Media Law Outline

Media Law Outline

Fall 2013

PART I: GOVERNMENT REGULATION OF SPEECH

Unprotected Speech Categories

· 1) Speech Intended to Incite – and likely to produce- imminent unlawful action

· 2) Fighting Words

· 3) True Threats

· 4) Obscenity (under Miller)

· 5) Child Pornography

· 6) Defamation

· 7) Fraudulent Misrepresentation

· 8) Other Speech Integral to Criminal Activity (e.g. Perjury, Blackmail, Forgery, False Public Alarms)

· 9) Copyright-Infringing Speech

1) Speech Intended to Incite – and likely to produce- imminent unlawful action (Page 5)

Policy Points to Takeaway

· 1) The First Amendment protects evil, dangerous speech

o Don’t focus on “bad” vs. “good” intent

· 2) Can’t restrict speech just because of its tendency to spark ideas that might lead to crimes in the future

o Advocating illegal conduct actually has ways of changing the way society thinks of something which outweighs the slim possibility that it could lead to lawlessness

· 3) Speech about to lead to imminent harm can be restricted

2) Fighting Words – can be punished if “by their very utterance [the words] inflict injury or tend to incite an immediate breach of the peace” (Page 7)

· Fighting words are there to protect the speaker from getting punched in the face; incitement is protecting other people from getting punched in the face

· Fighting words must be directed to the person or the hearer and are likely to be seen as a direct personal insult

Robert A. Viktora (R.A.V.) v. St. Paul, 505 U.S. 377 (1992) – Page 45

· Facts: RAV and other teens put a cross inside the yard of a black family who lived across the street from him and was punished under a St. Paul ordinance restricting hate speech

· SCOTUS unanimously agreed that the ordinance was a 1A violation but disagreed on the rationale.

· A law banning only unprotected speech may still be unconstitutional if it draws content-based distinctions as to what is prohibited

Virginia v. Black, 538 U.S. 343 (2003)

· VA burned cross-burning in a public place or on the property of another if done with the intent of intimidating any persons

· The Court did not find an RAV problem in this case because it concluded that burning a cross was the worst type of threats of violence

3) Hate Speech (Page 9)

Definition: Words written or spoken that attack individuals or groups because of their race, ethnicity, national origin, religion, gender, sexual orientation or disability

4) Obscenity (Page 9)

Miller Test – Speech is obscene if:

· 1. The [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest, AND

· 2. The work depicts or describes [a] in a patently offensive way under [b] contemporary community standards [c] sexual conduct specifically defined by the applicable state law, AND

· 3. The work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value.

o LAPS value

Key Points

· Sometimes, the 1A does allow the G to restrict speech because of its long-term tendency to induce its audience to do bad things

· Sometimes, the G may treat material with “serious value” differently from material that doesn’t have “serious value” – this comes from the LAPS portion of the Miller test

Who is the average person?

· The community includes all adults who comprise it (NOT children)

What is prurient interest?

· The phrase is limited to a “shameful or morbid interest in sex”; appeals to normal interest in sex, material that, taken as a whole, does no more than arouse, good old fashioned healthy interest in sex are not included

What is patently offensive?

· Jenkins v. Georgia – includes “representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated” and “representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals”

What has Serious literary value?

· Not decided by community standards

What is not obscene?

· Pornography with sex between a man and a woman; nothing more than that that gets into fetishes or anything of the sort

Words alone can still be considered obscene

· Ex: United States v. Fletcher – plead guilty to stories on her website about killing fake children

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)

· Facts: A DA bought tickets to a theatre where two porn films were being shown. The theatre had a sign saying it was a 21+ theatre and that there were adult films.

· The theatre was banned because obscenity has “a tendency to exert a corrupting and debasing impact leading to antisocial behavior”

Reno v. ACLU, 521 U.S. 844 (1997)

· Part of the CDA (Communications Decency Act) stated as “any [communication] that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.”

· There is no exception for LAPS value – that alone means this is not synonymous with obscenity and we are dealing with protected speech

· Major issue that the SCOTUS had is that, even if there are really good reasons to pass the law and it were a proven fact that when minors see this stuff their heads are going to explode, this law is “burning the house to roast the pig.”

Overbreadth Doctrine

· Rule: A statute is overbroad if, in addition to proscribing activities that may constitutionally be suppressed, also sweeps within its coverage a “substantial” amount of protected speech

· The court is concerned with a chilling effect and selective enforcement

Community Standards

· Under Miller, community standards = local standards = state standards

· The law is not a national standard (circuit split)

5) Child Pornography (Page 14)

Definition: Child pornography is any speech (media) that depicts actual children engaged in sexual conduct

· See New York v. Ferber, SCOTUS held child pornography is unprotected speech

Rule: Stanley v. Georgia (allowing obscenity in one’s own home) does not apply to child pornography; states may criminalize even private possession – Osborne v. Ohio

Ashcroft v. Free Speech Coalition

· In 1996, Congress barred distribution of any images that “appear” to depict minors performing sexually explicit acts. The majority held that the law was overbroad, provided no exception for serious LAPS value, and “prohibits speech that records no crime and creates no victims by it’s production”

U.S. v. Williams, 553 U.S. 285 (2008)

· Under the facts of this case, there was no photo or video that depicted an actual minor

· SCOTUS: “Offers to engage in illegal transactions are categorically excluded from First Amendment protection.”

Indecency (Page 15) – NOT an unprotected category; it is protected

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)

· Facts: At 2 pm a NY radio station is broadcasting a 12-minute monologue by George Carlin who is talking about the seven dirty words you can’t say on television. A man is driving with his fifteen year old son and goes ballistic

· The FCC has defined indecency as material “that describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual excretory activities and organs, at times when there is a reasonable risk children may be in the audience”

· Rule: Indecency is not an unprotected category of speech – it is a protected category unless it is obscene

· Rule: The FCC can regulate indecency in broadcast media because of its uniquely pervasive presence and its unique access to children

· Current FCC laws only apply to certain hours; feels like a content neutral restriction – you can still drop all the F bombs you want to so long as its between the hours of 10 pm and 6 am

· Would be content neutral if the law was only focused on time, but the problem is that it is focused on content – it’s focused on indecent content which is protected speech as long as it isn’t obscene

· The content of the content was indecent but it does not fit the Miller test of being obscene, therefore this is not a content neutral regulation

· Normally this would go through strict scrutiny land, but the problem is we are dealing with a specific type of communications medium – because broadcast radio is a unique medium being regulated by the government in a special capacity, there are reasons to treat broadcasts differently from other medium

· The Court comes up with it’s own unique set of rules – everything that is decided in Pacifica is specific to broadcast media

· The court is applying something close to intermediate scrutiny

· A court may find speech indecent if it (a) describes or depicts sexual or excretory organs or activities, (b) is patently offensive – measured by modern community standards for broadcast, and (c) is aired when children are likely to be in the audience (and not in the FCC’s safe harbor hours).

o No exception for LAPS value

o No prurient interest

· Holding: the SCOTUS upheld the FCC action ruling that the routine was indecent but not obscene. The Court accepted as compelling the G’s interests in shielding children from potentially offensive material and ensuring that unwanted speech does not enter one’s home. The Court stated that the FCC had the authority to prohibit such broadcasts during hours children were likely to be among the audience.

FCC v. Fox Televison (Fox I), 556 U.S. 502 (2009)

· The SCOTUS upheld FCC regulations banning “fleeting expletives” on TV broadcasts

· FCC’s Fleeting Expletives (FE) Policy in 2004: FEs are presumptively indecent except when: (1) integral to a work of art; or (2) occurring during a bona fide news interview

o In 2006, the second circuit said this policy was arbitrary and capricious in violation of a federal statute; SCOTUS reversed and said we don’t see any issues under the act, but sent it back down to consider the constitutional issue

o The Second Circuit pretty much struck down the entire indecency regime by saying look, it’s 2013 it doesn’t really make sense to treat NBC differently than say FX; we don’t seem to have a spectrum scarcity issue any more – there are thousands of channels to go to

· In 2010, the Second Circuit held the entire FCC indecency regime unconstitutional, as it is unconstitutionally vague, creating a chilling effect that goes far beyond the feeling expletives at issue here.”

FCC v. Fox Television Stations, Inc., 567 U.S. __ (2012)

· Struck down the fleeting expletives policy as void for vagueness

· Rule: A law is void for vagueness if the forbidden expression is so unclearly defined that people of common intelligence guess at its meaning and differ as to its application.

o Concern re: chilling effect

o Desire to curb discretion given to the Government – people in power like the FCC have a lot of discretion on who to fine, this becomes problematic and inconsistent with what the framers intended

United States v. Playboy Entertainment Group, 529 U.S. 803 (2000)

· Sec. 505 Of Telecommunications Act requires cable operators to (A) block or fully scramble sexually oriented channels or limit transmissions to safe harbor hour sunless (B) a subscriber asks to receive the adult channels.

o Done partially to prevent the signal bleed issue

· Playboy sued and said this law violates our free-speech rights because you are restricting material that is clearly protected by the 1A (indecent material but not obscene material)

· The Court said this law is not constitutional

o It is a content-based restriction – it’s not all content, just the sexually based channels

o This is not an FCC rule, this was a congressional bill

o We are basically dealing with strict scrutiny, not intermediate scrutiny

o We are dealing with protected speech

o “Even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative.”

Broadcast Regulations (Page 20)

Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969)

· The “political editorial” rule: when a broadcaster, in an editorial, “endorses or oppose