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Media Chapter 16: Legal Controls and Freedom of Expression
Terms in this set (17)
Explain the various models of the news media that exist under different political systems?
a) Authoritarian model- advocates that the general public needs guidance from the elite, educated ruling class. Government criticism and public dissent are not tolerated. News controlled by public enterprise.
b) Communist or state model- the press is controlled by the government because state leaders believe that the press should serve the goals of the state...ideas that challenge basic government policy are not allowed
c) Social responsibility model- Mass media had become too powerful and needed to be more socially responsible. Press functions as a fourth estate (unofficial branch of government that monitors the other branches). Press supplies info to citizens so they can make informed decisions.
d) Libertarian model- Encourages vigorous government criticism and supports the highest degree of individual and press freedoms. No restrictions on mass media or individual speech.
What is the basic philosophical concept that underlies America's notion of free expression?
freedom of the press and the First Amendment
Freedom of the press- John Milton
--> opposed government licenses for printers and defended a free press
--> argued that all ideas, even false ones, should be allowed to circulate freely in a democratic society because eventually the truth would emerge
What happened with the passage of the Sedition Act of 1798, and what was its relevance to the United States' new First Amendment?
in 1798, the Federalist Party passed the Sedition Act to silence opposition to an anticipated war against France
because it might stir up discontent against the government and undermine its authority.
25 people were arrested and 10 convicted under the act, which was also used to prosecute anti-Federalist newspapers.
The Sedition Act, the first major attempt to constrain the First Amendment, became the defining act in solidifying American support behind the notion of a free press
How has censorship been defined historically?
Supreme court decisions have defined censorship as PRIOR RESTRAINT: courts and governments cannot block any publication or speech before it actually occurs, on the principle that a law has not been broken until an illegal act has been committed.
The Pentagon Papers and the Progressive magazine cases showcase the importance behind the law of censorship. Basically, the paper is free to publish anything they want, unless it dangers America's safety. Usually siding with newspapers to practice free speech, the Progressive magazine case was the first time in American history that a prior-restraint order imposed in the name of national security actually stopped the initial publication of a controversial news report.
Decision in the Pentagon Papers Case upheld prior restraint and sided with the newspaper that wanted to print top secret reports on the US involvement in Vietnam.
Progressive Magazine Case sided with the government because the publication of how to build an H-bomb posed a clear and present danger. The decision stands as the first time in American history that a prior-restraint order imposed in the name of national security actually stopped the initial publication of a controversial news report.
What is the public domain, and why is it an important element in American culture?
PUBLIC DOMAIN: the end of the copyright period, which gives the public free access to the work
The idea was that a period of copyright control would give authors financial incentive to create original works and that the public domain gives others incentive to create derivative works
corporate owners have millions of dollars to gain by keeping their properties out of the public domain
every innovation in digital culture creates new questions about copyright law and what falls under it
Why is the case of New York Times vs. Sullivan so significant in First Amendment history?
It's a libel suit. It's about a news article about the Struggle for Freedom in the South during the Civil Rights movement. The ad criticized law-enforcement tactics in southern cities and condemned southern violators of the Constitution bent on destroying King and the movement. The city commissioner of Montgomery sued Times for libel. Because the libel suit fell through, this decision allowed news operations to aggressively pursue legitimate news stories without fear of continuous litigation. It also mandated that plaintiffs had to be distinguished between public figures or private individuals. Both of those have different things to prove in a libel case. As a public figure it is much harder to win libel cases because it is difficult to prove actual malice (actual malice means that the reporter or editor knew the statement was false and printed or broadcast it anyway, or acted with a reckless disregard for the truth)
What does a public figure have to do to win a libel case?
What are the main defenses that a newspaper can use to thwart a charge of libel?
To win a libel case, public figures have to prove falsehood, damages, negligence, and actual malice. The main defenses that a newspaper can use to thwart a charge of libel is prove the truth of statement, or absolute privilege, qualified privilege, and the rule of opinion and fair comment.
Defenses against libel:
1)best defense is the TRUTH: if libel defendants can demonstrate that they printed or broadcast statements that were essentially true, such evidence usually bars plaintiffs from recovering any damages -- even if their reputations were harmed
2)Prosecutors, who would otherwise be vulnerable to being accused of libel, are granted ABSOLUTE PRIVILEGE in a court of law so that they are not prevented from making accusatory statements toward defendants
3)the reporters who print or broadcast statements made in court are also protected against libel; they are granted conditional or QUALIFIED PRIVILEGE, allowing them to report judicial or legislative proceedings even though the public statements being reported may be libelous
4)OPINION AND FAIR COMMENT: generally libel applies only to intentional misstatements of factual information rather than opinion, and therefore opinions are protected from libel. However, the line between fact and opinion is often hazy. For this reason, lawyers advise journalists first to set forth the facts on which a viewpoint is based and then to state their opinion based on those facts. In other words, journalists should make it clear that a statement is a criticism and not an allegation of fact
What is the legal significance of the Falwell vs. Flynt case?
1983, Flynt, publisher of Hustler magazine, published a spoof ad depicting conservative minister and political activist Falwell as a drunk and as having had sexual relations with his mother. In fine print at the bottom of the page, a disclaimer read: "Ad parody, not to be taken seriously." Falwell sued for libel; jury rejected the libel suit but found Flynt had intentionally caused Falwell emotional distress awarding Falwell some money
-the case drew enormous media attention
the magazine was entitled to constitutional protection. Congress suggested that even though parodies and insults of public figures might indeed cause emotional pain, denying the right to publish them and awarding damages for emotional reasons would violate the spirit of the First Amendment
libel laws also protect satire, comedy, and opinions expressed in reviews of books, plays, movies, and restaurants. Such laws may not, however, protect malicious statements in which plaintiffs can prove that defendants used their free-speech rights to mount a damaging personal attack
How has the internet changed battles over what constitutes obscenity?
Most battles of obscenity are now online, where the global reach of the internet has eclipsed the concept of community standards
the most recent incarnation of the Child Online Protection Act -- originally passed in 1998 to make it illegal to post "material that is harmful to minors" was found unconstitutional in 2007 because it would infringe on the right to free speech on the internet
in response to an online sexual predator case, in 2010 Massachusetts passed a law to protect children from obscene material on computers and the internet. But a number of publishers and free speech groups argued that the law was too broad and would harm legitimate speech on the internet.
a new complication in defining pornography has emerged with cases of "sexting," in which minors produce and send sexually graphic images of themselves via cell phones or the internet
What issues are at stake when First Amendment and Sixth Amendment concerns clash?
First Amendment protections of speech and the press have often clashed with the Sixth Amendment, which guarantees an accused individual in "all criminal prosecutions...the right to a speedy and public trial, by an impartial jury." (fair trial)
Media could cause prejudicial publicity in the press. The Supreme Court introduced safeguards that judges could employ to ensure fair trials in heavily publicized cases.
--sequestering juries, moving cases to other jurisdictions, limiting the number of reporters, and placing restrictions, or GAG ORDERS (prohibit the press from releasing info that might prejudice jury selection or cause an unfair trial) on lawyers and witnesses
SHIELD LAWS have favored the First Amendment rights of reporters, protecting them from having to reveal their sources for controversial information use in news stories. The news media have argued that protecting the confidentiality of key sources maintains a reporter's credibility, protects a source from possible retaliation, and serves the public interest by providing information that citizens might not otherwise receive.
Why were films not constitutionally protected as a form of speech until 1952?
Because they were originally seen as "a business pure and simple" and was merely a spectacle for entertainment with "a special capacity for evil"
Why did film review boards develop, and why did they eventually disband?
Film review boards developed to protect the community from "obscene" movies. They would try to censor certain films. This went to court saying they were denying films first amendment laws. The film industry lost when Court said motion pictures were not a form of speech. Review boards eventually disbanded because eventually Congress viewed films as speech that communicated ideas, thus, review boards could not censor films.
How did both the Motion Picture Production Code and the current movie rating system come into being?
The Motion Picture Production Code came into being during the great depression to collect more profits. Companies had to tighten self-regulation so that they would maintain profits and keep harmful public pressure at bay. The current movie rating system came into being due to mounting discontent in the late 1960s when movie content began to contain scenes of nudity.
The government and the courts view print and broadcasting as different forms of expression. What are the major differences?
Whenever a broadcaster's rights conflict with the public interest, the public interest must prevail. Broadcasters' responsibilities to program in the public interest may outweigh their right to program wherever they want
In contrast, mandating that a newspaper give a candidate space to reply violates a paper's First Amendment rights to control what it chooses to publish. Unlicensed print media receive protections under the First Amendment that have not always been available to licensed broadcast media.
What's the difference between obscenity and indecency?
OBSCENITY is not protected by the First Amendment, never allowed in any circumstances (e.g. child porn because a crime is being filmed)
-expression not protected as speech if these three legal tests are met:
1)the average person would find it has an excessive interest in sexual matters
2)material depicts or describes sexual conduct indecently
3)the material lacks serious value
INDECENCY an issue related to appropriate broadcast content. The government may not engage in prior restraint, but can punish broadcasters for indecency or profanity after the fact
What is the significance of Section 315 of the Communications Act of 1934?
SECTION 315: mandates that during elections, broadcast stations must provide equal opportunities and response time for qualified political candidates.
Broadcasters claim that because no similar rule applies to newspapers or magazines, the law violates their first amendment right to control content.
Supporters of the equal opportunity law argue that it has provided forums for lesser known candidates with less funding
Why didn't broadcasters like the Fairness Doctrine?
FAIRNESS DOCTRINE: required stations to 1) to air and engage in controversial-issue programs that affected their communities 2) to provide competing points of view when offering such programs
Broadcasters argued that mandating opposing views every time a program covered a controversial issue was a burden not required of the print media, and that it forced many of them to refrain from airing controversial issues.
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