ADV 3352 MASS MEDIA LAW CHAPTER 2 The First Amendment The Meaning of Freedom STUDENT OUTLINE I HISTORIAL DEVELOPMENT A FREEDOM OF THE PRESS IN ENGLAND I British efforts to restrict the press in England 1 Seditious Libel Laws 2 Licensing or Prior restraint laws A required printers to obtain prior approval from the government or church before printing 3 Bonds printers were required to deposit money in the form of bonds to the government which would not be returned to them if they printed material the government didn t like B FREEDOM OF THE PRESS IN COLONIAL AMERICA I John Peter Zenger trial 1 Zenger was an immigrant printer that was tried for seditious libel and jailed in 1734 This trial was an example of Jury Nullification II Jury nullification power of a jury in a criminal case to ignore a law and to return a verdict according to its conscience III American colonists has an easier time getting their views into print because although there was censorship many juries were more reluctant to convict printers C COMMUNITY CENSORSHIP THEN AND NOW 1 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE i Community censorship the silencing of speech by private people or business entities often as a result of pressure exerted by political activists public interest groups and economic stakeholders i First amendment does not protect against community censorship ii Don Imus calling female basketball players nappy headed hos but his boss did not fire him it was political pressure and advertising concerns that drove him from the airwaves iii Self censorship example is south park being censored by comedy central involving an episode of the Prophet Muhammad ii Heckler s veto when a crowd or audience s reaction to a speech or message is allowed to control and silence that speech or message Courts have made it clear that the existence of a hostile audience standing alone never has been sufficient to sustain a denial of or punishment for the exercise of first amendment rights aka the government must defend the speaker not the heckler II THE FIRST AMENDMENT A THE NEW CONSTITUTION i Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or 2 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE of the press or the right of the people peaceably to assemble and to petition the Government for a redress of grievances B FREEDOM OF EXPRESSION IN THE 18TH CENTURY i Freedom of the press and freedom of speech a No authoritative definition of freedom of the press and speech ii Freedom of expression a It is assumd that freedom of expression in 1791 meant 1 No previous restraints upon publication 2 Protection from punishments post publication C FREEDOM OF EXPRESSION TODAY i First Amendment meaning a Means whatever the supreme court wants it to mean b Seven theories 1 Absolutist theory no law means no law and the government cannot censor the press for any reason 2 Ad hoc balancing theory the meaning of freedom of expression is determined on a case by case basis 3 Preferred position balancing theory most court used theory Doesn t matter what the arguments are the person s amendment taken Makes government have to bear the burden of proof in censorship cases rather in person 3 ADV 3352 MASS MEDIA LAW Some constitutional freedoms are fundamental STUDENT OUTLINE to a free society and consequently are entitled to more judicial protection than other constitutional values 4 Meiklejohnian theory Purports to protect and uphold all self governing speech which is necessary to democracy Expression that related to the self governing public speech process must be protected by 1st amendment Political speech should be protected the most This theory has been embraced by supreme court justice William Brennan 5 Marketplace of ideas theory Belief that truth will emerge out of the competition of ideas in free public discourse primary goal of free speech is to find truth Criticized because it allows for shoddy speech which circulated in the marketplace even though it has no value and that access to the marketplace is not equal for everyone 6 Access theory Freedom of the press belongs to the man who owns one the constitutional guarantee of 4 ADV 3352 MASS MEDIA LAW freedom of expression has little meaning if a STUDENT OUTLINE citizen does not have the economic means to exercise this right Access theory corrects some of the flaws of the market place theory Miami Herald v Tornillo Basically was a rejection of the access theory the first amendment does not give the government the right to force a newspaper to publish the views or ideas of a citizen This cases sounded the legal death knell for this access theory for print media 7 Self realization theory speech can be inherently valuable to an individual regardless of its effect on others it can be end in itself III THE MEANING OF FREEDOM A ALIEN AND SEDITION ACTS I Known as the Alien and Sedition acts of 1798 II The sedition law forbade false scandalous and malicious publications against the us government congress and the president III Punished persons who sought to stir up sedition and urged resistance of federal laws IV Expired in 1801 V John Adams Administration used these laws a lot 5 ADV 3352 MASS MEDIA LAW B SEDITION IN WORLD WAR I i Espionage Act STUDENT OUTLINE a 1917 dealt mostly with espionage problems but some aspects were aimed at dissent and opposition to war b Made it a crime to 1 Willfully convey a false report with the intent to interfere war effort 2 Cause or attempt to cause insubordination disloyalty mutiny or refusal of duty in the armed forces 3 Willfully obstruct the recruiting or enlistment service of the united states ii Sedition Act of 1918 a Amendment to the Espionage Act b Made it a crime to 1 To attempt to obstruct the recruiting service 2 Utter or print or write or publish disloyal or profane language that was intended to cause contempt of or scorn for the federal government the constitution the flag or uniform of the armed forces iii U S Post Office censorship 6 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE a Censored newspapers books and pamphlets by forcing them to use costly first class rates or find other means of distribution iv War dissenters a People didn t want to be drafted and protested the war by doing everything they could to not let the government draft v Criminal syndicalism a Sedition statutes that prohibited the display of a black flag or red flag etc C THE SMITH ACT 1940 AIMED DIRECTLY AT
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