Media Law: Framework for discussion

*Historical Developments: Ch. 2
*Contemporary Problems: Ch. 3

History Pre- WWI: Not much!
*Licensing, prior restraint, bonds & seditious libel
*1735: John Peter Zenger acquitted -- hurray!
--But not much tolerance for Patriots and no precedent
*1791: First Amendment part of Bill of Rights
*1798: Alien & Sedition Acts
--Ink barely dry before Free Speech attacked
--Expires gracefully in 1801 but idea lives on
--Patriot Act?
*Censorship rears its ugly head during 19th c.
--Abolitionist period, Civil War
--Labor unionists, birth control advocates, anarchists

Post-WWI : Mostly Gains
*1917: Espionage Act (aimed at war dissenters)
*1918: Sedition Act (don’t obstruct draft)
*1919: “Clear & Present Danger” Test (Schenck)
--Justice Oliver Wendell Holmes
*1927: Sedition Test (Whitney v. California)
*1940: Smith Act adopted
*1951: Smith Act ruled unconstitutional
--Dennis v. U.S.
*1957: Scope of Smith Act narrowed
*1969: Brandenburg v. Ohio (tough sedition test)

Significant Sedition Cases
*1925: Gitlow v. N.Y. (due process)
*1936: Grosjean v. American Press Co.
--No discriminatory taxes on press by Huey Long
--Also Mpls Star v. MN Comm. Of Revenue (1983)
*1931: Near v. Minn. (prior restraint)
*1971: NYT v. U.S. and U.S. v. Wash. Post
--Medium blow to prior restraint (heavy burden)
*1979: U.S. v. Progressive (how to make a bomb)
*1996: Rice v. Paladin Enterprises, Inc.
--Mass Media not responsible for violence (59)
*2002: Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (p. 60)

Contemporary problems: War
Vietnam War free press: Aberration
Grenada, Panama, Balkans very controlled
Press Pools: Gulf War Ghetto
*1991: Nation Magazine v. U.S. DOD
*(Most censorship EVER during wartime)
1993: JB Pictures, Inc. v. Defense Dept.

What never went to court?
*Shortly after 9/11 attacks, U.S. Government requested that TV broadcasters not show tapes of Osama bin Laden making certain statements. Broadcasters complied.

Contemporary Problems: Ch. 3
*Schools and censorship
*War
*Time, place and manner restrictions
*Hate Speech
*Immigrants and resident aliens
*Internet


Wartime reporting:Mixed record

Censorship accepted until Vietnam War
*War "snuck up" on us so restrictions not in place from the beginning; cat out of the bag
*Government used propaganda to undermine what reporters said; lies were told
Grenada (1983): pool reporters only
Panama (1989): "We missed the war"
Gulf War (1990): 800 reporters, but short leash
*Also, the news media did not complain
*Dover AFB off-limits (1993)

The war on terror: litmus tests
*2003: Flynt v. Rumsfeld (Why Larry Flynt?!)
--No right of access to U.S. ground troops
*DOD announces that gov’t employees who leak classified info to the press can be prosecuted
*Bodies cannot be viewed at Dover AFB
*Embedded journalists ok but "blackballing" existed; sanitized; narrow; 16 Non-embedded died; Heavy "spin" put on press releases
*See p. 87 for more on embedding problems

Reasons given for gov’t censorship during wartime
1. To deny the enemy information that might be helpful in prosecuting the war;
2. To try to protect the security of the nations’ fighting forces; and
3. To sustain the morale of the people.

PROBLEM: Censorship is too often used to shield serious military blunders or questionable policies.

Do students have free speech rights?

High schools are different from universities

*1969: Tinker v. Des Moines School District
--Anti-war armbands
*1988: Hazelwood Sch. Distr. v. Kuhlmeier
--Frank discussions in HS newspapers
*1967: Dickey v. AL State Board of Education
--College newspapers’ right to autonomy
*1997: Kincaid v. Gibson
--College yearbooks can be confiscated

Censorship guidelinesfor high school media
*Public or private school? Few rights at private schools or universities
*School sponsored?
*Unsupervised extra-curricular activity?
*Produced and distributed off-campus with no campus assistance?
*My question: What about Internet?

Reasons given for censoringcollege & university media
1. Disruption of the school, including anything that interferes with the image the school wishes to project
2. Protection of students from offensive speech, especially racist speech or that insensitive to ethnic minorities
3. Ensuring that the ideas or views in publications are not attributed to the school itself

Creative ways administrators punish student media
*Reduce or eliminate financial support
--1983: Stanley v. McGrath
*Pull publications from racks
*Fire newspaper staff
*Close files, especially police reports
--1991: Student Press Law Center v. Alexander

Acceptable criteria: p. 94

Acceptable criteria to usewhen censoring HS media
*Stories or photos that substantially interfere with the requirements of appropriate school discipline
*Material that interferes with the rights of students
*Material that fails to meet standards of academic propriety
*Material that generates health and welfare concerns
*Matters that are obscene, indecent or vulgar

Creative logic used when controlling student media
*To "protect" students from racist or any other "offensive" language
*To protect university’s image
*Crime statistics are educational data
*To protect students from alcoholism & sex
*To minimize "disruption" of education
*To distance school from ideas or beliefs

What about university media?
*Hosty v. Carter (2003)
--The Innovator (campus newspaper in Illinois) needed to be approved by administrators
--Why? Maybe because they had previously published articles critical of faculty members?
*Opinion: "Hazelwood’s rationale for limiting the First Amendment rights of high school journalism students is not a good fit for students at colleges or universities."

Guidelines for college media
*The more involved administrators are in publication, the more liable they are
*Pulling funding is identical to censorship
*There is no such thing as an "independent" college newspaper
*Media boards should NOT be run by administrators
*Adviser should advise, not dictate

Book banning in schools: Most common reasons given
1. Sexual content
2. Offensive language
3. Unsuited to age group
4. Occult/satanism
5. Violence
6. Homosexuality
7. Promoting religion
8. Nudity
9. Racism
10. Sex education
11. Anti-family

A few commonly banned books:
*Several Judy Blume books
*Oliver Twist
*The Grapes of Wrath
*The Harry Potter series
*Catching Alice
*Goosebumps series
*Roll of Thunder, Hear My Cry
*Julie of the Wolves
*The Chocolate War
*The Diary of Anne Frank
*Catch-22
*Where the Sidewalk Ends

Only one S. Ct. Ruling on Book Banning -- Local rule rules

*Pico v. Island Trees (1979) (5-4 ruling)
*Books can be banned for being "persuasively vulgar" or "educationally unsuitable" but not because the school board disapproves of the political ideas or philosophies expressed in the books.
*Court failed to provide clear guidance

A local attempt at book banning:
Plainsong, by Kent Haruf, 1999
*National Book Award Finalist
*"So foursquare, so delicate and lovely. . .it has the power to exalt the reader." ~NY Times Book Review
*See Louise’s op-ed piece
*Parents of students in Bemidji public schools argued before school board that it should be banned

Beyond Content: Restrictions of Time, Place and Manner
*Content neutral
--Must apply equally to all messages, although not necessarily to all categories, AND
*No complete ban (polling places)
--Must be alternative means for message, AND
*Substantial state interest at stake
--Aesthetics & nuisance concerns not enough, AND
*Narrowly tailored rules must apply
--Must not ban more than is necessary

Not free speech, but pizza box ban is instructive (ask me)

Public Forums & Free Speech
*Traditional Public Forum (most protected)
--Street corners, parks, public plazas, etc.
*Designated Public Forum (Changing!)
--Fairgrounds, community meeting hall, etc.
*Public Property but not Public Forum
--Prisons, military bases, airport boarding areas
*Private Property (least protected)
--Shopping malls, residences

What about signs,vendors, air?
*1988: Lakewood v. Plain Dealer Pub. Co.
--Mayor can’t reject some permit requests
*1981: Metromedia v. San Diego
--Billboard ordinances must be content-neutral
*1981: Muir v. Alabama Ed. Commission
--Can’t tell public TV what to show
*1997: Loving v. Boren
--Univ. computer system NOT a public forum

Nonpublic or private forums
*1943: Martin v. City of Struthers
--Can’t prohibit Jehovah’s Witnesses from ringing your doorbell
*1976: Hudgens v. NLRB
--Mall is not a public forum unless it takes on all the attributes of a traditional public forum, such as a town square
--BUT. . .states can expand civil liberties beyond what the U.S. Constitution requires as minimal
Significant public forum cases
*1939: Schneider v. New Jersey
--Free speech more important than clean streets
*1978: Intl’ Soc. For Krishna Consciousness v. Wolke
--Is an airport terminal a public forum? Concourse?
*1981: Heffron v. International Soc.
--Hare Krishnas can mingle but not confront

New prior restraint issues
*Simon & Schuster, Inc. v. New York Crime Victims Board (1991)
--And other Son of Sam laws
*Aimed at convicted criminals to prevent them from profiting from books or other media about their crimes
--Unconstitutional -- content-based
--Served a compelling state interest but not narrowly tailored

Prior restraint and protests
*City of Ladue v. Gilleo (1994)
--You may post signs on your own property (hurray!)
*A 30-ft. buffer zone around abortion clinics and homes of staff is constitutional, but not a 300-ft. zone (banning protesters)
*McIntyre v. Ohio Elections Commission (1995)
--Anonymous campaign literature is okay

Hate Speech/Fighting Words
*Chaplinsky v. New Hampshire (1942)
*"fighting words" doctrine
--Those that have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed -- but not protected speech, and must be carefully drawn.
*Village of Skokie v. National Socialist Party (1978)
--Must compel a confrontation
*St. Paul cross-burning ordinance
--Intimidation is the key
*Speech codes on campuses and public schools
--Rude or discourteous speech cannot be made illegal

First Amendment and election campaigns
*Buckley v. Valeo (1976)
--Limiting what can be spent on campaigns is unconstitutional
--But limits on contributions may be okay
*Bipartisan Campaign Finance Reform Act (2002)
--Political parties cannot accept "soft money"
--Corporations, unions and other interest groups cannot use soft money to pay for "electioneering communications" at certain times
--Limits on "hard money" are increased
*Most provisions upheld in McConnell v. FEC (2003)

The Info Superhighway
*Print media have the most "freedom"
*Over-the-air broadcasters have the least
*Cable TV is somewhere in the middle
*Few limits on telephones
--Why? Capacity, tradition, pervasiveness or invasiveness of medium, accessibility of medium
*Reno v. American Civil Liberties Union (1997)
--Internet deserves the highest form of protection, the same as newspapers, books, other print media
--No tradition of censorship in cyberspace

Subtle shift in emphasis

"In the late 18th c. freedom of expression was designed to protect the rights of the speaker...Scholars argue that it is the protection of the public’s right to know or society’s right to be informed that today is the central value in the First Amendment...When society’s interests are put ahead of those of the speaker or publisher, substantially more censorship will be tolerated..."