Table of Contents Foreword _______________ 1 1. Libertarian Theory versus Regulation 2 2. Government Regulation of Print 4 2.1. Sedition and Advocacy of Violence. 4 2.2. Prior Restraint. 6 3. Government Regulation of Broadcasting 7 3.1. Section 315. 8 3.2. Fairness Doctrine. 9 3.3. Censorship. 10 3.4. Other Agencies. 13 4. Court Regulations. 13 4.1. Closed hearings. 13 4.2. Gag Orders. 13 4.3. Disclosing Sources. 13 4.4. Canon 35. 14 4.5. Televising trials. 14 5. Laws against Obscenity. 14 6. Laws to Protect the Public 16 6.1. Libel Laws. 16 6.2. Invasion of Privacy. 20 6.3. Access to Information. 22 Bibliography 23
Foreword I think communication is mankind’s most important single act. When improperly performed it turns friends into enemies and plunges nations into war. This is why I decided to focus my attention towards what is nowadays one of the most controversial issues in every nation: the mass media. I have always strongly believed that people need and have to speak out; otherwise, their deepest feelings, thoughts and beliefs will remain latent inside of them, unuttered, and will eventually burst out destroying those connections that keep human beings together. There are several reasons for which I chose this subject (“Legal Controls on the Mass Media”) for such an important paper: first of all, I think that a free press is a vital necessity for a society based on democracy in which the people consider to be their own governors; secondly, I think that the mass media represent the most significant means of mass communication and among the prospects of my future career plans there is also a journalistic one, therefore I thought that writing about such a topic would mean broadening my horizon in this captivating domain; and last but not least I felt it was necessary to carefully look into and clarify those elements situated at the border line between the mass media and the institutions that accuse it, blame it, censor it, and most importantly fear it. It is more than natural that I chose to talk about the mass media in that country in which its forefathers fought for the right of freedom of expression: the American mass media. Freedom of political expression is the most basic of American democratic rights. The First Amendment in the Bill of Rights not only guarantees free speech but a free pres as well and it also provides the foundation for the freedom of expression – the right of individual Americans to hold and communicate views of their choosing. The American mass media have a long and oppressive history during which the people have fought to obtain and strenghten the right of freedom of expression. Since its very beginning, the American mass media have been in the middle of the controversy between the autoritarian and the libertarian concepts. The first one supports the idea that the media should be controlled so that they do not interfere with the mission of the government, while the latter emerged from the premise that the media should serve the people rather than the government and that the best way to reach the truth is to have as many opinions aired as possible. In America the mass media is considered to be the defendant of the people, the medium through wich knowledge and opinion needed for a self governing society is spread. Society’s chief weapon against the actions of the government are words and this is why the American mass media serve as the “watchdog” of government, being considered the fourth governmental power structure. However watchdogs can sometimes bark at good people and bite not only thieves but innocent men. This is where the need to regulate the mass media came from. Freedom of expression can be denied if it endangers national security, wrongly damages the reputation of others or deprives others of their basic rights and freedoms. Although the American Constitution grants freedoms for the press the mass media are regulated by various laws, the most stringent protection being imposed by the government on the broacasting media and the print media. In addition to this the mass media are controlled by the judicial branch of the government. Taking into account the fact that the mass media are represented by people working for the people there is also a strong necessity to pass legislation in order to protect the people and offer them legal recourse when injured by the media: laws against obscenity and invasion of privacy. On the whole, I would say that I really enjoyed writing this paper which made it clear for me that the right to speak one’s mind is a right worth fighting for. Legal Controls on the Media 1. Libertarian Theory versus Regulation Freedom of political expression is the most basic of American democratic rights. Unless citizens can freely express their political opinions, they cannot properly influence their government or take action to protect their other rights. They also cannot hear what others have to say, and thus cannot judge the merits of alternative views. In contrast to the authoritarian view that the mass media should be controlled so that they do not interfere with the mission of the government, the libertarian theory emerged from the premise that the government should solely act in the best interest of the American individual. It holds that the media should serve the people rather than the government and that the best way to reach the truth is to have as many opinions aired as possible. Media scholar Wilbur Schramm contended that the libertarian movement was: “foreshadowed in the sixteenth century, envisioned in the seventeenth, fought for in the eighteenth and finally brought into widespread in the nineteenth.” The libertarian theory emerged during the Age of Enlightenment, a century which resulted from a number of developments in Europe during the early modern period. Among these developments were the geographical discoveries, the rise of trade and consumerism, the rise of the merchant class which led to the growth of a middle class, the Protestant Reformation which freed the individual from established church dogmas, political and social revolutions that challenged the authoritarian concept and championed the individual rights and freedoms. Many philosophers and writers supported and helped shaping the libertarian concept: John Milton, John Locke, Isaac Newton, Adam Smith, Benjamin Franklin, Thomas Jefferson, John Stuart Mill. A letter which Thomas Jefferson wrote to a friend in 1787 reveals the philosophy behind the libertarian theory of the American press: “I am persuaded that the good sense of the people will always be found to be the best army.They may be led astray for a moment, but will soon correct themselves. The people are the only censors of their governors; and even their errors will tend to keep these to the true principles of their institution. To punish these errors too severely would be to suppress the only safeguard of the public liberty. The way to prevent these irregular interpositions of the people, is to give them full information of their affairs through the public channel of the public newspapers, and to contrive that those papers should penetrate the whole mass of the people. The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate to prefer the latter.” Jefferson also pleaded for the need of a literate society and qualified his position favoring a society with free newspapers by saying: “I should mean that every man should receive those papers and be capable of reading them.” James Madison, another framer of the American Constitution expressed his views on the significance of a free press to the America’s experiment in democracy as follows: “Nothing could be more irrational than to give people power and to withhold from them information without which power is abused. A people who mean to be their own governors must arm themselves with power which knowledge gives. A popular government without popular information or means of acquiring it is but a prologue to a tragedy or farce or perhaps both.” People like Madison, Jefferson and others made the libertarian theory of the press become an inherit part of the American experiment in democracy. Therefore, the First Amendment in the Bill of Rights guarantees not only free speech but a free press as well. The First Amendment provides the foundation for the freedom of expression – the right of individual Americans to hold and communicate views of their choosing. Taking into account the fact that the press serves as a “watchdog” of government, it is also often considered a fourth branch of the governmental power structure. Although freedom of expression represents the most basic of American democratic rights, this right, however is not an absolute one. It does not entitle individuals to say or do whatever they want, to whomever they want, whenever they want, especially if this endangers national security, wrongly damages the reputations of others or deprives others of their basic freedoms, cases when free expression can be denied. An individual’s thoughts are completely free but words and actions may not be. One example would be the case of the militant abortion group Operation Rescue. When its members gathered in protest outside the abortion clinics in Wichita, Kansas, they were acting within their constitutional right of free speech. But when they used force to restrain pregnant women from entering the clinic they were no longer within their legal rights and arrested. Exercising their right of free expression, antiabortion protestors gathered outside a Long Island clinic in 1991. Many of them were arrested, however, when their blockade prevented women from entering the clinic and exercising their right to have an abortion. Another example would be that of the longest and probably the most embarrassing libel suit in history which questioned how much liberty does a journalist have in weaving together quotes. The problems of Jeffrey Masson, a Freudian psychoanalyst began when he dared to challenge some of Freud’s ideas on the importance and prevalence of child abuse. The result of his profile in The New Yorker in 1983, after accepting to be interviewed by journalist Janet Malcolm, was 40 hours of tape - recorded interviews that Masson accused to be some “weaving together of a variety of quotes.” Masson claimed that he had been “totally betrayed”, misquoted and libeled by Malcolm. The journalist contended that Masson betrayed himself and that if he didn’t say exactly what she quoted him as saying, he inferred it during the interview at one time or another. Ten years later, a federal jury found Malcolm guilty of libeling Masson by publishing five quotes that were obviously fabricated. The journalist compressed several of Masson’s statements and passed them off as direct quotes. After the end of the suit, opinions were controversial. Some defended Malcolm by claiming that all journalists “clean up quotes” in order to make them more intelligible and grammatically correct, others felt embarrassed by Malcom’s lack of regard for accuracy. As one journalist admitted: “It’s bad for all of us that she lost the case, but it’s bad for all journalists that she got herself there in the first place.” Many other cases like this one made it clear that the need to regulate the American mass media and to impose restrictions on how much freedom of expression the media have is vital for a truthful American society. The First Amendment says, with no limiting words that “Congress shall make no law… abridging the freedom of the speech or of the press.” Although some affirm that the First Amendment was meant to be absolute, the Courts have disagreed. In 1919 Supreme Court Justice Oliver Wendell Holmes, Jr. said that the First Amendment was not absolute and that under certain conditions Congress had the power to restrict free speech that was “of such nature as to create a clear and present danger to the nation’s security.” He also stated his famous analogy: ”The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theatre and causing panic”, as to support the Court’s position that if there were clear signs of present dangers free speech could be abridged. On the other hand, both the Fifth and the Fourteenth Amendments say that persons can be deprived of life, liberty or property with due process of law. Even though the Constitution grants freedoms for the press, the American mass media are regulated by various laws of the land, the most stringent regulation that exists being imposed by the government on broadcasting media and the print media; in addition audio and video tapes and CDs are restricted by various laws governing obscenity. 2. Government Regulation of Print 2.1. Sedition and Advocacy of Violence. The first legislative attempt by the U.S. Government to restrict free expression was the Sedition Act of 1798. Sedition – defined roughly as expression attacking government’s form, laws, institutions, or officers – is a criminal act many centuries old. The crime of seditious libel or “sedition” has a long history. Consider the case of William Prynn, a prude who advocated strict Puritanism. He was fined 10,000 £ and given life imprisonment for denouncing in his book Histrio Mastix such popular pastimes as dancing, hunting, Christmas – keeping, and play – going. The attack was inferred from Prynn’s assertion that lewd women and whores acted in plays: It seems the Queen of England had taken part in a pastoral play at Somerset House. A year later, in 1637, Dr. John Bastwick and Henry Burton were treated similarly by the infamous Court of the Star Chamber for their attacks on the Pope. Today, treason is thought of as betraying a nation to an enemy. In fourteenth century England treason meant not only making war against the king or giving aid and comfort to enemies, it also included “compassing the death of a king”, or imagining his death. (Put this concept in a twentieth century form: How many times have citizens heard and read comments “imagining the death of the President of the United States”?). The most famous trial which still symbolizes press struggles for freedom to criticize the government took place in 1735 and it involved New York Weekly Journal printer Peter Zenger who became a hero of press freedom by getting into the middle of a bitter factional dispute in New York colony politics. The attacks of lawyer James Alexander that labeled New York Governor William Cosby a tyrant and oppressor of the colony were anonymously published in John Peter Zenger’s New York Weekly Journal. The colony’s attorney general accused the journalist of sedition and Zenger remained in prison for eight months awaiting trial for seditious libel. Alexander prepared to defense Zenger but he was unable to do so because Chief Justice De Lancey appointed by Cosby disbarred Alexander from practising law. It was, however, the ablest attorney in the colonies, Alexander Hamilton of Philadelphia who pleaded Zenger’s case. The law of sedition had long held that the defendant was not to be permitted to plead that his offending words against government were true; the truth, it was held, only aggravated the offense, for it was more likely than falsehood to cause the target to seek violent revenge and breach the community’s peace. Furthermore, the law had given the jury only a minor role in a sedition trial: to decide whether the accused had, indeed, printed the words. It was up to the court to decide whether they were illegal words. Hamilton ended his plea in an emotion charged courtroom: “Men who injure and oppress the people under their administration provoke them to cry out and complain , and then make that very complaint the foundation for new oppressions and prosecutions… gentlemen of the jury, it is not the cause of a poor printer, nor of New York alone, which you are trying. No! It may, in its consequences, affect every freeman that lives under a British government, on the main of America. It is the best cause; it is the cause of liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery, will bless and honor you as men who have baffled the attempts of tyranny…” In a short time the jury emerged with a “not guilty” verdict. The court trial for the seditious libel was finished for the colonial period as an instrument for control of the press. Not for 40 years or more would seditious libel be used again in America. It was only seven years after the adoption of the Bill of Rights and its First Amendment that the Alien and Sedition Acts were written in 1798, at a time of high public and official alarm. With France and England in conflict through the 1790’s, America had been pulled by both toward war. The Republicans – Jefferson’s party – had favored France, while the Federalists sided with England. After a year of partisan attacks on the Federalists who were in power, these laws were passed to suppress some critics. It was the Sedition Act that most affected the Republicans. The act outlawed false, scandalous and malicious criticism of the President, Congress or the government, with the intent to defame them or to bring them into disrepute. Fourteen people, all Republican newspapermen and publicists, were prosecuted under the Act, for making offhand, humorous remarks about President John Adams. The Jeffersonian Republicans supported the idea that the Acts were unconstitutional in making it a crime to criticize the President and the government. They argued that a people cannot call itself free unless it is superior to its government, unless it can have unrestricted right of discussion. Using the unpopularity of the Alien and Sedition Acts as a campaign issue Republican Thomas Jefferson defeated the Federalist Party and President John Adams in his reelection bid in 1800. After the victory Jefferson pardoned everyone convicted under the laws which were allowed to expire in early 1801. The Espionage Act of 1917 and the Sedition Act of 1918 adopted First Amendment restrictions in the twentieth century, too. The laws accused anyone who openly opposed America’s involvement in World War I. Some 2,000 people were prosecuted under these laws and restrictions were imposed on ethnic newspapers, especially German publications. Schenck v. United States (1919) was the first case to challenge these laws. Charles T. Schenck, a socialist leader was prosecuted for circulating antiwar leaflets to army recruits and draftees. Though he argued he acted under the First Amendment protection of free speech, the Court upheld his conviction on the basis of wartime circumstances and it was in this case that Justice Holmes formulated the clear and present danger doctrine. The Supreme Court did not adhere to its own standard, however. Less than a year after Schenck, the Court upheld the conviction of six anarchists for writing a pamphlet protesting the U.S. government’s attempts to overthrow the newly formed Bolshevik regime in Russia. Holmes disagreed, writing that the “anarchists’ silly leaflet” posed no substantial threat to the United States. Along with Justice Louis D. Brandeis Holmes argued that government should not be allowed to limit expression unless it posed an “imminent” danger to national security. In 1940 the government passed the Smith Act which made it illegal to advocate the forceful overthrow of the U.S. government or to conspire to advocate such violence. During the Cold War that followed World War II, many Americans perceived the Soviet Union as bent on destroying the United States through internal subversion and global expansion. Public anxiety was intensified by Senator Joseph McCharthy’s sensational allegations that communists have infiltrated key positions in the U.S. government. In this climate of terror the Supreme Court allowed government to limit free expression. In Dennis v. United States (1951) the Court upheld the Convictions of eleven members of the U.S. Communist party who had been prosecuted under the Smith Act. In the mid 1950’s the tension of the Cold War began to subside and the Supreme Court modified its Dennis position. In 1957, in Yates vs. Unite States the lower – court convictions of fourteen Communist party members under the Smith Act were overturned because evidence indicated that they had not directly advocated lawless action. The Court ruled that their advocacy was theoretical and therefore protected by the First Amendment. In subsequent rulings the Court stated that only active, high ranking communists with a “specific intent” to destroy the U.S. government are subject to conviction. Since the 1930’s, the Supreme Court has protected the freedom of expression from action by the states and local governments. A leading free – speech case was Brandenburg v. Ohio (1969). The appellant was a Ku Klux Klan speaker who said at a public rally that “revenge” might have to be taken if the national government “continues to suppress the white Caucasian race.” He was convicted for advocating violence under an Ohio law prohibiting “Criminal syndicalism”, but the Supreme Court reversed the conviction, ruling that the First Amendment prohibits a state from suppressing speech that advocates the unlawful use of force “except where such advocacy is directed to inciting or producing imminent lawless action, and it is likely to produce such action. 2.2. Prior Restraint. It has long been believed that the chief purpose of the First Amendment guarantee is to prevent previous restraints upon publications. Journalists and civil libertarians have long counted pre-publication censorship as the most despised of all controls. Prior restraint’s origins may be traced back virtually as long as there has been printing. It was tied in sixteenth and seventeenth century England to requiring printers to get permission or license from government to publish. And then censors pored over every word, to make sure that nothing harmful to those in authority would be printed. Obviously, if government can stop publication before it occurs, that is the ultimate in represiveness. Although it is true that a person may be deterred from publishing by the threat of post-publication punishment (as in the case of libel, invasion of privacy, or obscenity), that is not the issue here. As the U.S. Supreme Court has said: “If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it…” The power of government to approve who might publish, or to order non-publication – under threat of punishment – has a long and oppressive history. In revolutionary America, the readers and printers considered that whatever the quicksilver phrase “freedom of the press” meant, it meant an end to prior restraint. If the press were to act as a check on government or to aid society by spreading knowledge and opinion needed for a self-governing society, prior restraint could not be tolerated. Society’s chief weapon against the institution, which possessed the power of guns and police, was words. Government attempts to use prior restraint have taken place with almost predictable regularity, when some form of crisis occurred. During pre-Civil War days when Abolitionists’ agitating threatened the “peculiar institution” of slavery, the South often used prior restraint as a weapon. Postmasters often refused to deliver mailings from northern anti-slavery societies. During the Civil War northern generals would occasionally shut down pro-South (“Copperhead”) publishers. President Abraham Lincoln himself ordered the closing of newspapers on one occasion. Later in the nineteenth century, heavy restrictions on publishing and distributing of materials discussing sex were extensively used, and prior restraint was part of the control. The belief that the framers of the Bill of Rights intended the First Amendment to provide for a free marketplace of ideas and that no idea, including one that may be unpopular or repugnant, should be suppressed, was reinforced in 1931 by the Supreme Court in the case of Near v. Minnesota. The case involved J.M.Near and Howard Guilford, two publishing partners in producing The Saturday Press, a Minneapolis “smear sheet” which charged that gangsters were in control of Minneapolis gambling, bootlegging and racketeering, and that the city law enforcement and government agencies and officers were derelict in their duties. It vilified Catholics and Jews. And it also happened to contain the articles that eventually required the Supreme Court of the United States to make one of the most notable descriptions of the extent of freedom of the press in America. When a court declared Near’s newspaper, which had been critical of government officials in Minnesota, a public nuisance and ordered it closed, Near appealed to the Supreme Court, which ruled in his favor. The conclusion of the Court was that the Minnesota action was a form of prior restraint and a violation of the First Amendment. (It did mention, however, that Near could be sued for libel if he printed untrue and defamatory statements). In 1971, the case of New York Times Co. v. United States challenged the First Amendment in the Pentagon Papers case. Several newspapers had begun printing the papers in serial form based on documents compiled by the Rand Corporation. The Nixon administration obtained a prior-restraint order barring the New York Times, Washington Post and Boston Globe from continuing to publish the papers, that were actually a critical history of the Vietnam War. The case reached the Supreme Court, which ruled that the government could not prove which were the elements in the papers that would harm the national security. After winning the case the newspapers resumed printing the documents and they were joined by the book-publishing industry. Although many were those who supported the right of the media to print the papers, few of them were interested in reading the newspaper series after the court lifted the prior-restraint order. In 1979, The Progressive magazine published an article entitled “The H-Bomb Secret: How we got it and Why We Are Telling It”; the article, which had been compiled from nonclassified public documents, offered readers indications how to make a hydrogen bomb. The action filed by the Carter administration led to the restraint of the magazine. The government was forced to eventually drop the case against The Progressive the moment an identical article appeared in the Madison Press Connection. A Supreme Court showdown between the government and the media as to The Progressive’s right to publish the article versus the government’s right of prior restraint never took place. In November 1990, the Supreme Court approved a federal judge’s gag order forbidding CNN from airing tapes of Manuel Noriega’s jailhouse telephone conversations. While the former Panamanian dictator was awaiting his trial on drug charges, the government had secretly recorded the tapes which were acquired by CNN and broadcast. The Supreme Court ruled 7-2 on the prior restraint order which had to be lifted because the damaging tapes had already been aired. The U.S. Supreme Court has approved prohibition of newspaper publication of material from pre-trial “discovery” proceedings. During the 1970’s, in fact, a striking extention of prior restraint burst out as courts across the nation forbade publishing of accounts of part or all of the records in pre-trial hearings and even in trials. No phase of prior restraint has been more alarming in recent years. 3. Government Regulation of Broadcasting With the advent of the new medium of radio in the 1920’s many stations, trying to get on the air, often used the same or adjacent radio frequencies, interfering with each other’s transmissions. Although at the beginning there were few regulations concerning radio broadcasting, among which the ship-to-shore types of radio communication, the mess on the airwaves made the governmental regulation of broadcasting a priority. Many broadcasters, as well as Secretary of Commerce Herbert Hoover become focused on the issue. In order to solve the problem, Hoover held a series of four Radio Conferences during the 1920’s inviting all parties involved to discuss the problem and suggest solutions. Many proposals reached Congress but no action was taken until President Calvin Coolidge finally urged Congress to carefully deal with the problem. The first measure taken was the Radio Act of 1927 which established The Federal Radio Commision, a five member board that was appointed to settle a system for licesing new radio stations and assigning frequencies and power to stations already functioning. Congress decided that after the completion of the project the FRC would disband and that the Secretary of Commerce would be in charge of further regulation and licesing action. But the FRC was still operating when telephone and telegraph were brought under the same communication blanket at President Franklin Delano Roosevelt’s request. The result was the Communications Act passed by Congress in 1934 which in addition to the former legislation of the 1927 Act replaced the “temporary” FRC with a permanent Federal Communications Commission. The act clearly mentioned that all broadcasters would have to be licensed, meet certain professional standards, and broadcast in the “public interest, convenience and necessity” if they wanted to keep their licenses. The actions of the new FCC and Congress emerged from the premise that the airwaves belong to the public, and not to private broadcasters. Decisions concerning broadcasters were taken depending on how responsible they were when serving the public interest. When the issue of the FCC’s right to refuse to renew licenses of radio stations involved in questionable broadcast practices was first raised, the courts ruled that government could not prevent a station in advance from broacasting something (that would be a form of prior restraint), but it could denie license renewal if the past performance review of the station revealed it didn’t operate in the best public interest. Although clauses in both the 1927 Radio Act and the 1934 Communications Act mentioned clearly that “Nothing in this act shall be understood or construed to give the licesing authority the power of censorship”, the U.S. Criminal Code does ban the broadcasting of materials that could be perceived as obscene, profane or indecent. Moreover, the FCC established legislation regarding fraud and lottery information. Even if they were created to protect the broadcasting stations from overlapping each other’s frequence, government laws have been extended to content as well. The FCC required broadcasters to air programes of a certain content, insisting that news, public affairs, educational and informational programes attracted most the public’s attention. 3.1. Section 315. Because broadcast frequencies are a scarce resource, licenses are required by law to be somewhat evenhanded during election campaigns. Section 315, included in both the 1927 and 1934 legislation was created to protect candidates for political office. This requirement, which does not apply to any print medium imposes on broadcasters an “equal time” restriction, which means they cannot sell or give air time to one candidate without granting equal opportunities to other candidates running for the same office (Election debates are an exception; broadcasters have the right to sponsor them and limit participation to nominees of the Republican and Democratic parties only). Section 315 applies not only to free time given to a candidate, but also to political commercials. Therefore, during campaigns broadcasters are required to make air time available for purchase by all candidates in the same air time periods and at the same cost. FCC’s Section 315:Broadcast Regulation for Candidates Sec 315. (a) If a licensee shall permit any person who is legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, that such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any – bona fide newscast, bona fide news interview, bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscast, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interestand to afford reasonable opportunity for the discussion of conflicting views on issues of public importance. (b). The changes made for the use of any broadcasting station by any person who is a legally qualified candidate for any public office in connection with his campaign for nomination for election, or election, to such office shall not exceed – during the forty-five days preceding the date of a primary or primary runoff election and during sixty days preceding the date of a general or special election in which such person is a candidate, the lowest unit charge of the station for the same class and amount of time for the same period; and at any other time, the charges made for comparable use of such station by other users thereof. (c). For purposes of this section – the term “broadcasting station” includes a community antenna television system; and the terms “licensee” and “station licensee” when used with respect to a community antenna television system mean the operator of such system. (d). The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section. The media can do a more through job of promoting candidates than party organizations ever could. Ann Richards is shown here taping a radio commercial during her successful campaign for the Texas governship in 1990. 3.2. Fairness Doctrine. Until recently broadcasters were also bound by the fairness doctrine, another important FCC requirement that was abolished in 1987. The concept of broadcast “fairness” emerged from years of specific decisions made by the FRC and the FCC in determining the exact extent of a licensee’s obligation to provide the public with balanced coverage of controversial matters of public importance. In 1949, the FCC issued the first formal description of this doctrine, declaring: ”One of the most vital questions of mass communications in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning the vital public issues of the day.” Elaborating on this concept, the Commission established a twofold obligation for every broadcaster: to devote a reasonable amount of time to the coverage of important public issues, and to provide this coverage in a fair and balanced manner. Cigarette advertising on television and radio was caught in such a controversy in the 1960’s, when the fairness doctrine was first applied to advertising content. The first result of this debate was a requirement that broadcast stations running cigarette adevertising had to air counter ads telling of the harmful effects of smoking. The ads began appearing in 1968 and led to the decline of cigarette smoking. Several tobbaco industries accepted in 1971 a total ban of cigarette advertising in the electronic media. When the advertising stopped, so did the counter ads and soon the sales of cigarettes began to climb. If the case of cigarette advertising can be used as a precedent, banning beer and wine commercials will not help solve the nation’s alcoholic problem, but increase the number and frequency of counter ads might help. In the Red Lion decision from 1969 (named after a five-year-old personal attack case involving the Red Lion Broadcasting Company in Pennsylvania), the Supreme Court reinforced the fairness doctrine. The case offered the first opportunity to consider the First Amendment issues raised by the fairness doctrine. Justice White, speaking for a unanimous court, declared in affirming the doctrine that the federal government did have the constitutional authority to require broadcasters to furnish their audiences with balanced coverage of controversial issues of public interest, because: “It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the government itself or a private licensee…It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” However, a federal court of appeals challenged this decision in the 1980’s when it ordered the FCC to reconsider its position on the fairness doctrine – implying that it might not be constitutional. In 1984 the Commission found that Meredith Broadcasting, owner of a television station in Syracuse, New York, had violated the doctrine’s provisions by refusing to balance editorial advertisments supporting the buildng of a nuclear power plant with anti-nuclear energy public service announcements pointing out the drawbacks of this source of energy. The broadcaster argued that the rule violated his First Amendment rights. In 1987, broadcasters, on the grounds that the fairness doctrine infringed on press freedom, persuaded the FCC to rethink its position. The Commission eventually abandoned the fairness doctrine, saying that it wished to”extend to the electronic media the same First Amendment guarantees that the print media have enjoyed since our country’s inception”. Anticipating this ruling both houses of Congress had passed legislation earlier in the year to codify the fairness doctrine. However, President Reagan vetoed the bill, saying that “it was antagonistic to the freedom of expression.” After President Clinton’s election in 1992, Congress made efforts to pass fairness doctrine legislation again. However, they received strong opposition from religious broadcasters who thought that law might compell them to offer equal time to gays and lesbians whom they regularly accused as being sinful, and also from radio and television hosts, such as Rush Limbaugh, who had no desire to balance their attacks on the government and political opponents by giving equal air time. 3.3. Censorship. Books, films, music, works of art have been suppressed, altered, expurgated, bleeped, blackened, cut, burned or bowdlerized. Writers and artists have been imprisoned, fined, fired or silenced. Wearing many masks, censorship has appeared in American living rooms under the name of “national security”, “’classification”, “selective inclusion”. Books have been removed from shelves or never published at all. Artistic visions have been circumscribed or lost. Scientific or official state documents, positing objectivity, have not remained immune from the red pen. Every day some form of censorship occurs in the U.S. This prevalence of the red pen in a country founded on the Bill of Rights suggests that many people consider some things or ideas too dangerous or offensive to be made widely available. The broadcasting acts of 1927 and 1934 technically prohibit any form of censorship practiced by the FCC. Despite this, the Supreme Court ruled in 1977 that FCC is entitled to ban the broadcast of certain materials and ideas which might be considered indecent, especially during hours when children are probably in front of the TV sets. The case involved a New York radio station that played a George Carlin comedy recording, “Seven Words You Can Never Say On Television”. Most listeners thought they shouldn’t be uttered on afternoon radio either. Although the FCC supports the idea that it is the marketplace that should regulate the airwaves, it does has the power to punish stations for broadcasting objectionable material. In 1989 four radio stations were fined for transmitting “indecent material” in the daytime and four others received letters of warning. In 1990 the well known public broadcasting station WGBH-TV was subject to investigations focusing on the 10 pm newscast, when the station showed several examples of Robert Mapplethorpe’s controversial photography. In 1992 the FCC adopted legal controls that defined the term of “indicency” as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexualy or excretory activities or organs”. As a result all broadcasts of such indecent materials were banned, until 1993 when a federal court of appeals struck down the ban. When U.S. troops landed in Mogadishu, Somalia, they were greeted not by enemy forces but by a horde of journalists with cameras and strobe lights.
An exception on how far media censorship can go is the coverage of military operations. The Persian Gulf War provoked a strong debate about whether such censorship is justified on national security grounds or is a violation of the Constitutional right of press freedom. During the U.S.’s participation in the Persian Gulf War the press was subject to substantial restrictions. Military authorities organized a media pool, a small number of journalists allowed to act as standins for the whole press corps. They also imposed severe limits under which journalists had to work in Saudi Arabia: journalists couldn’t travel freely and reporters were required to have a military escort; they could interview only selected soldiers, in the presence of a superior officer, and had their news reports reviewed by military censors. All journalists who disagreed the Gulf War were kept out of the media pool, and in order to ensure further favorable coverage the U.S. government flew hometown reporters to Saudi Arabia, on the assumption that they would be more likely to write human interest stories about the troops than tough-news stories about the war itself. Reporters were also denied acces to all sites that might have provided controversial material for news reports. For example, at one point, U.S. pilots bombed and strafed Iraqui troops who had left their positions and were in full retreat from Kuwait; the U.S. military buried the dead in a mass grave before allowing reporters acces to the scene. U.S. journalists from the press pool film the allied land offensive during the Persian Gulf war. The military’s restrictions on press coverage provoked a debate about whether such censorship is justified on national security grounds or is a violation of the constitutional right of press freedom. The press protested against the tight military censorship, though not in a very harsh way. The Nation and some other liberal publications brought the case to court, but major newspapers and televisions networks avoided to join them. The suit challenged the censorship policy which supposedly had no justified national security purpose and that imposed an unconstitutional prior restraint on the freedom of the press. The Justice Department stated that the policy was created to assure the protection of the U.S. forces in the gulf and it would be discontinued when the conditions in the war zone permitted. When the suit was finally heard the ground war had ended and the press restrictions were lifted, therefore, because the restrictions were no longer active, a federal judge declared the question moot. Opinion pools taken during the Gulf War showed that most Americans opposed the military censorship of the press. Many of them agreed with the necessity of censorship in order to protect the troops in the field. According to a March Survey led by The Times Mirror a 2 to 1 majority admitted that “military censorship is more important than the media’s ability to report important news”; whereas the same survey indicated that the public had an equal level of confidence in both the military and the media. 45% of those interviewed declared that the media coverage of the news was “excellent”. 3.4. Other Agencies. There are 80 other government entities that just like the FCC pass legislation that concern broadcasters, among which the Federal Aviation Administration, which is in charge of the placement of lights on broadcasting towers and antennas in order to be seen by aviators, as well as the Federal Trade Commission (FTC), which monitors advertising on television and the print media. The FTC has always closely looked into the effects of advertising on children, especially during Saturday morning shows. Other agencies concerned about regulating mass media advertising are the Food and Drug Administration, the U.S. Postal Service, as well as the Alcohol, Tobacco, and Firearms Bureau. 4. Court Regulations. The American mass media are also regulated by the judicial branch of the government. The First Amendment right of a free press and the Sixth Amendment guarantee of a fair trial have always represented the two conflicting provisions which brought the media and the courts at war. The free press versus fair trial conflict usually appears when the press is hunting sensational or highly publicized cases. In 1954 the Cleveland press senzationalized the case of Dr. Sam Sheppard who was on trial in Ohio for murdering his wife. After the press printed “guilty” in Sheppard’s case even before the jury’s decision, the Supreme Court ruled in Sheppard’s favor, citing unfair publicity. 4.1. Closed hearings. Many judges and attorneys believe that when the press tries to cover every aspect of a case before the finalization of the trial, the jury’s ability to reach an impartial verdict is highly affected. Therefore, many judges have barred the press and the public from pretrial hearings. In 1986, however, the Supreme Court ruled against the California Supreme Court decision that pretrial hearings could be closed. In the 7-2 decision, the Court found in favor of the Riverside Press-Entreprise, ruling that “public access in criminal trials and the selection of jurors is essential to the proper functioning of the criminal justice system. California preliminary hearings are sufficiently like a trial to justify the same conclusion.” The Court also mentioned that only when the defendant’s right to a fair trial is affected judges may close pretrial hearings. Voluntary press-bar guidelines have been set up in some states in an effort to balance the needs of the press, the bar and the public. 26 states have adopted such guidelines, which, however, have no legal force and are effective only as long as all involved parties act reasonably and resposibly. 4.2. Gag Orders. Gag orders are another effective means by which courts limit what attorneys and court officials can say to the press and also restrict what the press can print or broadcast. Journalists who thought that gag orders violated their First Amendment rights and the public’s right to be informed have been found in contempt of court. 4.3. Disclosing Sources. Many journalists have been jailed for contempt of court when refusing to disclose sources or turn over personal materials, such as notes, tapes, photographs and films. Although in some states there are laws which permit journalists to protect the identity of their sources, these laws are completely inefficient at the federal level. In a 5-4 decision in 1972, the Supreme Court ruled that journalists could no longer protect their sources if subpoenaed to testify in court proceedings. 4.4. Canon 35. By the 1990s the long standing rules known as Canon 35, which banned cameras, tape recorders, and microphones from the courtrooms have been lifted in more than 40 sates. The rule against cameras was instituted in the 1930s, when loud, popping flash units were used. In 1937, two years after the trial of Bruno Hauptmann (who was accused of kidnapping and murdering the young son of the national hero Charles Lindbergh), the American Bar Association adopted Canon 35 as part of its Canons of Professional Ethics. In 1952 and 1963 the ban on photography was extended to include radio and television equipment as well. Photography and broadcast equipment have since become less conspicuous, and the journalists have been struggling to get the ban lifted and they have finally achieved some results. 4.5. Televising trials. Though many people say that televising trials turn attorneys and judges into actors and makes a mokery of justice, this type of broadcasting has gained acceptance in recent years. In states where trials were transmitted on TV, the conclusion was that judges and attorneys were better prepared and more alert. 5. Laws against Obscenity. Laws against obscenity or pornography have been constantly in conflict with First Amendment provisions of free speech and artistic expression. One of America’s most literate and articulate judges – United States Court of Appeals Judge Leonard P. Moore – once wrote about obscenity law with sour resignation: “It is unfortunate that these matters have to come before the courts”. He was describing the enormous amounts of time and efforts that American Courts have spent grappling with what Justice John Marshall Harlan once termed “the intractable obscenity problem”. From the mid-1950s through the 1970’s, every term brought the Supreme Court dozens of obscenity cases, causing Justice Robert H. Jackson to observe that it seemed to be becoming the High Court of Obscenity. Jackson was prophetic. For years, aging, dignified members of the Supreme Court have been compelled to spend countless hours weighing the artistic merit of descriptions or depictions of a mind-boggling assortment of natural and perverse sexual activities. In common usage, the term “obscene” has generally applied to those representations of sexual behaviour that the average person would find to be, “foul, disgusting, offensive to common decency and morality; lewd or lascivious sexual conduct.” During the first one hundred years of America’s history as a nation, obscenity was never a burning issue. Congress had passed the Tarrif Act of 1842 that forbade the “importation of all indecent and obscene paintings, lithographs, engravings and transparencies”, but it was not until the 1870’s that the first major anti-obscenity campaign was first launched in this country. Anthony Comstoc, a persistent and skillful moral crusader, was able in 1873 to muster enough political support to persuade Congress to pass legislation that made distributing obscene material through the mails a criminal offence. This federal law became the forunner of many other obscenity laws. Once these laws had been enacted, it was then up to the American courts to decide how they should be applied. Laking precedents from earlier American case law, these courts were forced to turn to English common law for guidence, discovering and adopting that rule establish in 1868 in the case of Regina v. Hicklin. In Hicklin, Lord Chief Justice Cockburn ruled that an anti-Catholic pamphlet, The Confessional Unmasked, was obscene. Lord Cockburn set down this test for obscenity: “Whether the
