The First Amendment of the Constitution of the United States Only one industry in the nation receives special protection from the U.S. Constitution, i.e. the press. Just what is this "first freedom" and why do people get so riled about it? Pictures like the one above just begin to tell the story. This isn't the first such visual to cause controversy:
Without a free press, democracy suffers. Our forefathers knew this from dealings with the English monarchy. They based the First Amendment on the philosophy of libertarianism, i.e. people cannot govern themselves without access to information needed for that governance. This philosophy is based on John Milton's self-righting principle, which argues:
Can you be considered "press" if you're posting information on your blog? Josh Wolf considered himself to be so and shot video of a G8 anti-capitalism protest in 2006. When the federal government asked for the video, he refused to turn it over and denounced the government for "turning me into their de-facto investigator" (p. 404). Consequently, he spent 226 days in jail — longer than any journalist in history, including Judith Miller (p. 412) — for refusing to divulge his sources. While the U.S. attorney claimed Wolf was only a journalist in his imagination, federal judges have given press credentials to bloggers covering the perjury trial of Scooter Libby. Some of those who agree that you should see, read or hear everything follow the absolutist position espoused by Supreme Court Justice Hugo Black:No law means no law ... My view is, without deviation, without exception, without any ifs, buts, or whereases, that freedom of speech means that government shall not do anything to people, either for the views they have or the views they express, or the words they speak or write (in McMasters, 2005, p. 15).
But what does "No Law" mean in America? Yes, Congress cannot
make law, but could the states? According to the Supreme Court decision in
Gitlow v. New York (1925), the 14th Amendment protects individual
liberties from state impairment, i.e. we can interpret "No Law" to apply to any
American government agency. However, it left open the possibility that "the
legislature may decide that an entire class of speech is so dangerous that it
should be prohibited," i.e. a "bad tendency" test which can be seen
partly in laws about
hate
speech.
Gitlow amplified Justice Oliver Wendell Holmes' comments about "clear and present danger" espoused in Schenck v. United States (1919), when Holmes questioned if "the words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent," noting it was a question of "proximity and degree," i.e. words said in peacetime may not be protected in war time. He followed this with a common-sense example: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." In both of these cases, free speech can be limited by time, place and manner restrictions if they do not interfere with the substance of the expression. This ad hoc balancing of interests suggests the judiciary must weigh several factors when determining how much freedom the press should be granted, e.g. what about conflicts between the First Amendment (free press) and the Sixth Amendment (fair trial)? In Irvin v. Dowd(1961), the Court freed a confessed killer due to pre-trial press coverage labeling him "Mad Dog Irvin" and reporting his previous criminal history, his confessions to six killings and numerous robberies, and his willingness to plead guilty in exchange for a life sentence, i.e. the Court determined this pre-trial publicity to be unfair. However, media coverage in-and-of-itself does not determine fairness, e.g. in Chandler v. Florida (1981), the Supreme Court ruled cameras in the courtroom did not inherently damage fairness, clearing the way for shows like "The People's Court," "Judge Joe Brown" and "Judge Judy" as well as more controversial coverage of celebrities including O.J. Simpson and Michael Jackson. Media must also consider libel and slander laws. Libel occurs by the false and malicious publication of material that damages a person's reputation, while slander describes defaming a person's character via speech. Yet since the 1990s, both instances are prosecuted as libel if a report:
However the press enjoys protections under three circumstances:
Additional restrictions occur for public figures, i.e. they must prove the press acted with actual malice by publishing with knowledge that the report was false or by showing a reckless disregard for the truth. When Montgomery, Ala., city commissioner L.B. Sullivan sued the New York Times for allowing a full-page advertisement detailing the abuse of Rev. Dr. Martin Luther King, the Court ruled that the Times had not acted with actual malice in New York Times v. Sullivan (1964). On the other hand, the court ruled the National Enquirer acted with malice when it published a rumor that Carol Burnett was drunken and disorderly in a Washington, D.C. restaurant. Typically, in the United States at least, the government will not prevent publication or broadcast through prior restraint. Though Near v. Minnesota (1931) provided exceptions, two have been clarified in landmark prior restraint decisions:
"(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."But who's an average person? What are contemporary community standards? Are the standards in New York City the same as in Monticello? And what about pornography, i.e. expression calculated solely to supply sexual excitement? Justice Potter Stewart, who was nearly blind, described the difficulty in determining such distinctions with his famous statement:  "I may not be able to come up with a definition of pornography, but I certainly know it when I see it." We may not enjoy expressions, but we cannot ban them as proven by Larry Flynt, owner of Hustler magazine. In 1983, parody ads in Hustler depicted Jerry Falwell, founder of the "Moral Majority," "confessing" his "first time" occurred in an outhouse with his mother. An incensed Falwell sued, but the Supreme Court ruled in Hustler Magazine v. Falwell (1988) that the First Amendment protects parody. "If the First Amendment will protect a scumbag like me, then it will protect all of you," Flynt said. "Because I'm the worst." (see pg. 402 for more) A Needed Digression ... On Thursday, we'll examine indecency, deregulation, The Fairness Doctrine and copyright before delving into communication ethics. Just as a reminder, remember that you should be working on your first media journal. However, for the rest of the class, we need to determine what your Group Project will be so that you can begin working on it. Images and articles used here under Educational Fair Use. Notes originally produced to accompany Stanley Baran's "Introduction to Mass Communication: Media Literacy and Culture." 6th ed. If you don't understand something in this Web note, please e-mail Dr. Sitton.
©Ronald W. Sitton 2009 Revised 110209 — http://www.uamont.edu/FacultyWeb/sitton/crz/mcom/commlaw.html |
