This document summarizes key concepts regarding freedom of expression and the First Amendment. It discusses what constitutes free speech and different models of free expression. It examines what forms of expression are not protected, such as obscenity, libel, and speech that poses a clear and present danger. The document also analyzes how the First Amendment applies to new media like broadcasting and the internet, and how privacy and the right to a fair trial interact with free expression rights.

1. Chapter 13: Legal
Controls and
Freedom of
Expression
Campbell, R., et al. (2011). Media Essentials: A Brief
Introduction. Bedford/St.Martin’s. p.367-393
Aitza M. Haddad Nunez, J.D., LL.M.
Introduction to Mass Communication

2. First Amendment
 What constitutes “Free Speech” or “Free
Expression” and “Free Press”?
 From licensing printers in England to the Sedition Act in
U.S.
John Milton – Areopagitica
 “All sort of ideas – even false ones – should be allowed to
circulate. Eventually […] the truth would emerge.”
 Four Models:
 Authoritarian Model
 State or Communist Model
 Social Responsibility Model
 Libertarian Model
 Who should fulfill the civic role of watchdog?

3. Censorship and Prior Restraint
“A law has not been broken until an
illegal act has been committed.”
Exception – A threat to national security
Pentagon Papers Case
Clear and Present Danger criterion
Progressive Magazine Case
First time in America that a prior restraint order
imposed in the name of National Security
stopped initial publication of a news report.

4. Unprotected Forms of Expression
Sedition
Schenck v. United States (1919) – “Clear and
present danger” criterion as a limit to 1st
Amendment
Copyright Infringement
Public domain – Fair use
Golan v. Holder (2012) – permits for foreign
works published abroad after 1923 to be
removed from the public domain.
U.S. alignment with copyright protections of pother
nations or violation of the Copyright and Patent
Clause?
Abridgment of pre-existing freedom to speak?

5.  Obscenity
 Miller v. California (1973)
1. The Average person, applying contemporary
community standards, finds that the material as a
whole appeals to prurient interests.
2. The material depicts or describes sexual conduct in a
patently offensive way.
3. The material, as a whole, lacks serious literary, artistic,
political and scientific value.
 Offensive Speech?
 Government may not regulate offensive speech.
Court rejected the argument that “medium specific”
characteristics may soften First Amendment protections
or create new categories of unprotected speech.
 Protect discourse on matters of “public concern.”
 No “free-floating” power to restrict the ideas to which
children may be exposed.
Unprotected Forms of Expression

6. New Unprotected Form of
Expression?
Libel
New York v. Sullivan (1964)
Private person – falsehood, damages and
negligence.
Public Officials – falsehood, damages and
negligence, plus actual malice.
Best defense:
Truth
Rule of opinion and fair comment – includes
satire and comedy.

7. New Unprotected Form of
Expression?
Stolen Valor Act
2005 - it was a crime simply to lie about
military service and awards, even if the
person making such claims obtains no
material benefits as a result.
Violated a person’s First Amendment right to
free speech.
2008 - “Federal crime for an individual to
fraudulently hold oneself out to be a recipient
of any of several specified military decorations
or medals with the intent to obtain money,
property, or other tangible benefit.”

8.  Right to Privacy
Right to be left alone, without his or her name,
image or daily activities becoming public
property.
Laws that protect regular citizens’ privacy:
Privacy Act f 1974
The Electronic Communications Act of 1986
Laws weakening regular citizens’ privacy:
The Patriot Act of 2001
 Snyder v. Phelps (2011)
Westboro Baptist Church protests at funeral
protected by First Amendment because it’s a
matter of public concern.
Even when the church exploited the funeral for
publicity.
Privacy v. Public Concern

9. The 1st versus the 6th
Freedom of Expression and the accused’s
right to a speedy trial.
Gag orders
Speech restrictions on lawyers and witnesses as
a safeguard to ensure fair trial in heavily
publicized cases.
Court review in 1976 doomed them as a prior
restraint violation.
Shield laws
Reporters obligation to reveal their sources of
information used in news stories.
Reporter’s privilege may be lost is the reporter
fails to maintain sufficient independence from
his source.
No federal protection.

10. The 1st versus the 6th
 Laws regarding use of cameras in courtrooms
 New Jersey vs. Hauptmann (1934) – electronic
equipment so obtrusive that detracted the essential
dignity of the proceedings.
 Press-Enterprise Co. v. Superior Court (1984) – Broadcast
equipment started to became less obtrusive. Fair trials
not impossible.
Each state will implement its own system.
Supreme Court continues to ban TV but it 2000 broke its
anti-radio rule.
 Analogous application to all government institutions and
activities?
 Case-by-case
 Historical tradition of public access.
 Overriding interest.
 Restriction narrowly tailored to serve those overriding interests.

11. From 1890 to 1952
Films were subject to first to censorship by
citizen groups and lawmakers, and then to
the film industry’s self-censorship.
Local Review Boards – determine moral suitable
for the community.
African American Jack Johnson 1908
Championship
Mutual v. Ohio (1915) – “motion pictures a
not a form a speech but a “business pure
and simple”” with “a special capacity for
evil.”
The First Amendment and Film

12. Auto regulation of the industry
1920s – Actors and extras required to have
a “squeaky-clean reputations.”
Republican Will Hays president of the
MPPDA.
1930s to 1950 – Motion Picture Production
Code – no production that would “lower
the moral standards” of who sees it.
Burstyn v. Wilson (1952) – Movies are n
important vehicle for public opinion.
1960s – MPPDA, now MPAA, establish the
movie-rating system.
The First Amendment and Film

13.  Limited broadcast signals – scarce national
resource
 Fewer constitutional protections = more
governmental regulation
 Communications Act f 1934 – public interest,
convenience, or necessity
Not free to air whatever you want.
 Major differences between broadcast and
print.
 Red Lion Broadcasting Co. v. FCC (1969) – Public
interest outweighs broadcasters’ rights over their
content.
 Miami Herald Publishing Co. v. Tornillo (1974) –
Cant force a newspaper to give a candidate
space.
The First Amendment,
Broadcasting, and the Internet

14. Indecency
Remains undefined today but
government may punish broadcasters
after the fact.
FCC has the authority to require
broadcasters to air adult programing at
times when children are not likely to be
listening.
FCC v. Fox TV Stations, Inc. (2010)
Indecency Regulation Regime
Inconsistent and unconstitutionally Vague.
Chilling Effect
The First Amendment,
Broadcasting, and the Internet

15. Section 315 – Political Speech
During elections, broadcast stations must
provide equal opportunities and response
time for qualified political candidates.
If it qualifies as news, the opposing candidate
cannot invoke Section 315 and demand free time
Fairness Doctrine – Controversial Issues
1949 – required the airing of controversial
issues affecting the community
accompanied with competing point of
views.
It ended in1987 after a federal court ruled that it
was just a regulation and not an extension of
Section 315.
The First Amendment,
Broadcasting, and the Internet

16.  Internet
 One true venue for unlimited free speech.
Perfect medium to fight political oppression.
 Its global expansion outstrips laws and regulations.
 Barclays Capital Inc. v. Theflyonthewall.com,
Inc. (2011)
 Bars hot news misappropriation claims in many but not
all circumstances. Case-by-case.
Copying factual information collected and shared by
others.
 Hot news is “quasi-property.”
Right to uncover and report news deemed important
through “substantial organizational effort.”
Free-riding? Hot news misappropriation?
The First Amendment,
Broadcasting, and the Internet

17.  Important role of the news media – whether
print, radio, or the Internet.
 Shift in content – more as consumers than as citizens
 More difficult for journalists to lead critical
discussion about media ownership, media
regulation, and business practices.
 “More important than ever for citizens to share the
watchdog role with journalists.”
 “The First Amendment protects not only the news
media’s free speech rights but also the rights of
all of us to speak out.”
 We have to challenge government and business
leaders – rather than assuming that journalists will do so.
The First Amendment in a
Democratic Society