Mass Media Law 18 th Edition Don Pember Clay Calvert Chapter 3 The First Amendment: Contemporary Problems McGraw-Hill/Irwin © 2013 McGraw-Hill Companies

Mass Media Law18th Edition

Don Pember

Clay Calvert

Chapter 3The First Amendment: Contemporary

ProblemsMcGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.

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Prior Restraint During WartimeModes of Censorship During Wartime

1. Denial of access to locations and individuals

2. Denial of access to documents and photographs

3. Punishment for publishing national security information

4. Self-censorship by the news media

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Prior Restraint During WartimeAccess to Locations and Individuals

– In Vietnam, reporters could go wherever they wanted– Many blamed this freedom for military failures

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Prior Restraint During WartimeAccess to Locations and Individuals

– In Iraq, the Department of Defense used a system called embedding - where members of the press were allowed to accompany military units

– In Flynt v. Rumsfeld (2004), a federal appellate court found that “there is no constitutionally based right for the media to embed with US. Military forces in combat”

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Prior Restraint During Wartime

Access to Locations

– Journalists were not allowed direct access to detainees at Guantanamo Bay, Cuba

– In 2009, the Department of Defense changed its policy to allow access to Dover Air Force Base in Delaware where coffins of soldiers killed overseas arrive in the U.S.

• The families of those who died must agree to photographer’s presence

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Prior Restraint During WartimeAccess to Locations

– In M.K.B. v. Warden (2004), the Supreme Court ruled it was acceptable “to conduct certain federal court cases in total secrecy.”

– State secrets privilege – allows the government to block a lawsuit if any information disclosed during it would adversely affect national security, including the location of a trial or interrogation facility

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Prior Restraints During WartimeAccess to Documents and Photographs

– The FOIA national security exemption is sometimes used by government officials to refuse release of information that:

• Could jeopardize national security• Was compiled for “law enforcement purposes”

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Prior Restraints During WartimeAccess to Documents and Photographs

– Classified Information Procedure Act – federal act that details procedures for courts to consider when the government argues classified information could be publicly disclosed during a criminal procedure that might jeopardize national security.

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Prior Restraints During WartimePunishment for Publishing National Security

Information

– It is possible that treason or espionage charges could be filed against journalists for reporting on the war on terrorism if the government believes national security information is being revealed.

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Prior Restraints During WartimeSelf-Censorship by the News Media

– Self-censorship by the press may occur because some members of the media:

• Fear government retaliations under espionage laws• Feel a sense of duty not to reveal information that could

jeopardize U.S. soldiers• Are concerned they could offend viewers or readers • Fear their reports could hurt public support of the American

war effort

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The First Amendment in SchoolsCensorship of Expression in Public High Schools

– Tinker v. Des Moines (1969)

• The U.S. Supreme Court ruled that students could not be suspended for wearing black arm bands to school in protest of the Vietnam War

• Students “do not shed their rights at the schoolhouse gate”

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– Barber v. Dearborn Public Schools (2003)

• Brentton Barber, a high school junior, was asked to remove a t-shirt to school with a photo of President George W. Bush and the words “International Terrorist” when one student complained

• The court, applying the Tinker precedent, found that the request was unconstitutional noting that “students benefit when school officials provide an environment where thy can openly express their diverging viewpoints and when the learn to tolerate the opinions of others.”

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– Hazelwood School District v. Kuhlmeier (1988)

• The U.S. Supreme Court ruled it was acceptable to censor a high school newspaper produced as part of a journalism class if material fell into one or more of five categories:

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– Five categories of acceptable censorship under Hazelwood:

• 1) Publications or stories that materially and substantially interfere with the requirements of appropriate discipline

• 2) Material that interferes with the rights of students

• 3) Material that fails to meet standards of academic propriety

• 4) Material that generates health and welfare concerns

• 5) Matters that are obscene, indecent or vulgar

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– Dean v. Utica Community Schools (2004) – a district court judge found that a student-authored article questioning whether school buses were causing injury and illness to local residents was not inaccurate and therefore could not be censored under the Hazelwood “legitimate pedagogical concerns” standard.

– The judge found the censorship to be unconstitutional viewpoint-based discrimination.

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– Bethel School District v. Fraser (1986) – the Supreme Court found that officials at Bethel High School did not violate the free speech rights of Matthew Fraser when they suspended him for making a sexually suggestive nomination speech for a fellow classmate

– The court refused to apply the political speech standard in Tinker, ruling that society has an interest “in teaching students the boundaries of socially appropriate behavior.”

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– Frederick v. Morse (2007)

• As the Olympic torch relay passed outside of his school in Juneau, Alaska, Joseph Frederick unfurled a sign that read “Bong Hits 4 Jesus”.

• The principle of the school felt the banner had a pro-drug message, made him take it down, and suspended Frederick for 10 days.

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• The 9th Circuit applied the Tinker standard noting there was no substantial and material disruption of educational activities when the banner was unfurled.

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• The Supreme Court ruled that Frederick’s First Amendment rights were not violated and that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”

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The First Amendment in SchoolsCensorship of College Newspapers

– Kincaid v. Gibson (2001)

• The 6th U.S. Circuit Court of Appeals ruled administrators at Kentucky State University could not ban the distribution of the college yearbook when they did not approve of its content

• The court ruled the yearbook was a designated public forum

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– Hosty v. Carter (2005)

• Administrators at Governors State University in Illinois demanded prior review and approval of the student newspaper before publication

• The case centered around whether the legitimate pedagogical concerns standard of Hazelwood could be applied to college newspapers.

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– Hosty v. Carter (2005)

• The 7th Circuit ruled that “speech at a non-public forum, and underwritten at public expense, may be open to reasonable regulation even at the college level.”

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– In 2006, California passed legislation prohibiting prior restraints and censorship by university administrators of public college and university newspapers.

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The First Amendment in SchoolsProblems for College Journalists

– Student journalists often have a difficult time accessing information held by the university

– There have been many attempts to censor advertising for controversial products or ideas

– Some universities have attempted to censor student newspapers by cutting funding – this has rarely worked

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The First Amendment in SchoolsProblems for College Journalists

– Newspaper theft is becoming an increasingly common practice for the censorship of speech in college newspapers

– Three states – California, Colorado and Maryland – have statutes specifically aimed at penalizing the theft of free newspaper

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The First Amendment in SchoolsAlcohol Advertisements and the College Press

– Pitt News v. Pappert (2004)

• The 3rd Circuit Court of Appeals ruled a Pennsylvania law that banned advertisements containing references to “the availability and/or price of alcoholic beverages” in university newspapers was unconstitutional because no connection between the ads and underage drinking could be made

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The First Amendment in SchoolsBook Banning

– Book banning is a problem at both school and public libraries

– Courts have failed to offer specific criteria to guide librarians in censorship decisions

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The First Amendment in SchoolsBook Banning

– While school boards have broad discretion about what books to buy for their libraries, they may not remove books already on the shelves just because they do not agree with the ideas or viewpoints expressed in them.

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Time, Place and Manner RestrictionsFor a law to be constitutional:

– Rules must be content neutral on their face in in their application

– Rules must not constitute a complete ban on one kind of communication

– Rules must be justified by a substantial state interest– Rules must be narrowly tailored

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Time, Place and Manner RestrictionsJudicial Review

– Strict scrutiny – requires the government to prove a compelling interest (not simply a substantial state interest) and that the statues restricts no more speech than is absolutely necessary to serve that interest.

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Forum Analysis

Traditional Public Forums

– Places long devoted to public speech– Street corners, public parks– Most First Amendment protection here

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Forum Analysis

Designated Public Forums

– Places created by government for expressive activities

– City-owned auditorium, fairgrounds

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Forum Analysis

Designated Public Forums

– “The government must have an affirmative intent to create a public forum in order for a designated public forum to arise.” Intent may be determined by:

1. Explicit expressions of intent

2. Actual policy and history of practice in using the property

3. Natural compatibility of the property with expressive activity

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Forum Analysis

Public Property That Is Not a Public Forum

– “Public property which is not by tradition or designation a forum for public communication”

– Public property off-limits to expressive activities– Prisons, military bases, airport terminals, postal

service mailboxes, utility poles

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Forum Analysis

Private Property

– Places not owned by the government– No First Amendment guarantees here– Individual’s home, shopping mall

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Other Prior Restraints

Son of Sam Laws

– 42 states and the federal government have laws that stop felons from receiving money that might be earned by selling stories about their crimes

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Son of Sam Laws

– Simon and Schuster, Inc. v. New York Crime Victims Board (1991)

• The 2nd Circuit ruled the purpose of the law was not to suppress speech but to ensure criminals did not profit from the exploitation of victims

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Son of Sam Laws

– Simon and Schuster, Inc. v. New York Crime Victims Board (1991)

• The U.S. Supreme Court disagreed, ruling that the Son of Sam law in this case was a content-based regulation that violated the First Amendment. The law was not narrowly drawn to restrict as little speech as possible

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Prior Restraint and Protests

– The U.S. Supreme Court has ruled:

• Cities may not bar residents from posting signs on their own property

• A buffer zone created between abortion clinics and protesters is constitutional if the zone is small or if there is a narrowly tailored restriction on the size or duration of the demonstration

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Prior Restraint and Protests

– The U.S. Supreme Court has ruled:

• States may not prohibit the distribution of anonymous campaign literature

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Hate Speech/Fighting Words

Chaplinsky v. New Hampshire (1942)

– The U.S. Supreme Court created the “fighting words doctrine”

– Fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”

– Fighting words may be prohibited if:• There is a face-to-face encounter• The encounter could result in an immediate breach

of the peace

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Chaplinsky v. New Hampshire (1942)

– Fighting words may be prohibited if:• There is a face-to-face encounter• The encounter could result in an immediate breach

of the peace

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R.A.V. v. St. Paul (1992)

– The U.S. Supreme Court struck down a city ordinance that banned the display of a burning cross or Nazi swastika

– The statute was invalid because it was not content neutral; it targeted specific kinds of hate speech

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Virginia v. Black (2003)

– The Supreme Court upheld an ordinance that made cross burning illegal if its intent was to intimated the victim

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First Amendment and Election CampaignsBuckley v. Valeo (1976)

– The U.S. Supreme Court ruled that Congress could not limit how much money candidates for federal office could spend on their campaigns

– But, the Court upheld Congressional limits on individual and organizational contributions to a candidate for federal office

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First Amendment and Election CampaignsRandall v. Sorrell (2006)

– The Supreme Court found unconstitutional a Vermont campaign-finance statute limiting both the amounts that candidates for state office could spend on their campaigns and the amounts that individuals, organizations and political parties could contribute

– These expenditure limits, the court said, are “inconsistent with the First Amendment”

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First Amendment and Election CampaignsBipartisan Campaign Finance Reform Act (2003)

– The law prohibits companies, organizations and unions from purchasing political TV and radio advertisements 30 days before a primary, and 60 days before federal elections.

– In 2003, the U.S. Supreme Court upheld these provisions as well as those restricting campaign spending by large groups.

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First Amendment and Election CampaignsBipartisan Campaign Finance Reform Act (2003)

– In Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), the Supreme Court ruled that issue advocacy ads that do not constitute such express advocacy for or against a candidate are permissible and do not fall within the reach of the Act.

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First Amendment and the Information SuperhighwayCommunication Decency Act (1996)

– The U.S. Supreme Court in 1997 ruled that key provisions of the act were unconstitutional

– The Court ruled that the Internet should receive the highest level of First Amendment protection, equal to that granted to newspapers, magazines and books

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First Amendment and the Information SuperhighwayNet Neutrality

– The concept that Internet service providers treat all traffic and content similarly, and not charge more money for or blocking access to faster services