MEDIA LAW (RU) SPRING 2008 OUTLINE: GOODMAN
ROLE OF MEDIA IN DEMOCRACY
I. VALUE OF FREE SPEECH – First Amendment and Media Regulation
a. Congress cannot make a law the abridges the press
b. Magnetism of first amendment – some things get framed in terms of first amendment because it is powerful rhetorically
i. Campaign finance reform – for making campaigning fair but is framed about how to spend money as speech
ii. Advertising – freedom of lawyers to advertise (unethical but is regulating billboards, etc.)
iii. Software code is protected as speech (in a way)
iv. Anything you do online is a form of speech
c. 1st Amend. speech doesn’t protect –
i. Conspiracy to commit crimes
ii. Fraud: insider trading, falsifying resume, etc.
iii. Private parties can sue
iv. Copyright and trademark infringement
d. Whitney v. California, 274 U.S. 357 (1927), casebook pg 7-9)
i. FACTS: was convicted under the state’s 1919 Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party, a group the state charged was devoted to teaching the violent overthrow of government. Whitney claimed that it had not been her intention, nor that of other organizers, that the party become an instrument of violence.
ii. Brandeis Concurrence [DEMOCRATIC PROCESS APROACH]
1. For Brandeis, citizens have an obligation to take part in the democratic process, and they can only fulfill this obligation if they can discuss and criticize governmental policy fully and without fear.
a. If you can’t communicate, you can’t share your thoughts with others and this ability to communicate is needed for democracy
2. A successful democracy is where people talk and in the end people will reach the truth (whether it be popular or unpopular) because of the participation
a. If the government can punish unpopular views, then it cramps freedom, and in the long run, will strangle democratic processes. Thus, free speech is not an abstract virtue, but a key element that lies at the heart of a democratic society.
3. When there is false speech, the remedy is more speech, no enforced silence
4. This assumes that there is a native rationality and enough speech will bring the truth forward
5. The gov is in the worst position to say what can and can’t be said (just has to show a better solution that Government censorship)
e. Holmes’ Approach to freedom of expression [MARKETPLACE OF IDEAS]
i. MARKETPLACE OF IDEAS: a rationale for freedom of expression based on an analogy to a free marke
e watch-dog function that speakers do not have (which is why the founders have a different clause for it), and
2. (2) they can’t be required to perform the function as a common carrier
c. Functional:
i. Simply protects the right to disseminate one’s speech to a wide audience
1. Problem- makes the press clause a redundancy
2. Answer- that the press was considered important enough to merit special protection.
ii. Argument:
1. (1) Press clause must have meaning distinct from speech clause because of its Functional check on government
2. (2) making the press clause the same as the speech clause because it would just make the press clause redundant because it would be the same thing
iii. Counter-Arguments:
1. Its not redundant, it is just emphatic
2. To do so would impose a tremendous obligation on the press and it would make them like utilities
a. To be treated different than speakers would make them subject to regulation so it would hinder free speech if regulated
First amendment is about protecting individual liberties, not institutions
