Chapter 16:
Legal Controls
and Freedom of Expression
Some guiding questions
What is the American notion of free
expression?
What is a free press?
How does the First Amendment
protect media expression?
What are special issues regarding
broadcasting and the Internet?
Cultural and social
struggles over free
speech and freedom
of the press 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
Authoritarian model
Communist or state
model
Libertarian model
Social-responsibility
model
CENSORSHIP AS PRIOR
RESTRAINT: CASES
Near vs. Minnesota,
1931
Pentagon Papers, 1971
Progressive magazine,
1979
UNPROTECTED
FORMS OF EXPRESSION
Sedition Act
Espionage Acts
False or misleading advertising
Expressions that threaten public
safety
Libel (defamation of character in
written expression)
Defenses against
Libel Charges
Checking truthfulness and
accuracy of statements
Absolute privilege and
qualified privilege (in legal
proceedings)
Framing statements as
“opinion and fair comment”
The Right of Privacy
Protection of celebrities and public
figures from invasive media
Anti-paparazzi laws in some states
1999 Supreme Court ruling
prohibiting TV cameras from
photographing crime raids without
approval of occupants
INVASION OF PRIVACY
includes
Intrusion (recording or
surveillance devices)
Publication of private
matters
Unauthorized appropriation
of a person’s name or image
Food for thought:
What are some
privacy issues
regarding the
Internet?
OBSCENITY
What is it? How to define it?
Who should define it?
Should it be protected as a
legitimate form of expression?
Should purveyors of it be
prosecuted as a criminal
offense?
Roth v. United States, 1957
1957 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
The average person, applying
contemporary community standards,
found that material as a whole
appealed to prurient interests
It depicts or describes sexual conduct
in a patently offensive way
It lacks serious literary, artistic,
political, or scientific value
FIRST V. SIXTH
AMENDMENT
Sixth amendment guarantees
accused the right to a speedy
trial by an IMPARTIAL jury.
Cases occur in which news media
heavily publicize details of a
criminal case.
In such cases, it becomes difficult
to find an impartial jury.
Some Sixth Amendment issues
Sequestering juries
Gag orders
Shield laws
Cameras in the
courtroom
Reports published
on Internet
FILM AND THE FIRST AMENDMENT
Early 20th century: censorship groups
formed to “protect” children and workingclass immigrants from immoral images.
Local film review boards censored films.
1908-1912: federal law against boxing
films
1915 Supreme Court decision (Mutual v.
Ohio) ruled that film was not a form of
protected speech.
Self-Regulation in Hollywood
Public pressure, film review boards, and
industry scandals led to self-regulation.
Formed the MPPDA (Motion Picture
Producers and Distributors of America),
led by President Will Hays.
In 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
The Communications Act of 1934
mandated that broadcasters
operate to serve the public
interest.
Who controls the airwaves?
Are the airwaves different from
newspaper pages?
BROADCASTING and the
FIRST AMENDMENT
Cold War-era blacklisting of
suspected “left-wing” performers
and artists: fear of Communist
influence in television
Red Lion v. FCC case (1969)
Miami Herald v. Tornillo (1974)
Pacifica v. FCC (1972-1979)
POLITICS, BROADCASTING
AND THE FIRST AMENDMENT
Equal time law in Section
315 of 1934 Communications
Act
Law amended in 1959 to
exempt newscasts, press
conferences, and political
debates
THE FAIRNESS DOCTRINE
FCC rule initiated in 1949.
Required stations to engage in
controversial-issues programming and to
provide competing points of view
Repealed in 1987 by federal court ruling.
However, movements to revive Fairness
Doctrine still exist.
Journalistic Ethics in the Age of
Media Conglomerate Ownership
Can news media run reports
critical of their parent companies?
• ABC News and Disney
• Time magazine and Time
Warner
• NBC News and General Electric
• CBS News and Viacom
CYBERSPACE,
EXPRESSION, and
DEMOCRACY
Public debates about the
Internet
First Amendment issues, such
as allowing pornography or
hate sites on Internet
Seeming 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?