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157
Chapter 13
Legal Controls and Freedom of Expression
CHAPTER OUTLINE
Chapter Opener: Over the years, a number of U.S. Presidents and other political figures
have had complicated (even contentious) relationships with the journalists who cover them.
Journalists are protected by the First Amendment as a form of free expression, sometimes to
the chagrin of the politician in question.
I. The Origins of Free Expression and a Free Press
The First Amendment suggests that anyone should be able to say whatever they want
and that the press should be able to publish whatever it wants, but there has always
been tension between complete freedom of expression and the idea that some
expression, such as obscenity, should be prohibited or censored.
A.
A Closer Look at the First Amendment. The Constitution did not include a
guarantee of press freedom, but most state charters did; these state representatives
pushed to have federal guarantees of free speech and press. As a result, both are
listed in the Bill of Rights.
B. Interpretations of Free Expression. Societies have developed four models of free
expression that are distinguished largely by the degree of freedom they permit.
1. The Authoritarian Model. The government actively censors what it considers
dangerous expression, and the job of journalism is to support government and
C.
The Evolution of Censorship. Over time, the Supreme Court has defined
censorship as prior restraint, which means that government cannot block
publication or speech before it actually occurs. The Supreme Court left open the
possibility of prior restraint in exceptional cases, however.
1. The Pentagon Papers Decision. During the Vietnam War, the Nixon
administration got a temporary injunction to halt publication of a secret
military report, but the Supreme Court ultimately sided with the press.
2. The Progressive Magazine Decision. In 1979, the U.S. government issued an
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D. Unprotected Forms of Expression. Despite the First Amendment, various levels of
government have occasionally curbed expression.
1. Sedition. The Supreme Court has ruled that there are limits to free expression
in times of war or when there is “clear and present danger.”
2. Copyright Infringement. Appropriating a writer’s or artist’s words or music
without consent or payment is not protected by the First Amendment.
3. Libel. Defamation of someone’s character in written or broadcast form
(slander is spoken defamation) is not protected under the First Amendment,
E. First Amendment versus Sixth Amendment. Press rights have often clashed with the
right to a speedy and public trial by an impartial jury.
1. Gag Orders. Since 1976, speech restrictions on lawyers and witnesses
involved in trials have been struck down as prior restraint.
2. Shield Laws. These state laws protect reporters from being forced to reveal
II. Film and the First Amendment
The writers of the Constitution could not foresee the invention of visual media, so the
development of film in the 1890s presented new legal issues related to First
Amendment protections.
A. Citizens and Lawmakers Control the Movies. Local review boards and legislators
regulated film in the early days of the industry.
B. The Movie Industry Regulates Itself. A series of scandals led the movie industry to
establish its own rules to monitor content and actors’ behavior.
1. The Motion Picture Producers and Distributors of America. The MPPDA,
which was created in the 1920s, blacklisted actors with police records and
developed a public relations division.
III. The First Amendment, Broadcasting, and the Internet
The development of broadcasting and the Internet once again led legislators and the
media industry to debate the level of free expression that would be permitted for new
technologies.
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A. The FCC Regulates Broadcasting. Two contrasting Supreme Court decisions
showed that print media have more freedom to control their content than broadcast
media.
B. Dirty Words, Indecent Speech, and Hefty Fines. In theory, the government may not
engage in prior restraint, but it may punish broadcasters after the fact for
indecency, and the FCC may ban indecent programming when children are likely
to be the audience.
IV. The First Amendment in a Democratic Society
Questions about free expression are, at heart, questions about democracy, and citizens
need to take part in vigorous debate about the future of the converging media.
LECTURE TOPICS
1. Discuss the origins of Western free expression and consider the four models for
expression and speech: authoritarian, state, libertarian, and social responsibility.
2. Outline the many unprotected forms of expression, including sedition, libel and slander,
privacy, and obscenity. Also note the court definitions of libel, privacy, and obscenity
and relevant cases.
LECTURE SPIN-OFFS
Interpretations of “Free Expression”
Several organizations provide excellent information about the state of press freedom around
the world. In 2017, Reporters without Borders released its annual worldwide index of press
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Copyright Infringement
Lawrence Lessig offers an accessible explanation of piracy and copyright in Chapter 8 of
his book Free Culture (2004). He identifies two kinds of piracy: Piracy I is the kind of
piracy that happens across Asia and Eastern Europe, where businesses “take other people’s
copyrighted content, copy it, and sell it—all without the permission of a copyright owner.”
Piracy II is peer-to-peer file-sharing and, according to Lessig, has four categories: (1)
sharing as a substitute for purchasing the content, (2) sharing to sample music before
Violation of Privacy Rights
privacy issues.
• For years, paparazzi dogged prominent figures to snap photos that they could sell to
tabloid newspapers. More recently, videographers that some call “stalkerazzi” aim to
capture stars on video and sell the footage to tabloid TV shows. To get a “newsworthy”
response on video, these stalkerazzi are known to agitate their famous subjects. For
example, one cameraman crept up and videotaped actors Alec Baldwin and Kim
Basinger as they were arriving home from the hospital with their newborn baby. An
angry Baldwin attacked the photographer but was later acquitted of charges of assault.
• The greatest public disapproval of the paparazzi came after the August 31, 1997, death
of Princess Diana, whose car crashed as it was chased by photographers on motorcycles.
Diana’s car veered out of control in a Paris tunnel, killing her, Dodi Fayed, and the
chauffeur, Henri Paul, who was said to be driving under the influence of alcohol and
medication.
• Actor George Clooney, recognizing the synergies of major corporations like Viacom,
owner of Paramount, chose to deal with paparazzi in a creative way. When Paramount’s
TV tabloid news show Hard Copy aired personal video footage of Clooney and his
girlfriend, the actor decided to boycott Entertainment Tonight, Paramount’s more
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• Since the 1990s, reality shows, such as Cops, have proliferated on television, with
television crews accompanying police on “ride-alongs,” capturing real arrests and
dramatizing them for onscreen viewing. In two unanimous decisions in May 1999,
however, the Supreme Court ruled that citizens can sue the police for such invasions of
privacy, arguing that police agencies violate Fourth Amendment guarantees against
unreasonable search and seizure when they invite the media onto private property to
observe arrests (and other indignities).
Two cases precipitated the Supreme Court’s decision:
• In Montana, federal prosecutors invited a CNN crew to document the raid of a ranch
house whose owner was suspected of poisoning bald eagles. CNN broadcast a story
The Supreme Court’s decisions keep the news media off private property in police ride-
alongs, although the news media can still observe raids and arrests on public property
Film and the First Amendment
• One of the first films to be targeted by MPAA head Will Hays was Howard Hawks’s
Scarface in 1931. The PBS Culture Shock series Web site describes the story behind the
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• The PG-13 rating was added in 1984, largely because of the reaction to two popular
movies of that year, Gremlins and Indiana Jones and the Temple of Doom, which were
rated PG but had gruesome scenes. One of Gremlins’ famous scenes featured evil little
creatures being killed in kitchen appliances such as a blender and a microwave oven. In
Indiana Jones, the violent deaths included a ritual in which a man’s heart is ripped out.
• In June 1999, a number of movie theater owners announced that they would begin to
require teenagers to present a photo ID before entering R-rated movies. The move was
spurred by politicians and entertainment industry officials after the Columbine High
School shootings in Littleton, Colorado. A 2004 Gallup poll found that 75 percent of
adults believed that the entertainment industry should curb television violence and more
strictly regulate access to violent movies as a way of reducing violence. The president
• In 2007, the MPAA decided that films that glamorize smoking, such as Black Dahlia,
which contains images of Scarlet Johansson smoking seductively, will risk a higher
rating. In the past, the MPAA had limited its concerns to teenage smoking, which was
outlined in the detailed advisories that accompany each rated film.
• Some moviemakers won’t sacrifice their vision for ratings. Oscar-winning director Ang
Lee, who won for Crouching Tiger, Hidden Dragon and Brokeback Mountain, refused
to cut sex scenes from his 2007 movie Lust, Caution to get a milder rating. Dallas
Morning News critic Chris Vognar wrote that the decision kept the movie from reaching
a wider audience. The sex scenes were an important part of Lust, Caution, which is a
World War II drama about a love affair between a Chinese collaborator with the
Japanese occupation and a member of the Chinese resistance who is assigned to kill
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The First Amendment, Broadcasting, and the Internet
place.” A silent screen shot appeared for four to five seconds so that the TV audience
could not hear Field’s words. The uncensored version of Field’s speech immediately
appeared on YouTube, and the blogosphere had a heyday analyzing the reasons why
Fox censored Field’s speech: Was it for “Goddamn?” or was it for “war”? The New
York Times blog, The Carpetbagger, said, “It’s certainly possible that an overly sensitive
puritan was at the switch, and the decision to block the comments had nothing to do
with politics. But it was a News Corp. broadcast.” Fox, however, defended the decision
by calling Field’s language inappropriate. Ray Romano also got bleeped for saying
“Frasier’s screwing my wife.”
• Until 1987, the Fairness Doctrine had required stations to air and engage in
controversial-issue programs that affected their communities. The FCC ended any hope
of reviving the Fairness Doctrine in August 2014 when it issued an order that “deletes
both broadcast and cable rules referencing the Commission’s so-called ‘fairness
doctrine.’ The Commission abrogated the fairness doctrine in 1987, after concluding
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MEDIA LITERACY DISCUSSIONS AND EXERCISES
IN BRIEF: ADVERTISING NC-17 FILMS
If you were the owner of a community newspaper, what would be your policy on accepting
advertising for pornographic movie theaters and movies rated NC-17? Justify whatever
policy you develop. Compare your ideas to the policies of your local and campus
newspapers.
IN DEPTH: DOES EXPRESSION ON THE INTERNET NEED LAWS?
Pre-Exercise Questions: What kind of communication occurs on the Internet that doesn’t
usually occur anywhere else? Is there anything on the Internet that you wish wasn’t there?
Divide the class into four groups and stage a mock public forum to consider the current
debate over legal control of the Internet.
• Group 1: The probusiness team, which supports corporate control of the Internet. This
group envisions the Internet as a profit-bearing mass medium threatened by
anticorporate rhetoric in the public discourse. The ideal Internet environment for the
• Group 2: The pro-government-control and censorship group, which supports content
and access limits on the Internet. This group was highly involved in the antiobscenity
portions of the 1996 Telecommunications Act (which were eventually overturned by the
• Group 3: The prodemocracy group, which supports no restrictions on access and
content. The ideal Internet environment for this group is one without commercials,
whereby the Internet becomes a citizen medium.
• Group 4: The reporters who ask the tough questions.
Students should assemble in groups, isolate the issues important to their group, and
prepare for the public forum. Depending on class size, Groups 1, 2, and 3 should appoint
two or three spokespersons as “specialists” on various issues. Groups 1, 2, and 3 should also
consider what questions they will be asked by the reporters. Group 4 should brainstorm and
prepare an equal number of questions for each group.
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CLASSROOM MEDIA RESOURCES
VIDEOS/DVDS/CDS
Freedom of Expression (2007, 60 minutes). This documentary explores the battles being
waged in courts, classrooms, museums, film studios, and the Internet over control of our
cultural commons. Distributed by the Media Education Foundation, www.mediaed.org,
800-897-0089.
Hollywood Censored: Movies, Morality and the Production Code (2000, 60 minutes).
Originally broadcast on PBS, this film explores how the American motion-picture
industry practiced self-censorship as a strategy for cultural and economic survival to
answer growing charges of immorality.
Media Ethics (1997, 29 minutes). In this program, news professionals and network and
music industry executives speak about the ethical dilemmas their industries face and
WEB SITES
An organization working to promote democratic values and constitutional liberties in
the digital age.
A nonprofit advocacy group dedicated to preserving the right to freedom of speech in
the digital arena.
The U.S. government agency charged with regulating interstate and international
communications by radio, television, wire, satellite, and cable.
An educational organization whose Web site provides comprehensive research coverage
of key First Amendment issues and topics.
A nonprofit group that works to defend individual rights on American campuses,
including freedom of speech.
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FURTHER READING
Abrams, Floyd. The Soul of the First Amendment. New Haven, CT: Yale University Press,
2017.
Aufderheide, Patricia. Communications Policy and the Public Interest: The
Telecommunications Act of 1996. New York: Guilford, 1999.
Blanchard, Margaret A. Revolutionary Sparks: Freedom of Expression in Modern America.
New York: Oxford UP, 1992.
Cohn, Marjorie, and David Dow. Cameras in the Courtroom: Television and the Pursuit of
Justice. Jefferson, NC: McFarland & Company, 2011.
Davis, Charles N., and Sigman L. Splichal. Access Denied: Freedom of Information in the
Information Age. Ames: Iowa State UP, 2000.
Fish, Stanley. There’s No Such Thing as Free Speech, and It’s a Good Thing, Too. New
York: Oxford University Press, 1994.
Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World.
