First Amendment: Print, Broadcast, Cable, Internet, & Video Games

First Amendment: Print, Broadcast, Cable, Internet, & Video Games
Professor Mark Richards

I. Introduction

A. Varying levels of first amendment protection by type of media, with broadcast media (TV and radio) subject to more government regulation.

B. Standard of review matters. Content-based regulations of broadcast media are typically treated according to intermediate scrutiny, while most other content-based types of media regulations are evaluated according to strict scrutiny.

C. Exceptions exist, depending on type of speech, or type of regulation. Although print media are generally strongly protected, libel of private figures  not for presumed or punitive damages is subject to a lower level of protection. Time, place and manner regulations or general regulations that have an incidental burden on the media are subject to intermediate scrutiny.

D. The court of public opinion and industry self-regulation may be the greatest censors. Industries like interactive software (video games), television and movies all use ratings to inform consumers, but these ratings schemes are voluntary. Congress threatens mandatory controls from time to time, but such laws would likely be unconstitutional.

Net-neutrality issues:

discriminating against content (e.g., P2P)

retaliation against users: bandwidth throttling, account termination

mobile phone carriers and discrimination against applications, retaliation, etc.

II. Print media

A. Do the words "freedom of . . . the press" have a unique meaning or is the press just another speaker? Should the press be treated as the "fourth estate?"

B. Many aspects of print media law, including:

1. Presumption against prior restraints

2. Libel

3. Incidental regulations

4. Media shields

5. Time, place and manner

6. Publication of classified information and/or information that is alleged to threaten national security

7. Newsroom searches

8. Obscenity and indecency

9. Free press v. fair trial

10. Press access

11. School newspapers

B.  The New York Times Company v. Sullivan, 376 US 254, 1964

Emblematic of strong protection for print media.

1. Facts

Who was Sullivan, and what did he claim?

What was the content of the ad?

What did Alabama libel law state?

2. Holding

Court overturned the half-million dollar judgment, noting the Alabama law was unconstitutional, and the evidence was insufficient under the new standard of actual malice.

3. Reasoning

a. Debate on public issues should be robust:

"We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 270.

b. Factual error and defamatory content are not enough to warrant withdrawing first amendment protection. Why not?

-Cannot put burden of proving truth on the newspaper. Would lead to self-censorship.

-Even if speech hurts the reputation of public officials, it should still be protected. The first amendment should protect speakers against claims of seditious libel.

c. Multiple claims for damages could be awarded for each story.

d. What is the actual malice standard?

In order to recover damages for libel, the plaintiff must prove that the challenged statement was made with either knowledge of falsity or with reckless disregard for whether it was false or not.

e. Why was the evidence insufficient in this case?

Didn't meet actual malice standard, and the evidence didn't support finding that the statements concerned Sullivan.

f. Black and Douglas would completely prohibit the reach of libel law in cases like this one.

C. What are the problems with the actual malice standard?

- It doesn't protect reputations.

- Easy to get cases to jury, requires extensive discovery (Herbert v. Lando, 1979), which entails large legal fees.

D. Development of libel law:

Plaintiff bears burden of proof.
Evidence of actual malice must be clear and convincing, not preponderance of evidence.

Later extended to public figures.

Also, speech on matters of public concern is more protected than speech on private matters.

III. Broadcast Media

A. Red Lion Broadcasting Co. Inc. v. FCC, 395 US 367, 1969

1. This is an access case. It deals with the FCC's fairness doctrine.

Access cases usually have first amendment arguments on both sides. Broadcast media stations assert first amendment rights to make editorial decisions. Speakers seeking access assert first amendment rights to make message heard, and assert public right to receive information. Government (usually FCC) can be on either side.

2. In Red Lion, Justice White expresses the traditional justification for why the expression of the broadcast media is less protected.

a. The scarcity of the airwaves available for television and radio broadcast requires the government to license those who desire to broadcast.


b. The Court has traditionally recognized the free expression rights of the public to receive information and maintain some access to the broadcast media.


c. Question: Should economic scarcity or market dysfunction be justifications?


B. Intermediate scrutiny

The doctrine for regulation of the broadcast media was set forth in Federal Communications Commission v. League of Women Voters of California (468 U.S. 364, 1984), which established an intermediate form of scrutiny as the governing analytic standard and reaffirmed that the expressions of the broadcast media are less protected. The Court held that in order to be constitutional, content-based government regulations of the broadcast media must be "narrowly tailored to further a substantial government interest, such as ensuring adequate and balanced coverage of public issues" (Federal Communications Commission v. League of Women Voters of California, 468 U.S. 364, 380, 1984).

C. FCC v. Pacifica Foundation, 438 US 726, 1978

1. What happened?

2. Court upholds the FCC's declaratory order against Pacifica.

3. Reasoning

Is the FCC decision content-based? (Yes – Court admits it is. FCC called it indecent and patently offensive. Court notes that content of broadcast was vulgar, offensive and shocking.)

Does the fact that it is broadcast media make a difference? Why? (Yes. Media is pervasive. Prior warnings not always effective because people tune in and out. Also, broadcast media is uniquely accessible to children.)

4. Dissents

a. Individuals can turn off their radios

b. Court gives no weight to listeners who want to hear the broadcast

c. Material is not obscene

d. Effect of ruling is to reduce the adult population to hearing only that which is fit for children.

D. Recent application: FCC regulation of fleeting expletives upheld on an administrative law (not a constitutional) basis in FCC v. Fox (2009). (E.g at Billboard Music Awards: Cher  and Nicole Ritchie; compare to ruling on Saving Private Ryan)

IV. Cable

A. Why is cable different?

What is standard of review?

Ct. says it depends on whether the regulation is content-based or neutral. E.g. US v. Playboy Entertainment Group (2000) holds that a law regulating signal bleed on cable TV is content-based; Court strikes down the law as not the least restrictive means.

B. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 1994

Ct. upholds must carry rules. Do you agree they are content-neutral? (Trying to promote freedom of expression – avoid having private interests restrict it).

C. Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, 116 S. Ct. 2374, 1996

Breyer leaves open standard of review, noting rapid technological changes.



V. Internet

A. Supreme Court Internet rulings have primarily focused on indecency.

Net-neutrality issues raise import questions about freedom of access to information and the the freedom to make information available.

B. Reno v. ACLU (1997)

1. Facts

Concerns two sections of CDA: 223a (prohibiting knowing transmission of obscene or indecent material to minors) and 223d (prohibiting sending or displaying patently offensive material to minors).

Affirmative defense for age verification exists.

2. Issue

Does the Communications Decency Act violate the first amendment?

3. Holding

CDA violates the first amendment.

4. Reasoning (Stevens)

a. The Internet is different, so old precedents such as FCC v. Pacifica do not apply.

Why? Users are not likely to encounter offensive material as easily as with broadcast media. The Internet is less invasive. Also, it hasn’t traditionally been regulated, and it is vast and democratic.

b. The law is content-based.

c. The two sections are vague

What is indecent compared to patently offensive?

It leads to uncertainty among publishers.

It is not a precise regulation (it is not carefully tailored).

It suppresses a large amount of adult speech. The government cannot reduce adults to viewing only that which is fit for children.

d. less restrictive alternatives

Tagging of indecent material to allow parental control

Exceptions for work of scientific, literary and artistic value

Treat the commercial web differently. E.g. Do not punish a parent for sending email about birth control.

These less restrictive alternatives exist, so the CDA is not narrowly tailored.

C. Ashcroft. v. ACLU, 542 US 656, 2004.

Following Reno v. ACLU, Congress passes COPA.

Supreme Court (5-4) upholds a ruling enjoining the statute, following Reno.

Regulating material that is harmful to minors is content-based, so strict scrutiny applies.

Filtering is a plausible, less restrictive alternative, so the ACLU is likely to prevail on the merits.

VI. Interactive software (video games)

A. Introduction

ESRB rating system is voluntary, industry self-regulation.

Video games are a popular target for politicians.

The past decade saw a wave of state statutes regulating so-called "violent" video games, all of which were struck down.

B. Brown v. Entertainment Merchants Association (2011)

1. Facts

What did California attempt to regulate?

How did the state attempt to define “violent” video games?

How did the regulations work?

2. Issue

3. Holding

4. Reasoning of Scalia’s majority opinion

a. Is the law content-based? Why?

b. How does he respond to California’s argument that there should be a “wholly new category of content-based regulation that is permissible for speech directed at children”?

c. Does it matter that video games are interactive?

d. What is the standard of review?

e. Is there a compelling interest?

f. Is California’s law narrowly drawn to achieve a compelling interest? Explain how it is underinclusive and overinclusive.

5. Reasoning of Alito’s concurring opinion

a. Why doesn’t he join the majority opinion?

b. Why does Alito find the law impermissibly vague?

c. Why is this case different than an obscenity case?


6. Reasoning of Thomas’ dissenting opinion

Why does he think the Court’s decision departs from the original understanding of the Constitution?


7. Reasoning of Breyer’s dissenting opinion?
a. Why does he find a compelling government interest?


b. Why does the he find the restriction on speech to be “modest” (i.e. the least restrictive means) on its face?


c. How does the law compare to regulations of minors’ access to materials depicting nudity?