Chapter 13: Media Law: Free Speech and Fairness
Summary and Learning Objectives
The First Amendment to the U.S. Constitution says that
Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.
This statement is at the core of all media law in the United States. The purpose of the amendment
is to protect the free and open discussion necessary to a democratic society. Although the First
Amendment guarantees the right of free speech, Congress has passed several laws that limit this
freedom. These include the Alien and Sedition Acts of 1798, the Espionage Act of 1917, the
Smith Act of 1940, the USA PATRIOT Act of 2001, and laws controlling libel, invasion of
privacy, publication of military secrets, and obscenity.
The rights of individuals are protected from actions of the media through libel law, invasion of
privacy law, and guarantees of a fair trial. Libel is a statement that unjustifiably exposes
someone to ridicule or contempt. For a statement to be libelous, it must include defamation,
identification, and publication. In general, the media are allowed to publish defamatory material
that is true, privileged, or a statement of opinion. New York Times Co. v. Sullivan established that
public officials seeking to win a libel suit must show that the media acted with actual malice in
publishing a false defamatory statement.
understand how the justice system works. Opponents argue that cameras are intrusive and turn
trials into media circuses.
Although the press is subject to the same laws as society as a whole, it is protected from
censorship in most cases. The government is allowed to prevent publication of certain
information only if the material is obscene or gives away military secrets during time of war.
There have been only three major cases involving prior restraint: Near v. Minnesota, the
Pentagon Papers case, and the Progressive H-bomb story. High school newspapers published as a
classroom activity are not afforded the same level of protection, however. The courts have ruled
that obscenity is not protected by the First Amendment, and they have established that the
standard for obscenity will be set using state law and local community standards.
The broadcast media traditionally have been regulated much more heavily than the print media
because they make use of the public airwaves. They are regulated both for technical reasons and
to ensure that they serve the public interest. Major legislation controlling the broadcast media
was passed in 1927, 1934, and 1996. Standards for regulating the Internet are still evolving, but
they appear to be more similar to print regulations than to broadcast ones.
After studying this chapter, you will be able to:
1. Describe the development of a free press in the United States.
2. Discuss the limits that have been placed on free expression and other First Amendment
rights, including those put in place since September 11, 2001.
3. Explain the three elements that must be present for libel to occur and the four major defenses
against libel.
4. Name the four major forms of invasion of privacy.
5. Discuss the issue of whether the press can be legally required to behave ethically using three
Supreme Court case examples.
6. Explain how the media industry is controlled through copyright law, broadcast, and Internet
regulation.
Review Questions
1. What rights to free speech do high school students have? 2. Does it vary from state to state?
Why?
2. How has the USA PATRIOT Act changed the freedoms for Americans since 9/11? How did
the USA FREEDOM Act change the Patriot Act?
3. Why did the U.S. Supreme Court rule that public officials needed to meet a higher standard
to win a libel suit than ordinary people do?
4. According to the U.S. Supreme Court, why do student publications have fewer First
Amendment rights than do publications created by adults? What have states done in
response to this?
5. What is net neutrality? Why should you care about it? What is the current status of net
neutrality in the United States?
Media Literacy Exercises
Free Speech
In March 2011, the U.S. Supreme Court upheld the right of the Phelps family, operating as the
Westboro Baptist Church (although they have no connection to any of the Baptist denominations),
to picket the funerals of American servicemen and women. The family typically carries signs
proclaiming “GOD HATES FAGS” and “THANK GOD FOR DEAD SOLDIERS.” The family pickets
funerals in order to draw attention to their arguments that God is punishing the United States for
tolerating homosexuality.
For this assignment, start by reading about the Phelps family in the Visual Media Literacy box on
page 321 of your textbook. Then read the links and view the video at this blog post about the Snyder
v. Phelps court decision:
• https://www.ralphehanson.com/2012/05/27/link-ch–13-snyder-v-phelps/
In a short essay (500 words minimum), you are to answer the following questions:
• Who are the Phelps family and the Westboro Baptist Church?
• Who is Albert Snyder, and why did he sue the Phelps family?
• What grounds would the court have had for ruling in favor of Snyder? What grounds did the
court have for ruling in favor of Phelps?
• Do you agree or disagree with how the court ruled in the Phelps case? Why or why not?
• What would the consequences be for free speech if the court had ruled against Phelps?
• What can communities do (if anything) about the Westboro protests?
• Do you think people have a right to protest at or near funerals?
Grading Rubric
Levels of Achievement
Criteria
Deficient
Less Than
Assigned
As Assigned
Superior
Length
Weight
25.00%
0%
Assignment is
significantly
under length
70%
Assignment is
under assigned
length
85%
Assignment is
approximately 500
words
100%
Assignment is fully
developed essay that
goes beyond basic
assignment
Background
Information
Weight
25.00%
0%
Assignment
omits multiple
required
details
70%
Response on who
the players are in
the case is value
laden and/or
incomplete
85%
Assignment
explains the
background of the
Snyder v. Phelps
case
100%
Assignment contains
all required
materials;
elaborates on details
Implications
Weight
25.00%
0%
Assignment
omits multiple
required
details
70%
Assignment does
not properly
analyze both sides
of case
85%
Assignment
explains why the
court ruled the way
it did and discusses
implications of
ruling
100%
Assignment goes
beyond basic
requirements to
explore the ethical
implications of
protecting offensive
speech
Personal
Response
Weight
25.00%
0%
Assignment
omits
significant
details
60%
Assignment has
simple or unclear
reaction to the
implications of
protecting
unpopular speech
85%
Discusses how you
feel about the court
ruling and the right
to protest at
funerals
100%
Assignment has
added depth to
reaction to your
personal response to
the case
Current Issues in Media Law
The Freedom Forum is a nonprofit foundation established by the Gannett newspaper chain that is
devoted to protecting free speech and free press rights. They have a website devoted to current
issues related to the First Amendment:
• http://www.firstamendmentcenter.org/
For this assignment, you are to visit the First Amendment page and read one of the articles. Then, in
a short essay, summarize the article and explain the basic area of media law it deals with.
Notes: There is a wealth of First Amendment issues here that go far beyond just freedom of the
press, which is part of why I like this site. It’s important for students to realize that the First
Amendment belongs to everyone and not just the press.
Invasion of Privacy in Your State
Invasion of privacy cases are based primarily on state law. The Reporters Committee on Freedom of
the Press has placed on the Web a comprehensive overview of privacy laws in all fifty states and the
District of Columbia:
• http://www.rcfp.org/photoguide/stateindex.html
For this assignment, you are to visit the site and choose two states. In a brief essay, compare and
contrast privacy laws in the two states.
Notes: The Reporters Committee on Freedom of the Press has a number of toolkits on it to assist
reporters and photographers with a range of media law issues, including the above-mentioned
privacy law page. If you look at the group’s home page (http://www.rcfp.org/) you will find guides
Suggested Readings
• Smolla, R. A. (1988). Jerry Falwell v. Larry Flynt. New York: St. Martin’s Press. Attorney Smolla
gives the real story behind the events portrayed in the movie The People v. Larry Flynt.
• Rothenberg, E. C. (1999). The taming of the press: Cohen v. Cowles Media Company. Westport, CT:
Praeger. A look at how sources and the press fought over the meaning of a promise from the
point of view of Daniel Cohen’s attorney.
• Wilkinson, F. (1992). Essential Liberty: First Amendment Battles for a Free Press. New York:
Columbia University Graduate School of Journalism. Commentaries and analysis on several of
the most important media law cases.
• Foerstel, H. N. (1998). Banned in the Media. Westport, CT: Greenwood Press. A comprehensive
look at pre-September 11 censorship in the United States.
• All of the Chapter 13 links posted to my RalphEHanson.com blog at
http://www.ralphehanson.com/category/chapter-13/
Lecture Builders
Media Activities
Can the President Stop the Publication of a Book He Doesn’t Like?
Most likely not. But here are a range of sources, questions and arguments surrounding the
controversial book Fire and Fury by Michael Wolff about life inside the Trump campaign and
presidency.
• https://www.ralphehanson.com/2018/01/04/questions-worth-asking-maybe-fire-
and-fury-edition/
Is a Wedding Cake Free Speech?
In December 2017, The U.S. Supreme Court heard oral arguments in the case of Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission as to whether a baker could refuse to make a
decorated wedding cake for a gay couple. The case raised a wide range of questions, many of which
are addressed in this blog post. Look for more questions than answers here.
• https://www.ralphehanson.com/2017/12/06/is-a-wedding-cake-free-speech/
Free Speech and Students—The Hazelwood Decision
For a more complete analysis of Hazelwood School District v. Kuhlmeier Supreme Court
decision, visit this guide located at the Student Press Law Center’s website:
https://splc.org/tag/hazelwood/
Notes: When the Hazelwood was decided in 1988, high school students didn’t have any reasonable
alternative for publishing a newspaper if the school’s official paper was shut down or censored.
While students could certainly publish an “underground” paper, distributing it in school could be
problematic. But with the advent of the Web, anyone who wants to can publish a small-scale
alternative “newspaper” at very little cost. And as long as it is not produced using school resources,
there is little school systems can do about it. Student journalists working on their own websites are
still bound by privacy and libel law, however, which they may or may not have a good
understanding of.
The Hazelwood Decision’s 25th Anniversary
• http://www.ralphehanson.com/2013/01/14/the-hazelwood-decisions-25th-anniversary/
In 1988, the United States Supreme Court ruled that a high school principal in Hazelwood, Missouri,
had the right to censor articles in the student newspaper about pregnancy and divorce. The court,
in its ruling, wrote:
The First Amendment rights of students in the public schools are not automatically co-
extensive with the rights of adults in other settings. . . . A school need not tolerate student
speech that is inconsistent with its “basic educational mission,” even though the government
could not censor similar speech outside the school.
The court essentially ruled that a high school student newspaper was a classroom exercise and not
an instrument for free speech. The ruling went on to say that administrators could censor any
content that is “reasonably related to legitimate pedagogical concerns.” Or, as one first amendment
attorney said at the time, “He can censor the paper because he wants to teach those kids a lesson.”
Geoff Campbell, who now teaches journalism and advertising at the University of Texas at
Arlington, was a high school journalist in Missouri in the early 1980s, and he writes for the Fort
Worth Star-Telegram that he had to continually battle with the school district’s superintendent over
any article that had a whiff of controversy in it. He writes:
It was a stressful time. Teachers said things like, “You have constitutional rights. But what
about responsibility, decency and good taste?”
We could have made people happy by confining ourselves to stories about AV Club bake sales,
but that wouldn’t have made students more celibate or less pregnant. Unfortunately,
discussion about those very real issues got hijacked by a censorship debate.
Katelynn McCollough, writing for the Iowa State Daily (my old college paper!), notes that the state of
Iowa passed the “Student Exercise of Free Speech” law the year following the Hazelwood decision
that gave Iowa high school students back their basic rights to free expression. The law did have
some minor restrictions in it, but basically it said that Iowa believed that its students could handle
their constitutional rights and responsibilities.
Questions: What do school districts gain by allowing students full free speech rights? What do they
lose? What do students learn about the constitution when they are censored by school
administrators?
Classroom Debate: Who Owns Your Social Media Content?
You’ve posted a lot of material on social media. You’ve got several hundred photos of you and your
friends, all tagged with your names and locations. You’ve got stories about your vacation, a political
rant or two, and tons of birthday wishes you’ve handed out. Most of those photos you post or tweet
are of interest only to you, your family, or your friends. But suppose you share a photo you’ve taken
high-resolution images of his photos to Twitter he was allowing any use of his images.
i
But if you
post photos to a sharing service like Tumblr or Pinterest, other users of the service are allowed to
reblog or pin what you’ve put up as long as they don’t claim the work as their own. And once you’ve
posted an image, you have no guarantee that deleting the photo will ever get it completely off the
social network.
ii
The one thing social media sites are absolutely able to do is target advertising at
you based on the content you post or respond to online—which is why your author continues to get
ads for science fiction and action movies on his Facebook page.
HAVE you ever posted something to a social media site that could have commercial value? What
was it? What did you do to protect it?
HOW have you made use of photos, artwork, or other content you’ve found on social media sites?
WHY might legacy news outlets want to use materials that initially show up through social media
channels?
Classroom Debate: Celebrity Privacy
Movie, television, and music stars all benefit from positive publicity, but they don’t like it when
details about their private lives get printed or broadcast. Should celebrities have a right to be left
alone by the press, or is living in a fishbowl the cost of fame?
Notes: This can be a fun issue to debate. What many students don’t realize is that celebrities often
have cordial “backstage” relationships with the tabloids where they supply the tabs with photo
opportunities or stories. But there are also the times when they would simply like to be left alone.
Classroom Debate: Telling the Truth
When journalists go undercover to report on a story, they often have to lie about who they are. Is it
ever OK for journalists to lie to the people they are writing about? Why or why not?
Notes: This is a problematic issue for journalists. If they lie to get a story, how will they convince
the public that they are telling the truth when they give a report of what they found out while lying?
These issues can also be discussed in Chapter 14: Media Ethics. That provides a nice contrast
between what is legal to do and what is right to do. The Cohen case established that journalists are
obliged to keep their promises. In the Food Lion case, the journalists technically lost, but they were
only fined $2.
Notes: Censoring News Photos on Facebook
In the fall of 2016, Facebook was briefly censoring Nick Ut’s iconic Vietnam War photo of 9-year-old
Kim Phuc running down a street naked after her village had been bombed with a napalm attack.
Facebook placed a large black box over Ms. Phuc’s body, apparently considering it to be potential
child pornography.
The photo is famous for potentially turning many people against the war.
Here’s a link to Time magazine’s discussion of the photo:
• http://time.com/4485344/napalm-girl-war-photo-facebook/