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EDIA LAW

L E A R N I N G A H E A D

SHAKING UP HOLLYWOOD

By age 12, Jon Lech Johansen had written his first computer program. That made

him a wunderkid 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.

424

Jon Lech Johansen waits for his

case to begin in a Norway court.

The U.S. movie industry had gone after DVD-Jon, as he came to be called,

for publishing code that enabled others to copy disks. He was acquitted.

■ Copyright law protects intellectual

property, with a lot of twists

wrought by emerging technology.

■ The heart of U.S. mass media law

is the First Amendment’s guaran-

tee of free expression.

■ The First Amendment has come

to be applied more broadly over

the years.

■ Anyone falsely slandered by the

mass media may sue for libel.

■ Mass media generally may not

intrude on someone’s solitude.

chapter

Waiting for the Judge

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Intellectual Property 425

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 geo-

graphical 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 in Oslo. 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 com-

puter, and put him through seven hours of interroga-

tion. 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 con-

tinuing struggle between the rights of megamedia con-

glomerates 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 facili-

tated movie piracy and could put the movie industry in

ruins. Johansen responded that he had committed no

wrongdoing, let alone piracy, and that he had a funda-

mental human right of free expression to share his cod-

ing 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 again agreed.

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 car-

ried a banner “Free DVD-Jon.” The issue inspired a haiku.

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 perspec-

tive, Norway later revised its laws to forbid software

that could be used to undermine copyright protec-

tions, as the United States had done earlier at the be-

hest of giant media companies. But the issue lives on,

as you will discover in this chapter on mass media law.

The chapter includes the most pressing media law

dilemma in the early 21st century—the protection of

intellectual property.

Intellectual Property
STUDY PREVIEW

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 con-

sumer rights and free expression rights, have arisen to challenge the long-held supremacy of

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 sec-
ond 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 com-
plicated, but that’s the idea. The goal was to guarantee a financial incentive for cre-
ative people to keep creating. Why? The rationale was that a society is richer for liter-
ature and music and other creative works. Inventions, which are covered by patents,
are a separate area of intellectual property law.

Protects the ownership rights of
creative works, including books,
articles and lyrics

intellectual property

Creative works

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426

Imagine opening an urgent e-mail from the

Recording Industry Association of America accus-

ing 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

The Price of Free Music+

Piracy Not Nice. The recording industry, crippled by rev-

enue losses from music file-swapping, has gone after down-

loaders, mostly college students, for copyright infringement.

Legal settlements can run into thousands of dollars.

e-mail charges, you have violated federal copyright

law. The law, you’re reminded, grants rights to an

artist, publisher or distributor for exclusive publica-

tion, 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 stu-

dents who have received these “prelitigation”

e-mails. Most students settle, despite feeling that

they were unfairly singled out. After all, it’s esti-

mated 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.”

artistic community billions of dollars. And with

less money to reward artistic endeavors, some

are concerned that artists will not be able to sup-

port themselves and that the companies that

distribute the art will be less willing to invest be-

cause of diminishing returns. There are also those

who argue that copyright violators hurt honest

people because the artistic community has to

increase prices to offset losses to copyright

infringers.

DEEPENING YOUR MEDIA LITERACY

EXPLORE 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 record-

ing industry will solve the problem of illegal down-

loading? 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?

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Intellectual Property 427

CONSUMER RIGHTS

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, al-
most 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 technolo-
gies. In fact, not since the glory days of RCA, which prided itself on research and
development under David Sarnoff, have established companies been on the tech-
nological cutting edge.

Recent history has shown media companies merely making tepid applications of
technology for modest advantages in efficiency. Then, wham, they find their exis-
tence on the verge of being upended by innovators who are seeing new basic infra-
structures 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.

Grokster. In the 1990s, the music recording industry, entrenched in its tradi-
tional ways of doing business, was in a frenzy with music-swapping software
sales eroding profits dramatically. First with Napster, then other peer-to-peer mu-
sic-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 neu-
tral 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.

Grokster

Involved in U.S. Supreme Court
case that said promoting the illegal
copying of intellectual property is
an infringement on copyright

Permissions. Copyright law allows creators to control their creation. They can sell
it, lease it, give it away or just sit on it. The 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 charge magazines that want to use their photo-
graphs. Composers charge music publishers that want to issue their music.

Assignments. As a practical matter, most photographers, composers, authors
and other creators of intellectual property don’t have the expertise or means to ex-
ploit the commercial potential of their work. Simon & Schuster, for example, can bet-
ter 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 com-
pany. In exchange for the assignment of their rights, the originating creator usually
receives a flat fee or a percentage of the eventual revenue.

Also, media companies hire creative people whose work, as part of their employ-
ment, 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 their intellec-
tual property against theft, or piracy, as they call it. Hollywood studios have dozens
of attorneys who monitor for infringements of their copyrights. So do music compa-
nies. 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.

CHECKING YOUR MEDIA LITERACY

<> Who are the various parties that can own a copyright?

<> What recourse do copyright owners have against infringements?

infringement

A violation of copyright

piracy

Theft of copyright-protected material

assignment

Transfer of ownership interest in a
piece of intellectual property

permissions

Grant of rights for a second party
to use copyright-protected work

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428 CHAPTER 16 Media Law

Download Protest. Among

young people, emotions run high

about music. A widely held view is

that access to music should be

free. When the U.S. Supreme Court

was hearing the Grokster case

over software intended to facili-

tate music downloads without

the permission of copyright hold-

ers, protesters displayed their

disdain for the record industry’s

initiative to shut down

file-sharing.

In deciding the case in 2005, the Supreme Court noted that Grokster had explic-
itly promoted the copyright-infringement potential of its software. It was right there
in the company’s own advertising. The ads were self-incriminating ads, 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 go into denial.

Google. The book industry, also entrenched in old ways, missed the potential of
digital technology. Except for back-shop production efficiencies, which were invisible
to readers, and marketing web sites 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 sys-
tem, the Google Print Library Project, with worldwide free access.

Publishers first bristled, then sued. The 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 in-
dustry 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.

Google Print Library Project

Digitizes 15 million English-
language books for online index
access by Google

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Free Expression 429

CHECKING YOUR MEDIA LITERACY

<> How have the consumer rights movement and the copyright community collided?

<> What lessons about copyright can be derived from the Grokster decision?

<> What are the copyright issues in the Google library project?

Free Expression

STUDY PREVIEW

A core American value is that the government cannot impede free expression, which, of

course, extends to the mass media. Although the U.S. Constitution bars government censor-

ship, the courts have allowed exceptions. These exceptions include utterances that could

undermine national security in wartime. In general the Supreme Court has expanded the pro-

hibition on censorship over the years.

DISTRUST OF GOVERNMENT

In colonial times, before the formation of the United States, a critical mass of libertarians as-
cended into leadership roles as ill feeling grew against British authority. 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 experi-
ence 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 govern-
ment 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 de-
mand 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.

Implicit in the First Amendment is a role for the mass media as a watchdog guard-
ing against government misdeeds and policies. In this respect, the media, in news as
well as in other content areas, are an informal fourth branch of government—in ad-
dition to the executive, judicial and legislative branches. The media have a role in gov-
ernance to, in effect, ensure that the government is accountable to the people.

CHECKING YOUR MEDIA LITERACY

<> Describe the roots of the First Amendment in libertarian principles.

FIRST AMENDMENT REDISCOVERED

As ironic as it seems, merely six 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 so
contradict the anti-censorship provision of the First Amendment.

The fact, however, is that nobody paid much attention to the First Amendment
for more than 100 years of the nation’s history. It was a nice idea but complicated.

fourth branch of government

The mass media

free expression provision

First Amendment ban against gov-
ernment abridgment of freedom of
speech and freedom of the press

First Amendment

Prohibits government interference
in free expression, religion and in-
dividual and public protests
against government policies

Alien and Sedition acts

1798 laws with penalties for free
expression

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430 CHAPTER 16 Media Law

Clarence

Brandenburg

Nobody wanted to tackle tough questions, such as in the case of the 1798 laws,
whether exceptions to free expression were needed in times of war or a threat.

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, con-
tending that the government had violated their free-expression rights as guaranteed by
the First Amendment. The Supreme Court turned down their appeal, saying that cen-
sorship is reasonable in war, but the justices acknowledged in the case, usually called
Schenck v. U.S., that freedom from government restraint is a civil right of every citizen.

Numerous 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.

CHECKING YOUR MEDIA LITERACY

<> Explain the anomalies of the 1798 Alien and Sedition acts.

<> Explain the Supreme Court’s 130 years of First Amendment silence.

PRIOR RESTRAINT

On a roll with the First Amendment, the Supreme Court in 1931 barred the government
in most situations from silencing someone before an utterance. The ruling, in

Near

v. Minnesota, banned prior restraint. A Minneapolis scandal sheet had been padlocked
by the sheriff under a state law that forbade “malicious, scandalous and defamatory” pub-
lications. 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 preempt 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.

Nobody would much defend Near’s paper, the Saturday Press, just his right to
write whatever he wanted. Stories were peppered with bigoted references to “nig-
gers,” “yids,” “bohunks” and “spades.” The court did say, however, that prior re-
straint might be justified in extreme situations. But exceptions must be extraordinary,
such as life-and-death situations in wartime.

Since Near 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,

Free Expression Landmarks. Obscure, despised and discred-

ited, John Near and Clarence Brandenburg were little noted in obitu-

aries when they died. Decent photos weren’t even available. Even so,

Near and Brandenburg were key in important court cases that bar

government interference with free expression. Near’s Minnesota

scandal sheet had been shut down by a sheriff in the 1920s. He ar-

gued that the sheriff had violated the U.S. First Amendment, which

forbids government interference with free expression. The U.S.

Supreme Court agreed, in effect noting that Near’s outrageous hate-

mongering must be tolerated. In the case of Brandenburg, a white

supremacist in the 1950s, the court built on its Near reasoning with

explicit requirements that the government must prove to justify

limiting free expression. The requirements have virtually precluded

government censorship.

Near v. Minnesota

U.S. Supreme Court case that
barred government interference
with free expression in advance

prior restraint

Prohibiting expression in advance

Benjamin Gitlow

Principal in 1924 U.S. Supreme
Court decision that barred state
censorship laws

Charles Schenck,
Elizabeth Baer

Principal plaintiffs in 1919 U.S.
Supreme Court opinion decided on
First Amendment grounds

Clarence Brandenburg

Ku Klux Klan leader whose convic-
tion was overturned because his
speech was farfetched

Jay

Near
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Free Expression 431

according to the Brandenburg decision, as long as it’s unlikely that lawlessness is immi-
nent and probable. This is called the Incitement Standard. The distinction is that advo-
cacy is protected up to the moment that lawlessness is incited. According to the
Incitement Standard, authorities can justify silencing someone only if:

■ The statement advocates a lawless action.
■ The statement aims at producing lawless action.
■ Such lawless action is imminent.
■ Such lawless action is likely to occur.

Unless an utterance meets all four tests, it cannot be suppressed by the government.

CHECKING YOUR MEDIA LITERACY

<> How can restrictions on free expression be justified in view of the absolutist language
of the First Amendment?

<> What was the significance of Near v. Minnesota?

<> What is the Incitement Standard?

ALLOWABLE ABRIDGMENTS

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 dis-
cussed circumstances in which censorship is sometimes warranted.

National Security. 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. A federal prosecutor had gone after Charles Schenck of Philadelphia, general
secretary of the Socialist Party, and his wife, Elizabeth Baer, for handing out leaflets
aimed at recently drafted men. The pamphlets made several points:

■ The draft violated the 13th Amendment, which prohibits slavery.
■ The draft was unfair because clergy and conscientious objectors, like Quakers,

were exempted.
■ The war was being fought for the profit of cold-blooded capitalists, who, the

leaflets claimed, controlled the country.
■ Draftees should join the Socialists and work to repeal the draft law.

Martyred Political Prisoner.

Eugene Debs, a Socialist Party

leader, had run four times for the

presidency, in 1900, 1904, 1908

and 1912. He ran a fifth time, in

1920—this time from prison. Here,

party officials pose with Debs at

the prison after notifying him that

he had been nominated. He had

been sent to jail for making an an-

tiwar speech, a conviction that

was upheld by the U.S. Supreme

Court because of special national

security considerations in time of

war. Debs’ 1920 campaign photo-

graph showed him in prison garb

with bars in the background—the

martyred political prisoner. He

won almost 1 million votes. A year

later, President Warren Harding

pardoned Debs, who by then was

aged and ailing.

Incitement Standard

A four-part test to determine
whether an advocacy speech is
constitutionally protected

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432 CHAPTER 16 Media Law

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 over-
ruled 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 impor-
tant than the government’s claim that the Times was jeopardizing national security.

Public Endangerment. 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 allow-
able abridgments. Some have been endorsed by the Supreme Court. On other cases
the Court has been silent, letting lower-level court decisions stand.

In 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 “rack-
ets.” 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.

The 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 restric-
tion is content-neutral—an important caveat. A newspaper that editorializes against the
mayor cannot be restricted while one that supports the mayor is not.

CHECKING YOUR MEDIA LITERACY

<> What are the allowable exceptions to the First Amendment prohibition on govern-
ment interference with free expression? What is the basis for these exceptions?

<> What is the Fighting Words Doctrine?

<> Can you give an example of the TPM standard allowing government to ban a publica-
tion’s distribution?

Broadening Protection
STUDY PREVIEW

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.

Walter Chaplinsky

Namesake for the case in which
the Fighting Words Doctrine was
defined

Oliver Wendell Holmes

Justice who wrote that shouting
“Fire!” in a crowded theater would
be justification for abridgment of
freedom of speech rights

Pentagon Papers

Case in which the government at-
tempted prior restraint against the
New York Times

TPM Standard

Government may control the time,
place and manner of expression as
long as limits are content-neutral

Fighting Words Doctrine

The idea that censorship can be
justified against inciting provoca-
tion to violence

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Broadening Protection 433

POLITICAL EXPRESSION

The strides of the U.S. Supreme Court in the 20th century for free expression first
were limited to political expression. 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.

Literature. 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 al-
ways be remembered that his locale was Celtic and his season Spring.”

Woolsey 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 was sold in the United States in expurgated edi-
tions for years, but in 1959 Grove Press issued the complete version. Postal officials
denied mailing privileges. Grove sued and won.

In 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 ex-
plicit, rugged love scenes between Lady Chatterley and Mellors the gamekeeper were
essential in establishing their violent yet loving relationship, 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.

Entertainment. Courts had once claimed movie censorship as involving some-
thing unworthy of constitutional protection. But movies can be political. Witness the
movies of Michael Moore. The Supreme Court in 1952 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 gov-
ernment could not impede the exploration of ideas under the Constitution’s guaran-
tee that expression should be free of government control.

Advertising. 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 nega-
tive statements about Montgomery, Alabama, police. Was this commercial speech,
being an ad? Or was it political speech, being on a public policy issue? 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.

Emotive Speech. 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

commercial speech

Legalese for advertising

John Woolsey

Judge who barred import law
censorship of Ulysses

Random House

Fought against censorship of
James Joyce’s Ulysses

Grove Press

Fought against censorship of
D. H. Lawrence’s Lady Chatterley’s
Lover

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434 CHAPTER 16 Media Law

Joey Johnson. Flag-burning

protester whose conviction was

overturned on First Amendment

grounds.

hate speech

Offensive expressions, especially
those aimed at racial, ethnic and
sexual-orientation minorities

emotive speech

Expressions whose excesses under-
score the intensity of an emotion

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 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.”

Hate Speech. Emotions run high on First Amendment issues when national
security is at stake or when expression is obnoxious or even vile. The Supreme
Court, however, takes the position that a society that is free and democratic can-
not 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. They were caught and
convicted under a municipal ordinance against “hate speech.” One of them, identi-
fied 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.

CHECKING YOUR MEDIA LITERACY

<> What kinds of expressions beyond political speech have been gaining First
Amendment protection?

<> Does the U.S. Supreme Court see four-letter vulgarities as protected by the First
Amendment? How about flag burning? How about hate speech?

John Brinkley

Radio quack who challenged gov-
ernment regulation of radio

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435

John Brinkley

J
ohn 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 talked

to patients in a back room. One day an

elderly gentleman called on “Dr. Brinkley”

to do something about his failing man-

hood. As the story goes, the conversation

turned to Brinkley’s experience with

goats in the medical office of the Swift

meat-packing company, 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.

Six nights a week, Brinkley extolled

the virtues of his hospital over the air.

“Don’t let your doctor two-dollar 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 de-

mand 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 candi-

date 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 re-

voked. 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 guaran-

teed 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 Amend-

ment, he said, to take away

KFKB’s license for what

the station put on the air.

Despite Brinkley’s argu-

ments, the FRC denied

renewal.

Brinkley challenged the denial in fed-

eral court, and the case became a land-

mark on the relationship between the

First Amendment and U.S. broadcasting.

The appeals court sided with the FRC, de-

claring that broadcast licenses should be

awarded for serving “the public interest,

convenience and necessity.” It was appro-

priate, said the court, for the commission

to review a station’s programming to de-

cide 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 po-

tions. By telephone linkup from his home

in Milford, Brinkley continued to reach

much of the United States until 1942,

when the Mexican government national-

ized foreign-owned property.

WHAT DO YOU THINK?

■ How do you explain the skirting of

First Amendment issues in early

court decisions about federal regula-

tion of broadcasting?

■ Do you see a problem in a govern-

ment agency establishing the require-

ments for a license to broadcast?

■ Can you defend the broadcast licens-

ing standard of “public interest, con-

venience and necessity”?

Goat Gland Surgeon. Eager for publicity, John Brinkley obliges a photographer
by placing a healing hand on a supposedly insane patient he is about to cure.

Broadcasting such claims from his Kansas radio station, Brinkley developed a wide

market for his potions. Because of his quackery, he lost the station in a significant First

Amendment case.

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436 CHAPTER 16 Media Law

public airwaves

Concept that broadcast should be
subject to government regulation
because the electromagnetic spec-
trum is a public asset

BROADCAST REGULATION

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 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 gov-
ernment 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 constitu-
tional contradictions. The radio industry overall was pleased with the new federal reg-
ulatory structure. The system, today under the Federal Communications
Commission, later was expanded to television.

Over 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 loos-
ened with the times.

CHECKING YOUR MEDIA LITERACY

<> How has government regulation of broadcasting been justified when regulation of
print media is clearly unconstitutional?

Defamation
STUDY PREVIEW

When the mass media carry disparaging descriptions and comments, they risk being sued for

libel. The media have a strong defense if the libel was accurate. If not, there can be big trou-

ble. Libel is a serious matter. Not only are reputations at stake when defamation occurs, but

also losing a suit can be so costly that it can put a publication or broadcast organization out

of business.

LIBEL AS A CONCEPT

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 any-
thing about anybody.

If 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,
Dow Jones Inc. The award was reduced substantially on appeal, but the fact

libel

A written defamation

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Opposition newspapers
padlocked on Lincoln’s
watch

Jay Near won against
prior restraint

Napster-like file-swaps
outlawed

MASS MEDIA LAW MILESTONES PIVOTAL EVENTS

1700s Intellectual Property

Congress passed first copyright law

(1790)

Free Expression

States ratified First Amendment to

U.S. Constitution (1791)

>> Revolutionary War
(1776–1781)

>> Alien and Sedition acts
(1798)

1800s Censorship

Wartime newspapers closed (1864–1865)

>> Civil War (1861–1865)

1900s

Cherry Sisters

Iowa Supreme Court ruled that performers

must accept criticism of performances

(1901)

Prior Restraint

Justice Oliver Wendell Holmes coined “Fire!”

in a crowded theater example for prior

restraint (1919)

Book Ban

Court overruled import restriction against

Ulysses (1930)

Landmark Case

U.S. Supreme Court banned prior restraint

in Near v. Minnesota (1931)

Sullivan Case

U.S. Supreme Court ruled that public

figures can sue for libel only if media

were reckless (1964)

Obscenity

U.S. Supreme Court ruled that local

community standards determine

obscenity (1968)

National Security

U.S. Supreme Court banned prior restraint

in Pentagon Papers case (1971)

>> World War I (1914–1918)

>> Right to vote extended to
women (1920)

>> Great Depression (1930s)

>> World War II (1941–1945)

>> Civil rights movement
(1960)

>> Humans reached moon
(1969)

>> Vietnam war (1964–1973)

>> Nixon resigns presidency
(1974)

2000s Download Piracy

Recording industry won case against

Grokster and other Internet file-swap

enablers (2005)

>> 9/11 terrorist attacks (2001)

>> Iraq war (2003– )

>> Hurricane Katrina (2005)

Celebrated and ridiculed
vaudeville troupe

437

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438 CHAPTER 16 Media Law

remains that awards have grown dramatically in recent years and can hurt a me-
dia company seriously.

CHECKING YOUR MEDIA LITERACY

<> What is the rationale for libel law?

RECKLESS DISREGARD

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 insep-
arable 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 coalition, the
Committee to Defend Martin Luther King and the Struggle for Freedom in the South, esca-
lated its antisegregationist cause by placing a full-page advertisement in the Times. The ad-
vertisement 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.

Questions 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 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 the mass media a lot of room for error, even damaging error, in
discussing government officials, political candidates and publicity hounds.

■ Government officials. All elected government officials and appointed officials
with high-level policy responsibilities are public figures as far as their perfor-
mance in office is concerned. A member of a state governor’s cabinet fits this
category. A cafeteria worker in the state capitol does not.

■ Political candidates. Anyone seeking public office is subject to intense public
review, during which the courts are willing to excuse false statements as part
of robust, wide-open discussion.

■ Publicity hounds. Court decisions have gone both ways, but generally people
who seek publicity or intentionally draw attention to themselves must prove
“reckless disregard of the truth” if they sue for libel.

How far can the media 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.

CHECKING YOUR MEDIA LITERACY

<> How did New York Times v. Sullivan significantly change libel law?

<> How many people can you name who fall into a gray area between public figure and
private figure? Discuss their ambiguous status.

New York Times v. Sullivan

Libel case that largely barred pub-
lic figures from the right to sue for
libel

reckless disregard

Supreme Court language for a situ-
ation in which public figures may
sue for libel

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Defamation 439

COMMENT AND CRITICIS

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 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 decided to sue the next newspaper re-
viewer 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 there-
from. They pranced around the stage with a motion that suggested a cross be-
tween 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 will-
ing 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 in aspects of their lives that do not relate to public performance. The
National Enquirer, for example, could not defend itself when entertainer Carol
Burnett sued for a story that described her as obnoxiously drunk at a restaurant.
Not only was the description false (Carol Burnett abstains from alcohol), but
Burnett was in no public or performing role at the restaurant. This distinction

Fair Comment and Criticism.

Upset with what an Iowa reviewer

had written about their show, the

Cherry Sisters sued. The important

1901 court decision that resulted

said that journalists, critics and

anybody else can say whatever

they want about a public

performance. The rationale

was that someone who puts on

a performance for public

acceptance has to take a risk

also of public rejection.

fair comment and criticism

Doctrine that permits criticism of
performers, performances

Cherry Sisters

Complainants in a case that barred
performers from suing critics

440 CHAPTER 16 Media Law

between an individual’s public and private lives also has been recognized in cases
involving public officials and candidates.

CHECKING YOUR MEDIA LITERACY

<> How did New York Times v. Sullivan enable news reporters to do their work better?

<> Disparaging comments about an individual in the mass media are acceptable for some
situations but not others. Consider a major celebrity. What’s off-limits? What’s not?

TRESPASS, FRAUD AND LIBEL

An emerging legal tactic against the news media for disparaging coverage is not libel but
trespass and other laws. In 1998 the Utah Restaurant Association sued television station
KTVX for a report on roaches in restaurant kitchens and unsanitary food handling and stor-
age. Wesley Sine, attorney for the restaurants, did not sue for libel. Sine argued instead that
it was illegal for news reporters to go into a private area, like a kitchen, without permission.

Such end runs around libel law worry media people. The defenses that usually
work in libel cases are hard to apply if the media are sued over disparaging reports
on grounds other than libel. This was a factor in a case involving the Food Lion super-
market chain that resulted in a $5.5 million jury verdict against ABC television. Food
Lion was riled over a report on rats and spoilage in store backrooms as well as unfair
labor practices. In its suit, Food Lion never challenged ABC’s accuracy. Rather, Food
Lion said, among other things, that ABC had committed fraud by sending undercover
reporters to get on the Food Lion payroll to investigate the backrooms. On appeal, the
damages against ABC were reduced almost to zero—a moral victory for ABC, but it
took seven years and lots of expensive lawyers.

CHECKING YOUR MEDIA LITERACY

<> What alternatives to libel law are litigants using against defamatory reporting that is
accurate and true?

Indecency
STUDY PREVIEW

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.

PORNOGRAPHY VERSUS OBSCENITY

Through U.S. history, governments have attempted censorship of various sorts at various
levels of jurisdiction. But since the courts over-ruled a government effort to ban James
Joyce’s classic novel Ulysses in 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, which the Court has defined as going beyond pornography. Obscenity
restrictions apply, said the Court, if the answer is yes to all of the following questions:

■ Would a typical person applying local standards see the material as appealing
mainly for its sexually arousing effect?

■ Is the material devoid of serious literary, artistic, political or scientific value?
■ Is sexual activity depicted offensively, in a way that violates state law that ex-

plicitly defines offensiveness?

CHECKING YOUR MEDIA LITERACY

<> How are pornography and obscenity different?

pornography

Sexually explicit depictions that
are protected from government
bans

Indecency 441

PROTECTING CHILDREN

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 pro-
tected from sexually explicit material. It’s a difficult double standard, as demonstrated
by 1996 and 1999 federal forays into systematically regulating media content with ill-
conceived 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 ques-
tionable material to children without restricting freedom of access for adults.

Before a Philadelphia federal appeals court that reviewed the 1996 Communications
Decency Act, witnesses from the Justice Department testified that the law went ridi-
culously 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 ac-
tress Demi Moore nude and pregnant.

Access. When it reviewed the 1996 Communications Decency Act in 1999, the
U.S. Supreme Court noted that the Internet is the most democratic of the media, en-
abling almost anyone to become a town crier or pamphleteer. 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
court said. 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 an “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 every-
body participating who wants to, whereas other media 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.

Even while politicians and moralists rant at indecency, people seem largely un-
perturbed by the issue. The V-chip, required by a 1996 law to be built into every tele-
vision set, allows parents to block violence, sexual explicitness and vulgarity auto-
matically. 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.

CHECKING YOUR MEDIA LITERACY

<> What is the difficulty of enforcing indecency restrictions for children but not adults?

PATRIOT ACT

Immediately after the 9/11 terrorist attacks on New York and Washington in 2001,
the Bush administration quickly drafted multiprong legislation to give authorities
more power to track terrorists. Despite criticism among civil libertarians that some
provisions would allow federal agents to ignore constitutionally guaranteed citizen
rights, Congress reasoned that it was better to be safe than sorry and went along,
passing the Patriot Act by an overwhelming majority.

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

indecency

Term used by the Federal
Communications Commission to
encompass a range of words and
depictions improper on public
airwaves

Patriot Act

2001 law that gave federal agents
new authority to pre-empt terrorism

Communications Decency Act

Failed 1996 and 1999 laws to keep
indecent content off the Internet

442 CHAPTER 16 Media Law

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 advo-
cates, the implications were alarming. They launched a massive lobbying effort to re-
scind parts of the law 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 or
even nongovernment list of seditious literature.

Four years later, as fear about massive, imminent terrorism eased, Congress
pushed to delete Section 215 from the Patriot Act. Earlier attempts in U.S. history to
place federal limits on what citizens read had failed too—though through the courts,
not the executive or legislative branch of government.

The Patriot Act was rigorously defended in its entirety by President Bush, includ-
ing Section 215, which especially concerned the book industry, librarians and civil
libertarians. Bush argued that the provision had not been used much. But, he said, it
needed to be in the government’s anti-terrorism arsenal. The law remained in force.

CHECKING YOUR MEDIA LITERACY

<> What is Section 215 of the Patriot Act?

<> Why do the book industry, librarians and civil libertarians object to Section 215?

CHAPTER WRAP-UP

Intellectual Property (Pages 425–429)

■ 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 cre-

ativity 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 down-

loaded music and video.

Free Expression (Pages 429–432)

■ The First Amendment to the U.S. Constitution

guarantees freedom to citizens and the 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 mostly commonsense

exceptions include utterances that could under-

mine 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 432–436)

■ 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 politi-

cal speech has lots of crossover with literature, enter-

tainment 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 fed-

eral regulation and the First Amendment.

Defamation (Pages 436–440)

■ Someone who is defamed can sue for libel. This gener-

ally 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. Judgment

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.

Last H1 Head 443

Indecency (Pages 440–442)

■ 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 guaran-

teed 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 sex-

ually explicit material to children.

Review Questions

1. What is the rationale underlying copyright law?

2. Why is the First Amendment important to mass media in the United States?

3. What was the direction of court interpretation of the First Amendment in the 1900s?

4. Who can sue for libel?

5. How are obscenity and pornography different?

Concepts

indecency (Page 441)

libel (Page 436)

Terms

fair comment and
criticism (Page 439)

First Amendment (Page 429)

Incitement Standard (Page 431)

pornography (Page 440)

prior restraint (Page 430)

People

Charles Schenck, Elizabeth
Baer (Page 430)

Cherry Sisters (Page 439)

Clarence Brandenburg (Page 430)

Media Sources

■ Robert J. Wagman. The First Amendment Book. Paros,

1991. This lively history of the First Amendment is a

solid primer on the subject.

■ Clark R. Mollenhoff. “25 Years of Times v. Sullivan,”

Quill (March 1989), pages 27–31. A veteran investiga-

tive reporter argues that journalists have abused the

landmark Sullivan decision and have been irresponsi-

bly hard on public figures.

■ Fred W. Friendly. Minnesota Rag: The Dramatic Story of the

Landmark Supreme Court Case That Gave New Meaning

to the First Amendment. Random House, 1981. A colorful

account of the Near v. Minnesota prior restraint case.

■ Lawrence Lessig. Remix: Making Art and Commerce Thrive

in a Hybrid Economy. Penguin, 2008. Lessig, a leading the-

orist on intellectual property, calls for loosening copy-

right restrictions that he sees as inhibiting creativity.

Chapter Wrap-Up 443

A Thematic Chapter Summary

In this chapter you have deepened your media literacy by revisiting several themes. Here are thematic highlights

from the chapter:

EDIA LAW

MEDIA TECHNOLOGY

New technologies keep creating new mass media legal issues. The first home

video recording equipment in the 1970s, Betamax, raised questions of

whether people have a legal right to duplicate copyright-protected movies.

Despite Hollywood’s objections, the answer of the U.S. Supreme Court was

yes. For more than a century, photography has created poignant privacy

questions that nobody ever thought about before. The problem with copyright law is that lawmakers are no

better than the rest of us at seeing what future technology will bring. Copyright law has been revisited over

and over in the history of the Republic, most recently because of Internet-related issues like unauthorized

downloading that have shaken media industries. (Pages 424–429)

MEDIA ECONOMICS

At the core of mass media infrastructure is copyright law, which gives exclusive

rights to creative people to profit from their creations. The Internet has broken

the control of media companies on distribution of their creations. Anybody with a

few pieces of low-cost, easy-to-use computer equipment can distribute media

content for free downloading by anyone on the planet. Most threatened have

been the recording and movie industries, which have scrambled in the courts for

protection of assets under copyright law. Both industries have cast the issue as

economic survival. (Pages 424–429)

MEDIA AND DEMOCRACY

The democratic ideal of self-governance through grassroots political participation re-

quires that people have full access to information. The ideal also requires that people have

the freedom to sort through and hash out the facts to arrive at the best possible public

policy. The First Amendment to the U.S. Constitution guarantees these freedoms of inquiry

and expression to all citizens and to the mass media. The guarantee, however, is limited

444

Free Stuff. Feelings run strong on the recording and movie industries’ call for court

protection against downloading and file-swapping that threatens their franchises.

John Lech Johansen. He became Hollywood’s Norwegian nightmare with software

that cracked regional coding for movies.

Prior Restraint. The sheriff was wrong to padlock the Minnesota paper.

445

only to a ban on government interference in inquiry and expression. Citizens who feel wronged can seek com-

pensation from other citizens and corporate entities, including media companies. Also, the courts have carved

out some areas, including national security, in which the government can restrict access to and sharing of infor-

mation. (Pages 429–436)

MEDIA AND CULTURE

The polarizing Culture Wars that have divided American society in recent years are not new except in their shrill in-

tensity. Sexual explicitness is a hot-button cultural issue that goes way back.The U.S. Supreme Court has barred gov-

ernment interference with adult access to sexually explicit material.The Court has said that the access is a right un-

der the free expression guarantee of the First Amendment, but the Court also has created limits. Some of these

limits are clear, like protecting children. Some are vague, like the distinction between pornography, which is accept-

able, and obscenity, which is not. In short, though, the mass media have had growing latitude in dealing with sexual-

ity through the First Amendment. (Pages 440–442)

ELITISM AND POPULISM

Elected and appointed governing elites have been largely stripped of the abil-

ity to sue their critics. In a landmark 1964 decision, New York Times v. Sullivan,

the U.S. Supreme Court ruled that a democracy requires full and robust citizen

discourse on public policy issues. The Court said that defamations that occur in

this discourse are excusable, except for egregious and intentional untruths. The

Sullivan decision gave new leeway for criticism of political leadership to the

people and also to the media. The decision also opened up the range of nega-

tive comments on a broad range of other public figures. (Pages 439–440)

Public Figures. They must take criticism as well as praise.

MEDIA FUTURE

Our understanding of the First Amendment is evolving. It’s been clear since

the U.S. Supreme Court began examining the First Amendment after World

War I that discussion of political issues must be protected for democracy to

function. But numerous practices, also endorsed by the courts, leave many

contradictions unresolved. For example, the government in 1927 gave itself

the authority to decide who could broadcast and who couldn’t. Criteria for a

broadcast license still include on-air performance expectations, a kind of gov-

ernment content control that the Court would never countenance for print

media. Also not addressed squarely by the courts so far are a wide range of

government restrictions on advertising. (Pages 432–434)

Lingering Issue. Can government restrict on-air quacks?

Media Law Matrix

XCOM/225 Version 3

Associate Level Material

Media Law Matrix

After reading Ch. 16 of The Media of Mass Communication, identify at least 5 mass media laws relating to media regulation. Explain how the laws affect mass media and the public. Provide a brief description of ethical issues and considerations. Describe how these ethical considerations are related to the laws you have identified.

Mass Media Laws

Law Effects

Related Ethical Issues

Select two issues currently in the media—one local issue and one global issue—related to media in society.

Local media issue:

What are the relevant laws related to the issue? In 350 words, explain the legal implications and ethical considerations as they apply to the media’s responsibility.

Global media issue:

Explain the interaction between mass media and government in this issue. In 350 words, explain the effect of the mass media messages related to this issue on society.

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