Chapter7 the foundationsoffreedomofexpression-foote(2)

Principles of Journalism

The Foundations of Free Expression

Chapter 7

Introduction

• Understand the reasons for, and the limits of, First Amendment protections

• Grasp the critical importance of free expression in democracies

• Understand the broad history of free speech in the United States

• Understand several key First Amendment principles and the cases that gave rise to them

Violent video games are speech?

• In Brown v. Entertainment Merchants Association, the United States Supreme Court struck down as unconstitutional a California law banning the sale of such games to minors.

• “No doubt a state possesses legitimate power to protect children from harm. But that does not include a free-floating power to restrict the ideas to which children may be exposed.”

Justice Antonin Scalia

45 powerful words…

“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.”

It’s about positive vs. negative liberty• Freedom “of” is different from Freedom

“from”• Reflects our revolutionary roots• It all began with freedom from prior

restraint• Prior restraint: Government prohibition

of speech in advance of publication• A rather cramped view of free speech…

Prior Restraint

• Colonists suffered under the British system of prior restraint

• The Crown could stop a publication before it even hit the presses

• Stopping speech before it happens• That was the issue in pre-revolutionary

United States• That IS an issue still in many foreign

countries

“Congress shall make no law…”?• Congress started regulating the press almost as

soon as we became a nation!• Alien and Sedition Acts (1798) criminalized

criticism of the government. (Under President John Adams)

• Neither politicians or press could criticize the president• Sedition: the crime of revolting or inciting revolt

against government. Under First Amendment doctrine it is quite rare, but sedition remains in the United States Criminal Code.

• President Thomas Jefferson ended this era

Key early developments

• The “clear and present danger test”• Justice Oliver Wendell Holmes:

• “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that will bring about the substantive evils that the United States Congress has a right to prevent….”


• 1925: Gitlow v. New York: First Amendment finally applies to state and local laws

• Free speech as a fundamental liberty• 1950s: The “Red Scare” cases took a dim

view of free speech…aimed at suppressing Communist sympathizers


• But finally, In Yates v. U.S. (1957), the Court raised the bar…

• Government forced to prove that the defendants advocated specific violent or forcible action toward the overthrow of the government

Today’s QuestionsThink about the worst criticism leveled against President Obama or President Bush on social networks, blogs, talk shows and other platforms.

Now, view those criticisms through the context of U.S. First Amendment policy and law starting in 1798 and through 1969.

During which periods would the authors of these comments land in jail? Have lawmakers and judges done the right thing of lighting up on punishment?


• And in Brandenberg v. Ohio (1969) they raised it even higher…

• Unlawful conduct is protected by the Constitution

• Unless it is directed toward inciting or producing “imminent lawless action and is likely to incite or produce such action.”

The limits of freedom: Defamation

• Example: Defamation• Defined: Any intentional false

communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

Defamation Explained

Happens in two ways1. Orally: known as slander

a) Slander is broadcast or spoken words that expose someone to public hatred, contempt or ridicule in writing or pictures.

2. In writing or other media: known as libel. a) Libel is the publication or airing of false statements that expose someone to public hatred, contempt or ridicule in writing or pictures.

Chapter 16: Libel, Privacy & Ethics, News Writing & Reporting, Scanlan and Craig

The limits of freedom: Libel

• It’s all about understanding freedom of speech and the importance of reputation.

• In court, a plaintiff must prove:• A false and defamatory statement about an identifiable person is published to a third party causing injury to a person’s/subject’s reputation.

• Opinion, satire and parody are not considered libelous.


New York Times v. Sullivan

• As much a civil rights case as a libel case…• The Court applies the First Amendment to

libel law for the first time• The case itself is a study of the Civil Rights

Movement• Featured a political ad, not a news article• A landmark case in protecting the rights of

journalists to report the news

The lawsuit

• It’s 1964. • The Committee to Defend Martin Luther King and

the Struggle for Freedom in the South ran an ad in the NY Times.

• The ad called attention to what the committee described as a system of repression

• Segregationists hated the NY Times• L.B. Sullivan, a commissioner of public affairs for

Montgomery, sued the New York Times Co. for libel

• He believed mistreatment implied his involvement

The Ruling

• Supreme Court ruled against the Alabama city commissioner who said a NY Times ad protesting civil rights abuses in the South libeled him.

• Justices ruled that the First Amendment protects the publication of all statements about the conduct of public officials, even if they are false…

• Unless the news organization knew the statements were false and published them anyway.

Justice Brennan sets the tone (1964)…“[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Southern officials v. free expression

• Southern officials had filed at least $388 million in libel actions against newspapers, news magazines, television networks and civil rights leaders.

• Bull Connor: Police dogs attacking protestors was widely covered internationally

• He filed several libel suits

No prior restraints…ever?

• New York Times v. United States made it clear that they would be incredibly rare

• But limits on free speech began to emerge in the case law that followed.

Online Libel – Lifelong infamy

• Unchartered territory, but its fertile ground for a wave of legal action

• Bloggers are losing lawsuits against people who are subject of hostile or insulting messages if they meet the conditions of libel.

• Defamation lives on the web forever• Verification of information is critical


WikiLeaks…Free Speech?• Julian Assange, a convicted computer hacker,

creates a website that publishes political and government documents

• http://www.mediaite.com/tv/snl-imagines-what-would-happen-if-wikileaks-and-tmz-joined-forces/

• In July 2010, he releases 75,000 documents in a partnership with The Guardian, The New York Times and Der Spiegel

• In October 2010, he release another 400,000 classified documents about the War in Iraq

• Secretary of State Hillary Clinton calls release: “not just an attack on America’s foreign policy interests; it [was] an attack on the international community.”

http://www.mediaite.com/tv/snl-imagines-what-would-happen-if-wikileaks-and-tmz-joined-forces/



Whistle-blowing & Wiki-Leaks

• Assange, Snowden and others are testing mainstream media offering them leaked, sensitive information to media outlets or publishing the information themselves

• What are the limits to privacy? National security? Government secrets?

• Are they minimizing harm or maximizing the truth?


Journalists have no more rights than anyone else… Shield Laws• Laws of General Applicability• Example: Protection for Anonymous Sources• Branzburg v. Hayes

• 1972 case: Reports have no First Amendment right to refuse to answer all questions before grand juries if they actually witnessed criminal activity

• In 2005: Look at the saga of Judith Miller• Should journalists be able to keep

sources confidential?

Journalists have no more rights than anyone else…• U.S. Appeals Court in the District of Columbia: A

grand jury’s need for information outweighed any reporter’s privilege after NY Times reporter Miller refused to testify about her sources on a story about CIA Operative Valerie Plame

• NY Times argued she needed to protect her sources

• US Court of Appeals refused to hear her case• She spent 85 days in jail before agreeing to testify

Don’t pry…

• Privacy law rears its head quite often in media lawsuits

• Based on the “expectation of privacy”

Four major privacy claims

1. Intrusion/Trespass• Intentionally intruding or physically or otherwise upon a person’s seclusion or solitude or another person’s private affairs

2. Publication of Private Facts• Publishing information about someone’s personal life that has not been previously public and is not of a public concern

Four major privacy claims cont.

3. False Light• Giving publicity to a matter concerning another person that portrays that person falsely if the portrayal would be highly offensive to a reasonable person

4. Misappropriation• The use of one’s likeness for personal or commercial gain without consent or compensation

Ethical Decision Making

• Journalists must never place themselves in comprising situations

• Bob Steele, Poynter Institute:• “Seek the truth and report it as fully as possible”

• Act independently• Minimize hard

• If you’re not sure, ask for help• Be prepared to answer the tough questions

to defend any actions.

Fabrication

• Intentional falsification or invention of information, data, quotations or sources

• Misattributing information or presenting information in a false light

• Making up stories, interviews, sources, description will get you fired

• Ask Janet Cooke, The Washington Post


Plagiarism

• Intentionally or knowingly representing the words or ideas of another person as one’s own

• Deadline pressures often put undue strain on you to get the information

• The lure and ease of the Internet make it easy to cut, copy and paste

• Source everything• Get original documentation • Do your own interview, reporting, if necessary

Key Questions You Need to Ask on Behaving Ethically• Have I attributed the information in the

story to the sources who are willing to be identified by name?

• If I’m relying on public records, can I verify the information in my story?

• Have I identified all the key sources?• Have I altered any quote, image or video

that may be misleading?• Am I ready to defend my story if

challenged by a source?

Today’s QuestionsThe private lives and extra-marital affairs of celebrities and politicians are in the news everyday.Based on what you’ve learned about privacy laws, should readers be concerned about the “publication of private facts? Should journalists avoid publishing these stories? Why would reputable news organizations want to publish this material? Is it just about money? Have we gone too far? Not far enough? Provide examples of the media going too far or not far enough.

Chapter7 the foundationsoffreedomofexpression-foote(2)

News & Politics

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