How much power should the government have over what we say?

Do campaign contributions constitute political speech?

Legal environment in which the media operate is very important.

-- in the sense that media organizations are businesses, they must abide by business rules and regs (wage and hour laws; workplace safety; taxes; other regulations specific to the type of organization, such as postal regulations)

-- but content of media is protected from governmental interference (unlike content of many business products); product of the media, if you will, is largely unregulated

First Amendment

-- basis for laws concerning media content

-- what it says

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 by James Madison

-- names the freedoms that are important to society: religion, speech, press, assembly and petition

Why is each of these so important?

Are there other freedoms or rights that are equally as important?

One can look upon the First Amendment as the description of the "open society" that many of us assume for our civil life.

The First Amendment specifically prohibits Congress from enacting laws in there areas, but the meaning of the FA is far greater than that; over the years, this meaning as grown, changed, morphed by inferences and court decisions. Every generation interprets the First Amendment (and the rest of the Constitution); we do not feel totally bound by what the Founding Fathers meant – their understanding was incomplete, and they could not foresee all of the contingencies.

So, what does it mean?

-- no prior restraint

government has no role in restricting or prohibiting speech, press, particularly political speech,

  -- during 2004 campaign we have seen an erosion of that principle; political ads requiring candidates to say they approved of the message; criticism of 527 groups in spending money for campaign ads and other activities

  -- gag orders by judges

  -- proposals to restrict the communication between doctor and patient in abortion counseling

  -- national security; wartime communication, especially from war zones

Despite these restrictions, the limits to prior restraint by the government – particularly in political speech – are strong both in tradition and practice; those limits extent to what we might call civic speech, the kind we are engaging in here in a classroom.

. . . but the First Amendment goes beyond that into a positive realm

-- enabling the right of people to speak and the process of speech; courts have been sensitive to easing or enabling the process of speech

  -- recognizing, to some extent, the value of symbolic speech, using symbols, actions rather than spoken words

  -- recognizing the value of offensive speech – speech that people do not agree with or that offends beliefs, attitudes, public values

• criticizing the president; we tried curbing that once with the Alien and Sedition Acts

• burning the flag; burning a draft card

 -- understanding that restricting speech in one area can lead to restrictions in other areas

-- enabling the processes of the press, particularly reporting and publishing

 -- open government meetings

  fostering the public's right to know

  -- open government records; gaining access to public information

  -- information that businesses must disclose

  -- reporters protection of sources and information

  this principle is currently under attack

  -- limiting liability under libel statutes

 

Limits of First Amendment protection

• Can we worship in any way we want?

• Can we gather – even peaceably – any way we want?

• Can we petition the government in any way we want? (symbolic speech)

• Can we say anything we want?

• Can we print anything we want?

No, there are restrictions to all of these. For the mass media, the most prevelant and difficult restriction is defamation.

Defamation

-- ancient principle of common law – a person's reputation has value

yet there is the First Amendment, which says society has value in being able to speak freely; how do we resolve this conflict.

Modern defamation laws say you must prove

            • publication (more than just two people have to see/hear it)

            • identification (can the person defamed be identified)

            • defamation (did the words have potential to do real damage)

            • fault (was there negligence or some mitigation)

            • harm (is there provable damage)

  -- defenses against defamation

            • truth – powerful defense (society values truth)

            • qualified privilege – is the situation one that relieves responsibility

            reporters depend on qualified privilege to report public affairs; such as, the arrest of a person who is innocent

            • absolute privilege

            • statute of limitations

            • Constitutional privilege

            protects media from suits by public officials and public figures

            comes from 1964 decisions New York Times v. Sullivan

            makes virtually impossible for any well known figure to recover

            still, the threat of the costs of litigation is there

Criminal laws

            • fraud and trespass

            • public nuisance

Privacy

Copyright and trademark

Obscenity and pornography

Questions?