First Amendment and Government Regulation

COMMUNICATIONS LAW OUTLINE

FIRST AMENDMENT AND GOVERNMENT REGULATION

First Amendment and the Media

1) Generally

a) First Amendment

i) Addresses only Congress

ii) Now applies to state because of 14th action

b) Common law

i) Treason

ii) Licensing

(1) Free speech beginning

iii) Seditious libel

(1) Criminal action used against criticism of government or government officials

(2) Truth wasn't a defense, but an aggravating factor

(3) Judge decided subjectively what counted as seditious

(4) Jury decided whether publication occurred

(5) Prosecutor didn't need grand jury indictment

(6) Zenger trial - jury basically assumed power to decide whether the speech was actually libelous and wrongful

iv) Prior restraints generally held invalid in both England and US

2) Speech and Press Clauses

a) “Or of the Press” – Potter Stewart

i) The press clause gives independent power to the press in recognition of its structural importance to the country

(1) Protects an institution rather than an individual

(2) Creates a fourth institution outside the government as an additional check

b) Miami Herald Publishing Co. v. Tornillo (1974)

i) The First Amendment Speech and Press Clauses bar a FL state statute granting a "right of reply", i.e. forced access to the media, to a candidate for political office.

(1) The force of precedent is that any compulsion to publish that which 'reason' tells a newspaper should not be published is unconstitutional

(2) FL statute fails to clear barriers of First Amendment because of its intrusion into the function of editors

(3) A content-based regulation that acts as a penalty via a chilling effect

3) Electronic Media

a) Red Lion Broadcasting Co. v. FCC (1969)

i) FCC can implement personal attack rule for political candidates because of the scarcity of broadcast resources, which significantly limits the number of potential voices that can be heard over the airwaves

ii) Purpose of First Amendment is to preserve an uninhibited marketplace of ideas, and monopoly of that market, either by the government or by private interests, must be avoided

(1) It is the right of the viewers and listeners that is “paramount”

(2) Licensees treated as proxies for the general public, obligated to give suitable time and attention to matters of great public concern

iii) Vacated in 2000, and not followed for cable (Turner Broadcasting System, Inc. v. FCC (Turner I)) or internet (Reno v. ACLU).

b) Other justifications for disparate treatment

i) Public ownership

ii) Intrusiveness

iii) Pervasiveness

iv) Inability to control access

v) Power (dissemination?)

vi) Vividness

vii) Glorification of violence

viii) Impact on children

4) Standards of review

a) Literalist

i) No law means no law – not used today

b) Balancing

i) Strict Scrutiny – narrowly tailored or least restrictive means to achieve a compelling government interest

(1) Restriction is presumptively invalid

(2) Content-based regulations, unless targeting only low value speech

ii) Intermediate Scrutiny – substantially related to an important government interest

(1) Content-neutral, or content based but targeting only low-value background

(2) Regulations that affect expression but do not target expression

iii) Rational basis – rationally related to a legitimate government interest

(1) Restriction is presumptively valid

c) Time, place, and manner restrictions

Forms of Government Regulation

1) Content-Based vs. Content-Neutral

a) Content-Based

i) Always implicate First Amendment concerns and generally requires strict scrutiny analysis

ii) Simon & Schuster Inc. v. N.Y. State Crime Victims Board (1991)

(1) Strikes down NY law requiring criminal’s income from works depicting their criminal acts be deposited in fund for victims

(2) Rejects argument that content-based laws only face strict scrutiny when they intend to discriminate or target the media

(3) Interests advanced by the state rejected

(a) Depriving criminals of the profits of their crimes (compelling, but statute is too broad)

(b) Compensating victims (compelling, but statute too broad)

(c) Ensuring that criminals don’t profit from storytelling before victims have a chance to be compensated (narrow, but not compelling because no reason storytelling should be any different than any other profits)

(4) Kennedy concurrence

(a) Rejects strict scrutiny in favor of an absolutist approach – once CBR is established, invalid unless speech is categorically excluded, e.g. obscenity

iii) Landmark Commc’ns, Inc. v. Virginia (1978)

(1) VA law imposing criminal sanctions for disclosing information on confidential proceedings of commission charged with investigating judicial misconduct is facially invalid because the restriction on the freedom of speech is too great for the justification given.

(a) Injury to official reputation is an insufficient reason for repressing otherwise protected speech

(i) Institutional reputation of the courts is entitled to no greater weight

(b) 40 other states have similar commissions and have not used criminal sanctions against nonparticipants to enforce confidentiality

(i) i.e., there are alternative ways to accomplish the policy goal of confidentiality

(2) Stewart concurrence in the judgment

(a) Statute is not facially invalid, but it is unconstitutional as applied to a newspaper because of the 1st amendment

(3) Categorical approach urged by Landmark, that all truthful reporting about matters of public concern is protected by the 1st amendment, is deemed "unnecessary"

iv) Smith v. Daily Mail Publ’g Co. (1979)

(1) If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order (strict scrutiny).

(a) WV law making it a crime for a newspaper to publish the names of juveniles in connection with delinquency proceedings without a written court order

(i) Newspapers learned of killing over police radio, and obtained the name of the suspect by asking witnesses, police, and prosecuting attorney

(b) State action to punish the publication of truthful information seldom can satisfy constitutional standards

(i) Prior restraint – once the truthful information is publicly revealed or in the public domain, a newspaper cannot be constitutionally restrained from publication

(d) Interest in juvenile anonymity is important, but subordinate to Sixth Amendment right to confrontation; also subordinate for First Amendment

(i) Moreover – law not sufficiently tailored, since it only targets newspapers, not radio or anything else. Means don’t serve the ends.

b) Content-Neutral

i) Turner Broadcasting System, Inc. v. FCC (1994) [intermediate scrutiny applied]

(1) Principle inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of agreement or disagreement with the message it conveys

(a) Content-based purposes may be sufficient, it is not always necessary

(2) Must-carry rules are neutral

(a) Burdens imposed are unrelated to content of speech, e.g. manner of speaking (broadcast v. cable), number of channels (does not distinguish between cable programmers)

(b) Purpose is to ensure the continued availability of free local broadcast television

(i) The fact that such stations have local content that congress finds important does not render the regulation content-based; instead only that congress thinks such stations have some intrinsic value worthy of preservation

(3) The First Amendment does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication

(4) United States v. O’Brien (1968) test

(a) CNR will be sustained if

(i) Furthers an important or substantial governmental interest

(ii) If the governmental interest is unrelated to the suppression of free expression

(iii) If the incidental burden on First Am freedoms is no greater than is essential to the furtherance of that interest

1. Need not be least-restrictive means, but rather promotes an interest that would be less effectively absent the regulation

c) Prior Restraints

i) Near v. Minnesota (1931)

(1) Strikes down MN law that authorized abatement as a public nuisance of a newspaper that published malicious or scandalous information.

(a) Newspaper published a series of articles saying that a Jewish gangster was doing shit and the cops weren't doing anything to stop him.

(2) Liberty of the press has meant, principally although not exclusively, immunity from previous restraints or censorship.

(a) In colonial America, that liberty was esp cherished for the immunity it afforded from previous restraint of the publication of censure of public officers and charges of official misconduct.

(3) Madison: "Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding the proper fruits."

(a) Government has gotten more complex, and the liberty is more important than ever

(4) Opportunity for publisher to prove his story's truth and his good motives is meaningless protection from the infringement on liberty. If he has to bring it before a judge, the legislature could just as easily make it an executive officer, which is just censorship.

(5) Four Horsemen dissent

(a) This isn't a prior restraint in the historical sense of that term. Prior restraints were akin to England's censors, which had to approve ANY publication beforehand. This statute authorizes an injunction preventing FURTHER publication of specific material if the government can show it was defamatory or scandalous.

(b) Problem with dissent is that it ignores the fact that it still allows the government to prohibit speech before it is made.

ii) Alexander v. United States (1993)

(1) Operator of adult entertainment businesses was convicted of transporting multiple copies of obscene magazines across state lines. These convictions established a pattern of racketeering, which formed the basis of a RICO conviction. Forfeiture order allowed government to destroy all of Alexander's inventory, including millions of dollars of books and other speech material.

(2) Forfeiture is a punishment, not a prior restraint

(a) No more likely to chill speech than a prison sentence or a large fine

iii) Overcoming presumption of unconstitutionality

(1) New York Times Co. v. United States

(a) Injunction barring publication of Pentagon Papers unconstitutional.

(b) Prior restraint generally not acceptable unless disclosure will surely result in direct, immediate, and irreparable damage to our Nation or its people.

(2) United States v. The Progressive, Inc. (W.D. Wis. 1979)

(a) Article assembled data on how to construct a nuclear bomb

(b) Injunction issued, analogizing article to publications of troop movements or locations in time of war, thus falling within the narrow category of acceptable prior restraint

(3) Copyright infringement, trade secret law, preclearance of motion pictures (see Freedman)

(a) Freedman v. Maryland

(i) Procedural safeguards for exercising prior restraints

1. Censor bears the burden of proving that the speech is unprotected

2. A prompt judicial determination is required to validate the final restraint

(4) Statements that have been found to be defamatory are not protected by the First Amendment, and can therefore be subjected to prior restraint. Tory v. Cochran (2005) (Johnny Cochran coercion deal); Balboa Island Village Inn Inc. v. Lemen (Cal. 2007) (cranky neighbor complaining about bar)

iv) Disobeying injunctions

(1) Collateral bar doctrine – one charged with contempt for disobeying an injunction cannot defend on the ground that the injunction itself was unconstitutional

(a) Transparently invalid injunction

(i) Must have a good faith effort to seek emergency appellate review, then can proceed to publish and challenge the constitutionality of the order in the contempt proceedings

1. What counts as a timely appellate decision? Who knows

v) Be aware of difference between injunctions and criminal penalties after the fact

vi) Due process requires that reporters have notice of restraining order before they can be held in contempt for violating it. In re Court Order Dated October 22, 2003 (R.I. 2005).

Speech about Judicial Proceedings

1) Generally

a) Mere exposure of a juror to information or even predisposition on the question of guilt is insufficient to establish prejudice

b) Two types of prejudice

i) Actual prejudice (Urban v. Dow (1961))

(1) Publicity surrounding confession

(2) 8 of 12 jurors had a preconcieved notice

ii) Inherent prejudice (Doe case (1963))

(1) Extensive pre-trial publicity

c) Sheppard v. Maxwell (1966)

i) Extensive publicity before and during trial – “carnival atmosphere”

ii) Possible options for restricting speech

(1) Close courtroom doors or at least tell people to shut up and sit down

(2) Insulate witnesses

(3) Make an effort to control the release of lakes by cops, witnesses, and counsel

iii) Interpreted as a mandate to indirectly restrict news coverage before and during trials by restricting what the participants could tell the press

iv) Cf. Skilling case re Enron – larger jury pool in Houston, less prejudicial information, time between press coverage and trial, acquittal on some counts means jury wasn’t brainwashed

2) Restraints on Media

a) Nebraska Press Ass’n v. Stuart (1976)

i) Gag order on press

ii) Test

(1) Nature and extent of pretrial news coverage

(2) Whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity

(a) Sheppard options

(b) Change of venue

(d) Intense jury screening

(e) Clear jury instructions

(f) Sequestration of jurors

(3) How effectively a restraining order would operate to prevent the threatened danger

(a) Lack of jurisdiction over some of the media personnel

(b) Small community was going to talk about it anyway

iii) With respect to the order entered in this case prohibiting reporting or commentary on judicial proceedings held in public, the barriers have not been overcome and the restraining order is invalid.

b) BA post-Sheppard

i) Prohibited all pre-trial out of court statements by attorneys