The First Amendment & Freedom of Expression… · 01-10-2015 · • The U.S. Constitution did not contain the freedoms enumerated later in Bill of Rights • The Bill of Rights —

The First Amendment & Freedom of Expression

Principles of Journalism/Week 4

Journalism’s Creed: “To hold power to account”

Monday, September 30, 13

We’re interested today in which one?The U.S. Bill of RightsThe First Amendment

Monday, September 30, 13

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

Monday, September 30, 13

Why is the first amendment so important?

• Without it, horrors like this are much more likely

• Only in Egypt you think? Guess again.

Monday, September 30, 13

Monday, September 30, 13

• The 1970s are ancient history you think?

• Guess again...

Monday, September 30, 13

• Free speech triumphs over brutality

Monday, September 30, 13

Some 1st Amendment history

• John Milton in the 1600s: “Give me liberty to know, to utter and to argue freely according to conscience, above all liberties.”

• Thomas Paine in the late 1700s: An Englishman who came to America and advocated revolution and independence through his pamphleteering

• An “Occupy” demonstrator of his time?

Monday, September 30, 13

Unlike legal rights, natural rights, also called “inalienable rights,” are not contingent on the laws, customs, beliefs of a particular society. They are universal. Every human being has them.

• Thomas Paine: We have a natural right to govern outselves, rather than be governed by inherited aristocracy.

• What are “natural rights”?

Thomas Paine

Monday, September 30, 13

More history

• The U.S. Constitution did not contain the freedoms enumerated later in Bill of Rights

• The Bill of Rights — the first 10 amendments to Constitution — went into effect Dec. 15, 1791

• The First Amendment’s 45 words were drafted by James Madison

Monday, September 30, 13

What did James Madison say?

“I believe there are more instances of the abridgment of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.”

Is this happening today?

Monday, September 30, 13

Monday, September 30, 13

The philosophical/moral basis for the 1st Amendment

• James Madison, Thomas Jefferson and other framers all products of the Age of Enlightenment

• Eschewed superstition and intolerance

• Believed in power of reason, search for the truth, perfectibility of humanity

• Saw debate, discovery and questioning of authority as indispensable to human progress

• Do you have faith that those qualities prevail today?

Monday, September 30, 13

What does it protect?

• Freedom of speech

• Freedom of religion

• Freedom of assembly

• Freedom to protest and petition the government for redress

• Freedom of the press

Monday, September 30, 13

Why press freedom?

• English common law held that criticism of the government was a crime

• Thomas Jefferson: “No government ought to be without censors...” A free press serves this role.

Monday, September 30, 13

“... were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

How does government feel about the press?

Thomas Jefferson:

Monday, September 30, 13

Monday, September 30, 13

Let’s shift a bit

• 1940s: West Virginia law required students and teachers to salute the flag and recite the Pledge of Allegiance

• Students who failed to comply were expelled

• Denied readmission until they complied

• Exposed children and parents to criminal prosecution

Monday, September 30, 13

Monday, September 30, 13

• Do you think the government has a right to tell you, as a student, that you must salute the flag before class?

• How might the 1st Amendment apply?

Monday, September 30, 13

W. Virginia State Bd. of Ed. vs Barnette

• Jehovah’s Witnesses brought the case

• They said the requirement violated their religious beliefs

• The court overturned the requirement

• But not on freedom of religion grounds

• Instead, the state cannot compel speech

Monday, September 30, 13

“. . . if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalsim, religion, or force citizens to confess by word or act their faith therein.”

— Justice Robert Jackson, West Virginia v. Barnette, 1943Source: http://www.firstamendmentcenter.org/about.aspx?item=about_firstamd

This Supreme Court decision held that the Free Speech Clause protected students from being forced to salute the American flag and say the Pledge of Allegiance in school.

Monday, September 30, 13

Free press & free speech: what’s the difference?

• Free speech: People can say what they want

• Free press: Government is limited in regulating the press

Monday, September 30, 13

Landmark free press decisions

Monday, September 30, 13

Sullivan vs N.Y. times

• A groups takes out ad in N.Y. Times advocating for civil rights

• City Commissioner in Montgomery, Ala. (Sullivan) claims minor factual errors have libeled him

• Supreme Court throws out Sullivan’s case

Monday, September 30, 13

Definitions

• Defame: to harm someone’s reputation

• Libel: to defame someone in print, pictures, T.V., radio or film

• Slander: to defame someone verbally

Monday, September 30, 13

Back to Sullivan vs N.Y. times

• The Supreme Court threw out Sullivan’s case! WHY?

Monday, September 30, 13

Reasoning & Decision

• Allowing libel lawsuits in cases like this would "chill" criticism of public officials

• Decision: a plaintiff seeking libel damages must prove that a false statement was made with “actual malice”

• Meaning: The writer knew it was false & said it anyway

• Or showed “reckless disregard” for the truth

• Extended later to include “public figures.”

• Finding balance: avoiding press “self-censorship” vs protecting people from defamatory falsehood

• FYI: The standard is different with private citizens.

Monday, September 30, 13

N.Y. Times vs United States

• June 13, 1971: Times began publishing Pentagon Papers

• U.S. Government won a restraining order preventing further publication

• The first time the federal government had tried to impose prior restraint on press in the name of national security

• June 30: U.S. Supreme Court rules that publication can resume

Monday, September 30, 13

"In absence of governmental checks and balances, the only effective restraint upon executive policy and power . . . may lie in an enlightened citizenry - in an informed and critical public opinion which alone can here protect the values of democratic government."

Justice Potter Stewart

Monday, September 30, 13

Can you say anything at any time?

• The language of 1st Amendment is strong; presumption is that speech is protected

• But not an unlimited right. Supreme Court has rejected speech without limits

• You can’t shout fire in a crowded theater

Monday, September 30, 13

What are the limits?

• Clear and present danger: No protection for provocation of violence or incitement of illegality

• Fighting words: inflict injury or incite immediate breach of the peace. (Narrowed over time.)

• Obscenity: does not enjoy protection. But what’s obscene? We know it when we see it . . .

• Conflict w/other legitimate social or governmental interests: E.g, in times of war, national security 1st Amendment rights may be limited

• Defamatory and libelous speech not protected

More info: http://www.freedomforum.org/packages/first/curricula/educationforfreedom/supportpages/L04-LimitsFreedomSpeech.htm

Monday, September 30, 13

Broadcast limited more than print

• Over the air broadcasting is regulated by federal government. On what basis?

• Assumption: radio spectrum and channels are scarce. And they are public resources.

• No such limitation on print

• Government can censor broadcasting by granting exclusive licenses to some people, but not all

Monday, September 30, 13

Broadcast limited more than print

• Federal Communications Commission has statutory authority to regulate broadcast of obscene, indecent and profane material

• Obscene material banned completely. “Indecent” material is okay for adults; must be “channeled” to late-night hours

• FCC: Bono’s “this is really, really f***ing brilliant” at Golden Globe was violation

More info: http://www.firstamendmentcenter.org/PDF/FirstReport.Indecency.Levi.final.pdf

Monday, September 30, 13

Self regulation

• The press has typically been a profit-making enterprise

• Citizens may choose which media they want to consume

• So offending our viewers and readers is unwise

Monday, September 30, 13

Responsibilities

• We are essential to self-government

• What we have to report might be controversial or distasteful.

• We may have to report things that people vehemently disagree with.

• So we journalists must gather information fairly and accurately to support what we are reporting

• We must use good judgement. When might it be inadvisable to report on something?

Monday, September 30, 13

• Supreme Court’s “Citizen’s United” decision

• Corporations, labor unions, etc. have right to spend as much money as they want on behalf of political candidates

• Caveat: No direct contributions to candidates

1st Amendment Protections Broadened

Monday, September 30, 13

• What do opponents of the ruling say?

• Massive corporate spending will skew elections, undermining democracy

• Judicial activism: The judges imposed their will despite long-standing political consensus. (McCain-Feingold)

1st Amendment News

Monday, September 30, 13

• What do proponents of the ruling say?

• The ruling “restores political speech to the primacy it was intended to have under the First Amendment.” (WSJ 1/22/10)

• The predictions of catastrophe are overblown

• States w/unlimited corporate political spending are among the “best governed”

1st Amendment Broadened

Monday, September 30, 13

• General Motors spent $3 billion on advertising in 2008

• Let’s say GM will now spend 10% on political advertising

• $300 million by just one corporation

1st Amendment Broadened

Monday, September 30, 13

• Will some entities now have a greater right to speak than others, simply because of their deep pockets?

• If so, is that a problem?

• If it’s a problem, how might trends in the news industry contribute to it?

• Consider this

Questions to Ponder

Monday, September 30, 13