PROLOGUE:
Speech: variety of forms of speech
The 1950 movie The Miracle led the Supreme Court to rule that movies and other forms of entertainment fit into the First amendment
Technology:
The entertainment industry provides technologically enhanced speech
i. Not essential for entertaining fans but technology helps
Positive value: increase in potential audience for the work
i. Only a limited number can watch a performance live, now can be transmitted to others
Negative: makes it easy for copiers to deliver versions of an original work to consumers – piracy
Collaboration: Creation and distribution to broad audiences requires contribution from individuals and firms
Economics: People spend a lot of time and money on negotiating contracts and resolving disputes because a lot of money rides on success or failure of the project
International Dimension: Projects are aimed at an international audience
PART ONE: Legal restraints on Entertainment Stories:
CHAPTER 1: Sex and Violence in Entertainment and the Law
A. Introduction:
a. Bob Dole gave a speech rebuking Hollywood for violent films and recording studios for “sexual violence with a catchy tune”
b. 75-80% of Americans polled believed violence and sex in entertainment posed social problems
c. 80-90% wanted more parental and corporate supervision
d. Less than 30% wanted more government censorship
e. First Amendment poses two fundamental types of questions:
i. Substantive:
1. What kinds of speech regulation are permissible
2. What is “speech”
a. Does this include dancing nude or flag burning?
f. Institutional:
i. Who should resolve controversies about where to draw the line?
g. Columbine:
i. People wanted to know about students lives, how easily they gained access to guns and the contribution the entertainment world had to their violence
1. Both reportedly watched violent movies and TV
2. listened to death cult musicians
3. Played violent video games
h. Matrix:
i. Several instances where people imitated the game
ii. One kid dressed in the exact outfit as Neo and shot his parents
1. Claimed a “bona fide belief that he was living in the virtual reality” of the movie
B. Entertainment and the First Amendment
a. Early first amendment rights in film
i. Mutual Film Corp. v. Industrial Commission of Ohio: (1915)
1. Film distribution company challenged requirement that every film be shown to board of censors to license the film if it displayed “moral educational or amusing and harmless character”
2. HELD: Profit-oriented industry, the entertainment world was not entitled to the constitutional guarantee of “freedom of speech”
ii. Joseph Burstyn, Inc. v. Wilson (1952)
1. The Miracle – censors had a problem because they thought the film was sacrilegious
2. ISSUE: whether motion pictures are within protection of First amendment speech
3. Reversed Mutual Film Decision
4. RULE: just because films distribution is a business for private profit, it is not barred from the constitutional freedom of speech. But protection has limits
5. HELD: under 1st and 14th amendments a state may not ban a film on the basis of a censor’s conclusion that it is “sacrilegious”
6. (page 22): Court’s bringing entertainment industry under the umbrella of the first amendment was more of a symbolic than practical significance
7. All arguments could also be made for video games.
iii. Kingsley International pictures v. Regents … (1959)
1. NY refusal to license Lady Chatterly’s Lover because film portrayed adultery as “desirable, acceptable or a proper pattern of behavior’
2. Supreme court overturned
3. Americans have as much of a 1st amendment right to advocate adultery as they did atheism or socialism
b. Defamation
i. New York Times v. Sullivan (1964)
1. FACTS: full page ad in NY Sunday Times civil rights orgs protested “wave of terror” instituted by southerners and police to quell peaceful protest movement of MLK
2. Sullivan (elected commissioner in Montgomery) instituted defamation lawsuit against the Times
3. Jury found Sullivan had been libeled by inaccuracies in the ad
4. Supreme Court:
5. Debate on public issues should be uninhibited, robust and wide-open, sometimes that includes unpleasantly sharp attack on gov’t and public officials
6. It is citizens’ duty to criticize the gov’t and duty requires broad constitutional immunity absent “actual malice”
a. Criticism is ok so long as speaker doesn’t act with knowledge or reckless disregard for the falsity of the harmful statement
c. Advocacy of Violence
i. Brandenburg v. Ohio (1969)
1. Brandenburg – leader of Ohio KKK, speech filmed and telecast, prosecuted and convicted under Ohio’s criminal syndicalism legislation prohibiting :
2. “advocacy of the duty, necessity or propriety of crime, sabotage, or unlawful methods of terrorism as means of accomplishing industrial or political reform”
3. Supreme Court: overturned precedent.
4. HELD: violates 1st amendment to punish pure advocacy of illegal force
5. So just because Brandenburg advocated violence he shouldn’t be punished UNLESS it was “advocacy directed to inciting or producing imminent lawless action and is likely to incite or produce such actions
d. Invasion of privacy – private individuals
i. Warren Spohn v. Julian Messner:
1. NY legislation did not preclude “factual reporting of newsworthy persons and events” even if persons involuntarily rendered newsworthy
2. DOES preclude fictionalized portrayals that were “inaccurate or distorted”
ii. Philadelphia 1952:
1. Hill family home invaded – later their story was told as a fictionalized book and later a play
2. Life Magazine explicitly tied the storyline to their family – the family sued for invasion of privacy
3. Supreme Court: overturned jury verdict for the family
4. RULE: “knowing or reckless disregard of falsity” is the constitutional predicate for a privacy suit
e. Motion picture review/ ratings
i. Interstate circuit, Inc. v. City of Dallas:
1. Struck down city ordinance for providing for prior viewing of films by a citizen’s review board to classify movies as Not suitable for young persons (under16)
a. Standards listed page 25
b. If it didn’t meet the standards no admission or must be accompanied by an adult
2. Court: vice of vagueness in the licensing standards seriously detrimental to the constitutional rights of the motion picture industry and its fans
ii. MPAA (Motion Picture Association of America) developed a rating system as a result
f. Sexual obscenity
i. Miller v. California: (1973)
1. Set guidelines for sexual obscene:
2. Whether average person applying contemporary community standards would find the work taken as a whole appeals to the prurient interest
3. Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law
4. Whether work taken as a whole lacks serious literary, artistic, political or scientific value
ii. American Booksellers Association v. Hudnut (1985)
1. Indianapolis city ordinance in 1980s placed pornography within administratively and judicially enforceable bars to discrimination against women
2. “pornography” meant – graphic sexually explicit subordination of women whether in pictures or in words – list of examples page 28
3. Generally: presentation of women as sexual objects for domination, conquest, violation, exploitation, possession or display.
4. Ordinance challenged: city argues what people see affects how people act – wanted to protect women, also to protect actresses in violent films from experiencing harm
5. COURT: image of pain is not necessarily pain – film is not real
6. Supreme court: upheld 7th circuit’s ruling striking down the Indianapolis law
iii. Note/questions for consideration page 32:
1. Current American stance toward freedom of speech is considerably more absolutist than in any other democratic nation
2. Most constitutional scholars believe that tv and radio stations should now enjoy the same full-bodied freedom of speech as other media counterparts.
3. Should entertaining speech enjoy the same constitutional statute as political speech in Sullivan and Brand
ibition and affront to community standards. CPPA would prohibit speech that recorded no crime and created no victims in the production
9. Thomas and O’Conner make technology argument – what will happen when you can’t tell the difference between computer images and real kids?
10. What is the way around this? Movies have used “of age” young adults in place of under-age. If Ashcroft would have gone the other way, movies like American Beauty and Romeo + Juliet would be outlawed.
11. The Child Pornography Prevention Act of 1996 (CPPA) cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the definition of obscenity; under the CPPA, the materials need not appeal to the prurient interest, and it is not necessary that the image be patently offensive, as pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards, and the CPPA also prohibits speech despite its serious literary, artistic, political, or scientific value.
c. Television and Radio Broadcasting:
i. Red Lion Broadcasting v. Federal Communications Commission: (1969)
1. Court approved use of FCC’s “fairness doctrine” giving subjects of personal over-the-air attacks right to free air time to reply.
ii. Federal Communications Commission v. Pacifica Foundation (1978)
1. George Carlin’s “filthy words”
2. Man who heard broadcast while driving in the car with young son said he could understand the record being sold for private use but not to be broadcast Pacifica responded – Carlin was a social satirist. 5 member majority upheld FCC’s finding that language violate the communication act barring indecent (but not necessarily obscene) broadcasts
3. ISSUE: whether broadcast of patently offensive words dealing with sex and excretion may be regulated because of content.
4. Obscene materials are denied protection because their content is so offensive to contemporary moral standards
5. Content of this broadcast is vulgar, offensive and shocking – must be considered in context.
a. broadcast media establish a pervasive presence in lives of Americans
i. Saying just turn off the radio is the same as saying to avoid assault run away after the blow
b. Broadcasting is uniquely accessible to children, even those too young to read
6. Does the First Amendment deny government any power to restrict the public broadcast of indecent language under any circumstances?
a. No. The Court held that limited civil sanctions could constitutionally be invoked against a radio broadcast of patently offensive words dealing with sex and execration. The words need not be obscene to warrant sanctions. Audience, medium, time of day, and method of transmission are relevant factors in determining whether to invoke sanctions. “[W]hen the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.” [Likens to a Zoning Nuisance case]
b. Carlin’s speech was content and attitude based – the political “words are just words” attitude is what ruffles the feathers.
7. This pushes back towards Brandeis’ Whitney v. CA decision.
8. DISSENT: Brennan and Marshall compared it to “Fuck the draft” jacket worn in LA courtroom in Cohen v. California. Said it was easier for listeners to protect their privacy by turning off the radio than it was for viewers in Cohen to leave the courtroom.
9. IF ONE WANTS TO GET SPEECH BANNED – ARGUE TOWARDS THE SPEECH BEING MORE LIKE BROADCAST – EASIER TO GET BANNED THAN PRINT.
