Mass Communication: Living in a Media World, 6th edition
Ralph Hanson
Lecture Builders
Chapter 13
Lecture Builders
Mass Communication: Living in a Media World, 6th edition
Ralph Hanson
Lecture Builders
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Mass Communication: Living in a Media World, 6th edition
Ralph Hanson
Lecture Builders
Mandatory by our district, every article the staff writes must be read and approved by an
administrator. If a story runs without being checked by our liaison, the reporter must undergo
detention. Along with our articles, school organization and events T-shirts must be approved by
an administrator, as well as flyers and posters that are posted on school walls. What are the
administrators protecting their students from? That question still baffles the newspaper staff.
Our prior review policy will always sicken me. Why can’t they allow a flow of information and
trust the journalism students and sponsors to make decisions on what’s newsworthy?. . .
[N]ot until a quote from me and a Student Press Law Center (SPLC) lawyer about the
censorship of the story ran in the Houston Chronicle was I allowed to run the article. . . .
Students received the story well, but it didn’t matter. They already knew. Newspapers—even
amateur school newspapers—are meant to inform while stories are time worthy, not after the fact.
Students read about the GSA issue in the Houston Chronicle or saw it on TV. Why did they have to
watch a middle-aged news anchor mispronounce students’ names instead of hearing it through the
school’s information source?
NOTES: WHAT IS LEGAL TO PUBLISH AND NON-LIBEL DEFAMATION: Pretty much anything that is
truthful can be reported. While many (even most) media outlets do not generally publish the names of
juvenile offenders or of rape victims, it is legal to do so, if they are able to obtain the information.
Several states have had laws on the books that make it a crime to publish the name of a rape victim or a
juvenile, but the Supreme Court has said that when a crime has been committed, the prosecution and
the documents that come out of it must be available to public scrutiny. The names of juveniles not
charged as adults are generally withheld from the public, but it is legal to publish the name if you can
get the information. The Food Lion case is only one of many cases where sources have sued the media
trying to avoid the legacy of Times v. Sullivan. CBS television held back a 60 Minutes story on tobacco
because the source of the story had signed a non-disclosure agreement with the tobacco company, an
agreement that did not bind the network. But CBS sat on the story for fear that they could be sued for
talking to this source. The story, featuring an interview with Jeffrey Wigand, formerly of Brown and
Williamson tobacco, finally aired after the Wall Street Journal ran a story with most of the same
information. The key issue here is that no lawsuit was ever filed.
NOTES: MORE ON RON GALELLA / INVASION OF PRIVACY: Ron Galella was famous for his photographs
of Jackie Kennedy Onassiss. Here you can read and view video about his obsession with the former first
lady.
http://time.com/4458511/paparazzi-jackie-kennedy-ron-galella/
NOTES: CIVIL RIGHTS BASED ANTI-PORNOGRAPHY LAW: In the 1980s, the city council of Minneapolis
proposed an alternative method for banning pornography. The council passed an ordinance making
pornography a form of sex discrimination, and thus, treating it as a civil rights issue rather than a First
Amendment issue. The law was never put into effect, however, because the mayor refused to sign it. A
similar ordinance was approved by the city of Indianapolis, which was promoted by an unusual coalition
Mass Communication: Living in a Media World, 6th edition
Ralph Hanson
Lecture Builders
of radical feminists and conservative Republicans. Again, the argument made was that women’s civil
rights were violated by the creation, distribution, and consumption of pornography. Attorney and
author Catharine MacKinnon argued in support of both cities’ laws that pornography tends to degrade
women, deny them their own voice, and gives rise to a political system where women are subordinate
to men. The courts found the Indianapolis law to be unconstitutionally vague and likely to ban material
that was not legally obscene.
Fair Comment and Criticism–The Cherry Sisters
The doctrine of fair comment comes from the classic case of the Cherry Sisters, a vaudeville act
of legendary badness. There was an article, which appeared in the Des Moines Leader. The article reads
in part:
“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
therefrom. They pranced around the stage with a motion that suggested a cross between the
danse du ventre and 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.” (Cherry v. Des Moines Leader,
1901)
It is rumored that a performance in the trial courtroom had persuaded the jury of the rightness
of the defendant’s cause.
Falwell v. Flynt
In 1983, the Reverend Jerry Falwell was in Washington, DC, for a news conference when a
reporter rushed up to him carrying the November 1983 issue of Hustler magazine and asked, “Reverend
Falwell, have you seen this?” The reporter was referring to a crude parody of a Campari ad that
portrayed a drunken Falwell losing his virginity to his mother in an outhouse. Under the ad was the
statement, “Ad parody—not to be taken seriously.” The Falwell ad parodied a series of Campari ads that
featured celebrities using sexually suggestive language to describe the “first time” they had tasted
Campari.
Falwell was outraged by the ad, not only because it insulted him but also because it attacked his
mother. Describing the ad as “the most hurtful, damaging, despicable, low-type, personal attack that I
can imagine one human being can inflict upon another,” he filed suit against famed publisher and
pornographer Larry Flynt, asking for $45 million for libel (publishing false and defamatory statements
about him), the improper use of his name and picture in the ad, and the infliction of “severe emotional
anguish and distress.”
In the initial trial, the jury did not award Falwell damages for injury to his reputation because,
they said, no reasonable person would believe the outrageous claims in the parody ad. The judge
dismissed the portion of the suit dealing with the improper use of Falwell’s name and picture, ruling that
as a public figure Falwell could not prevent the use of his name and image for noncommercial purposes.
However, the jury awarded him $200,000 in damages for the intentional infliction of emotional distress
Mass Communication: Living in a Media World, 6th edition
Ralph Hanson
Lecture Builders
because it was clear that Flynt wanted to hurt Falwell.
After an appellate court upheld the verdict, Flynt appealed the case to the U.S. Supreme Court.
Although Flynt was known for his outrageous behavior and was not popular with mainstream publishers,
numerous groups advocating freedom of the press filed amicus briefs in support of him; they included
several newspaper owners, press associations, and the Association of American Editorial Cartoonists.
Also supporting Flynt was HBO, which was looking to protect the stand-up comics featured on the cable
network.
On February 24, 1988, in an 8–0 vote, the Supreme Court overturned the lower court’s verdict,
ruling that the courts could not protect a public figure from emotional distress, even from “speech that
is patently offensive and intended to inflict emotional injury.”
The Court ruled that given a choice between protecting a public figure from emotional distress
and protecting free speech rights, it would support free speech.
Chief Justice William Rehnquist acknowledged that the ad was “doubtless gross and repugnant
in the eyes of most,” but said that political cartoons often go beyond the limits of good manners and
taste. He saw no way to distinguish between proper and improper satire or between fair and unfair
comment and criticism. The Court ruled that the only way a public figure or official could win a decision
for intentional infliction of emotional distress would be if false statements had been made with
knowledge that the “statement was false or reckless disregard as to whether it was true.”
This was the central point of the Flynt decision—that even something mean-spirited and cruel is
still legitimate opinion and commentary, as long as it is a statement of opinion and not a statement of
fact. Flynt explained the significance of the decision from the publisher’s point of view in an interview:
Had those decisions been allowed to stand, it would have meant that you would no longer
need to prove libel to collect damages. All you would have to do is prove intentional
infliction of emotional distress. Well, you know, any political cartoonist or editorial writer
wants to inflict emotional distress. That’s their business.
In a strange ending to this case, Falwell, who passed away on May 15, 2007, and Flynt
developed a relatively civil relationship in recent years, appearing in debates and on television
together. On one occasion, Falwell even accepted an airplane ride home from Flynt following a
joint speaking engagement.
The conflict between Larry Flynt and Jerry Falwell highlights the central conflicts in American
media law:
• How do you protect both the rights of individuals and those of the press?
• Is the press protected even when it is “gross and repugnant in the eyes of most?”
• When can the media be punished for stepping over the line?
• Do individuals have a right to control how a sometimes hostile press portrays them?
