The Media of MASS COMMUNICATION
ELEVENTH EDITIONJohn VivianWinona State University
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By age 12, Jon Lech Johansen had written his first computer program. That made him a wunderkind of sorts. But nobody foresaw that he would, while still a teenager, devise programs that would shake the billion-dollar Hollywood movie industry to its core. His genius also would make him a folk hero to millions of movie-lovers worldwide.Jon-Lech, as he came to be lionized in his native Norway, began his trek to notoriety unwittingly. He loved movies. By 15 he owned 360 DVDs. Some he bought at jacked-up Norwegian prices because Hollywood’s geographical coding prevented European computers from playing U.S.-issued versions. Other DVDs he bought from U.S. sources, and with coding he invented, he played them on his computer. It all was perfectly legal in Norway. He recalls reveling at his accomplishment when he first ripped copies of The Matrix and The Fifth Element.“Why shouldn’t others share my enjoyment?” he asked himself. A week later, he posted his coding on the internet.Hollywood went ballistic, recognizing that Jon-Lech’s coding could be used to bypass the encrypting that prevented their DVD movies from being easily swapped through file-sharing. The revenue loss could be devastating. The Motion Picture Association of America pushed Norwegian authorities to act. Police raided the Johansen home, confiscated Jon-Lech’s computer, and put him through seven hours of interrogation. Confident he had done nothing wrong, Jon-Lech even gave police the password to his computer.Johansen thus found himself at the vortex of a continuing struggle between the rights of megamedia conglomerates that own creative material and the rights of individuals to do what they want with products they buy—in this case copying DVDs, and also music, to play on any number of their own devices.For the trial, Hollywood executives flew to Oslo to argue that Johansen had unleashed software that facilitated movie piracy and could leave the movie industry in ruins. Johansen responded that he had committed no wrongdoing, let alone piracy, and that he had a fundamental human right of free expression to share his coding however he wanted. In effect, he said: “Go after the pirates, not me.” Jon-Lech fancied himself a consumer advocate, allowing people to use their DVD purchases as they wanted—on computers at home, on laptops on the road, on handheld devices anywhere else. The court agreed. In fact, when the prosecution appealed, the court agreed again.In the run-up to the trial, Jon-Lech supporters worldwide distributed T-shirts and neckties printed with his software. In the May Day parade in Oslo, backers carried a banner “Free DVD-Jon.” Meanwhile, more than 1 million copies of his anti-DVD encryption software had been downloaded from Johansen’s site.For better or worse, depending on your perspective, Norway later revised its laws to forbid software that could be used to undermine copyright protections. The United States had done this earlier at the behest of giant media companies. But the issue lives on, as you will discover in this chapter on mass media law. This includes the most pressing media law dilemma in the early 21st century—the protection of intellectual property.
Products produced by mass media companies go by the legal name of intellectual property. Copyright law protects ownership rights to intellectual property. Other rights, including consumer rights and free expression rights, have arisen to challenge the long-held supremacy of copyright. Mass media companies are worried.
Copyright has been around since the beginning of the Republic. The founders wrote copyright law into the Constitution. When Congress first convened in 1790, the second law to be passed was for copyright. The whole idea was to encourage creativity. With creative work classified as property, creative people have a legal right to derive income from their works by charging for their use. An author, for example, can charge a book publisher a fee for publishing the book. Actually, it’s a little more complicated, but that’s the idea. The goal was to guarantee a financial incentive for creative people to keep creating. Why? The rationale was that a society is richer for literature and music and other creative works. Inventions, which are covered by patents, are a separate area of intellectual property law. But the idea is the same.copyrightProtects the ownership rights of creative works, including books, articles and lyricsintellectual propertyCreative works
Copyright law allows creators to control their creation. They can sell it, lease it, give it away or just sit on it. Copyright law is the vehicle through which creative people earn a livelihood, just as someone in the trades, like a carpenter earning money from carpentry or a landlord earning money by renting out real estate. Creators of intellectual property grant permissions for the use of their work, usually for a fee. Freelance photographers, as an example, charge magazines that want to use their photographs. Composers charge music publishers that want to issue their music.permissionsGrant of rights for a second party to use copyright-protected work
As a practical matter, most photographers, composers, authors and other creators of intellectual property don’t have the expertise or means to exploit the commercial potential of their work. Simon & Schuster, for example, can better market a hot murder mystery than can its best whodunit author. Imagine Jay-Z without Def Jam. Or a Mark Burnett eco-adventure show without CBS. Although there are notable Lone Rangers, the resources of major media companies make it attractive for the creators of intellectual property to sell or assign their rights to a media company. In exchange for the assignment of their rights, the originating creator usually receives a flat fee or a percentage of the eventual revenue.assignmentTransfer of ownership interest in a piece of intellectual propertyAlso, media companies hire creative people whose work, as part of their employment, belongs automatically to the company.For media companies, these rights are a treasure trove. It’s their product. It’s what they have to sell. No surprise, media companies vigilantly guard the studio’s intellectual property against theft, or piracy, as they call it. Hollywood studios each have dozens of attorneys who monitor for infringements of their copyrights. So do music companies. Magazines and newspapers are increasingly active in identifying infringements. Not uncommonly, media companies go to court against anyone who expropriates their property without permission and without paying a fee.piracyTheft of copyright-protected materialinfringementA violation of copyright
Predictably, mass media companies overreact when a threat to their tried-and-true business models presents itself. This has been no more true than in frenzied, almost Luddite attempts by media companies to apply copyright law to shield their old and comfortable ways of doing business. Time and again, media companies, wedded to the past, have failed to think outside the box and exploit new technologies. In fact, not since the glory days of RCA, which prided itself on research and development under David Sarnoff, have the established media companies been on the technological cutting edge.Recent history has shown media companies merely making tepid applications of technology for modest advantages in efficiency. Then, wham, they find their existence on the verge of being upended by innovators who are seeing new basic infrastructures and saying to hell with old business models. Consider the recorded music industry in the Napster and Grokster cases, and the book industry in the Google case.
In the 1990s, the music recording industry, entrenched in its traditional ways of doing business, was in a frenzy with music-swapping software sales eroding profits dramatically. First with Napster, then other peer-to-peer music-sharing services, people were bypassing the retail CD bins. Napster was the first to hit the dust, in a 2001 federal court case. Then came the case against Grokster, another peer-to-peer service. Grokster argued that its software was neutral as to the rights and wrongs of copyright law. Yes, said Grokster, there could be misuses but the recording industry’s legal target should be the misusers—not Grokster.GroksterInvolved in U.S. Supreme Court case that said promoting the illegal copying of intellectual property is an infringement on copyrightIn deciding the case in 2005, the Supreme Court noted that Grokster had explicitly promoted the copyright-infringement potential of its software. It was right there in the company’s own advertising. The ads were self-incriminating, the Court said. Grokster was out of business. The lesson is that infringement-enabling devices are all right as long as infringement isn’t encouraged.
In any event, the music recording industry was shaken by Napster and look-alike systems like Grokster. The end result, after the legal battles, was that the industry came out of its decades-old buffered ways, which had been shielded by copyright law, and embraced the new technology. Even by the time of the Grokster decision, the German-owned global media giant Bertelsmann had bought the remnants of Napster to find ways to market its music online. Also, Apple’s online music store, iTunes, introduced in 2002, was an instant success. Other online music sales outlets cropped up, sponsored by record makers, to capitalize on new technology—not to fight it or continue into denial about the technology-wrought new digital downloading reality.
The book industry, also entrenched in old ways, missed the potential of digital technology. Except for back-shop production efficiencies and minor forays with e-books, publishers had to be dragged kicking and screaming into the 21st century, like the movie and recording industries before them. Google was the reason.Fueled with untold revenues from its massively successful search engine in the early 2000s, Google expanded rapidly into new ventures. In 2005, Google executives talked five major libraries into allowing it to digitize their entire collections, 15 million books in the English language. The goal, then, was to create a single online index system, the Google Books Library Project, with worldwide free access.Google Books Library ProjectDigitizes 15 million English-language books for online index access by GooglePublishers first bristled, then sued. The publishers’claim was that their intellectual property interests would be jeopardized through free online access to copyright-protected works not yet in the public domain.Google and the Association of American Publishers reached a settlement in 2009. Almost immediately other groups including the Authors Guild as well as industry groups in other countries questioned the settlement and raised objections of their own. These issues may create new parameters on the protections afforded by copyright law. Whatever the outcome, the case further illustrates that mass media companies are less in control of the technology that is reshaping the world than are companies and individuals who specialize in the research and creative thinking that brings about technical revolution.
Imagine opening an urgent e-mail from the Recording Industry Association of America accusing you of illegally downloading hundreds of songs onto your computer. Indeed, you have used a file-sharing program you found on the internet to build your music collection. By doing this, the e-mail charges, you have violated federal copyright law. The law, you’re reminded, grants rights to an artist, publisher or distributor for exclusive publication, production, sale or distribution of artistic work. The message from the RIAA is threatening: Settle now for several thousand dollars or we’ll see you in federal court.A hoax? Not for several hundred college students who have received these “prelitigation” e-mails. Most students settle, despite feeling that they were unfairly singled out. After all, it’s estimated that more than half of all college students illegally download copyrighted music and movies. As one 20-year-old student who recently received the RIAA e-mail explained: “I knew it was illegal, but no one got in trouble for it.”Copyright infringements continue to cost the artistic community billions of dollars. And with less money to reward creativity, artists may be less able to support themselves financially, and the companies that distribute their art will be less willing to invest in the endeavors as a matter of diminishing return. This is a line of reasoning embedded in Article 1, Section 8, of the U.S. Constitution: “The Congress shall have power .. . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”A second argument against copyright infringement is that piracy hurts honest people. The piracy forces higher prices for artistic goods, like music, so that creators and rights holders can offset their losses to piracy.
Only a chump would pay for something that is available free. If a law is widely ignored it is archaic. It is time for copyright laws to go. Everybody’s doing it. Or just about everybody.
Stealing someone else’s work is hard to justify. It’s all the worse with the intellectual property because the theft discourages creativity that enriches the culture and the lives of everyone.DEEPENING YOUR MEDIA LITERACYEXPLORE THE ISSUE: Think of web sites that allow people to download music or movies legally.DIG DEEPER: Do you think the lawsuits brought by the recording industry will solve the problem of illegal downloading? Are there alternatives? Would legislation help? How about education programs starting in grade school?WHAT DO YOU THINK? Individuals who download music may not be the only ones being sued. Media giant Viacom has sued YouTube because its users can illegally upload Viacom movies. Is it just a matter of time before individual YouTube users are also sued for sharing copyrighted media without permission?
A core American value is that the government cannot impede free expression, which, of course, extends to mass communication. Although the U.S. Constitution bars government censorship, the courts have allowed exceptions. These exceptions include utterances that could undermine national security in wartime. In general the Supreme Court has expanded the prohibition on censorship over the years.
In colonial times as ill feeling grew against British authority, before the formation of the United States, a critical mass of libertarians ascended into leadership roles. These people were still in critical leadership roles when the Revolutionary War ended. These included many luminaries of the time—Thomas Jefferson, Benjamin Franklin, James Madison and John Adams. Their rhetoric excoriated the top-down authoritarian British governance system.In drafting the Constitution for the new republic, the founders, mindful of their experience as part of the British empire, were firm in their distrust of governmental authority. Also, they exalted the ability of people individually and collectively to figure out their way to the best courses of action through free inquiry and free expression in an unregulated marketplace of ideas. No surprise, the Constitution they put together prohibited government from interfering in free expression. The prohibition is in the Constitution’s First Amendment: “Congress shall make no law-abridging the freedom of speech or of the press.” The amendment, a mere 45 words, also prohibits government from interfering in religion. Also, it guarantees people the right to complain about the government and demand that wrongs be righted. Most relevant for media people are the free speech and free press clauses, which can be summed up as the free expression provision.First AmendmentProhibits government interference in free expression, religion and individual and public protests against government policiesfree expression provisionFirst Amendment ban against government abridgment of freedom of speech and freedom of the pressImplicit in the First Amendment is a role for mass media as a watchdog guarding against government misdeeds and policies. In this respect, in news as well as in other content areas, media are an informal fourth branch of government—in addition to the executive, judicial and legislative branches. Media have a role in governance to, in effect, ensure that the government is accountable to the people.fourth branch of governmentThe mass media
As ironic as it seems, merely seven years after the Constitution and the First Amendment were ratified, Congress passed laws to limit free expression. People were jailed and fined for criticizing government leaders and policies. These laws, the Alien and Sedition Acts of 1798, ostensibly were for national security at a time of paranoia about a French invasion. One of the great mysteries in U.S. history is how Congress, which included many of the same people who had created the Constitution, could pass the Alien and Sedition acts that so contradicted the anti-censorship provision of the First Amendment.Alien and Sedition Acts1798 laws with penalties for free expressionThe fact, however, is that nobody paid much attention to the First Amendment for more than 100 years of the nation’s history. The First Amendment was a nice idea but complicated. Nobody wanted to tackle tough questions, such as in the case of the 1798 laws, or whether exceptions to free expression were needed in times of war or a perceived threat of war.Many states, meanwhile, had laws that explicitly limited freedom of expression. The constitutionality of these laws too went unchallenged.Not until 1919 did the U.S. Supreme Court decide a case on First Amendment grounds. Two Socialists, husband and wife Charles Schenck and Elizabeth Baer, had been arrested by federal agents for distributing an antiwar pamphlet. They sued, contending that the government had violated their free-expression rights as guaranteed by the First Amendment. The Supreme Court turned down their appeal, saying that censorship is reasonable during a war,. But for the first time the justices acknowledged in the case, usually called Schenck v. U.S., that Freedom from government restraint is a civil right of every citizen.Charles Schenck, Elizabeth BaerPrincipal plaintiffs in 1919 U.S. Supreme Court opinion decided on First Amendment groundsNumerous other censorship cases also flowed from World War I. In 1925 the Court overruled a New York state law under which antiwar agitator Benjamin Gitlow had been arrested. Gitlow lost his case, but importantly, the Court said that state censorship laws in general were unconstitutional.Benjamin GitlowPrincipal in 1924 U.S. Supreme Court decision that barred state censorship laws
On a roll with the First Amendment, the Supreme Court in 1931 barred the government in most situations from silencing someone before an utterance. In Near v. Minnesota, the Court banned prior restraint.The case began after a sheriff padlocked the Minneapolis scandal sheet under a state law that forbade “malicious, scandalous and defamatory” publications. The great libertarian John Milton, who had articulated the marketplace of ideas concept in 1644, would have shuddered at the law. So did the U.S. Supreme Court. In a landmark decision against government acts to pre-empt free expression before it occurs, the Court ruled that any government unit at any level is in violation of the First Amendment if it suppresses a publication because of what might be said in the next issue.Near v. MinnesotaU.S. Supreme Court case that barred government interference with free expression in advanceprior restraintProhibiting expression in advanceNobody would much defend Near’s paper, the Saturday Press, just Near’s right to write whatever he wanted. Stories were peppered with bigoted references to “niggers,” “yids,” “bohunks” and “spades.” The court did say, however, that prior restraint might be justified in extreme situations. But exceptions must be extraordinary, such as life-and-death situations in wartime.Since the Near case, the Supreme Court has moved to make it even more difficult for the government to interfere with freedom of expression. In an important case, from the perspective of free-expression advocates, the Court overturned the conviction of a white racist, Clarence Brandenburg, who had been jailed after a Ku Klux Klan rally in the woods outside Cincinnati. Brandenburg had said hateful and threatening things, but the Court, in a landmark decision in 1969, significantly expanded First Amendment protection for free expression. Even the advocacy of lawless actions is protected, according to the Brandenburg decision, as long as it’s unlikely that lawlessness is imminent and probable. This is called the Incitement Standard. The distinction is that advocacy is protected up to the moment that lawlessness is incited. According to the Incitement Standard, authorities can justify silencing someone only if:Clarence BrandenburgKu Klux Klan leader whose conviction was overturned because his speech was farfetchedIncitement StandardA four-part test to determine whether an advocacy speech is constitutionally protected
Unless an utterance meets all four tests, it cannot be suppressed by the government.
In its wisdom the U.S. Supreme Court has avoided creating a rigid list of permissible abridgments to freedom of expression. No matter how thoughtfully drafted, a rigid list could never anticipate every situation. Nonetheless, the Supreme Court has discussed circumstances in which censorship is sometimes warranted.
The federal government jailed dozens of antiwar activists during World War I. Many appealed, prompting the U.S. Supreme Court to consider whether the First Amendment’s prohibition against government limitations should be waived in wartime. At issue in the Schenck case were anti-war pamphlets aimed at recently drafted men. The pamphlets made several points:
As the government prosecutor saw it, the leaflets encouraged insubordination and disloyalty in the military, even mutiny. The Supreme Court agreed that the government can take exceptional prerogatives when the nation is at war. Schenck and Baer lost.Since Schenck in 1919 the Court has repeated its point that national security is a special circumstance in which government restrictions can be justified. Even so, the Court’s thinking has evolved in specifics, and many scholars believe that Schenck and Baer today would have prevailed. Support for this assessment of the Court’s revised thinking came in an important 1972 case, during the Vietnam war, when the Court overruled the government for threatening the New York Times for a series of articles drawn from classified defense documents. In the so-called Pentagon Papers case, the Court said that the people’s right to know about government defense policy was more important than the government’s claim that the Times was jeopardizing national security.Pentagon PapersCase in which the government attempted prior restraint against the New York TimesBesides actions by the executive branch of government to infringe on free expression before the courts can respond, as in the Pentagon Papers case, the legislative branch sometimes creates laws that remain in force until the courts can act. Immediately after the 9/11 terrorist attacks on New York and Washington in 2001, for example, the Bush administration quickly drafted multipronged legislation to give authorities more power to track terrorists. Congress concurred and passed the Patriot Act by an overwhelming majority. Civil libertarians objected to provisions that allowed federal agents to ignore constitutionally guaranteed citizen rights, but Congress reasoned simply: Better to be safe than sorry.Patriot Act2001 law that gave federal agents new authority to pre-empt terrorism
The book industry mobilized against a provision that allowed federal agents to go into bookstores, unannounced and without close judicial oversight, and confiscate customer records to see who had bought books that might be used to aid or promote terrorism. The provision also allowed agents to go into libraries to see who had been reading what. To book publishers, authors, librarians and indeed all civil liberty advocates, the implications were alarming. They launched a massive lobbying effort to rescind parts of the Patriot Act that could chill citizen inquiry and expression. Their point was that the law’s effect would be to discourage people from reading works on a secret list of seditious literature. In time, as post-9/11 hysteria eased, the provision was rescinded.
In the Schenck case, the eloquent Justice Oliver Wendell Holmes wrote these words: “The most stringent protection of free speech would not protect a man in falsely shouting ‘Fire’in a crowded theater and causing panic.” His point was that the First Amendment’s ban on government abridgment of freedom of expression cannot be applied literally. Holmes was saying that reasonable people agree that there must be exceptions. Since then, lesser courts have carved out allowable abridgments. Some have been endorsed by the Supreme Court. On other cases the Court has been silent, letting lower-level court decisions stand.Oliver Wendell HolmesJustice who wrote that shouting “Fire!” in a crowded theater would be justification for abridgment of freedom of speech rightsIn a 1942 New Hampshire case, the police were upheld in jailing Walter Chaplinsky, who had taken to the streets to deride religions other than his own as “rackets.” Somebody called the police. Chaplinsky then turned his venom on the marshal who showed up, calling him, in a lapse of piety, “a God-damned racketeer” and “a damned fascist.” From these circumstances emerged the Fighting Words Doctrine.The Court said someone might be justified taking a poke at you for using “fighting words,” with perhaps a riot resulting. Preventing a riot was a justification for halting someone’s freedom of expression. Again, whether courts today would uphold Chaplinsky being silenced is debated among legal scholars. Nonetheless, the Fighting Words Doctrine from Chaplinsky remains as testimony to the Court’s willingness to consider public safety as a value that sometimes should outweigh freedom of expression as a value.Walter ChaplinskyNamesake for the case in which the Fighting Words Doctrine was definedFighting Words DoctrineThe idea that censorship can be justified against inciting provocation to violenceThe courts also accept time, place and manner limits by the government on expression, using the TPM Standard. Cities can, for example, ban newsracks from busy sidewalks where they impede pedestrian traffic and impair safety, as long as the restriction is content-neutral—an important caveat. A newspaper that editorializes against the mayor cannot be restricted while one that supports the mayor is not.TPM StandardGovernment may control the time, place and manner of expression as long as limits are content-neutral
Icelanders were angry. They had taken national pride in the growing international presence of their home-grown Kaupthing Bank. Then without warning, Kaupthing collapsed. The impact was horrendous on the Icelandic economy, not to mention the shattered national pride. The collapse saddled the island-nation with $128 billion in debts, an incredible $400,000 per citizen. The crisis rippled through the economy. Unemployment tripled. Angry Icelanders wanted to know: “How did this happen?”Big-time banking is a mystery to ordinary folks, which fueled suspicion when things went so wrong. Suspicions worsened when, 10 months later, the avuncular television news anchor Bogi Ágústsson went on the air to report that an expose on the Kaupthing meltdown could not be aired. The Kaupthing bank, as well as the London bank Barclay and Lucerne trader Trafigura had won a court injunction to suspend media reports drawn from the bank’s own books. Ágústsson told viewers, however, that they could visit the web site WikiLeaks.org to read the documents.WikiLeaks had posted shocking stuff. The documents detailed that Kaupthing had funneled more than $6 billion into sweetheart loans to some of the bank’s owners individually and to companies that they owned.WikiLeaks instantly attained a Robin Hood aura for putting the people’s information needs ahead of the Establishment. WikiLeaks founder Julian Assange was asked to keynote a Reykjavik conference on free expression. Poet Birgitta Jonsdottir, an outspoken Assange supporter, was elected to Parliament. Jonsdottir pushed through a document favoring legal protection for WikiLeaks’revelation of corporate and government secrets and to shield leakers from prosecution. An international award, modeled on the Nobel Prize, was set up for work for freedom of expression.Jondottir sees Iceland becoming a magnet for media companies, including whistler-blowers like WikiLeaks, that are looking for a place to locate their computer servers without laws elsewhere that interfere with the free flow of information. Media companies might even relocate their headquarters and editing staffs to Iceland to avoid laws in other countries against transparency. Jondottir’s vision is to prove anti-transparency laws elsewhere futile. She believe that Iceland can force a global shift to transparency—no more secrecy that can shield wrongdoers from public scrutiny. Eventually Jondottir sees full openness on institutional transactions that traditionally have been cloistered from public scrutiny and accountability—a New Information Order.Could Iceland indeed become a safe haven for WikiLeaks and similar organizations, like OpenLeaks. org, SaharaReporters.com, Transparency.org and Thailinks.info, which now play a cat-and-mouse game with authorities in many countries?A piece of the Jondottir vision is the Thor Data Center. In 2011 an abandoned aluminum factory 10 miles outside Reykjavik was reopened as a global host site for computer servers. The server farm, with 1,000 servers at its launch, draws cheap energy from Iceland’s natural thermal basins and dammed rivers. Arctic currents, which keep the annual median 50 degrees, provide low-cost cooling that is essential for high-volume computer servers that generate tremendous heat. Besides drawing clients from all over the world, the Thor server farm is key to reviving Iceland’s economy after the Kaupthing bank meltdown.
Iceland’s growing tolerance for the unfettered flow of communication has raised questions about the country’s becoming a haven for reckless libels that face restrictions in other countries. Think about libel flowing globally from immune servers in Iceland. Or pornography. Or repulsive invasions of privacy. Do you see this as a problem? Why or why not?If you ran a major media organization, would you consider relocating your operation to Iceland? Think about the advantage of immunity from legal restrictions on the flow of communication. Would there be a downside to operating out of Iceland?
The U.S. Supreme Court’s initial First Amendment decisions involved political speech. The justices had no problem applying protections against government interference to political discourse, which is essential in democracy. It became apparent, however, that a fence cannot easily be erected between political and nonpolitical discourse. Gradually, First Amendment protections have been broadened.
The strides of the U.S. Supreme Court in the 20th century for free expression were limited to political expression at first. The justices saw free exchanges of political ideas as necessary for a functioning democracy. Entertainment and advertising initially were afforded no First Amendment protection. They were considered less important to democracy than political expression. New cases, however, made it difficult to draw the line between political and nonpolitical expression.
A 1930 tariff law was used as an import restriction to intercept James Joyce’s Ulysses at the docks because of four-letter words and explicit sexual references. The importer, Random House, went to court, and the judge ruled that the government was out of line. The judge, John Woolsey, acknowledged “unusual frankness” in Ulysses but said he could not “detect anywhere the leer of the sensualist.” The judge, who was not without humor, made a strong case for freedom in literary expression: “The words which are criticized as dirty are old Saxon words known to almost all men, and, I venture, to many women, and are such words as would be naturally and habitually used, I believe, by the types of folks whose life, physical and mental, Joyce is seeking to describe. In respect to the recurrent emergence of the theme of sex in the minds of the characters, it must always be remembered that his locale was Celtic and his season Spring.”John WoolseyJudge who barred import law censorship of UlyssesWoolsey was upheld on appeal, and Ulysses, still critically acclaimed as a pioneer in stream-of-consciousness writing, remains in print today.Postal restrictions were used against a 1928 English novel, Lady Chatterley’s Lover, by D. H. Lawrence. The book had been sold in the United States in expurgated editions for years, but in 1959 Grove Pressissued the complete version. Postal officials denied mailing privileges. Grove sued and won.Grove PressFought against censorship of D. H. Lawrence’s Lady Chatterley’s LoverRandom HouseFought against censorship of James Joyce’s UlyssesIn some respects the Grove case was Ulysses all over again. Grove argued that Lawrence, a major author, had produced a work of literary merit. Grove said the explicit, rugged love scenes between Lady Chatterley and Mellors the gamekeeper were essential in establishing their violent yet loving relationship, which was the heart of the story. The distinction between the Ulysses and Lady Chatterley cases was that one ruling was against the customs service and the other against the postmaster general.
Courts had once claimed movie censorship as involving something unworthy of constitutional protection. But movies can be political. Witness the series of documentaries by Michael Moore in recent years. Or poignant political and social commentaries like Clint Eastwood J. Edgar, Andrew Niccol’s In Time and Tate Taylor’s The Help in 2011.It had been in 1952 that the Supreme Court widened First Amendment protection to movies in striking down a local ban on a controversial movie, The Miracle, in which a simple woman explained that her pregnancy was by St. Joseph. Some Christians saw the movie as blasphemy. The Court found, however, that government could not impede the exploration of ideas under the Constitution’s guarantee that expression should be free of government control.
Advertising, called commercial speech in legal circles, also was not easily separated from political speech, as the Supreme Court discovered in a libel case out of Alabama. The case originated in an advertisement carried by the New York Times to raise money for the civil rights cause. The ad’s sponsors included negative statements about Montgomery, Alabama, police. Being an ad, was this commercial speech? Or, being in a public policy issue, was it political speech? In the 1964 landmark case New York Times v. Sullivan, the Court found the ad to be political speech and began opening the door for First Amendment protection of advertising—although the process of full protection for advertising remains a work in progress.commercial speechLegalese for advertising
Polite society has never been particularly tolerant of vulgarities, but what if the vulgarity is clearly political? The issue was framed in the Vietnam war-protest era when a young man showed up at the Los Angeles courthouse wearing a jacket whose back carried a message: “Fuck the Draft.” Paul Robert Cohen was sent to jail for 30 days. The Supreme Court overturned the conviction. Justice John Harlan wrote that linguistic expression needs to allow for “inexpressible emotions,” sometimes called emotive speech. As one wag put it: Cohen wouldn’t have been arrested if his jacket had said, “The Heck with Conscription” or “I Really Don’t Like the Draft Very Much.” Instead Cohen chose to use more charged language—the F-word. His jacket conveyed the depths of his feelings about the draft. Justice Harlan said: “One man’s vulgarity is another’s lyric. Words are often chosen as much for their emotive as their cognitive force.”emotive speechExpressions whose excesses underscore the intensity of an emotion
Emotions run high on First Amendment issues when expression is obnoxious or even vile. The Supreme Court, however, takes the position that a society that is free and democratic cannot have a government that silences somebody just because that person’s views don’t comport with mainstream values. In effect, the Court says that people need to tolerate a level of discomfort in a society whose core principles value freedom of expression.This point, made in the Brandenburg case, has come up in Court decisions against hate speech laws that grew out of the political correctness movement of the 1990s. Especially notable was R.A.V. v. St. Paul.Several punks had burned a cross, KKK style, on the lawn of a black family in St. Paul, Minnesota. The punks, all of them white, were caught and convicted under a municipal ordinance against so-called “hate speech.” One of them, identified only as R.A.V. in court documents, appealed to the U.S. Supreme Court on First Amendment grounds. The Court found that the ordinance was aimed at the content of the expression, going far beyond allowable time, place or manner restrictions. The decision was a slap at the political correctness movement’s attempts to discourage language that can be taken offensively.hate speechOffensive expressions, especially those aimed at racial, ethnic and sexual-orientation minorities
Early commercial radio was a horrendous free-for-all. Government licensing was a joke. Stations went on the air at any frequency with as much wattage as they wanted. As the number of stations grew, they drowned each other out. To end the cacophony and create a workable national radio system, Congress established the Federal Radio Commission in 1927 to facilitate the orderly development of the new radio industry. A no-nonsense licensing system was put in place with licenses going to stations that could best demonstrate they would operate in “the public interest, convenience and necessity.”
Wait a minute? Government licensing based on performance sure smacks of government regulation. What about the First Amendment?To sidestep the First Amendment issue, Congress embraced the concept that the airwaves, which carried radio signals, were a public asset and therefore, somewhat like a public park, were subject to government regulation for the public good. The public airwaves concept was useful for justifying regulation of the 1927 chaos on the airwaves, but it also was problematic. Some stations that lost licenses made First Amendment objections, but the courts declined to address the inherent constitutional contradictions. The radio industry overall was pleased with the new federal regulatory structure. The system, today under the Federal Communications Commission, later was expanded to television.public airwavesConcept that broadcast should be subject to government regulation because the electromagnetic spectrum is a public assetOver time many early restrictions have been relaxed. No longer, for example, are stations expected to air public affairs programs as a condition for license renewal. Although the FCC talks tough about on-air indecency, old bans have become loosened with the times.
John Brinkley and his bride arrived in Milford, Kansas, population 200, in 1917 and rented the old drug store for $8 a month. Mrs. Brinkley sold patent medicines out front, while Brinkley consulted with patients in a back room. One day an elderly gentleman called on “Dr. Brinkley” to do something about his failing manhood. As the story goes, the conversation turned to Brinkley’s experience with goats in the medical office of the Swift meat-packing company in Omaha a job he had held for barely three weeks. Said Brinkley, “You wouldn’t have any trouble if you had a pair of those buck glands in you.” The operation was performed in the back room, and word spread. Soon the goat gland surgeon was charging $750 for the service, then $1,000, then $1,500. In 1918 Brinkley, whose only credentials were two mail-order medical degrees, opened the Brinkley Hospital. Five years later he set up a radio station, KFKB, to spread the word about his cures.John BrinkleyRadio quack who challenged government regulation of radioSix nights a week, Brinkley extolled the virtues of his hospital over the air. “Don’t let your doctor twodollar you to death,” he said. “Come to Dr. Brinkley.” If a trip to Milford was not possible, listeners were encouraged to send for Brinkley compounds. Soon the mail-order demand was so great that Brinkley reported he was buying goats from Arkansas by the boxcar. “Dr. Brinkley” became a household word. Radio Digest awarded Brinkley’s KFKB its Golden Microphone Award as the most popular radio station in the country. The station had received 356,827 votes in the magazine’s write-in poll. Brinkley was a 1930 write-in candidate for governor. Harry Woodring won with 217,171 votes to Brinkley’s 183,278, but Brinkley would have won had it not been for misspellings that disqualified thousands of write-in ballots.
Also in 1930 the KFKB broadcast license came up for renewal by the Federal Radio Commission, which had been set up to regulate broadcasting. The American Medical Association wanted the license revoked. The medical profession had been outraged by Brinkley but had not found a way to derail his thriving quackery. In fact, Brinkley played to the hearts of thousands of Middle America listeners when he attacked the AMA as “the meat-cutter’s union.” At the license hearing, Brinkley argued that the First Amendment guaranteed him freedom to speak his views on medicine, goat glands and anything else he wanted. He noted that Congress had specifically forbidden the FRC to censor. It would be a censorious affront to the First Amendment, he said, to take away KFKB’s license for what the station put on the air. Despite Brinkley’s arguments, the FRC denied renewal.Brinkley challenged the denial in federal court, and the case became a landmark on the relationship between the First Amendment and U.S. broadcasting. The appeals court sided with the FRC, declaring that broadcast licenses should be awarded for serving “public interest, convenience and necessity.” It was appropriate, said the court, for the commission to review a station’s programming to decide on renewal. Brinkley appealed to the U.S. Supreme Court, which declined to hear the case. The goat gland surgeon was off the air, but not for long. In 1932 Dr. Brinkley, proving himself unsinkable, bought a powerful station in Villa Acuna, Mexico, just across the Rio Grande from Del Rio, Texas, to continue peddling his potions. By telephone linkup from his home in Milford, Brinkley continued to reach much of the United States until 1942, when the Mexican government nationalized foreign-owned property.
How do you explain the skirting of First Amendment issues in early court decisions about federal regulation of broadcasting?Do you see a problem in a government agency establishing the requirements for a license to broadcast?Can you defend the broadcast licensing standard of “public interest, convenience and necessity”?
When the mass media carry disparaging descriptions and comments, they risk being sued for libel. The media have a strong defense if the disparagement was accurate. If not, there can be big trouble. Libel is a serious matter. Not only are reputations at stake when defamation occurs but losing a suit can be so costly that it can put a publication, broadcast or internet organization out of business.
If someone punched you in the face for no good reason, knocking out several teeth, breaking your nose and causing permanent disfigurement, most courts would rule that your attacker should pay your medical bills. If your disfigurement or psychological upset causes you to lose your job, to be ridiculed or shunned by friends and family or perhaps to retreat from social interaction, the court would probably order your attacker to pay additional amounts. Like fists, words can cause damage. If someone writes false, damaging things about you, you can sue for libel. Freedom of speech and the press is not a license to say absolutely anything about anybody.libelA written defamationIf a libeling statement is false, the utterer may be liable for millions of dollars in damages. The largest jury award to date, in 1997 against the Wall Street Journal, was almost twice the earnings that year of the Journal’s parent company. The award was reduced substantially on appeal, but the fact remains that awards have grown dramatically in recent years and can hurt a media company seriously.
Elected officials have a hard time winning libel suits today. Noting that democracy is best served by robust, unbridled discussion of public issues and that public officials are inseparable from public policy, the U.S. Supreme Court has ruled that public figures can win libel suits only in extreme circumstances. The Court has also said that people who thrust themselves into the limelight forfeit some of the protection available to other citizens.The key Court decision in developing current U.S. libel standards originated in an advertisement carried by the New York Times in 1960. A civil rights group escalated its antisegregationist cause by placing a full-page advertisement in the Times. The advertisement accused public officials in the South of violence and illegal tactics against the civil rights struggle. Although the advertisement was by and large truthful, it was marred by minor factual errors. Police Commissioner L. B. Sullivan of Montgomery, Alabama, filed a libel action saying that the errors damaged him, and he won $500,000 in an Alabama trial. On appeal to the U.S. Supreme Court, the case, New York Times v. Sullivan, became a landmark in libel law. The Supreme Court said that the importance of “free debate” in a democratic society generally was more important than factual errors that might upset and damage public officials. To win a libel suit, the Court said, public officials needed to prove that damaging statements were uttered or printed with the knowledge that they were false. The question in the Sullivan case became whether the Times was guilty of “reckless disregard of the truth.” The Supreme Court said it was not, and the newspaper won.New York Times v. SullivanLibel case that largely barred public igures from the right to sue for libelreckless disregardSupreme Court language for a situation in which public figures may sue for libelQuestions lingered after the Sullivan decision about exactly who was and who was not a public official. Lower courts struggled for a definition, and the Supreme Court eventually changed the term from public official to public figure. In later years, as the Court refined its view on issues raised in the Sullivan case through several decisions, it remained consistent in giving mass communicators a lot of room for error, even damaging error, in discussing government officials, political candidates and publicity hounds.
How far can mass communicators go in making disparaging comments? It was all right, said a Vermont court, when the Barre Times Argus ran an editorial that said a political candidate was “a horse’s ass, a jerk, an idiot and a paranoid.” The court said open discussion on public issues excused even such insulting, abusive and unpleasant verbiage. Courts have generally been more tolerant of excessive language in opinion pieces, such as the Barre editorial, than in fact-based articles
People flocked to see the Cherry Sisters’ act. Effie, Addie, Jessie, Lizzie and Ella toured the country with a song-and-dance act that drew big crowds. They were just awful. They could Complainants in a case that barred neither sing nor dance, but people turned out because the sisters were so funny. Sad to say, the Cherry Sisters took themselves seriously. In 1901, desperate for respect, the sisters vowed to sue the next newspaper reviewer who gave them a bad notice. That reviewer, it turned out, was Billy Hamilton, who included a lot of equine metaphors in his piece for the Des Moines Leader: “Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the flower of the family, a capering monstrosity of 35. Their long skinny arms, equipped with talons at the extremities, swung mechanically, and anon waved frantically at the suffering audience. The mouths of their rancid features opened like caverns, and sounds like the wailings of damned souls issued therefrom. They pranced around the stage with a motion that suggested a cross between the danse du ventre and the fox trot—strange creatures with painted faces and hideous mien. Effie is spavined, Addie is stringhalt, and Jessie, the only one who showed her stockings, has legs with calves as classic in their outlines as the curves of a broom handle.”The outcome of the suit was another setback for the Cherrys. They lost in a case that established that actors or others who perform for the public must be willing to accept both positive and negative comments about their performance. This right of fair comment and criticism, however, does not make it open season on performers i n aspects of their lives that do not relate to public performance. The National Enquirer, for example, could not defend itself when entertainer Carol Burnet sued for a story that described her as obnoxiously drunk at a restaurant. The story was false. Carol Burnett abstains from alcohol. The pivotal issue, however, was that Burnett, although a performer, was in no public or performing role at the restaurant. This distinction between an public an d private lives also has been recognized in cases involving public officials and candidates.
Despite the First Amendment’s guarantee of freedom of expression, the U.S. government has tried numerous ways during the past 100 years to regulate obscenity and pornography.
Through U.S. history, governments have attempted censorship of various sorts at various levels of jurisdiction. But since the courts overruled a government effort to ban James Joyce’s classic novel Ulyssesin the 1930s, much has occurred to discourage censorship.The U.S. Supreme Court has ruled that pornography, material aimed at sexual arousal, cannot be stopped. Import and postal restrictions, however, still can be employed against obscene materials. So how is obscenity different from pornography? The court said that government can restrict sexually explicit mass media content if the answer is yes to all of the following questions:pornographySexually explicit depictions that are protected from government bans
Although the Supreme Court has found that the First Amendment protects access to pornography, the Court has stated on numerous occasions that children must be protected from sexually explicit material. It’s a difficult double standard, as demonstrated by 1996 and 1999 federal forays into systematically regulating media content with communications decency laws. Without hearings or formal debate, Congress created the laws to keep smut away from children who use the internet. Although hardly anyone defends giving kids access to indecent material, the laws had two flaws: the difficulty of defining indecency and the impossibility of denying questionable material to children without restricting freedom of access for adults.indecencyTerm used by the Federal Communications Commission to encompass a range of words and depictions improper on public airwavesBefore a Philadelphia federal appeals court that reviewed the 1996 Communications Decency Act, witnesses from the Justice Department testified that the law went ridiculously far. The law, they said, required them to prosecute for certain AIDS information, museum exhibits, prize-winning plays and even the Vanity Fair magazine cover of actress Demi Moore nude and pregnant.
When it reviewed the 1996 Communications Decency Act, the U.S. Supreme Court noted that the internet is the most democratic of the media, enabling almost anyone to become a town crier or pamphleteer. The court said that enforcing the law would necessarily inhibit freedom of expression of the sort that has roots in the revolution that resulted in the creation of the Republic and the First Amendment. The 7-2 decision purged the law from the books.How, then, are government bans of indecency on radio and television justified but not on the internet? Justice John Stevens, who wrote the majority Supreme Court opinion, said the internet is hardly “invasive broadcasting.” The odds of people encountering pornography on the internet are slim unless they’re seeking it, he said. Underpinning the Court’s rejection of the Communications Decency Act was the fact that the internet lends itself to free-for-all discussions and exchanges with everybody participating who wants to. Other media, however, are dominated by carefully crafted messages aimed at people whose opportunity to participate in dialogue with the message producers is so indirect as to be virtually nil.Communications Decency ActFailed 1996 and 1999 laws to keep indecent content off the InternetEven while politicians and moralists rant at indecency, people seem largely unperturbed by the issue. The V-chip, required by a 1996 law to be built into every television set, allows parents to block violence, sexual explicitness and vulgarity automatically. Although the V-chip was widely praised when it became a requirement, hardly anybody uses it.In 2006, when Congress was in a new dither over objectionable content, movie industry lobbyist Jack Valenti came out of retirement to lead a $300 million campaign to promote the V-chip. Valenti made the point that stiff fines being levied against broadcasters for indecency are unnecessary because people already have the tool they need to block it, if they want: Turn it off.
Intellectual Property (Pages 417–420)Copyright law protects mass communicators and other creative people from having their creative work used without their permission. It’s an issue of property rights. Also, copyright law encourages creativity in society with a profit incentive for creative people. They can charge for the use of their work. The financial structure of mass media industries has been built around the copyright concept. Time and again technology has challenged media control over copyrighted content, most recently with downloaded music and video.Free Expression (Pages 421–426)The First Amendment to the U.S. Constitution guarantees freedom to citizens and mass media from government limitations on what they say. The guarantee has solid roots in democratic theory. Even so, the U.S. Supreme Court has allowed exceptions. These are mostly commonsense exceptions. They include utterances that could undermine national security in wartime. In general, however, the Supreme Court has expanded the prohibition on censorship over the years, all in the libertarian spirit articulated by John Milton in the 1600s.Broadening Protection (Pages 426–429)The U.S. Supreme Court addressed First Amendment issues for the first time after World War I and had little problem in declaring that government limitations were unacceptable for political discourse, albeit with specific exceptions. It turned out, however, that political speech has lots of crossover with literature, entertainment and advertising. Over time, the Supreme Court has broadened First Amendment protection into these additional areas of expression—although less exuberantly than for political issues. An odd exception has been broadcasting, for which the Court has never squarely addressed the contradictions between federal regulation and the First Amendment.Defamation (Pages 430-432)Someone who is defamed can sue for libel. This generally is not a constitutional free expression issue but a civil issue. If the defamation was false and caused someone to suffer public hatred, contempt or ridicule, civil damages can be awarded by the courts. Judgments can be severe, sometimes approaching $100 million. The courts have found some defamations excusable. The landmark New York Times v. Sullivan decision of 1964 makes it difficult for public figures to recover damages unless there has been reckless disregard for truth. Also, performers cannot sue for criticism of their performances, no matter how harsh.Indecency (Pages 433–434)Indecency revolts many people, but the U.S. Supreme Court in struggling with the issue has said, in effect, that indecency like beauty is in the eye of the beholder. The Court says the media are guaranteed freedom to create pornography and citizens are guaranteed freedom of access. However, sexually explicit material that goes too far—obscenity, the Court has called it—cannot be tolerated. But the Court has never devised a clear distinction between pornography, which is protected, and obscenity, which it says is not. In both categories, however, the Court has endorsed laws to punish purveyors of sexually explicit material to children.
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