freedom of Expression
Chapter Outline
History
Today’s Media Law
Controversies

What are the 5 clauses of the first
amendment?

Name the different types of mass media
that exist in our society

The Development of the Philosophy of Free Speech
 Freedom to protest was important to the founders U.S. colonies
▪ After breaking away from the Roman Catholic Church
 Protestants made fun of under England’s licensing laws
▪ Not allowed to express religious views for more than a 100 years.
 The First Amendment to the U.S. Constitution guaranteed
citizens of the new country five essential and related freedoms:
▪ Religion
▪ Speech
▪ Press
▪ Assembly
▪ Petition
 The First Amendment ignited a sometimes bitter debate about
free speech that continues to this day.

In 1798, The Alien and Sedition Acts,
 Illegal to criticize the government, through Congress.
 Lasted two years, helped Jefferson win the presidency in 1800

The Comstock Act, passed in 1873,
 Banned all sex education, birth control, and abortion information,
 Made illegal to send these materials through the mail.
 Muckrakers influenced passage of laws
▪ Sherman Antitrust Act of 1890
▪ Pure Food and Drug Act of 1906,
▪ Lead to restrictions in what and how the media could advertise.
▪ Espionage Act upheld the censorship of ideas considered injurious
to the war effort.

Clear and Present Danger doctrine
 Justice Oliver Wendell Holmes wrote the in 1919
 “The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that the United States
Congress has a right to prevent.”

Regulating Broadcasting
 FCC regulated more than radio stations on the frequency
spectrum.
▪ The Equal Time Rule
▪ Stations must give equal opportunity for other candidates of same office.
▪ The Fairness Doctrine (1949-1987)
▪ Required broadcasters to give time for discussion of big public issues.
 Telecommunications Act of
1996,
▪ Removed restrictions on a wide
range of communications
industries
▪ Allowing
 Cable TV,
 Long distance carriers,
 Local phone companies,
 Information services
 Internet service providers to
merge at will.
 In 1957, the Supreme Court decreed that a work could be
declared obscene
▪ If, according to the perceptions of the average person applying
contemporary community standards, the dominant theme of the material
taken as a whole appealed to the prurient (lustfully depraved) interest of
the consumer.
▪ This definition tended to confuse rather than clarify.
 In 1964 Justice Potter Stewart expressed frustration at the
difficulties of defining obscenity
▪ He famously said “I can’t define it, but I know it when I see it”.
 A new category, indecency, was created for broadcast controls.
▪ The FCC considers material indecent if it is “offensive to community
standards for broadcasting.”

New Technology
 In 1996, Congress passed the Communications Decency Act,
 Which made it a crime to transmit indecent material over the
Internet if minors had access to it
▪ But the Supreme Court found it unconstitutional
▪ Why would this be unconstitutional

New Technology
 Other laws had to be written for crimes that did not exist
before the Internet.
▪ A 1996 law made computer espionage illegal.
▪ In the 1990s, federal law made the development and
purposeful transmission of computer viruses illegal.

The Legal System and Types of Law
▪ In criminal law
▪ Criminal acts.
▪ In civil law
▪ Disputes between private parties
▪ Constitutional law
▪ The U.S. Constitution prevails,
▪ Any state or local law that contradicts the First Amendment cannot be
legally implemented.

Statutory law
 Collection of laws written by legislative bodies, such as the U.S. Congress,

Administrative law
 Made up of the rules and regulations of governmental agencies

Common law
 Made up of judges’ rulings which become precedents for future cases.

Defamation
 False communication that and injures the
reputation

Slander
 Defamation that appears in spoken form, such
as speech.

Libel
 Published or broadcast defamation.
 In most cases, truth is the absolute defense
against a charge of libel.

A public figure must prove actual malice
▪ Either knew it was false or had a reckless
disregard for the truth,.
 The copyright sign
▪ Does not have to appear in a work for it to be protected.
 Fair use
▪ Allows copying of a work for noncommercial use as long as it does
not exploit the copyright holder.
 Digital Millennium Copyright Act
▪ Made it a crime to break through any technology intended to secure
digital copies of software, literary works, videos, and music.
 Some forms of speech are more protected than others.
▪ Political speech
▪ Ideas and facts that backup the ideas about the meaning and correct
course of government is the most protected.
▪ Artistic speech
▪ Including creative work such as painting, dance and literature.
▪ Commercial speech
▪ includes advertising.
▪ Indecent speech
▪ Enjoys the least protection.