Media Law Outline

***MEDIA LAW OUTLINE***

1. ROLE OF MEDIA IN DEMOCRACY

a. Value of free speech and First Amendment theories

i. Laws that abridge free speech do exist: slander/libel/defamation/child pornography, etc à see 8/22 for full list

1. Use the compelling reason scrutiny test

ii. Brandeis/Holmes opinion: Market place of ideas notion à Brandeis thinks that if we can talk freely without govt oppression, we will get political discourse and more importantly that it will get us somewhere else – leads to stable govt, truth, rationality – overall good results in governance

1. Problems: fails because equaility in this marketplace is an elusive goals; some markets are never satisfied like childrens programming; pple don’t demand info that is broing or depressing

iii. Ideals of the Market Place of Ideas

1. Brandeis: Marketplace is level palying field, competition of ideas and best ones come out…truth comes out. Rationa approach with lots of irrational thrown in and more speech equally rational one prevailing

iv. He thought it was failure of the marketplace if an irrational ideas wins

1. Holmes: access to communication, broad edpsorue to all comepoting idea, belief in rational ideas and facts

v. General Premises of the Marketplace:

1. Access for competing ideas

vi. Critiques of the marketplace:

1. Equality in the meatkplace is an elusive goal, like other marketplaces

2. Market failure in that there might be demand for ideas but they are not still satifities such as good children’s programming

3. No demand for certain types of info because audience finds it boring or depressing

4. None of these teories are enough enough to cover scope fo the firsmt amd cases

vii. Emerson believed had different view in terms of four prongs

1. Access: sometimes there is excess exposure to free speech, is the main prupose of freedom of speech self fulfillment or Emerson’s view?

viii. Meiklejohn: becomes very broad theory as everything is included

ix. None of these theories is enough to cover cope of first md cases

x. International Convention on Political/Civil Rights espouses a positive liberty of freedom of expression

xi. Fourth Estate: press is antoher branch of govt, special role in checking govt and futher of good governance

1. But who checks the press?? Giving them special attention when already powerful

2. Creates inequity in the marketplace of ideas

xii. WHEN DOES THE GOVT HAVE A RIGHT TO ABRIDGE THE FA RIGHTS OF THE SPEAKER???

1. Courts use a BALANCING TEST which can be explicit (insert case) or vague (Tornillo)

2. Types of Scrutiny used on the balancing test

a) Strict: govt has heavy burden in any regulations abriding free speech; compelling interest and what else could the govt have done then abriditing it à schools

i. CONTENT BASED LAWS GET STRICT SCRUTINY

b) Intermetidate: substantial interest done by narrowly tailored means

c) Rational Basis: going to be very persmissive in looking at thwat the govt is doing, just has to make sense amd be rational/reasonable event if they had many other choices of achieveing its means

xiii. DETERMINING WHICH STANDARD TO APPLY

1. Determined by type of speech restriction

a) Content Neutral = intermediate or rational basis (lower scrutiny)

i. Ex. No loud music in a neightborhood after 10pm

b) Content Based = strict scrutiny

i. Ex. No vice advertising

ii. SS because you are censtoring a certain type of speech in the arketplace or in general if you don’t subscribe to the marketplace theory.

iii. Tornillo, Red Lion

iv. Further, because court concerned about intent of the govtà wants to ensure they are not self promoting or silencing dissent

v. MOST SUSPECT FOR COURTS à whats the govt’s intent?? Any prior restraint, or attempt to abridge free speech is very suspect and gets the stricted scrutiny

c) NOTE: tricky at times because foe example if the govt says no adult movie theaters allowed in a certain area, looks contectn based but tis motivatioo might be content natural because the govt is actually worried not about content but about effects

xiv. CASES:

1. Covers: right of reply

***PRINT MEDIA GETS THE MOST PROTECTION, BROADCASTING AND RADIO THE LEAST***

2. Miami Herald Publishing Co. v. Tornillo, pg. 78

a) Issue: FL stat that creates right of repy to press critiscim. Trying to promote free and fair elections à Sup Ct case

b) Scrutiny: STRICT, compelling govt interest but is the broad statute t