Broadcast Law

1
Broadcast Law

• Donald R. Simon, Esq.
• Radio Dept. Columbia College
• Fall 2008

2
Broadcast Law - Week 2

• 1st Amendment quiz.
• Freedom of speech.
• Expression vs. conduct.
• Content and noncontent-based regulation.

3
Broadcast Law - Week 2

• The 1st Amendment
• 1st Amendment (1A) has in some way influenced
  all of the nation's communications industries.
• It's the ultimate protection for communicators.
• Its freedoms must be continuously defended.

4
Broadcast Law - Week 2

• The 1st Amendment
• It was adopted in 1791.
• In response to the suppressive policies of Great
  Britain.
• At that time there was a tight system of
  licensing -- the gov't decided who would have the
  right to publish, both in England and in the
  colonies.

5
Broadcast Law - Week 2

• The 1st Amendment
• This licensing system was a form of prior
  restraint whereby the gov't prohibited some
  publications all together.
• Prior restraint censorship.
• The gov't severely punished those who didn't
  follow the rules--seditious libel.

6
Broadcast Law - Week 2

• The 1st Amendment
• Zenger case commonly cited case.
• NYs governor controlled all of the newspapers.
• Some citizens formed a political group to publish
  an independent newspaper called the Weekly
  Journal. Zenger was among these citizens.

7
Broadcast Law - Week 2

• The 1st Amendment
• Zenger was charged with seditious libel.
• Upon a zealous argument by Zenger's atty., he was
  acquitted.
• This case began the free speech movement in the
  colonies.

8
Broadcast Law - Week 2

• The 1st Amendment
• Reasons for free speech?
• Allows for participation in our democracy.
• Free speech is that it acts as a check on gov't.
• Brings to light abuses of power by gov't
  officials, e.g., Watergate.
• Can open up debate on squandered funds, fraud,
  etc.

9
Broadcast Law - Week 2

• The 1st Amendment
• Reasons for free speech?
• For the most part, American courts have upheld
  the notion of freedom of speech.
• Speech in the U.S. has never been totally free,
  however, and the protection of the 1A is not
  considered absolute.

10
Broadcast Law - Week 2

• The 1st Amendment
• Reasons for free speech?
• Q What happens when the 1A comes into conflict
  with other societal interests such as the 6A
  right to an impartial jury?
• A Interpretation by the courts. This usually
  involves a balancing of the interests of both
  sides.

11
Broadcast Law - Week 2

• The 1st Amendment
• Nature of the Guarantee
• Bill of Rights adopted to counter fears of a
  strong central govt.
• 1A was at first only applied to acts of the
  federal govt, not the states.
• Only since 1925 with the Gitlow case was the 1A
  applied to the states.

12
Broadcast Law - Week 2

• The 1st Amendment
• Nature of the Guarantee
• Gitlow was a member of the Socialist Party.
• He printed and distributed 6K copies of some
  literature which advocated his ultra left wing
  point-of-view.
• There was no EV of any effect resulting from the
  publication and circulation of the literature.

13
Broadcast Law - Week 2

• The 1st Amendment
• Nature of the Guarantee
• Gitlow was convicted under the NYs criminal
  anarchy statute.
• USSC reversed and now the 1A is now read to
  prohibit all governing bodies from abridging free
  expression state action.
• NOTE there must be state action for 1A
  privileges to kick in.

14
Broadcast Law - Week 2

• The 1st Amendment
• Speech vs. Conduct
• Difficulty arises when speech seems closely
  intertwined with conduct.
• Raising a flag, wearing an armband, or even
  burning a piece of paper, when done to convey a
  message, are referred to as symbolic speech or
  expressive conduct.
• Not protected as broadly.

15
Broadcast Law - Week 2

• The 1st Amendment
• Speech vs. Conduct
• Flag burning is one such form that has received
  considerable attention recently.
• Perhaps no other form of conduct incites so much
  emotion and political fervor.
• Texas vs. Johnson (1989).

16
Broadcast Law - Week 2

• The 1st Amendment
• Speech vs. Conduct
• While the RNC was taking place 1984, Johnson
  burned a U.S. flag in front of the Dallas City
  Hall.
• Johnson was arrested and charged under TXs
  Desecration of a Venerated Object statute.
• Convicted and sentenced to a year in prison and a
  2,000 fine!

17
Broadcast Law - Week 2

• The 1st Amendment
• Speech vs. Conduct
• Went to S.C. on appeal--TX law was invalidated.
• "If there's a bedrock principle underlying the
  1A, it is that the gov't may not prohibit the
  expression of an idea simply b/c society finds
  the idea offensive or disagreeable."

18
Broadcast Law - Week 2

• The 1st Amendment
• Suspect Restrictions
• Recall prior restraints censorship.
• Doctrine finally applied to the states in Near
  vs. Minnesota. (1931).
• Gov't sought a pre-publication ban on The
  Saturday Press.

19
Broadcast Law - Week 2

• The 1st Amendment
• Suspect Restrictions
• Invalidated prior restraints once and for all,
  but left the door open if the gov't could prove
  exceptional circumstances, such as war-time
  security, obscenity, or incitement of violent
  acts.
• Societal interests are better served if abuses
  are dealt with after the fact by civil lawsuits
  or criminal penalties.

20
Broadcast Law - Week 2

• The 1st Amendment
• Suspect Restrictions
• Certain soft approaches by the govt such as
  pressuring communicators to sign oaths or
  threatening to prosecute or to chastise publicly
  are improper.
• Even when couched in terms of friendly advice,
  such as in the Skyywalker case, may be tantamount
  to a prior restraint.

21
Broadcast Law - Week 2

• The 1st Amendment
• Suspect Restrictions
• Punishment after publication is the generally
  accepted way to deter irresponsible speech.
• Post-publication sanctions include
• contempt citations, which can bring fines or jail
  time
• fines or prison time for violations of criminal
  statutes and
• private lawsuits such as libel.

22
Broadcast Law - Week 3

• Read Chap. 12
• Commercial speech and the 1st Amendment.
• Deceptive advertising and the FTC.
• Illegal ads.
• Be prepared for class.