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Introduction to Mass Media-3. Freedom of Expression

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by Christina Eisert on 13 September 2012

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Transcript of Introduction to Mass Media-3. Freedom of Expression

Legal Controls and Freedom of Expression Intro to Mass Media Free Speech and Free Expression are the cornerstones of our democracy. Still, thy are amorphous concepts, constantly being tested in the courts.

What do you think Free Speech is? What is "Free Speech?" How is our system different? Why is a Free Press important? The Origins of Free Expression
and a Free Press 1) Authoritarian, 2) Communist, 3) Libertarian, 4) Social Responsibility Models of Expression (Circa. 16th Century England) The general public, often illiterate, needs guidance from the wiser elite class. "The Common Good," (defined by the rulers) must be upheld. This means squashing criticism and dissent--especially when aimed at the ruling class.

Today, many authoritarian models continue to endure, particularly in nations with authoritarian governments. (Most common in Asia, Latin America and Africa.) Authoritarian The press is controlled by the government, which believes that the purpose of the press is to serve the state. Still practiced in China, Cuba and North Korea. Burma, however, lifted its control of the press this summer. Communist (State Model) This characterizes the American mainstream press. Concepts outlined in the 1947 Hutchins Commission, which called for watchdog groups to ensure that the press met its social responsibilities. Key recommendations: Put events in context, create news forums to allow an exchange of ideas, strive to cover all socioeconomic strata and social groups, frame coverage via our social values/ideals/goals.

Privately owned, but an unofficial branch of government (to keep abuses of power in check.)

"Afflict the comfortable and comfort the afflicted." The Social Responsibility Model-The Fourth Estate Emphasizes the highest degree of individual and press freedom. Encourages vigorous government criticism. Tolerates all speech. Considers speech to illuminate truth, if not via the speech itself, than via the debate that ensues.

Many North American and European Alternative Newspapers and Magazines use this format. Libertarian Model John Milton, author of "Paradise Lost," conceived of a free press in 17th century England, believing that all ideas contribute to the experience of truth in a democracy.

The guarantee of a free press, however, was not included in the original draft of the U.S. Constitution. The First Amendment of the U.S. Constitution Contained the first ten amendments, including the right to a free press. This was challenged by the Sedition Act of 1798, which allowed French and Indian War and other protestors to be arrested until the act expired in 1801, under Thomas Jefferson-who challenged its Constitutionality.

"Only in the wake of the Sedition Act did Americans boldly embrace a free press as a necessary bulwark of liberal civil order." -journalist Michael Schudson The Bill of Rights, 1791 How the SCOTUS defines censorship. This means that the government cannot block speech before it occurs, since no law has yet been broken. Censorship as Prior Restrain In 1971, former Defense Department employee Daniel Ellsberg stole a top-secret report on the United States involvement in Vietnam from WWII to the still-in-progress Vietnam War. Known as the Pentagon Papers, he leaked them to the NY Times and the Washington Post. The Times began reporting, but the Nixon administration got a federal court injunction blocking further publication, citing a "clear and present danger" to national security.

A lower court sided with the newspaper, Nixon appealed and the case was before the Supreme Court three weeks after the first story appeared. SCOTUS, 3-to-6, sided with the paper, citing the First Amendment. The majority opinion read: "the press must be left free to publish... without censorship, injunctions or prior restraint." The Pentagon Papers Case In 1979, an injunction was issued to block publication of the Progressive, and the story "The H-Bomb Secret: How we got it, Why we're telling it."

For the first time, a federal judge sided with the state and upheld the prior restraint prohibiting publication. Still, other magazines did publish similar stories, all gleaning information from available published sources.

The government eventually dropped the case, and the article came out six months after its intended publication date.

The Progressive, November 1979 issue: http://www.progressive.org/images/pdf/1179.pdf The Progressive and the H Bomb Not allowed:
False advertising, intentionally threatening public safety, seditious expression, copyright infringement, libel, obscenity, violations of privacy rights and expression that interferes with the Sixth Amendment (the right to a speedy public trial by and impartial jury.) Unprotected Speech Shouting "fire!" in a theater-Not protected.

Although the Sedition Act had expired, in 1919 (during WWI) the SCOTUS upheld the conviction of Charles T. Schneck, a leader of the Socialist Party, who received a ten year prison sentence for distributing leaflets challenging the government.

The majority opinion stated the the 1st Amendment would apply in peacetime, but not during war, comparing it to shouting "fire!" in a theater, and establishing the "clear and present danger" criteria for expression and demonstrating the limits of the 1st Amendment. Seditious Expression Not allowed. Protects intellectual property. When a copyright expires, the work becomes a part of the Public Domain,

Today, the Internet poses huge questions about copyright law, as music, movies and other lucrative media are pirated daily. Other challenges to copyright include open source media, sampling and PIPA/SOPA.

http://www.pcworld.com/article/248298/sopa_and_pipa_just_the_facts.html Copyright Infringement Third-Party Apps, Open Technical Standards and the business of the Internet:

http://www.slate.com/articles/business/moneybox/2012/08/twitter_s_third_party_app_crackdown_is_the_inevitable_result_of_replacing_open_technical_standards_with_business_models_.html?wpisrc=slate_river Twitter Written or Broadcast defamation of character.
Holding a person up to public ridicule, contempt or hatred; or injuring a person's business. Libel publicly ruins a reputation by (for instance) falsely accusing someone of dishonesty/incompetence in business, falsely accusing someone o a crime, falsely accusing someone of being mentally ill or associating with criminals.

A libel accusation is generally the biggest worry of journalists, editors and publishers. Libel 1) The Truth.
2) Qualified Privilege: allows journalists to repeat statements made in a court of law.
3) Opinion and Fair Comment: This protects journalists, but it is a hazy line. Journalists are wise to use facts that support their opinions. Also protects satire, reviews, etc.

Public figures have less protection from libel charges, and the charges are more difficult to prove in court, relying on "actual malice," a difficult standard to uphold.

Hustler v. Jerry Falwell: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/hustler.html Defense against Libel: Although our courts have a long history with trying to define obscenity the current standard is that the work, as a whole, is: prurient, sexually offensive and lacking serious merit. Today this is generally only applied to child pornography.

The film industry generally regulate itself. Obscenity Addresses a person's right to be left alone, without their name, image or activities becoming public property.

Not allowed: unauthorized intrusion into private space (with media: photos, wiretapping, etc,) disclosure of personal records (medical, etc.) or personal information (religion, sexual orientation, etc.,) or unauthorized appropriation of a person's name/image for commercial purposes. The right to privacy Unlike print, Broadcast is regulated by the Federal Communications Commission. The reasoning behind this is that broadcast requires transmission along public airwaves, which are considered to be a scarce national resource. one of the FCC's biggest responsibilities is ensuring that signals are not overburdened. The FCC also ensures that these scarce airwaves are serving the "public interest." In cases where there is a conflict between a broadcaster's right to publish and the "public interest," the FCC (supported by the courts) sides with the public. The FCC Regulates Broadcast After Pacifica aired George Carlin's skit, the FCC ruled that "indecent programming" cannot be aired during the day (6am-10pm) because children might be listening. 7 Dirty Words During elections, broadcast stations must provide equal opportunity and response time for qualified political candidates.

How have you seen this play out during the 2012 election? Political Broadcast and Equal Opportunity This rule mandated that broadcast stations air controversial-issues programs and provide competing points of view on these topics. It was revoked in 1987, but support for re-instating it continues to surface.

Do you think this is a good idea? Why or why not? The Demise of the Fairness Doctrine Free Speech vs. Ownership Issues The Internet Expression for a fee. Commercial Speech Ads that target children, ads in schools, the promotion of eating disorders, tobacco (highly regulated,) alcohol (less regulated,) prescription drugs (our biggest accidental killer,) etc.

What do you think? Critical Issues in Advertising Commercial Alert, the Better Business Bureau, the National Consumer's League. Commercial Alert takes on "excessive commercialism."

The Federal Trade Commission, through their "Truth-in-Advertising" rules, takes on deceptive ads. They require ads to have verifiable claims. The FTC usually requires advertisers to change or remove deceptive ads. It can also impose a fine, or more rarely may require an advertiser to run corrective ads. Watching over Advertising
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