MEDIA LAW OUTLINE
Lidsky – Spring 2015
On Exam: ask (1) is it a prior restraint or subsequent punishment (criminal or civil?) (2) strict scrutiny/content based or content neutral/rational basis (3) defamation
I. introduction
I) Generally
1) 1st Amendment:
a) “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; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (1791)
2) History
a) Sedition Act (1798)
(i) Crime to print any false, scandalous and malicious writings about the federal government, Congress, president (but leave out VP Jefferson)
(1) Attempt of Federalists to maintain power by shutting up critics
(ii) Jefferson publishes anonymously – forms one side of debate with Federalists about whether law was constitutional under 1st Amendment
(1) Federalist argument – 1st Amendment only means no prior restraints
(2) Republican argument (Madison/Jefferson) – cannot make it a crime for people to criticize their government; antithetical for punishment for seditious libel in a democracy
(iii) 1800 – Election – Jefferson wins
(1) In part win because of outrage over Sedition Act, which expired by its own terms
(2) Victory for Republican view
(a) Does not actually make it into a SC until 1964 (NY Times v. Sullivan) – pillar of case
b) 19th Century
(i) Not a lot of cases because states are doing most of the restrictions on freedom of speech
(ii) Applied to states in 14th Amendment (1865)
c) 20th Century
(i) Espionage Act of 1917 – attempt to restrict criticisms of foreign policy – used against all radicals
(ii) 1925 – Gitlow – incorporates 1st Amendment
(iii) Holmes and Brandeis dissents
d) 21st Century
(i) Increasing concentration of Mass Media – fewer newspapers competing with one another
(1) Homogenization
(2) Does away with idea that Media is 4th branch of gov’t (checking other 3)
(ii) Internet – parallel development with concentration of media
II) Theory
1) Holmes & Brandeis Legacy
a) Whitney v. California (Brandeis dissent)
(i) “[I]t is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government…”
(1) Fear à Repression à Hate à Unstable Government
(ii) “In order to support a finding of clear and present danger it must be shown either that [1] immediate serious violence was to be expected or was advocated, or [2] that the past conduct furnished reason to believe that such advocacy was then contemplated.”
(1) No danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion
(iii) Courage
(1) “The measure of courage in the civic realm is the capacity to experience or anticipate change – even rapid and fundamental change – without losing perspective or confidence”
(2) “All of us need to be emancipated from the ‘bondage of irrational fears’ as we encounter unsettling proposals for political change”
(iv) Why protect it?
(1) It enriches our experience, encourages debate, contributes to our education, the fullness of life. Brandeis would defend it on the principle that liberty is “both an end and a means.”
(2) One must have faith that the truth will prevail/danger of radicals will be neutralized if citizens are fully engaged
(a) Counter-argument is that people will bind to irrational fears; ie: Nazis
(b) If no faith à censorship; you become repressive (Salem Witch trials) and antithetical to theory of democracy
(v) How should we respond to speech that’s not imminently dangerous but that we don’t like?
(1) MORE SPEECH – Cannot suppress speech because of fear that it is harmful; must embrace the harm and speak out against it
b) Holmes’ “Marketplace of Ideas” (dominant theme of 1st Amendment jurisprudence)
(i) Allows consumers to pick and chose from a broad, uninhibited mix of ideas and pick the best.
(1) Will truth ever emerge? What about partisan media outlets? Should they strive for objectivity?
(a) It depends. It’s probably smart business if you want to dominate a market.
(ii) What about the concentration of media ownership in fewer and fewer hands? Does that freeze out minority opinion in a “bottom-line” obsessed culture
(1) Free trade in ideas – “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
(a) The thing is with this is that he’s assuming the audience is rational and educated enough to recognize the “Truth” that they’re looking for. This is a HUGE assumption and not exactly the best. The problem is with this is that human dysfunction is a huge part of the marketplace of ideas and humans more often than not fail to recognize the Truth when it knocks on their door.
c) Criticisms of the Marketplace of Ideas metaphor/ Libertarian conception of First Amendment
(i) Market Dysfunction – market doesn’t operate the way it says it will
(1) A few dominant voices control – Media concentration
(2) Systematically excludes certain voices
(3) Market is driven by profit – so driven by entertainment/what sells/certain segments of society instead of needs of the citizenry to have information
(4) Fiss’ Solution
(a) Government’s ability to set the agenda
(b) Criticisms
1. But isn’t government self-interested?
2. Paternalistic
3. Gov’t dominates speaker and regulator, how can competition of marketplace take hold
(5) Powe’s response
(a) Fiss characterizes the Jeffersonian era as a time when the power was evenly dispersed throughout society
(ii) Human Dysfunction
(1) What happens when people aren’t capable of making rational decisions when given all of the information?
(a) Strengthen the education system
(2) Allow the government to be paternalistic?
(a) Media editors should be able to exercise the judgment to recognize whether information is credible; on the Internet, people must judge for themselves more (although Google does rank cites)
2) Alexander Meiklejohn (extremely influential) – The First Amendment is an Absolute
a) Puts political speech (public speech, speech by which we govern) at the heart of the 1st Amendment.
(i) “Self-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express”
b) Criticism is that it marginalizes other categories of speech. Consequentialist: only protects speech that contributes to the democratic process. Artistic/literary speech gets left out.
(i) But Meiklejohn would shoehorn arts and literature into protected speech by saying that exposure to culture (at least sophisticated culture) makes you smarter, and thus a better citizen.
(ii) This is a version of the “self-realization” concept of free expression, a libertarian view that the individual should be free to determine his intellectual development.
c) Meiklejohn’s unprotected speech: fire in a theatre; libel, slander, misrepresentation, obscenity, perjury, and more
III) Methods of First Amendment Analysis
1) Absolutism – Literal Approach (No longer dominant)
a) Justice Hugo Black
(i) When Fi
es speech protected by the First Amendment, even though it may simultaneously punish unprotected speech.
(2) Allows facial challenges to statute on FA grounds, even if your case falls within the permissible scope. We don’t want laws that chill speech to survive. Petitioner in R.A.V. used this approach.
(ii) Facial Challenge
(1) A facial challenge totally invalidates a law.
(2) It says: the law under which I have been charged violates the First Amendment, even if my own speech could have been punished consistently with the First Amendment.
(a) So, for example, I could argue that even though my speech is obscene, the statute I've been charged under is facially unconstitutional because it has language that covers both obscene and non-obscene speech.
(3) Two bases for a facial challenge are that the statute is overbroad or vague.
(a) The point is that a facial challenge allows you to challenge a law even if the First Amendment did not previously protect your speech; essentially, you're protecting the speech rights of others by getting the entire statute thrown out.
(iii) As Applied Challenge
(1) An as applied challenge says that the statute violates the First Amendment “as applied” in the specific case being litigated.
(a) The statute is constitutional because it is designed to punish speech unprotected by the First Amendment, but it has mistakenly been applied to my speech, which is protected by the First Amendment.
IV) The Press Clause
1) Generally
a) Does it have separate vitality apart from the Speech Clause? Is it a structural protection (protecting the press as an institution), or a functional protection (so that anyone who behaves like the press gets FA protection)?
2) Historically
a) Stewart, J., says Press Clause protects the press as an institution (structural argument).
(i) He gets that from case law (Branzburg), and from a structural analysis of the First Amendment (otherwise the text would be redundant), and from history.
(ii) Thus, the press serves as the “Fourth Estate,” providing an additional check on the three official branches of government.
(iii) Problem with this approach:
(1) If you accept Stewart’s approach, you have a definitional problem of what is the “press”
(a) Who’s the institutional press? Is it limited to NYT, WSJ, Wash Post, or does it also include the lonely pamphleteer/pajama blogger?
1. Bloggers:
a. Press claims privilege to protect confidential sources
b. Certain access rights
c. Creative protection against libel
d. Freedom of a newspaper to print what it wants to print (Tornillo)
(2) Burger response: Treat Press and Speech Clauses the same. This has won the day in SCOTUS.
b) Another view – if one person speaking = speech clause; if group of people speaking = press clause
c) Are we going to have a functional or structural definition of press?
(i) Functional – includes bloggers
(1) Structural – no bloggers
(ii) SC has tried its best to dodge this issue
