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Media Law
University of Kansas School of Law
Kautsch, M.A. (Mike)

Media Law

1st amendment = 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.

– Written in a way to restrict govt power
– 1st amend was actually 3rd one proposed, but 1st adopted
– why did framers think it was necessary? Wanted to create different society from England
– constitution is 1st modern document which gives people the power, as opposed to monarch
– speech and press = specific reason for creation was that those freedoms was an educational tool…providing info to public would educate them re govt and giving them more comprehensive knowledge of govt so they’d make better decisions, leading to better govt, leading to more knowledge, leading to perfect society
– info sharing is key to press and speech clauses…probably framers had in mind that freedom of speech should be applicable to “core political speech” (ie talking about govt…taxation, judiciary, education, law enforcement, natl defense, etc.)
– other forms don’t figure into info sharing like social intercourse about families, jobs, personal stuff, etc. that don’t effect govt
– clauses protect all manner of speech, not just core political
– what is the press? Framers had in mind people who’s business would be to express ideas or facts…people who wanted to publish (also w/ a printing press)
– publishing can be done through any form of communication
– reporting is investigating sources, then publishing findings to public
– editorializing is sharing ideas, then publishing findings to public
– so, press can be anyone who fits these descriptions…problems arise though w/ reporter’s privilege and who can claim it
– compared to freedom of speech clause, which everyone is entitled to…you don’t have to prove you’re a member of the press
– press (4th estate) involves reporting info to mass audiences while speech clause doesn’t require reporting and is more individualistic
– distinction b/c once you read/see/hear report, you talk about it
– before 1st amend, there was prior restraint (suppressing content before it’s published)…prior restraints are presumptively unconstitutional
– Near slams door on prior restraint
– Time, place, and manner is a set of rules under which govt can restrict expression
– Defamation is protected by 1st but punishable
– 1st amend theories =
1. absolutist = 1st amend means just what it says; absolute
2. ad-hoc (to the point… methodology created for specific purpose and once it’s achieved, methodology dissolved) balancing = refers to method of analyzing diff interests at stake, specifically in context of facts

fact w/in the constraints of the const
– the state of govt today call for a courageous & vigilant press
– state in justification of statute = restriction applies to those who deal in the business of defamation;
– ct = to allow statute would mean govt could essentially censor the publications of the press; statute is unconst
– you can’t prevent future publishing by prior restraint
– dissent = says newspapers are like any other business and should be treated as such BUT no other business gets the 1st amend rights that newspaper do though…also, the nuisance law was directed at content and content is protected by the 1st amend

Speech content—
– content-neutral = occasionally involves 1st amend issues
– content-based = always raise significant 1st amend issues…stripper billboard example, they’re more regulated than ones w/ hooters, movies etc. based on their content…b/c of higher level of scrutiny, state has to prove compelling reasons for billboard are met (protecting minors)
– time/place/manner restrictions (tpm) = to the extent speech can be regulated at all, must follow tpm rules: