Chapter 16 Notes
Chapter 16 Notes Speech 2050
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This 3 page Class Notes was uploaded by Jess on Friday March 4, 2016. The Class Notes belongs to Speech 2050 at 1 MDSS-SGSLM-Langley AFB Advanced Education in General Dentistry 12 Months taught by Bellon in Spring 2016. Since its upload, it has received 52 views. For similar materials see Media, Culture and Society in Speech at 1 MDSS-SGSLM-Langley AFB Advanced Education in General Dentistry 12 Months.
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Date Created: 03/04/16
Chapter 16: Free Expression Prior Restraint o Free expression is guaranteed in the First Amendment, but there is a long history of government attempts to limit expression o The Supreme Court has banned prior restraint Government attempts to censor something before the expression (speech, printing, distribution, etc.) actually takes place o There are many reasons why prior restraint is considered particularly bad It takes something completely out of the marketplace of ideas Prior restraint laws tend to censor more materials than their authors intend Prior restrain has a “chilling effect” that causes speakers (and writers, and so on) to selfcensor, which is even more restrictive than the law itself Court Cases o Near vs. Minnesota The court’s “first great press case.” It ruled that newspapers could not be stopped from publishing even “scandalous and defamatory” material However, it left open the possibility that prior restraint might be acceptable in extreme circumstances o The Pentagon Papers The actual court case was New York Times Co. v. United States The court ruled the government could not stop newspapers from publishing classified material in their possession It left open the possibility of justifiable prior restraint but said the government was not justified in this case o The Progressive magazine case United States v. Progressive Inc. The government sought to stop the publication of an article containing classified information about how nuclear bombs work A federal judge initially ruled that the government was justified in restraining publication The government later dropped the suit because the information had been published already in other papers based on nonclassified information Fun with Obscenity o There is a very, very long history in the UA attempts to ban publications on the basis of obscenity o But what is obscene? The work “prurient” was a common element in early definitions “marked by, arousing, or appealing to sexual desire” o The modern court definition was established in 1973 (in Miller v. California). It has 3 elements: The average person, applying community standards, would find the material prurient The material depicts sexual conduct in a patently offensive way The material as a whole lacks ANY value o As a result, it’s much harder to prove that something is obscene, and standards vary a lot from community to community o However, the Court has since ruled that child pornography is not protected o Some localities use other tactics to enforce antiobscenity laws Forcing Your TV to Talk o Enacted in 1949, the “fairness doctrine” required stations to air all sides of public issues o This was abandoned in 1987 when TV stations got so numerous that diversity of content was likely o Section 315 of the 1934 Communications Act requires broadcast stations that give or sell time to one candidate to provide equal opportunity to other candidates If a station sells ad time to one candidate, I cannot refuse to sell ad time to others If a station gives free time to one candidate, it must give free time to the others News programs are exempt Unprotected Speech: An Overview o When thinking about free expression issues, remember two things: The government is allowed reasonable restrictions on the “time, place, and manner” of expression The constitution primarily keeps the government (not your employer or anyone else) from restricting your expression Unprotected Speech: Intellectual Property o Intellectual property rights trade off with freedom of expression. “Intangible rights protecting the products of human intelligence and creation” o Specifically, freedom of expression does not allow us to violate copyright laws. Literally, “the right to copy.” Gives the creator of an original work of authorship exclusive rights to control its distribution Lasts until you die, then 70 more years after that, then the work enters the public domain Unprotected Speech: Slander and Libel o Slander and libel are recognized as expression not protected by the First Amendment Both are “communication that defames a person’s character” Slander is spoken, libel is written or broadcast To count as libel, the expression must be both false and damaging. Also, the publisher must have been negligent in determining the truth o In New York Times v. Sullivan, the Supreme Court ruled that public figures also have to prove that news organizations acted with actual malice. This means unless they acted with a “reckless disregard for the truth” they’re not guilty of libel Unprotected Speech o There are a number of defenses against libel “The truth” is always a defense Prosecutors in court are granted absolute privilege, which means they can’t be sued for making false accusations in the courtroom Reporters are granted qualified privilege, which means they can’t be sued for repeating false statements made in court or in legislative sessions. “Opinion and fair comment” is protected, although the line between what’s supposed to be a fact and what’s supposed to be opinion can be unclear Satire, comedy, parody, and critical reviews are generally protected by law from libel suits. Individual vs. Press o Another example where rights can trade off with one another is the freedom of press (1 Amendment) and the right to a trial by an impartial jury (6 Amendment) o Gag orders are issued by judges to prevent anyone involved in a trial from speaking to the press and potentially influencing a jury Shield laws protect reporters from having to reveal their confidential sources to police or other legal authorities Other things form the book o Seditious expression o Fourth estate o Mutual v. Ohio o Burstyn v. Wilson o The Pawnbroker o FCC v. Pacifica Foundation
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