Mass Media Law Chapter 2

Freedom of the Press in Colonial America

- 1662 prior restraint laws - American juries were less likely to convict printers - Licensing ended in in the 1720s - Free speech and freedom of ideas was technically allowed, but unwise - John Peter Zenger

Freedom of the Press in Colonial America: John Peter Zenger

- 1734 seditious libel trial of immigrant printer John Peter Zenger - Acquitted by jury nullification - No record of successful

Schenck v. United States

- Charles Schenck, a Socialist Party leader in Philadelphia, distributed a leaflet to encourage repeal of the draft - Schenck was arrested for violating the Espionage Act, a law that restricted individuals from undermining the war effort - The Supreme Court unanimously upheld his conviction

New Constitution

- Constitution was drafted from the Articles of Confederation - Gave much more power to new federal government

Two federal laws passed to deal with people who opposed the war or U.S. involvement in it

- Espionage Act of 1917 - Sedition Act of 1918

The Brandenburg test is used to determine the liability of media in inciting a perpetrator of a crime to commit illegal acts

- It is very difficult to prove that media intended to cause illegal acts - All laws trying to stop or hinder the purchasing or renting of video games were overturned by federal courts

Pentagon Papers case

- New York Times and other newspapers published articles based on information from leaked papers that revealed war strategy - Government tried to argue that the information shouldn't be published because of 1) violation of espionage statutes and 2) unauthorized disclosure of documents deemed secret by the president - Newspapers won 6-3 but prior restraint was not ruled unconstitutional, simply that the government had failed to provide enough evidence of it being necessary in this case

community censorship

- The silencing of speech by private people or business entities - Self-censorship, not government censorship

freedom of the press in England

- William Caxton's 1476 printing press - No laws governing what he could print - Regulation began shortly after - Owners of printing presses had significant power - The printing press broke the Crown's monopoly on information - Seditious libel laws - Licensing and prior restraint laws

Don Imus case study

-Imus in the morning-'Nappy Headed Hoes'-Criticized for racial remark

Seven First Amendment Theories

1. Absolutist theory 2. Ad hoc balancing theory 3. Preferred position balancing theory 4. Meiklejohnian theory 5. Marketplace of ideas 6. Access theory 7. Self-realization theory

the first amendment

1. Adopted in 1791 as part of the Bill of Rights 2. Lack of government controlled censorship

the first amendment guarantees

1. Freedom of Religion. 2. Freedom of Speech. 3. Freedom of the Press. 4. Freedom to Assemble Peaceably. 5. Freedom to Petition the Government for a Redress of Grievances.

Guidelines to prior restraints

1. Prior restraint on speech by the government is presumptively unconstitutional 2. The burden of proof falls on the government 3. The scope of the restraint must be very narrow, in order to only satisfy the compelling interest and not restrict any other part of the speech 4. Speech that falls outside the first amendment (false advertising, child pornography, obscenity etc) can be restrained by the government but only after a judicial proceeding

The meaning of freedom

1. The power of the state to limit criticism or published attacks on the government 2. The power of the state to use taxation to censor the press 3. The power of the government to forbid the publication of ideas or information it believes to be harmful

when did the Supreme Court first consider whether a prosecution for sedition violated the First Amendment

1919

Unlike the Supreme Court in the Pentagon Papers case, a federal district court found the government in U.S. v. Progressive (1979): A) Could prevent publication because release of the material would likely cause a direct, irreparable injury to the nation. B) Could not demonstrate a national security interest. C) Allowed the publication of information to occur because it did not have specific legal authority to classify documents. D) None of the above.

A) Could prevent publication because release of the material would likely cause a direct, irreparable injury to the nation.

The British legal scholar William Blackstone defined freedom of the press as: A) Freedom from prior restraint by government. B) Freedom from lawsuits, no matter what is printed. C) The ability to print so long as the public would buy the newspaper. D) None of the above.

A) Freedom from prior restraint by government.

Courts that have considered legislation limiting minors' access to video games depicting violent images have: A) Struck down the laws as violating the First Amendment right of free speech. B) Declared that video games are not "speech" protected by the First Amendment. C) Declared that video games are "speech" protected by the First Amendment, but have also held that the interactive, player-controlled nature of video games gives them less First Amendment protection than movies and books. D) None of the above is correct.

A) Struck down the laws as violating the First Amendment right of free speech.

Gitlow v. New York (1925) is an important case for all Americans because: A) The Supreme Court determined the Fourteenth Amendment requires states to adhere to the fundamental liberties guaranteed under the U.S. Constitution. B) Gitlow successfully refuted his sedition charge through the doctrine of incorporation. C) Gitlow's appeal was denied, thereby leading to the prosecution of other socialists who distributed militant propaganda. D) The Supreme Court ruled that some portions of the U.S. Constitution apply equally to state and federal law.

A) The Supreme Court determined the Fourteenth Amendment requires states to adhere to the fundamental liberties guaranteed under the U.S. Constitution.

Which institution has primary control over what the First Amendment means today? A) The U.S. Supreme Court. B) Congress. C) Federal district and appellate courts. D) No institution has significant control over the First Amendment's meaning.

A) The U.S. Supreme Court.

The text cites four rules that are important to understand when reviewing prior restraint cases involving the government. Which of the following is not one of these? A) The government is presumed to have the best interests of the citizens in mind at all times. B) Prior restraints by government are presumptively unconstitutional. C) The government's high burden of proof includes proving a compelling interest. D) The scope of any prior restraint must be very narrow.

A) The government is presumed to have the best interests of the citizens in mind at all times.

Near v. Minnesota (1931) is a landmark ruling because the Supreme Court determined: A) The government may exercise prior restraint, specifically when the nation is at war or the material in question is obscene or incites violence. B) States have the right to prohibit the publication of material that is deemed to be a public nuisance in order to protect the well being of its citizens. C) Prior restraints are forbidden unless they occur during wartime. D) All prior restraints are unconstitutional.

A) The government may exercise prior restraint, specifically when the nation is at war or the material in question is obscene or incites violence.

Access theory

Access to the metaphorical marketplace of ideas is not equal for all, but is skewed in favor of those with the most economic resources. To make the guarantees of the First Amendment meaningful, newspapers, magazines and broadcasting stations should open their pages and studios to the ideas and opinions of their readers and listeners and viewers. Socialist theory.

Courts treat conduct as speech if two elements are satisfied:

Actor Audience

sedition in WW1

Aimed at dissenters of the war by saying it was a crime to wilfully convey a false report with the intent to interfere with the war effort

Prior restraint refers to the government: A) Censoring material that has already been published and distributed. B) Barring the publication of information, also known as prepublication censorship. C) Restraining the press from gathering news and information. D) Both A and B are correct.

B) Barring the publication of information, also known as prepublication censorship.

The clear and present danger test articulated by Justice Holmes in Schenck v. U.S. (1919): A) Protected speakers who were charged with sedition. B) Failed to overturn lower-court sedition convictions. C) Is regularly used today as the legal test for sedition. D) Became the basis for repealing both the Alien and Sedition Acts.

B) Failed to overturn lower-court sedition convictions.

Which statement best characterizes freedom of speech practices in early America? A) Free speech was the hallmark of liberty and encouraged in all areas regardless of individual differences and beliefs. B) Free speech often occurred between people who held the same beliefs within pockets of villages and small towns. C) Free speech did not exist until the arrival of the First Amendment. D) Censorship was forbidden by local communities but existed under colonial rule.

B) Free speech often occurred between people who held the same beliefs within pockets of villages and small towns.

The access theory of free speech can be seen as a remedy for correcting flaws in which other theory of free speech? A) Meiklejohnian theory. B) Marketplace of Ideas theory. C) Self-Realization/Self-Fulfillment theory. D) Historicism theory.

B) Marketplace of Ideas theory.

Given existing case law, successfully holding the media responsible for someone else's illegal conduct is: A) Relatively easy and has led to many out-of-court settlements. B) Nearly impossible and rare. C) Generally considered to be a fifty-fifty proposition. D) Difficult, but occurring more often, especially with the rise of violent content in mass media and on the Internet.

B) Nearly impossible and rare.

The text cites four examples of speech that falls outside the scope of First Amendment protection. Which of the following is not one of these? A) Obscenity. B) Political Speech. C) Child Pornography. D) False Advertising.

B) Political Speech.

The John Peter Zenger trial in 1734: A) Established precedent that effectively prohibited sedition prosecutions. B) Stood as a political triumph against sedition in early colonial America. C) Provided American printers with legal recourse to prevent control by the British monarchy. D) Marked the first time that an American printer was sentenced for life imprisonment.

B) Stood as a political triumph against sedition in early colonial America.

The Pentagon Papers case resulted in: A) A significant victory for the government to bar the publication of top-secret military information. B) An important legal precedent that forbids prior restraint of material which is not essential to preserve national security during wartime. C) A minor victory for the press, for it did little legally to strengthen First Amendment protections. D) A significant victory for the press that lead to the publication of the Pentagon Papers, as well as the declassification of other government documents.

C) A minor victory for the press, for it did little legally to strengthen First Amendment protections.

Which legal test is used by courts to determine the fate of wrongful death and negligence claims that are levied against a specific book, record, or film? A) Clear and present danger B) Marketplace of ideas C) Brandenburg D) None of the above

C) Brandenburg

A primary goal of free speech under the marketplace of ideas metaphor is: A) Successful self-government. B) The voting of wise decisions. C) Discovery of the truth. D) Providing an outlet for discontent among citizens in order to prevent violence.

C) Discovery of the truth.

The theory of the First Amendment that purports to protect and uphold all self-governing speech which is necessary for democracy is known as the: A) Ad hoc balancing theory. B) Preferred position balancing theory. C) Meiklejohnian theory. D) Access theory.

C) Meiklejohnian theory.

Upon reviewing its initial decision in Planned Parenthood v. American Coalition of Life Activists (2002), how did the 9th U.S. Circuit Court of Appeals rule regarding whether the First Amendment protects an anti-abortion activist website that referred to abortion physicians as "baby butchers" and struck out the names of such doctors who had been murdered? A) The First Amendment protected the web postings because there was no direct proof of imminent lawless action against abortion physicians and supporters. B) The First Amendment offers greater protection to content on the Internet than it does to traditional forms of printed expression, even if such speech leads to imminent lawless action. C) The First Amendment did not protect the web postings because they were found to directly threaten both abortion physicians and patients. D) The First Amendment did not protect the web postings because they were found to be obscene.

C) The First Amendment did not protect the web postings because they were found to directly threaten both abortion physicians and patients.

Whitney v. California, 1927

Charlotte Whitney, a founding member of the Communist Labor Party of California, was prosecuted under California's Criminal Syndicalism Act for helping to organize a group that sought to affect economic and political change through the unlawful use of violence

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

freedom of expression in 18th century

Constitution continues to be relevant because the supreme court helps to adapt it to changing times while retaining the original intent

The concept of jury nullification refers to which one of the following? A) A judge's decision to nullify a jury's verdict in a civil case. B) A judge's decision to nullify a jury's verdict in a criminal case. C) A decision by a jury in which the members cannot agree on a verdict. D) A decision by a jury to ignore the law and to follow its conscience.

D) A decision by a jury to ignore the law and to follow its conscience.

Fearing the power of an unrestricted printing press during 1476-1776, the British Crown: A) Required individuals to obtain a license and get prior approval before printing materials. B) Forced printers to deposit large sums of money in the form of bonds. C) Made it a crime to criticize the government in print. D) All of the above.

D) All of the above.

The clear and present danger test articulated by Justice Brandeis in Whitney v. California (1927): A) Required that immediate, serious violence was expected or advocated. B) Helped influence and shape the eventual Brandenburg test. C) Was part of a concurring, not majority, opinion in the case. D) All of the above.

D) All of the above.

Determining if an individual may be punished for advocating a violent overthrow of the government would likely hinge upon whether such advocacy is: A) Intended to produce a violent overthrow. B) Harmful to the best interests of society. C) Likely to provoke a violent reaction against the speaker. D) Intended to produce imminent lawless action (e.g. violent overthrow of government) and likely to produce such action.

D) Intended to produce imminent lawless action (e.g. violent overthrow of government) and likely to produce such action.

While drafting the Constitution, the founding fathers: A) Were in strong consensus for the need to provide citizens with a bill of rights. B) Agreed that the First Amendment was the most important provision and therefore placed it atop the Bill of Rights. C) Readily encouraged citizens to participate in deliberations through public debate and open meetings. D) None of the above.

D) None of the above.

Those who drafted and ratified the Bill of Rights: A) Clearly intended that the First Amendment preclude prior restraints. B) Clearly intended that the First Amendment preclude only seditious libel. C) Clearly intended the First Amendment to be absolute. D) Probably held a wide-range of interpretations concerning the First Amendment.

D) Probably held a wide-range of interpretations concerning the First Amendment.

what did the general public have an issue with with the new constitution

Failure to include Bill of Rights did not sit well with general public

Abrams v. United States, 1919

Leaflets denounced the sending of American troops to Russia and the war, and advocated for the cessation of the production of weapons to be used against Soviet Russia

Frazier vs. Boomsma

Man selling shirts that said 'Bush Lied, They Died' with dead soldiers' names on it. Court in Arizona declared it fair, saying that it was a clear expression of political speech fully protected by the First Amendment

Was the First Amendment originally in the bill of rights

Not considered the 'first' or most important right, the First Amendment wasn't actually first in the Bill of Rights

how does community censorship usually occur

Often as a result of pressure exerted by political activists, public interest groups, and economic stakeholders

"Congress has the right to outlaw certain kinds of conduct that might be harmful to the nation by pushing people to undertake acts that violate laws. The words must 'create a clear and present danger.'"

The "clear and present danger" test was used by courts to reject First Amendment appeals

Actor

The person engaging in the conduct must intend to convey a particular or specific message with his or her conduct.

Absolutist theory

The proposition that the First Amendment is an absolute, and that the government may adopt no laws whatsoever that abridge freedom of expression.

Audience

There must be a great likelihood, under the surrounding circumstances in which the conduct takes place, that some people who witness it will reasonably understand the particular message that was intended by the actor.

Ad hoc balancing theory

When conflict occurs, it is the responsibility of the court to balance the freedom of expression with other values. The meaning of the freedom of expression is determined solely on a case-by-case basis. Not a theory but a strategy.

The constitutional guarantees of free speech and free press do not permit what

a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.

Anti-abortion websites calling for violence against doctors/nurses and others have gone through complicated trials

but more often than not, are not supported under the First Amendment because they are threatening rather than advocating violence

Son of Sam laws

can also be considered prior restraint because they prevent the convicted felon from expressing his or her views on any subject

Brandeis believed that ___ was the best remedy for this type of situation, rather than silencing

counter speech

Brandenburg Test

devised for seeing whether speech should be banned 1. Directed 2. Imminence 3. Lawless action 4. Likely

First Amendment protection (does/ does not) cover community censorship

does not

Courts try not to grant prior restraints

even in cases of trade secrets being revealed or stolen intellectual property

Meiklejohnian theory

expression that relates to the self-governing process must be protected absolutely by the First Amendment. Presents a hierarchical approach to First Amendment theory, with political speech placed at the top of this hierarchy.

In 1918, the Sedition Act, an amendment to the Espionage Act, was passed,

making it a crime to obstruct the recruiting service

The essence of democracy is

participation by citizens in the process of government

Freedom of press should mean freedom from what

prior restraint - prior restraint also occurs if a permit is needed for a rally or demonstration

Abstract advocacy of violence

protected by the First Amendment while the direct incitement of imminent lawless action that is likely to occur is not

Libel

published or broadcast communication that lowers the reputation of an individual by holding him or her up to contempt, ridicule or scorn

Preferred position balancing theory

some constitutional freedoms, principally those guaranteed by the First Amendment, are fundamental to a free society and consequently are entitled to more judicial protection than other constitutional values are. Gives freedom of expression a preferred position.

Self-realization theory

speech can be inherently valuable to a person regardless of its effect on others-it can be an end in itself.

Near v. Minnesota

the 1931 Supreme Court decision holding that the first amendment protects newspapers from prior restraint. - Publishers of The Saturday Press produced issues wherein they attacked city government verbally and defamed many of the officials - The case is very important in American law because it stands for the fact that prior restraint is permitted only in very unusual circumstances - Dicta

Widespread printing helped foster

the democratic spirit

Marketplace of ideas

the truth will be discovered or, at the very least, conceptions of the truth will be tested and challenged

during sedition in WW1, is this true or false? U.S. Post Office Department censored thousands of books, newspapers and pamphlets

true

Courts (will/will not) issue an injunction stopping libelous material before it occurs

will not

Dicta

words that are given with an opinion but that do not really apply to the ruling of the case