Mass Communications
Professor Snowden
Mass Media Outline
Texas v. Johnson:
Facts: Def. was convicted for burning the American Flag at a demonstration against Reagan’s presidency.
Issue: Whether his conviction is consistent with the 1st Amendment.
Rule: 1st Amendment & Texas Law – Desecration of a Venerated Object:
A person commits an offense if he intentionally or knowingly desecrates
(3) a state or national flag. (Desecrate means – deface, damage or physically otherwise mistreat in a way the actor knows will seriously offend one or more persons likely to observe or discover his action)
Expressive Speech elements:
(1) an intent to convey a particularized message was present
(2) whether the likelihood was great that the message w/be understood by those who viewed it.
Holding: No, the Texas law is unconstitutional as it was applied in this case. His actions are considered “expressive” speech (see 3rd page of handout) which are protected by the 1st Amendment unless the govt. can show a relevant governmental interest and that it is not a law that was passed to suppress expression. The govt. failed to show a legitimate interest (they tried to argue (1) preserving symbol of unity & (2) preventing breach of the peace) The law did suppress expression and therefore is unconstitutional. (Because it doesn’t fit in O’Brien because it was meant to suppress expression, the test is compelling state interest that’s narrowly tailored)
Class Notes:
– O’Brien test: When speech and non-speech elements are combined in the same course of conduct, govt. regulation of that conduct is sufficiently justified if it’s w/in the constitutional power of the govt., if it furthers an important or substantial govt. interest, if the govt. interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest.
– They had to use “strict scrutiny” or “compelling state interest”.
– (don’t use strict scrutiny on test, tell him what the test is)
– Dissent said def. could have used other means to get his message across.
– It says it’s outside the 1st Amendment such as:
a) lewd & obscene
b) profane
c) libelous
d) insulting
“fighting words” that inflict injury or tend to incite an immediate breach of the peace. (see p. 20)
– these words have to be directed towards someone in order for them to be “inciting”.
e) Child porn
f) True threats
– Look at: (1) Content (2) View Point (3) Method
– Content in this case: political speech
– View Point in this case: democrats are a bunch of whiney wimps
– Method in this case: MF BR communists
US v. Eichman:
Issue: Whether the Flag Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe expressive conduct.
Rule: 1st Amendment & Texas v. Johnson
Holding: No, the Act is not sufficiently different from the Texas Statute so conviction is overturned. The Act proscribes conduct that damages or mistreats a flag, w/out regard to the actor’s motive, his intended message, or the likely effects of his conduct on onlookers. However, it is clear that it still was passed to suppress free expression because the govt’s desire is to preserve the flag as a symbol of certain national ideals is implicated “only when a person’s treatment of the flag communicates a message” to others that is inconsistent with those ideals.
Barnes v. Glen Theatre (Class Notes):
– It furthers a substantial govt. interest (protecting morality, safety and order)
– It’s unrelated to the suppression of free expression.
– The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals.
– nude dancing is (barely) expressive conduct.
Scalia:
– Says it’s not subject to 1st Amendment analyses.
Secondary Effects:
– Prostitution, assault and crime.
Pap’s A.M. v. City of Erie (Class Notes):
– What about secondary effects?
I. 1st Amendment & the Media
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 to peaceably assemble, and to petition the govt. for redress of grievances.
-There must be a legitimate state law that is rationally related to that interest.
– One reason for the slow development of the 1st Amendment was that it applied only to the federal govt.
– Not until 1925 did the Court apply the 1st Amendment to States.
– 1st Amendment applies to states thru the 14th Amendment.
Class Notes:
Why do we have the 1st Amendment? (Brandies’ opinion p. 7)
1) It’s a means of discovering political truth.
2) way of protecting the duty to discuss politics
3) Stability
4) You have to have a viable fear.
– Clear difference b/w advocating and incitement.
Levels of fear:
1) Clear & Present Danger
2) Probable
3) Reasonable/Possible
Thomas Emerson: The 1st Amendment is for autonomy or allowing people to express themselves.
– as long as you’re not retarding to good or promoting the bad you can express yourself (Emerson says that’s not fair)
Knicklejon: The 1st Amendment isn’t for autonomy (or ensuring everyone gets a say) it’s to ensure that the political arguments are “put out there”.
Marketplace of Ideas
The best test of truth is the power of the thought to get itself accepted in the competition of the market.
– The market constrains the presentation of matters of public interest and importance in 2 ways.
1) The market privileges select groups, by making programs, journals, and newspapers especially responsive to their needs and desires.
2) the market brings to bear on editorial and programming decisions factors that might have a great deal to do with profitability or allocative efficiency but little to do with the democratic needs of the electorate.
– The market might be splendid for some purposes but not for others.
– The 1st Amendment was emphatically no an invitation to regulate the press to make it better serve public needs.
– Downside to this:
1) People lie, read “trash”, watch too much television (it doesn’t help you make educated decisions)
2) Who’s gonna clean up the “market place” – Govt. – How?
3) Hard to get ideas into the market place
II. Prior Restraints
Factors to Analyze 1st Amendment Issues:
1) Content of the Speech
2) Context in which it was expressed
3) The type of restraint being employed
4) Nature of the harm that the restraint is intended to prevent or punish.
Prior Restraint: An administrative system giving some agency of govt. power to grant or deny permission to publish.
Class Notes:
– In England prior restraint was having to have a license.
Near v. Minnesota (p. 30):
Facts: MN newspaper “Saturday Press” published an article that a Jewish gangster was in control of gambling, bootlegging and racketeering in Minneapolis and that law enforcement officers were doing nothing. MN law authorized the abatement of any malicious, scandalous or defamatory newspaper, or other periodical. Local prosecutor got an abatement.
Issue: Whether a statute authorizing such proceedings in restraint of publication is consistent w/the conception of the liberty of the press as historically conceived and guaranteed.
Rule: Liberty of speech, and of the press, is not an absolute right and the State may punish its abuse.
Free speech doesn’t protect a man from an injunction against uttering words that may have all the effect of force.
When the nation is at war free press may be subject to prior restraints.
Liberty of the press has meant principally immunity from previous restraints or censorship.
Holding: Allowing the govt. to bring press before the court every time it said something it didn’t like, and then require that they prove good faith and the truth of its statements is tantamount to censorship. (p.34). Statute is unconstitutional.
– Dissent says it threatens morals, peace and order and isn’t prior restraint.
Class Notes:
– Expands prior restraint from “licensing” to “censorship”.
– No Prior Restraint Unless:
1) Extreme National War-like Emergency
2) Obscenity
3) Riot
4) Private
NY Times v. US (p. 36):
Facts: During Vietnam war NY Times got a hold of secret documents (Pentagon Papers) and began running articles based on them. Govt. wanted an injunction.
Issue: Whether newspapers could be enjoined f
n expression.
2 Types:
1) Ad Hoc: Focuses on the interests at stake in the individual case.
2) Definitional: Interests analyzed transcend the merits of a particular case.
– This approach makes it easier to predict outcomes because of the explicit generalized quality of the decision.
Landmark Communications v. Virginia (p. 59):
Facts: State had a commission that investigated charges against state judges. All hearings, meetings were done in confidential and no one involved w/the proceedings could give out information. The Virginia Pilot (newspaper) found (through legal means) that a judge was in front of the commission and reported it in the newspaper. State found newspaper criminally liable.
Issue: Whether the 1st Amendment permits the criminal punishment of 3rd persons who are strangers to the inquiry, including news media, for divulging truthful information regarding confidential proceedings of the Judicial Inquiry and Review Commission.
Rule: There must be a legitimate state objective and the means used to meet that objective must be substantially related.
Injury to official reputation is an insufficient reason “for repressing speech that would otherwise be free.”
Holding: Confidentiality is a legitimate state interest. However, the govt.’s interest, advanced by imposition of criminal sanctions is insufficient to justify the actual potential encroachments on freedom of speech and of the press.
Concurring opinion: Thinks the state law is constitutional, except for the fact that it punishes newspapers.
Note: Footnote 4 – Caroline Products
Class Notes:
– Fundamental constitutional right = “strict scrutiny”
– Should different speech that’s w/in the 1st Amendment be treated differently by the different levels of scrutiny?
– Snowden says life isn’t about politics, it’s about “sex, drugs and rock and roll.” Politics (by the judges) is trying to assign more weight to different types of speech.
– this isn’t a very good balancing case.
Smith v. Daily Mail Publishing (p. 62):
Facts: Newspaper published name of juvenile who had been arrested for killings at a local high school. They obtained the info. over the police scanners and by interviewing people at the scene (i.e. normal investigation). There was a law in the state that required the media get a court order allowing them to release the name of juvenile before they could do so. Newspaper argued prior restraint and freedom of speech. The “prior restraint” argument was conceded. The state argued it had a legitimate objective of protecting juveniles that superceded the newspaper’s rights.
Issue: Whether the punitive action is necessary in furthering the govt.’s state interest.
Rule: If information is lawfully obtained, the state may not punish its publication except when necessary to further its substantial interest.
Holding: There must be a govt. interest more substantial then the one here in order to punish the newspaper. Also, the statute doesn’t restrict all media, just newspapers which suggests the state isn’t that dedicated to its interest. The constitutional right must prevail over the state’s interest in protecting juveniles. Plus there’s no evidence to demonstrate that the imposition of criminal penalties is necessary to protect the confidentiality of juvenile proceedings.
Class Notes:
– It’s under inclusive.
– How much “play” do you give the word “necessary”?
A: Not much, only use it when you don’t have much under “compelling state interest”
