The First Amendment of the Constitution of the United States ADDITIONAL ISSUES OF FREEDOM AND RESPONSIBILITY While broadcasters seldom must worry about obscenity and pornography due to their commercial base, they do confront the issue of indecency, which the Federal Communications Commission defines as indecent language or material that depicts sexual or excretory activities in a way that is offensive to contemporary community standards (there's that phrase again ...). Stations must prove they are innocent of indecency since the FCC gives validity to the complaint by virtue of it being made. Stations thus keep tapes of all of their content in the event they are challenged. However, two events recently confounded this process:
In both of these cases, a media uproar followed. But when the FCC investigated the complaints, it found 99.9 percent of complaints — most with identical wording — originated from one group, the conservative Christian Parents Television Council (Soundbites, 2005; Rich, 2005). Should one group decide what's "proper" for a viewing audience to consume?
As previously noted, free speech can be limited by time, place and
manner restrictions if they do not interfere with the substance of the
expression. Broadcasters abide by safe harbor
restrictions to air potentially offensive material, i.e. you can hear the music
of Slipknot between 10 p.m. and 6 a.m. This is one reason the late-night
variety shows were so huge for an older generation. In National Broadcasting Co. v. United States (1943), NBC claimed the FCC basically amounted to a traffic cop. The justices agreed with the traffic cop analogy but noted even police officers have a right to control the composition of the driving public, going so far as to remove speeders, reckless drivers and drunken motorists from the highways and interstates. Thus the FCC could promulgate rules such as the Fairness Doctrine, which required broadcasters to fairly cover issues of public importance, and ascertainment, which required broadcasters to actively and affirmatively determine the nature of their audience's interest, convenience and necessity. Do do broadcasters hold licenses to satisfy personal and financial goals, or should ordinary citizens expect access to radio and television? In the Red Lion Broadcasting v. United States (1969), a writer put these issues to the test after being called a liar and left-winger by Rev. Billy James Hargis, who did not like Fred J. Cook's book, "Goldwater — Extremist of the Right." Red Lion Broadcasting Company, which owned the small AM/FM radio station in Red Lion, Penn., offered to sell time to Cook or give free time if he would plead poverty. Cook claimed the right to reply to Hargis' personal attacks. The Supreme Court ultimately ruled "people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment." Justice Byron White crystallized the decision with these memorable words: It is the right of the viewers and the listeners, not the right of the broadcasters, which is paramount. But President Ronald Reagan's FCC chair, Mark Fowler, began deregulating the industry in the 1980s, calling television no more than a "toaster with pictures." President George W. Bush's FCC Chair, Michael Powell, continued deregulation, calling the public interest, "an empty vessel in which people pour whatever their preconceived views or biases are. As a result, deregulation has led to concentration, conglomeration, overcommercialization, the abandonment of children and the lowering of decency standards (Hickey, 2002). While the First Amendment protects expression, copyright identifies and grants ownership, thereby protecting the creator's financial interest in that expression. Thanks to Walt Disney and Mickey Mouse, copyright now lasts for life plus 70 years. Once it expires, the material passes into public domain, meaning it can be used without permission. The exception to copyright is fair use, which includes:
Cable companies overcome the problem of selling subscriptions to subscribers through several different arbitration panels under the auspices of the Library of Congress. Radio stations, restaurants and other outlets that provide music for customers pay fees to music licensing companies based on the users' gross receipts; the money is then distributed to songwriters and artists. The biggest licensing companies are the American Society of Composers, Authors and Publishers, and Broadcast Music Inc. If a restaurant plays music for its customers without paying ASCAP or BMI, for example, it can be fined. Of course, the Internet has caused a significant strain on copyright with Napster and other file-sharing services. In 2000, a California Superior Court ruled that posting DVD decryption software violates copyright laws, specifically the Digital Millennium Copyright Act. Later that year, a new York court added that even posting links to decryption sites violated copyright. Critics argue copyright exists to encourage the free-flow of expression, art and science. Is copyright just being used to drive content management and therefore profit from content distribution? While current copyright law grants unlimited private use of legally purchased content. the right to play it on whatever device you own, and protects your freedom to copy it for private use, critics claim Hollywood and the recording industry are eroding those rights. In MGM v. Grokster (2005), the Supreme Court unanimously ruled that P2P sites — i.e. Gnutella, Freenet, Limewire, Morpheus, BearShare and eDonkey — encourage copyright infringement. However, BitTorrent file-sharing software makes enforcement of Grokster practically impossible, which may make the entertainment industry embrace new technologies instead of fighting it. Already, the four major record labels are now distributing the majority of their catalogs with limited or no digital rights management. Our culture continues to negotiate DRM, and you will help negotiations if you're media literate. SOCIAL RESPONSIBILITY THEORY In 1947, the Hutchins Commission on Freedom of the Press produced its report, "The Social Responsibility Theory of the Press," a normative theory that explains how media should ideally operate in a given system of social values. It asserts media must remain free of government control, but in exchange media must serve the public:
An Ethical Media? Metaethics describe fundamental cultural values, e.g. what is justice? Is fairness possible? Normative ethics provide generalized theories, rules and principles of ethical and moral behavior, e.g. journalistic codes of practice define what is fair in the world of reporting. Ultimately, media practitioners apply the big rules and the general guidelines via applied ethics, which invariably involves balancing conflicting interests. A person making an ethical decision is called the moral agent. Media ethicist Louis Day describes six sets of individual or group interests that often conflict:
Doesn't the media value privacy as much as our culture? By its very nature, media are intrusive, but the applied ethics of the industry demands privacy be denied. People want to know what happened in Michael Jackson's death or Kobe Bryant's rape investigation. When Sen. Larry Craig was arrested for soliciting sex from an undercover officer in a bathroom, media considered the event newsworthy not only because of his prominence, but also because the homosexual man was an outspoken antigay rights crusader (see photo, p. 409).
The most famous case of confidentiality in American history was the identity of "Deep Throat," the anonymous source who brought down President Nixon's White House. Washington Post reporters Carl Bernstein and Bob Woodward kept the identity of FBI Assistant Director Mark Felt hidden for 35 years, until Felt revealed himself in 2005. Could you keep a secret that long? Most every state in the union (except Wyoming and the District of Columbia) has a shield law to protect reporters' rights to maintain sources' confidentiality in courts of law, though no federal shield law exists. However, that has not kept courts from throwing reporters into jail for refusing to divulge their sources. And what about media professionals own conflicts of interest? Should they accept gifts or dinners from sources? And what about when they're embedded with the military? Should they report on problems when the military is basically keeping them safe? Should their profits conflict with serving the public interest? Self-regulation has certain limits.
Where you draw the line on offensive content is an ethical, not a legal issue, e.g. some groups have problems with SpongeBob and Patrick (see p. 416) while others have a problem with the Italian billboard pictured on p. 417. The Benetton ad featured below offended many readers. Its message that race should not matter is not offensive, so why do you think the ad was controversial enough to be pulled from distribution?
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/ethxlaw.html |
