First Amendment vs. Sixth Amendment
Over the years, First Amendment protections of speech and the press have often clashed with the Sixth Amendment right to a speedy and public trial by an impartial jury. For example, in the 1954 case of Sam Sheppard, a prominent osteopath who was accused of murdering his wife, the Supreme Court overturned his conviction on the basis that Sheppard had not received a fair trial because of prejudicial publicity. The Cleveland press had editorialized in favor of Sheppard's quick arrest and printed lurid details about the murder, and some papers even pronounced him guilty. After the reversal, the Supreme Court suggested safeguards that judges could employ to ensure a fair trial in heavily publicized cases, including sequestering juries, moving cases to other jurisdictions, limiting the number of reporters, seating reporters in a particular place in courtrooms, and placing restrictions, or gag orders, on lawyers and witnesses. Gag orders have been issued to prohibit the press from releasing information that might prejudice jury selection; however, most gag rules have been struck down as a violation of the First Amendment.
Shield laws, in opposition to gag rules, protect the First Amendment rights of reporters by protecting them from having to reveal their sources for controversial information used in news stories. By 2000, thirty states had enacted some type of shield law, though in a few states, these laws do not protect reporters who have been subpoenaed in grand-jury investigations.
Another recent legal issue is the presence of cameras in the courtroom. By the mid-1990s, TV cameras had become central to public discussion of our legal system, and many judges and lawyers believed that the presence of cameras made the judicial system more accountable and helped the public learn how U.S. law operated. In the early 1980s, the Supreme Court ruled that TV equipment in the courtroom did not make it impossible for a fair trial to occur and left the matter up to the states to decide. In 1991, U.S. federal courts began allowing limited coverage of trials, though the Supreme Court still bans TV from its proceedings. Court TV, a cable channel anchored by experienced legal reporters, debuted in 1991, carrying live and taped coverage of trials from around the United States. The channel was selected to provide the one "pool" camera allowed at the O.J. Simpson criminal trial, though Judge Lance Ito threatened to pull the plug on at least two occasions ‒ when the camera briefly panned across an alternate juror and when he thought the camera had zoomed in too tightly on the defendant taking notes.
Televising the criminal trial of O.J. Simpson contributed to the democratic process in at least two important ways. First, it gave many people a sustained glimpse into the strengths and weaknesses of the U.S. legal system. Second, the TV trial focused national attention on the problems of spousal abuse, racial tension, and the need for judicial reform.
Film and the first amendment
When the First Amendment was ratified in 1791, our nation's leaders could not have predicted the advent of film and television, so new technologies have not always received the same kind of protection as those granted to speech, pamphlets, newspapers, magazines, and books. For example, movies did not earn speech protection under the law until a 1952 Supreme Court decision.
Social and political pressure on the movies
The rising popularity of movies spurred the formation of censorship groups, which believed that movies would threaten children, incite violence, and undermine morality. Concern about movies stemmed from both conservatives, who saw movies as a potential threat to the authority of traditional institutions, and progressives, who worried that children and adults were more attracted to movie houses than to social organizations and urban education centers. Civic leaders in many locations organized review boards that screened movies for their communities, and by 1920 more than ninety cities in the United States had some type of movie-censorship board made up of vice-squad officers, politicians, or citizen groups. Support mounted for a federal censorship bill after Jack Johnson became the first black boxing heavyweight champion in 1908. In 1912, the government outlawed transportation of boxing movies across state lines. This law had more to do with Johnson's race than with violence in movies.
The first Supreme Court decision regarding film's protection under the First Amendment was handed down in 1915 in the Mutual v. Ohio case. The Mutual Film Company of Detroit sued the state of Ohio, whose review board had censored a number of the distributor's films. The Supreme Court ruled that film was not a form of speech, but a "business pure and simple."
As the film industry began to grow after World War I, the pressure of review boards began to concern studio executives who wanted to ensure control over their economic well-being. In response to a series of scandals that rocked Hollywood in the early 1920s, the movie industry formed the Motion Picture Producers and Distributors of America (MPPDA) and hired former postmaster general and Republican National Committee chair Will Hays as its president. Nicknamed the Hays Office, the MPPDA attempted to smooth out problems between the public and the industry.
The Motion Picture Production Code
In the early 1930s, faced with scrutiny by conservative and religious groups as well as deteriorating economic conditions during the Great Depression, the Hays Office established the Motion Picture Production Code in an attempt to tighten self-regulation and keep harmful public pressure at bay. The code stipulated that "No picture shall be produced which will lower the moral standards of those who see it. Hence the sympathy of the audience shall never be thrown to the side of crime, wrong-doing, evil, or sin." In addition, the code included a section on profanity, outlawing a long list of phrases and topics. For example, producers of Gone with the Wind had to seek a special dispensation so that actor Clark Gable could say "damn." The code was adopted by 95 percent of the industry, and it influenced nearly every movie made between the mid-1930s and the early 1950s. However, when television arrived, movie producers were forced to compete by exploring more adult subjects.
In 1952, film was finally granted the same protections as print media and other forms of speech. When the New York Film Licensing Board banned Roberto Rossellini's film Il Miracolo (The Miracle) because some New York City religious and political leaders considered the film sacrilegious, the distributor sued, arguing that censoring the film constituted illegal prior restraint because such an action could not be imposed on a print version of the story. The Supreme Court agreed, declaring movies "a significant medium for the communication of ideas."
Rating movie content
The current movie rating system developed in the late 1960s, when the industry hired Jack Valenti to run the MPAA (Motion Picture Association of America, formerly the MPPDA). In 1968 he established an industry board to rate movies, and G, PG, R, and X ratings emerged as guideposts for the suitability of films for various age groups. In 1984, PG-13 was added between PG and R to distinguish slightly higher levels of violence or adult themes in movies that might otherwise be PG. The X rating was gradually appropriated as a promotional tool by the pornography industry, and the MPAA stopped issuing it. In 1990, the industry added the NC-17 rating for films with adult sexual themes that they did not consider pornography, though films with this rating have yet to become commercially viable.
1. In 2004, about _____ percent of the world's people live in countries with a less than free press.
a. 66 b. 73 c. 20 d. 40
2. The Near v. Minnesota case is an example of _____.
a. obscenity law b. libel c. prior restraint d. copyright law
3. The _____ made it a federal crime to disrupt the nation's war efforts.
a. Sedition Act b. Espionage Acts c. First Amendment d. none of the above
4. In response to a series of Hollywood scandals in the early 1920s, the industry formed the _____.
a. New York Film Licensing Board b. Motion Picture Producers and Distributors of America c. Supreme Court d. Mutual Film Company
5. The Motion Picture Production Code was adopted by _____ of the industry.
a. 15 percent b. 50 percent c. 95 percent d. 75 percent
Summary 2 Read the summaries of the sections of Chapter 16 titled "Expression over the airwaves" and "The Internet, expression, and democracy" and answer the multiple choice questions that follow.
Expression over the airwaves/The Internet, expression, and democracy
During the Cold War, Senator Joseph McCarthy, a Republican from Wisconsin, tried to rid government and the media of communist subversives. In 1950, a publication inspired by McCarthy's crusade, called Red Channels: The Report of Communist Influence in Radio and Television, named 151 performers, writers, and musicians who were "sympathetic" to communist causes, including Leonard Bernstein, Lillian Hellman, Arthur Miller, Lena Horne, Dorothy Parker, and Pete Seeger. For a time, all were banned from working in television and radio ‒ even though no one on the list was charged with a crime ‒ because network executives sympathized with the anticommunist movement or feared losing ad revenue. Blacklisted performers required the support of a sponsor in order to work. For example, Phillip Morris's sponsorship allowed Lucille Ball to continue working on her popular program I Love Lucy even though she had registered to vote as a communist in the 1930s.
The blacklisting demonstrated key differences between print and broadcast protection under the First Amendment. While licenses for printers and publishers have been outlawed since the eighteenth century, commercial broadcasters actually asked for government regulation of the airwaves, as they wanted the government to clear up technical problems, channel noise, noncommercial competition, and amateur interference. Ever since, broadcasters have been trying to free themselves from government intrusion.
FCC rules, broadcasting, and indecency
Two cases further demonstrate the legal differences between print and broadcast journalism ‒ Red Lion Broadcasting Co. v. FCC (1969) and Miami Herald Publishing Co. v. Tornillo (1974). In the Red Lion case, operators of a small-town station in Red Lion, Pennsylvania, refused to give airtime to an author who had been criticized by a conservative radio preacher. The author, Fred Cook, asked for response time to refute the criticism, and the Red Lion station offered only to sell him the time. Cook appealed to the FCC, which ordered the station to give Cook the free time; however, the station refused on the basis that its First Amendment rights granted it control over program content. The Supreme Court sided with the FCC, deciding that whenever a broadcaster's rights conflict with the public interest, it is the public interest that is paramount. This reaffirmed that broadcasters' responsibilities to program in the public interest can outweigh their rights to program whatever they want.
Five years later, the Supreme Court sided with a newspaper in a case with a very similar issue. A political candidate, Pat Tornillo Jr., requested space in the Miami Herald to reply to an editorial opposing his candidacy. Florida had a right-to-reply law, which permitted a candidate to respond in print to editorial criticisms from newspapers. However, in this case the Court struck down the Florida law as unconstitutional, arguing that mandating that a newspaper give a candidate space to reply violated the paper's First Amendment rights to publish what it chose to publish.
Although today it would be considered tame, topless radio in the 1960s featured deejays and callers discussing intimate sexual subjects in the middle of the afternoon. The government curbed this in 1973, as the chairman of the FCC denounced topless radio as a "new breed of air pollution." Topless radio came back in the 1980s with doctors and therapists offering intimate counsel. In theory, communication law should prevent this kind of government censorship, as the government cannot engage in prior restraint, though it may punish broadcasters after the fact.
Concerns over indecent radio broadcasts date from 1937, when NBC was scolded by the FCC after a racy sketch featured Mae West. The current precedent for regulating radio indecency stems from a complaint to the FCC in 1973 about the WBAI (New York) broadcast of George Carlin's famous comedy album about the seven dirty words that could not be uttered by broadcasters. The FCC sent WBAI a reprimand, and the station appealed on principle and won its court case. The FCC appealed all the way to the Supreme Court, and the Court upheld the agency's authority to require broadcasters to air adult programming at later times (broadcasters could not air adult content between 6 A.M. and 10 P.M.). In 1990, the FCC tried to ban adult programming entirely, but a federal court ruled this move unconstitutional, though the court did uphold the time restrictions.
Political broadcasts and equal opportunity
Yet another law that affects broadcast but not print media is Section 315 of the 1934 Communications Act, which mandates that during elections, broadcasters must provide equal opportunities and response time for qualified political candidates. Supporters of this law argue that it provides a forum for lesser-known candidates and that it is one of the few ways for alternative candidates to circulate their messages. Broadcasters have fought this law because it often requires them to include poorly funded third-party candidates in political discussions, and because of this rule many stations avoid political programming altogether. TV networks managed to get the law amended in 1959 to exempt newscasts, press conferences, and other events that qualify as news.
The demise of the Fairness Doctrine
The Fairness Doctrine, an FCC rule that was introduced in 1949, required stations 1) to air and engage in controversial-issue programs that affected their communities, and 2) when offering such programming, to provide competing points of view. For example, antismoking activist John Banzhaf invoked the Fairness Doctrine to force cigarette advertising off television in 1971. The FCC decided that smoking commercials were "controversial" and mandated antismoking public-service announcements. Tobacco companies accepted a ban on commercials rather than tolerate a flood of antismoking spots.
In 1987, a federal court ruled that the Fairness Doctrine was merely a regulation rather than an extension of Section 315. Broadcasters argued that presenting opposing views every time a program covered a controversial issue was a burden not required of the print media. By the mid-1990s, broadcasters were increasingly demanding the same First Amendment rights as the print media, and this pressure, combined with a belief that a free market can solve most economic problems, allowed a relaxing of the rules governing broadcasting and cable.
If this deregulation accelerates, public and noncommercial broadcast outlets could be in trouble. Public broadcasting faced severe cutbacks in the mid-1990s. Although Congress in 1996 mandated that broadcast networks carry three hours of educational programs a week, public radio and television still carry the bulk of this type of programming.
The Internet, expression, and democracy
Critics of U.S. tolerance of speech and expression charge that these freedoms favor corporate interests and media industries. For example, it is much easier for large corporations like Disney or General Motors to buy commercial speech than it is for smaller grassroots organizations.
Communication policy on the Internet
Current global expansion of the Internet is comparable to the early days of broadcasting ‒ economic and technological growth are outstripping law and regulation. In much the same way as in early broadcasting, "amateurs," students, and various interest groups have extended the communication possibilities of the Internet, and now commercial vendors are racing to get involved. Unlike the last serious public debate on mass-media ownership (during the early 1930s), public conversations about the Internet have not been about ownership questions but have instead focused on First Amendment issues such as civility and pornography on the Internet. The scrutiny of the Internet is mainly about harmful images and information, not about who controls it and for what purposes.
As the Internet expands, the question that confronts us is "Will the Internet continue to develop democratically rather than hierarchically, evading government or corporate plans to contain it, change it, and closely monitor who has access?" Such serious questions of ownership may be ignored by the news media, as it is not in their economic interest to organize or lead such a debate because most major print and broadcast owners are heavily invested in the Internet. Critics hope that a vigorous debate will develop beyond First Amendment issues. And actually, the promise of the Internet as a democratic forum has been realized by many regional, national, and global interest groups. The Digital Freedom Network, for example, circulates material that has been banned or restricted in certain countries, and the Network also sends e-mail notices to members and helps them easily send letters of protest to international officials.
Watchdog citizens
For most of our nation's history, citizens have counted on journalism to monitor abuses in government and business. However, stories on business issues today are usually reduced to consumer-affairs reporting. Discussions about media ownership or labor-management ethics are not usually part of the news because journalists have been compromised by the ongoing frenzy of media mergers among newspapers, TV stations, radio stations, and Internet corporations. Taking this into consideration, it becomes even more important that the role of civic watchdog be played by citizens as well as journalists. We need to stay engaged in spirited public debates about media ownership and control, about the differences between commercial speech and free expression, and about who is included and excluded from shaping our cultural landscape.
1. Whose crusade against communism inspired the publication of Red Channels?
a. Lillian Hellman b. Fred Cook c. Joseph McCarthy d. George Carlin
2. In the 1960s, the type of radio show that featured deejays and callers discussing intimate sexual subjects was called _____.
a. indecent radio b. topless radio c. air pollution d. none of the above
3. Section 315 of the 1934 Communications Act mandates that _____.
a. during elections broadcasters must provide equal opportunities for qualified candidates b. broadcasters must air adult programming at later times c. stations must air and engage in controversial-issue programs in their community d. all of the above
4. In 1996, Congress mandated that broadcast networks must carry _____ hours of educational programming a week.
a. 1 b. 10 c. 5 d. 3
5. Public debate about the Internet has focused on _____.
a. ownership issues b. First Amendment issues c. commercial opportunities d. none of the above
(http://bcs.bedfordstmartins.com/mediaculture/pages/bcs-main.asp ?v =chapter&s =16000&n=00030&i=16030.01&o=|00020|0003 0|)
III. Text reviewing
Review the sections "The origins of free expression and a free press", "Expression over the airwaves" and "The Internet, expression, and democracy" in your textbook. When you are ready, write a brief paragraph-length response to each of the questions that follow.
Name and describe the four models that characterize speech and journalism.
How did the Motion Picture Production Code affect the movies?
Describe and give an example of the Fairness Doctrine.
Describe the ways in which the Digital Freedom Network utilizes the Internet as a democratic forum.
(http://bcs.bedfordstmartins.com/mediaculture/pages/bcs-main.asp? v =chapter&s =16000&n=00030&i=16030.01&o=|00020|00030|)
V. Vocabulary Exercises
A. Match the words (1-25) with the definitions (a-y).
to write or say bad or untrue things about someone or something, so that people will have a bad opinion of them
|
copyright infringement
|
to prove or officially announce that someone is guilty of a crime
|
in the public domain
|
the crime of making false spoken statements about someone
|
to underpin the freedoms
|
to charge someone with a crime and try to show that they are guilty of it in a court of law
|
to obtain a license
|
writing or printing untrue statements about someone so that other people could have a bad opinion of them
|
to intimidate
|
the person in a court of law who has been accused of doing something illegal
|
Fourth Estate
|
a situation in which the laws of a country are obeyed
|
censorship
|
a law that protects journalists from forced disclosure of confidential news sources
|
to leak
|
available for anyone to have or use
|
to convict
|
to get an official document giving permission
|
to prosecute
|
to support rights
|
slander
|
a breach оf the legal right to be the only producer or seller of a book, a film, or a record for a specific length of time
|
to defame
|
to threaten
|
libel
|
a situation in which someone tries to find
details about another person’s private affairs in a way that is upsetting and often illegal
|
to file a suit
|
to solve a disagreement in court
|
defendant
|
an order made by the court to prevent any public reporting of a case which is still being considered by a court of law
|
plaintiff
|
the practice of officially criticizing someone for something they have done wrong
|
rule
|
to deliberately give secret information to a newspaper, television company etc
|
invasion of privacy
|
the process of taking claims to a court of law
|
obscene
|
extremely unfair, immoral, or unpleasant
|
jury
|
someone who brings a legal action against another person in a court of law
|
gag order
|
to bring a problem to a court of law to be settled
|
shield law
|
press
|
to subpoena
|
a group of 12 ordinary people who listen to the details of a case in court and decide whether someone is guilty or not
|
litigation
|
to order someone to come to a court of law and be a witness
|
to settle the lawsuit
|
|
|
|
