Study Guide for Ch. 13: Obscenity
1. Give a brief description of the historical efforts and different measures used to combat obscenity.
2. Explain the three prongs of the Miller test and how they are applied to pornography.
3. Explain what is meant by variable obscenity statutes.
4. Briefly describe laws applying to the creation, possession, and distribution of child pornography.
5. How does the First Amendment protect the rights of adults to receive certain degrees of pornography and erotica?
6. What are the purposes and limitations of the local zoning ordinances used to combat pornography?
7. Briefly describe the challenges surrounding legal efforts to regulate sexually explicit material in cyberspace.
Study Guide for Ch. 14: Copyright
1. Briefly descibe the history and purposes of copyright law.
2. Compare and contrast copyrights from trademarks, patents, and plagiarism.
3. What can be copyright protected?
4. What are the exclusive rights of a copyright owner?
5. What are the four prongs of the fair use defense?
6. Briefly describe how copyright law applies to digital technology and peer-to-peer environments like the Internet.
7. Briefly describe the legal limits of online file sharing and what actions may constitute copyright infringement.
8. What are the steps necessary to demonstrate copyright infringement?
Study Guide for Ch. 15: Advertising
1. How and when does the First Amendment protects advertising?
2. What are the main legal components of the commercial speech doctrine?
3. What is the Lanham Act and how does it allow parties to seek damages for false advertising?
4. What are the three parts of the false advertising test?
5. What is the Federal Trade Commission (FTC) and how does it regulate advertising?
5. Describe the range of remedies the FTC will use to regulate false advertising.
6. What are some of the legal aspects of false advertising, including testimonials and bait-and-switch techniques?
Study Guide for Ch. 16: Telecommunications
1. Describe the foundations of broadcast regulations, including public interest, convenience, and necessity requirements.
2. Describe the deregulatory trend within broadcast and cable television, including the revised media ownership rules.
3.What is the role of the Federal Communications Commission and how does it regulate broadcasting and cable television?
4. What are some of the content regulations that apply to both broadcasters and cable television operators?
5. Describe the FCC's regulation and definition of indecent material.
6. What is the role of the First Amendment as applied to both broadcast and cable television?
Tuesday, November 28, 2006
Saturday, September 02, 2006
Comm. Law: Day One
Communication Law
A few contemporary problems
Who’s right? You decide!
Mass Media Law, ‘05/’06 By Don Pember,Preface
A lot has changed since 1st edition in 1978
Major issues then:
Development of libel law
Newsgathering rights, protecting sources
Major Issues Now
Laws targeting video games and minors
Infotainment industry (paparazzi, privacy, etc.)
Access to government information
Reporters and confidential sources
Music file-sharing
Celebrities protecting their images
Election campaign funding
Press coverage of war
Military tribunals and deportation hearings
Questions relating to the Internet
Other, non-governmental censorship
New York Times Reporter Jailed for Contempt 7/7/05
WASHINGTON -- Judith Miller, a reporter for The New York Times, was sent to jail yesterday for refusing to reveal the name of a confidential source to a grand jury probing the Bush administration's leak of an undercover CIA operative's name.
Elk Grove School District v. Newdow (2004)
An atheist doctor/lawyer/reverend in California sues his second-grade daughter’s school district for what is sometimes called “forced speech” for mandatory pledge of allegiance recitations in all classes.
FEC v. Beaumont (2003)
2002: Congress passed the most comprehensive campaign reform legislation since the mid-1970s, the Bipartisan Campaign Finance Reform Act. (p. 124)
So-called “soft money” cannot be accepted by political parties
interest groups cannot use soft money for electioneering communications
contribution limits to candidates from individuals was raised.
Are these unacceptable limits on free speech? Can speech be bought and sold?
Cohen v. California (1971)
A young man wears a jacket inside the courthouse. On the back of the jacket are the words “Fuck the Draft.” He is arrested for disturbing the peace and offensive conduct.
Alexander v. Minneapolis (1991)
A Minneapolis ordinance was designed to force adult bookstores and theaters into the city’s central business district. It was a small area with high real estate value. Ferris Alexander sued the city, claiming that having so few options for his businesses deprived him of his First Amendment rights.
Tinker v. Des Moines School District (1969)
Mary Beth Tinker, age 13, and her friend wear black armbands with peace signs to school. The next day, Mary Beth’s brother wears a similar armband to school. They are suspended. Mary Beth sues the school district, saying her free speech rights were abridged.
Studelska v. Bemidji State University (1991)
The editor of BSU’s Northern Student requests crime reports from campus security. All the reports she receives have been heavily edited. The reason given is for student privacy. Such information is “educational data,” say administrators. The editor sues the university for denying her First Amendment right to have access to public data.
Steele v. City of Bemidji (1998) (The Northern Herald)
An alternative newspaper publisher is told he cannot distribute his newspaper near the Paul Bunyan Mall because he is standing on MnDOT property. He also cannot distribute near the Post Office because he’s obstructing traffic. He sues the City of Bemidji for $600,000,000,000 (that’s billion!).
Abington School Distr. v. Schempp (1963)
The PA legislature voted in 1959 that “ten verses from the Holy Bible shall be read” every day in each public school. Students could be excused on a written request from their parents. In Abington Sr. High, the Bible reading was followed by the Lord’s Prayer. Roger and Donna Schempp (students) were Unitarians, a church which rejected the Trinity. They sued the school district for the establishment of a religious belief.
Barnes v. Glen Theatre, Inc. (1991)
Darlene Miller was a “go-go” dancer at the Kitty Kat Lounge in South Bend, Indiana, and Gayle Sutro danced in a coin-operated booth at the nearby Chippewa Bookstore. Both women were forced by Indiana’s “public indecency” law to wear “pasties” and “G-strings.” They felt that shedding their skimpy costumes and dancing nude would encourage patrons to spend more on drinks and tips. They sued, saying Indiana law infringed on their freedom to express an erotic message.
Hazelwood School Distr. v. Kuhlmeier (1988)
The editors of the Spectrum, the newspaper of Hazelwood High School in St. Louis, submitted two articles to their journalism teacher. They were about divorce and teen pregnancy. The principal ordered the teacher to pull the articles. The editors sued for infringing on their First Amendment rights.
New York Times Co. v. Sullivan (1964)
In 1960, the New York Times published a full-page ad soliciting funds to pay legal expenses of civil rights protesters in the South. The police commissioner of Montgomery Alabama, sued for libel because of minor factual errors in the ad about actions of his and other law enforcement officials.
R.A.V. v. City of St. Paul (1992)
Russell and Laura Jones awoke early one morning to find a cross burning in their front yard. The Jones family was black and had moved into a mostly white neighborhood. The perpetrators were arrested and charged under St. Paul’s “hate crimes” ordinance. One of them sued, challenging the law as a content-based violation of the First Amendment.
A few contemporary problems
Who’s right? You decide!
Mass Media Law, ‘05/’06 By Don Pember,Preface
A lot has changed since 1st edition in 1978
Major issues then:
Development of libel law
Newsgathering rights, protecting sources
Major Issues Now
Laws targeting video games and minors
Infotainment industry (paparazzi, privacy, etc.)
Access to government information
Reporters and confidential sources
Music file-sharing
Celebrities protecting their images
Election campaign funding
Press coverage of war
Military tribunals and deportation hearings
Questions relating to the Internet
Other, non-governmental censorship
New York Times Reporter Jailed for Contempt 7/7/05
WASHINGTON -- Judith Miller, a reporter for The New York Times, was sent to jail yesterday for refusing to reveal the name of a confidential source to a grand jury probing the Bush administration's leak of an undercover CIA operative's name.
Elk Grove School District v. Newdow (2004)
An atheist doctor/lawyer/reverend in California sues his second-grade daughter’s school district for what is sometimes called “forced speech” for mandatory pledge of allegiance recitations in all classes.
FEC v. Beaumont (2003)
2002: Congress passed the most comprehensive campaign reform legislation since the mid-1970s, the Bipartisan Campaign Finance Reform Act. (p. 124)
So-called “soft money” cannot be accepted by political parties
interest groups cannot use soft money for electioneering communications
contribution limits to candidates from individuals was raised.
Are these unacceptable limits on free speech? Can speech be bought and sold?
Cohen v. California (1971)
A young man wears a jacket inside the courthouse. On the back of the jacket are the words “Fuck the Draft.” He is arrested for disturbing the peace and offensive conduct.
Alexander v. Minneapolis (1991)
A Minneapolis ordinance was designed to force adult bookstores and theaters into the city’s central business district. It was a small area with high real estate value. Ferris Alexander sued the city, claiming that having so few options for his businesses deprived him of his First Amendment rights.
Tinker v. Des Moines School District (1969)
Mary Beth Tinker, age 13, and her friend wear black armbands with peace signs to school. The next day, Mary Beth’s brother wears a similar armband to school. They are suspended. Mary Beth sues the school district, saying her free speech rights were abridged.
Studelska v. Bemidji State University (1991)
The editor of BSU’s Northern Student requests crime reports from campus security. All the reports she receives have been heavily edited. The reason given is for student privacy. Such information is “educational data,” say administrators. The editor sues the university for denying her First Amendment right to have access to public data.
Steele v. City of Bemidji (1998) (The Northern Herald)
An alternative newspaper publisher is told he cannot distribute his newspaper near the Paul Bunyan Mall because he is standing on MnDOT property. He also cannot distribute near the Post Office because he’s obstructing traffic. He sues the City of Bemidji for $600,000,000,000 (that’s billion!).
Abington School Distr. v. Schempp (1963)
The PA legislature voted in 1959 that “ten verses from the Holy Bible shall be read” every day in each public school. Students could be excused on a written request from their parents. In Abington Sr. High, the Bible reading was followed by the Lord’s Prayer. Roger and Donna Schempp (students) were Unitarians, a church which rejected the Trinity. They sued the school district for the establishment of a religious belief.
Barnes v. Glen Theatre, Inc. (1991)
Darlene Miller was a “go-go” dancer at the Kitty Kat Lounge in South Bend, Indiana, and Gayle Sutro danced in a coin-operated booth at the nearby Chippewa Bookstore. Both women were forced by Indiana’s “public indecency” law to wear “pasties” and “G-strings.” They felt that shedding their skimpy costumes and dancing nude would encourage patrons to spend more on drinks and tips. They sued, saying Indiana law infringed on their freedom to express an erotic message.
Hazelwood School Distr. v. Kuhlmeier (1988)
The editors of the Spectrum, the newspaper of Hazelwood High School in St. Louis, submitted two articles to their journalism teacher. They were about divorce and teen pregnancy. The principal ordered the teacher to pull the articles. The editors sued for infringing on their First Amendment rights.
New York Times Co. v. Sullivan (1964)
In 1960, the New York Times published a full-page ad soliciting funds to pay legal expenses of civil rights protesters in the South. The police commissioner of Montgomery Alabama, sued for libel because of minor factual errors in the ad about actions of his and other law enforcement officials.
R.A.V. v. City of St. Paul (1992)
Russell and Laura Jones awoke early one morning to find a cross burning in their front yard. The Jones family was black and had moved into a mostly white neighborhood. The perpetrators were arrested and charged under St. Paul’s “hate crimes” ordinance. One of them sued, challenging the law as a content-based violation of the First Amendment.
Textbook Ch. 2-3
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.
Case Study: Kobe Bryant (p. 80-84)
Criminal sexual assault case against Bryant in 2004:
What was significant about it in regard to First Amendment law? What was the final outcome? What was the legal reasoning?
Kobe Kwiz
What is prior restraint?
What does it have to do with the Kobe Bryant sexual assault case?
What decision(s) did the courts make in the matter?
What two conflicting constitutional rights are involved in this case?
Do the news media think these were good decisions? Why or why not?
Contemporary Problems: Ch. 3
Schools and censorship
War
Time, place and manner restrictions
Hate Speech and heckler’s veto (p. 40)
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
Interesting new student rights case in your new edition
2003: Barber v. Dearborn Public Schools (p. 102)
You CAN wear a t-shirt proclaiming Pres. Bush to be an “international terrorist” to school
Censorship guidelines for 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?
What about Internet? (see p. 111)
Reasons given for censoring college & 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 use when 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. . .”
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.
Case Study: Kobe Bryant (p. 80-84)
Criminal sexual assault case against Bryant in 2004:
What was significant about it in regard to First Amendment law? What was the final outcome? What was the legal reasoning?
Kobe Kwiz
What is prior restraint?
What does it have to do with the Kobe Bryant sexual assault case?
What decision(s) did the courts make in the matter?
What two conflicting constitutional rights are involved in this case?
Do the news media think these were good decisions? Why or why not?
Contemporary Problems: Ch. 3
Schools and censorship
War
Time, place and manner restrictions
Hate Speech and heckler’s veto (p. 40)
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
Interesting new student rights case in your new edition
2003: Barber v. Dearborn Public Schools (p. 102)
You CAN wear a t-shirt proclaiming Pres. Bush to be an “international terrorist” to school
Censorship guidelines for 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?
What about Internet? (see p. 111)
Reasons given for censoring college & 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 use when 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. . .”
Textbook Ch. 1
Mass Media Law 2003/04 By Don R. Pember
Chapter 1
The American Legal System
Sources of Law
U.S. and State Constitutions
A sort of outline or plan, fixed, hard to change
Common Law
“discovered,” custom of court, precedent
Law of Equity
Begins where common law leaves off
Statutory Law
Passed by arms of the state, anticipates problems
Rulings
Administrative agencies, seldom reviewed by courts
U. S. Court System
Trial Courts
Fact-finding
Appellate Courts
Law-reviewing
Cases in Federal Court System
Arising from U.S. Constitution, U.S. law and U.S. Treaties
Involving ambassadors/ministers of foreign countries
Involving admiralty and maritime law
Between a state and a citizen of another state
Between citizens of different states
Between two states
When U.S. is a party to a suit
Federal Courts
94 District Courts: 650 judges
13 Circuits in U.S. Court of Appeals
Minnesota is in 8th Circuit
(See map on page 25)
(Judges usually appointed)
State Court Systems
Trial Courts
Courts of limited jurisdiction (traffic, etc.)
County or State Courts
Sometimes appeals courts, sometimes trial courts of general jurisdiction
(Judges usually elected)
State Supreme Court
Terms to Know
Plaintiff
Defendant
Jury
Appellant
Appellee (respondent)
Grand Jury
Indictment
Per Curiam Opinion
Civil Suit
Criminal action
Impeachment
Court’s Opinion
Concurring Opinion
Dissenting Opinion
Writ of Certiorari
Oral Arguments
First Amendment Theories
Absolutist (There can be no compromise)
Marketplace (The best ideas prevail)
Liberty or Individual Autonomy
Ad Hoc Balancing (a narrow strategy)
Preferred Position Balancing
All other rights depend upon free speech
Meiklejohn Theory (Democracy the goal)
Access Theory (Fairness Doctrine)
Prof. Don Gillmor 1st Amendment Scholar
“It’s been a paradigm change from speech vs. stability to speech vs. equality.”
Chapter 1
The American Legal System
Sources of Law
U.S. and State Constitutions
A sort of outline or plan, fixed, hard to change
Common Law
“discovered,” custom of court, precedent
Law of Equity
Begins where common law leaves off
Statutory Law
Passed by arms of the state, anticipates problems
Rulings
Administrative agencies, seldom reviewed by courts
U. S. Court System
Trial Courts
Fact-finding
Appellate Courts
Law-reviewing
Cases in Federal Court System
Arising from U.S. Constitution, U.S. law and U.S. Treaties
Involving ambassadors/ministers of foreign countries
Involving admiralty and maritime law
Between a state and a citizen of another state
Between citizens of different states
Between two states
When U.S. is a party to a suit
Federal Courts
94 District Courts: 650 judges
13 Circuits in U.S. Court of Appeals
Minnesota is in 8th Circuit
(See map on page 25)
(Judges usually appointed)
State Court Systems
Trial Courts
Courts of limited jurisdiction (traffic, etc.)
County or State Courts
Sometimes appeals courts, sometimes trial courts of general jurisdiction
(Judges usually elected)
State Supreme Court
Terms to Know
Plaintiff
Defendant
Jury
Appellant
Appellee (respondent)
Grand Jury
Indictment
Per Curiam Opinion
Civil Suit
Criminal action
Impeachment
Court’s Opinion
Concurring Opinion
Dissenting Opinion
Writ of Certiorari
Oral Arguments
First Amendment Theories
Absolutist (There can be no compromise)
Marketplace (The best ideas prevail)
Liberty or Individual Autonomy
Ad Hoc Balancing (a narrow strategy)
Preferred Position Balancing
All other rights depend upon free speech
Meiklejohn Theory (Democracy the goal)
Access Theory (Fairness Doctrine)
Prof. Don Gillmor 1st Amendment Scholar
“It’s been a paradigm change from speech vs. stability to speech vs. equality.”
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