Legal Controls and Freedom of
Expression
Chapter 16
“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.”
—First Amendment, U.S. Constitution
Four Models for Expression and
Speech
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Authoritarian
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Communist
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State-run media
Libertarian
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Machiavelli
No restrictions on mass media or freedom of
speech
Social responsibility
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Hutchins Commission
Prior Restraint
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Government cannot block publication or
speech
Pentagon Papers
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The Progressive
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Daniel Ellsberg
National security as a cause for restraint
Article offered “how-to” H-bomb guide
Clear and present danger
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Schenck v. United States
Copyright
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Legally protects the rights of authors and
producers of their published or unpublished
writing, music, lyrics, TV programs, movies,
or graphic art designs
Digital Millennium Act of 1998: outlaws
technology that will circumvent copyright
protection systems
Libel and Slander
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NY Times v. Sullivan (1964)
Biggest worry that haunts editors
Falsely accusing (a) person(s) of:
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Mental illness or defect
Crime
Incompetence
Associating with hate groups
Were you wrong? Negligent? Did it cost the
victim measurable damages?
Actual malice and qualified
privilege:
The line between fact and
opinion is often hazy.
Right to Privacy
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Princess Di
Invasion of Privacy
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Unauthorized intrusion
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Tapes
Wiretaps
Publication of private matters
Using a person’s name or image
Most journalism organizations use their own
guidelines.
Obscenity
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Ulysses by James Joyce
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Miller v. California, 1973
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Average person finds prurient
Sex described in offensive ways
No serious literary/artistic merit
Acknowledges differing community standards
Must judge the work as a whole
“…the work of journalists must be
independent and free from
government control if they are to
effectively serve as government
watchdogs.”
—Reporters Committee for Freedom of the
Press
A Press under Siege
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Press is often targeted for revealing
questionable government actions.
Department of Justice can prosecute
journalists for publishing classified
information.
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Wen Ho Lee vs. news media, 2006
Free Flow of Information Act moving toward
Senate vote
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This would protect press’s right to rely on sources
like the police and FBI.
Regulating Film
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“Damn” in Gone With The Wind
Film Review Boards
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State and local boards try to control film
Jack Johnson and boxing films
Fatty Arbuckle and the MPPDA
Industry self-regulation
The Motion Picture Production Code
“No picture shall be produced
which will lower the moral
standards of those who see it.”
—Motion Picture Production Code, rule 1
“Tail Gunner” Joe McCarthy
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McCarthy hearings
Red Channels
“Red scare”
Among those scarred by witch-hunts:
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Lena Horne
Dashiell Hammett
Arthur Miller
Leonard Bernstein
Difference between Print and
Broadcast
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Red Lion v. FCC: Radio broadcasters’
responsibilities to public interest outweigh
rights to choose programming.
Miami Herald Publishing v. Tornillo: Supreme
Court ruled the right-to-reply law is
unconstitutional for newspapers.
FCC vs. First Amendment
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2006: President Bush substantially increased
FCC’s maximum fine to $325,000.
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2007: Four major television networks suing
FCC on grounds that their First Amendment
rights have been violated
Political Coverage
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Section 315
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Stations must provide equal opportunity for
response and counter
Only applies to broadcast
Fairness Doctrine
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Required stations to offer balancing opinions
on controversial issues
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Ended smoking ads
No longer in effect
“The USA has slipped to 44th place in
the press-freedom rankings among
other nations. What can be done?”
—First Amendment Center, 2006
Maintain Democracy
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As citizens, we must:
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Engage public debate about media ownership
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Pay attention to those excluded from
opportunities to buy products and shape the
cultural landscape
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Challenge journalists and leaders
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Become watchdogs and critical consumers