Mass Media Law—Fall 2008—Anderson
Part I: The First Amendment and Government Regulation
The First Amendment and the Media
I. Media Law has many sources other than the 1st Amendment
a. State common law ® law of defamation and invasion of privacy
b. State statutory law ® reporter’s privilege to refuse to disclose confidences
c. Open-meetings and open-records statutes ® press access to governmental info
d. Federal statutes and Federal Communications Commission (FCC) ® broadcast regulations
e. Conversely, many areas of 1st Amendment law have little to do with the media. Despite this, the 1st Amendment plays an important role in nearly every area of media law. Media lawyers may see 1st Amendment press cases in isolation from other 1st Amendment cases, but a judge will not.
II. 1st Amendment Law v. the Common Law of free speech and free press
a. John Peter Zenger trial (New York, 1735) ® established practice of allowing the jury to return a general verdict of “not guilty” in seditious libel cases as opposed to practice in England where jury could only decide if defendant has published words in question.
i. In US common law of seditious libel never really took root as a result.
ii. The common law prohibition against prior restraints was widely accepted in US and England.
b. Sedition Act of 1798 ® (together with Alien Act) Act made it a crime to print any false, scandalous, and malicious writings about the Fed. Govt, the Congress, or the president.
i. Touched off debate over meaning of freedom of the press and speech by Madison and Jefferson (both argued 1st A. had been intended to deny Fed. Govt. the power to punish seditious libel.)
ii. Embraced more comprehensive visions of freedom than previously expressed.
III. 1st Amendment jurisprudence developed more slowly because:
a. Only applied to the Federal government (which was much smaller then)
b. 1st Amendment not applied to the states until 1925 – press did not win 1st Amendment case until 1931.
c. It was not until 1964 that the Supreme Court held that the 1st Amendment imposed limits on state tort actions, such as libel.
d. Relationship of press to government was at first they were allies (primary role of press to report and comment on activities of government.)
i. 1960s – began with Civil Rights movement (sympathy to demonstrators confronting govt) to challenges about govt choices in Vietnam to investigative journalism with Watergate scandal. (Press became more confrontational and aggressive.)
ii. 1970s – development of Media lawyers and Media Law Reporter to assert 1st A. arguments, also used it offensively by gaining access to courtrooms and governmental institutions, new protection for commercial speech, attack discriminatory taxation, and to force reconsideration of restrictions on broadcast journalism.
iii. 1990s – expansion of types of media – more broadcast networks, world wide web, magazines ® change in “news” reporting (more human interest stuff v. Hard news)
IV. Values Served by Free Speech
a. Tends to be assumed not only among members of the public, but by members of the court
b. “The System of Freedom of Expression” by Thomas I. Emerson
i. Freedom of expression is essential as a means of assuring individual self-fulfillment – suppression of belief, opinion, or other expression is an affront to the dignity of man.
ii. Is an essential process for advancing knowledge and discovering truth – must hear all sides of question
iii. Is essential to provide for participation in decision making by all members of society. Involves balance between authority and freedom.
iv. Is a method for achieving a more adaptable and hence a more stable community. To maintain balance between healthy cleavage and necessary concensus.
v. For a “good society,” controlling individual expression on the ground that it is judged to promote good or evil, justice or injustice, equality or inequality, is not proper.
vi. Freedom of speech is essential for all other freedoms – expression is normally conceived as doing less injury to other social goals than action.
vii. Assumes that freedom of speech is a good in and of itself, not just when it is thought to promote other goals of society.
c. Autonomy: speech is integral to autonomy—other activities can be curbed despite their effect on autonomy because of the negative externalities.
i. Consequentalist argument: speech serves an instrumental end®speech serves the public good (ex. Successful operation of the political process)
ii. Nonconsequentialist argument: serves personal ends, such as autonomy® speech has inherent, personal value
V. Consequential Values
a. The Marketplace of Ideas
i. Justice Holmes opinion (in dissent of Abrams v. US – about pamphlets criticizing President for sending troops to counter Russian revolution): “the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
ii. John Milton, “Areopagitica”: Let her [truth] and falsehood grapple: who ever knew truth put to the worse, in a free and open encounter?
iii. By silencing speech, rob the human race. Either of opportunity to exchange lie for truth or to have a stronger impression of the truth.
iv. Judge Learned Hand: right conclusions more likely to come from a multitude of voices than from any kind of authoritative selection. (Remedy for bad speech is more speech)
v. Critics of marketplace theory argue that it prevents democratic reforms that would advance free speech interests
1. Highlight difference between marketplace of ideas and democratic liberation—why protect speech with little or no connection to democratic aspirations that produce social harm?
2. Government controls to ensure diversity of views would help system of free expression.
vi. “Why the State?” – Limitations on media-dominated market:
1. The market privileges select groups that are more able to have access or affect
2. Profitability factors or allocative efficiency may play too large a role (what about democratic needs of electorate?)
3. Some argue that the state should supplement the market to make up for this (traditionalists reject such a view) How did the 1st A. cease being a bar to government regulation and become a vehicle to justify it?
b. Political Values
i. “The First Amendment is an Absolute” – Alexander Meiklejohn
1. Only those activities of thought and communication by which we govern are protected ® it is not an individual right so much as a government responsibility
2. Freedom brings with it responsibility
3. Many forms of thought/expression from which voter derives values: education, philosophy/sciences, literature/arts, public discourse
ii. Others hold that the more important political value is in checking abuse of power by government ® not only is there a positive value, but it prevents negative effects of unchecked government.
c. Personal Values
i. “Human Liberty and Freedom of Speech” by Edwin Baker
1. Self-fulfillment and participation in change is key.
2. Reasoned justification for obligation to obey the laws may require respect for rights of equality and autonomy and democratic participation.
a. Utilitarian theory argues for fulfilling as many of people’s desires as possible, weighting the desires (or preferences) of each person equally.
b. Democratic decision making gives each person the same potential say in results.
c. Implements equal respect for persons as autonomous agents
d. Commitment to democracy is implication of more basic commitment of respect for individual equality and liberty
ii. Autonomy – individual’s right to speak (or not speak)
1. 1st A. protects protester’s right even if others find speech offensive, govt. cannot stop protester (Cohen v. California)
2. Also denies state power to compel drivers to display on license plates a state motto they find repugnant (Wooley v. Maynard) or to require religious objectors to recite the pledge of allegiance (West Virginia State Board of Education v. Barnette)
3. Protects right to receive information – denying that right be thought to interfere with the autonomous individual’s right to learn, choose, and deci
g–juvenile’s interest in not having name published balanced VS. public’s right to know.
a. Court held: making it a crime to publish a name of a juvenile delinquent was invalid.
b. Here the court did not have to strike a balance because the law applied only to print media, not electronic media, so it didn’t accomplish its intended purpose.
c. Publication of truthful information, which has been lawfully obtained by the media, concerning a matter of public significance may be prohibited only be a sanction that is “narrowly tailored” to further a state interest of the highest order.
2. Categorical Approach
a. Certain categories of words are outside the protection of 1st Amend.
a. Lewd and obscene, profane, libelous, and the insulting or “fighting words” (those which by their very utterance inflict injury or tend to incite an immediate breach of the peace)—Chaplinsky v. New Hampshire.
b. Speech pertaining to elections or government is “close to the core” of the 1st Amend and is entitled to special protection.
b. The Protection must hinge on the category of speech, not the point of view.
c. A general problem with categorization is that there is not as much certainty as hoped. Many people prefer the Balancing Test.
d. R.A.V v. City of St. Paul—Statute that prohibited cross burning on private grounds w/ knowledge that it will arouse anger. Govt says statute only prevents fighting words.
a. Court considers the act a viewpoint and not a fighting word.
b. Furthermore, they felt as though the Govt might be trying to limit the content of the act.
c. Viewpoint discrimination v. content discrimination: If the law was analyzed under this typology it could be upheld because, although it is concerned with content, it does not discriminate on the basis of viewpoint (hate speech against a person of any race is prohibited).
d. Stevens: Categories should be abolished, we should just do case by case, ad hoc analysis
3. Literal Approach
a. Believe that Cong should not tell the people what to say or publish. No law means no law. (Justice Black).
a. “Constitution provides an absolute freedom of speech”
b. I apply 1st Amend to speech I hate, I constantly strike down obscenity laws as unconstitutional
b. Since there is some speech that most people would agree should not be protected, the main problem for the absolutist is deciding what comes within the 1st’s protection. (Meiklejohn)
a. Answer was political speech only. (included education, science, the arts).
c. This approach is ridiculed for being arbitrary.
4. Clear and Present Danger
a. Holmes—“Expression could be punished when the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Cong has a right to prevent.”
b. Essentially, Government may only punish speech that produces, or is intended to produce, a clear and imminent danger of a serious substantive evil.
a. Speech advocating illegal action may be punished only when the advocated action is serious and there is no time for further discussion before the advocated action will take place.
b. However, even imminent danger can’t justify resort to prohibition of speech except where evil is relatively serious.
c. Test is rarely used today.
C. The Press Clause
1. History and Significance of the Press Clause
a. Courts usually don’t draw a distinction btw freedom of speech and freedom of press. Usually use free speech and free press interchangeably.
b. Anderson feels “The Press Clause is best understood as a structural provision designed to protect an institution because of its contribution to various forms of human good—in particular the press’s contribution to checking governmental abuses and its provisions of perspective and information useful to people in their self-defining activities.”
c. “Or of the Press”—Justice Stewart
