Media Studies Chapter 12 Constitutional Issues And Content Regulation Learning Objectives After Reading This

Unlock access to all the studying documents.

View Full Document

CHAPTER 12

Constitutional Issues and Content Regulation

__________________________________________________________________

LEARNING OBJECTIVES

After reading this chapter students should be able to understand the following concepts:

First Amendment rights: Outline protections found in the First Amendment for freedom of expression,

freedom of assembly, and religious freedom.

Marketplace of ideas: Understand promoting a wide open discussion of ideas.

State action: Describe the differences between government or state action and private action.

Unprotected speech: Delineate between protected and unprotected speech, especially defamation and

obscenity.

Chilling effect: Outline the causes of self-censorship and its effects.

First Amendment parity: Describe what is meant by “parity” and why broadcasting and cable are

regulated differently than print media.

CHAPTER FOCUS

This chapter explores broad questions of regulation, including its constitutional limits. Concepts found in

the First Amendment are applied to broadcasting, cable, and other technologies and issues. Take time to

discuss free speech goals and freedom of the press as defined by the First Amendment.

In spite of the fact that “Congress shall make no law . . . ,” laws punish unprotected speech, including

defamation, obscenity, invasion of privacy, “fighting words,” and indecency involving children. This

speech falls outside First Amendment protection from government interference because they do not

contribute to the marketplace of ideas. Libel, privacy, and obscenity form the basis for the discussion of

“unprotected speech” presented in 12.4 and 12.5. Note that materials presented here, and throughout the

chapter, are drawn from case law. Stress legal precedent, but also note that precedent can be overturned

by subsequent rulings.

First Amendment parity is described in 12.2 and 12.3. This issue raises the question: Does broadcasting

have the same First Amendment protections provided to unregulated media, especially the print media?

The answer is no, based on three factors: limited spectrum resources (channel scarcity), governmental

station licensing, and intrusiveness of broadcasting into virtually every home. This sticky equity issue will

remain controversial for a long time, and thus, students need to understand it fully. They also need to

understand the First Amendment status of other electronic media and how media regulation differs with

the medium.

Section 12.6 examines Section 315, the political broadcasting rules that mandate equal opportunities for

candidates. This protection raises questions of what “equal” really means for political candidates.

formalizes the FCC’s access concept. The particulars of the Fairness Doctrine are presented in 12.7. The

Fairness Doctrine was formulated in 1949 when the FCC allowed stations to editorialize. The Red Lion

case of 1969 supported the doctrine and is outlined in Exhibit 12.f. In 1987, the FCC abolished the

doctrine, though Congress may reinstate it.

Protecting children from inappropriate materials has long been a societal concern. Since 1960, the FCC

has expressed some concern with broadcasters providing children’s programming. Some regulations had

been developed by the FCC during the 1970s, but most fell during the deregulatory era of the 1980s. In

1990, Congress passed the Children’s Television Act. This act, among other things, limited advertising in

programs for children under 12 and required some educational and informational programming for

children up to age 16. This act and the “V-chip” legislation should provide ample material for discussion.

Terms, Concepts, and Exercises

First Amendment

Terms: marketplace of ideas, “no such thing as a false idea,” “clear and present danger,” state action,

jawboning, prior restraint, injunction

oDiscuss why there is “no such thing as a false idea.” Why does the First Amendment encourage

disagreement? How is the marketplace of ideas supposed to balance viewpoints?

oReview Section 326 of the Communications Act that states the FCC cannot censor broadcast

material. (See Exhibit 12.a.) The FCC often cites this section when responding to people who

100

Broadcasting’s Limited Rights

Terms: First Amendment parity, channel scarcity, NBC case, intrusiveness

oWhat is First Amendment parity?

oDiscuss the validity today of arguments used to justify imposing certain regulations on

broadcasting (that would violate the First Amendment if they were imposed on print). Does

scarcity exist today?

First Amendment Status of Other Electronic Media

Terms: unique characteristics, “Is the new service more like print or more like broadcasting?”, balancing

interests

oAs new media emerge, old media standards of First Amendment protections are applied to them.

What disadvantages (and advantages) does this regulatory approach give the courts and

Things You Can’t Say

Terms: unprotected speech, defamation, slander, libel, actual malice, chilling effect, invasion of privacy,

free press versus fair trial, cameras in the courtroom, broadcast hoaxes, lotteries

oWhich categories of speech are unprotected? How does libel differ from slander? (Note that both

are types of defamation.) Is broadcast defamation treated as libel or slander?

oUnder what circumstances may invasion of privacy occur? Note that public officials and public

figures, as in libel, have less protection than ordinary citizens.

oCan media coverage of court proceedings interfere with an individual’s right to a fair trial? Some

12.c.)

oWhat elements comprise an illegal lottery? Why is it that radio and television stations must be

careful about how they word their promotional contests? (Review any local contests taking place

in your market and see if they contain the elements of chance, prize, and price.) Why can

broadcast and cable outlets advertise various state lotteries?

Obscenity and Indecency

Terms: obscenity, community standards, Miller case, Section 1464 of U.S. Criminal Code, indecency,

profanity, Pacifica case, channeled, “safe harbor,” profanity, “fleeting expletive,” “shock jocks,” cable

indecency, “dial-a-porn,” Communications Decency Act of 1996 (CDA), Child Online Protection Act

oThe Miller case defines current obscenity law. What is that definition? What standards are used to

define obscenity? How does the law rule out abuses of power relating to obscenity?

oDiscuss the importance of FCC v. Pacifica. What is the significance of the phrase the FCC used,

“community standards for broadcast media,” in describing material that fails to conform to

accepted standards of morality? What does “channeling” mean and how has that concept become

a political football?

oWhat role has Congress played in the controversial area of indecency? Is there any difference

Political Access

Terms: equal opportunities, equal time, Section 315, Section 312(a)(7), lowest unit charge, Section 315

exemptions

oNumerous special considerations apply to political broadcasts. Discuss these with your class. (See

Exhibit 12.e.)

oWhy would many stations prefer not to sell time to candidates? What is meant by a station’s

“lowest unit charge”?

oAre debates between presidential candidates exempt from Section 315 obligations? Has this

always been the case? (Note that a special act of Congress was needed in 1960 temporarily to set

Public Access

Terms: controversial issues of public importance, Fairness Doctrine, Red Lion decision, personal attack

rule, political editorializing rule, editorial advertising or advertorials, journalistic discretion, editorial

discretion, localism

oCould anyone who had an idea demand his or her voice be heard on the air under the Fairness

Doctrine? How did the FCC deal with this situation? What problems are inherent in the Fairness

oWho determined how a station should meet its Fairness Doctrine obligations? Were stations

required to initiate controversy or react to complaints? Discuss the demise of the Fairness

Doctrine. Speculate about its possible reinstatement by Congress.

oNote that the personal attack rule and the political editorializing rule are extensions of the

Serving Children

Terms: Action for Children’s Television (ACT), Children’s Television Act of 1990, “educational and

cultural needs” of children, program-length commercials, “V-chip,” ratings code

oWhat does the Children’s Television Act call for? How does it protect children from too much

advertising? How does the statute seek to improve programs for children? Do students think the

provisions will succeed?

oWhat has the FCC said are the responsibilities of the broadcast and cable industries in

Terms: copyright, royalties, copyrightable works, public domain, compulsory licensing, retransmission

consent, fair use, blanket licenses, ASCAP, BMI, SESAC, cable signal piracy, culture of copying,

encryption technology, digital piracy, digital audio tape (DAT), digital tapes, serial copy management

system (SCMS) standards, broadcast flag, Internet Service Providers (ISPs), MP3, file-sharing programs,

Online Copyright Infringement Liability Limitation Act

oWhat is a copyright? What purpose does it serve? What kinds of works can be protected? How

long does a copyright last? (Note that although brand names, logos, and slogans are not protected

by copyright, they can be protected under trademark regulations.)

oWhat is “signal piracy”? Stress that unlicensed use of copyrighted material is illegal under

Section 705 of the 1934 Act. The problem, however, is one of enforcement. Cable companies

were initially so busy signing up new customers that they neglected to prosecute unauthorized

hookups. Even those who were caught received little more than a slap on the wrist. Cable

companies are now more vigilant, and the 1984 Cable Act substantially increased penalties for

violators.

103

Changing Perspectives

Terms: deregulator and regulator

oShould broadcasting continue to enjoy special status as a uniquely democratic medium? Does it

continue to serve an important informational role? Or does the growth of cable, for example,

reduce broadcasting’s role to serve the public interest needs of its local communities?

PEARSON MYCOMMUNICATIONKIT RESOURCES

Each chapter of the MyCommKit for Head’s Broadcasting in America, 10th Edition includes chapter

learning objectives, practice quizzes, key terms flash card, and select media.

Media available for this chapter:

WATCH: News Feature: ABC’s Nightline: Celebrity Worship and the Paparazzi (2005)

WATCH: News Feature: ABC’s Nightline: Trading Music Over the Internet (2004)

WATCH: News Feature: ABC’s 20/20: Government Censorship of the Media – Breastfeeding

Advertisements (2004)

OUTSIDE AUDIO/VISUAL RESOURCES

First Amendment Freedoms (VHS, 30 min., 1989)

This program presents interviews with political scientists and experts in constitutional law to explain the

status of freedoms guaranteed by the First Amendment. It examines freedom of the press and details the

Legal Considerations of Broadcast News (VHS, 23 min., 1989)

This video takes a close look at legal requirements with which broadcast stations must comply when

covering the news. Defining legal terms and presenting cases that have set precedents in law’s

Crime, Violence, and TV News (VHS, 83 min., 1993)

Featuring interviews with media experts and legislators, this Nightline reports probes how the U.S. TV

news media cover crime and violence. Presenting clips from newscasts, it explores accusations of media

bias and sensationalism. Distributor: Insight Media.

Using dramatic vignettes, this program poses forty common questions about copyright laws relating to

video, film, computer software, print materials, and music. An attorney answers questions and gives an

explanation of the laws. Distributor: Insight Media.

104

Will copyright laws enable freedom of expression in networked environments, or will they be

impediments to free speech? Should Internet service providers be held liable for copyright infringements

by their users? This discussion focuses on these questions and considers the implications of Internet

communication for copyright law around the world. Distributor: Insight Media.

The rapid development of the Internet and multimedia makes it essential for users to understand the basics

of copyright law. This video answers frequently asked questions about copyright, multimedia, and fair

use, addressing the concerns of educators, administrators, and parents. Distributor: Insight Media.

The Cost of Free Speech (VHS, 26 min., 1989)

There has been an explosion of libel cases across America brought by citizens against newspapers, radio,

and TV. With the size of damage awards also increasing dramatically, the press feels that its tradition of

Cyberspace: Freedom or Regulation? (VHS, 29 min., 1996)

With pornography, recipes for homemade bombs, and messages of “cyber-hate” just a mouse click away,

should the Internet be regulated the way the FCC regulates broadcasting? That question is the focus of

this program. Distributor: Films for the Humanities and Sciences.

Obscenity (VHS, 60 min., 1994)

This video investigates the moral ramifications of obscenity. It investigates the possibility of explicit

sexual imagery or explicit sexual descriptions having a palpable and measurable moral effect on viewers

and readers. Distributor: Insight Media.

Media Ethics (VHS, 28 min., 1998)

Is a political candidate’s past personal life fodder for the front page? If a child commits murder, should

the offender’s name be released? If a CD by a top recording artist has strongly antisocial lyrics, should the

105

Modern Campaign Techniques (VHS, 25 min., 1998)

This behind-the-scenes documentary shows how political campaigning has become a manipulative

science guided by half-truths, negative rhetoric, and overly powerful campaign managers and political

consultants. We see how the television media contributes to negative campaigning and how smart public

The First Amendment (VHS, 20 min., 1998)

This program from the acclaimed Cambridge Educational series, The Amendments to the Constitution,

thoroughly analyzes the history and text of the First Amendment. Experts, including Dr. Nadine Strossen,

President of the American Civil Liberties Union, discuss their interpretation of the Amendment and the

Free Speech for Sale: A Bill Moyers Special (VHS, 60 min., 2000)

When it comes to today’s important public policy issues, the opportunity to be heard depends on whether

you can afford it. In this program, Bill Moyers and key legal and public interest advocates examine how

industries with deep pockets use their access to the media to overwhelm the public debate, from North

Hate and the Internet: Web Sites and the Issue of Free Speech (VHS, 22 min., 2000)

What is the price of free speech? Protected by their First Amendment rights and the Internet’s cultural

philosophy of “post it all and let the readers decide,” American hate groups are having a field day on the

World Wide Web, creating virulent virtual communities of intolerance. In this program, ABC News

Big Business and the Web (VHS, 30 min., 1999)

In 1990, Tim Berners-Lee turned his vision into reality; through HTML, he made the world of

information available to anyone who has access to a computer and a modem, through what is today

Trial by Television (VHS, 50 min., 1993)

This video explores the effects of media involvement on law enforcement, from sensational news to

courtroom cameras, profiling cases that were complicated by media attention. Distributor: Insight Media.

On Television: Teach the Children (VHS, 56 min., 1992)

This video combines television clips with commentary by critics, scholars, and network executives to

Technology and Legal Issues: Ownership and

What are the legal standards for ownership and copyright information and resources on the Internet? This

video explores issues surrounding ownership and copyright of materials that are accessible through the

Internet. It explains the legal challenges that face organizations using the Internet and provides guidelines

for protecting information. Distributor: Insight Media.

Technology and Legal Issues: Protecting Your

Intellectual Property (VHS, 60 min., 1997)

This video provides an overview of the legal challenges and potential pitfalls involved in software

development. It explains the nature and legal status of intellectual property and discusses issues of

software licensing and copyright. Distributor: Insight Media.

Truth or Lies: Local News on Trial (VHS, 46 min., 1997)

Free Speech, Politics, and the Web (VHS, 30 min., 1999)

Internet chat rooms, e-mail, and Web sites are all conduits for free speech. Anybody and everybody can

have their say in the “anything goes” environment of cyberspace. This program discusses the technologies

that cyberworld pioneers developed and examines why, for better or for worse, the Information

Superhighway and uncensored discourse are here to stay. Distributor: Films for the Humanities and

Sciences.

107