"Restriction of free thought
and free speech is the most dangerous
of all subversions.
It is the one un-American act that could most
easily defeat us."
Supreme Court Justice William O. Douglas
What does this say about Censorship? How is censorship defined? Usually, censorship, or prior restraint, is by a governmental entity. What if your editor or publisher tells you, a reporter, not to write a story? Is that censorship?
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. 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.
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1. Libel is defamation which is published or broadcast and injures a person's reputation enough to cause him economic (job or career) or social (relationships with others) harm. If a person's reputation is damaged unjustly, he may recover damages in a civil suit, using procedure much like for accident damages. A publisher has defenses of truth, privilege, fair comment and consent. These must be proven. Public figures have much less protection than other persons under recent libel decisions.
2. Copyright protects the right of a person to creative expression. Again, it is a matter of damages. This applies to stories, photographs, poetry, song lyrics and other creative expressions.
3. Right of government to protect itself. The classification of military and diplomatic information. "Clear and present danger" during war. Doesn't apply to civil problems.
4. Right of society to protect itself from influence which could lead to antisocial behavior. Obscenity and pornography laws are a very gray area. The Supreme Court has allowed community standards to be the final measure of what may be considered.
5. Right to privacy is the right to be left alone when not in public places or taking part in action (crime, for example) in which there is not an overriding public interest.
6. Right to a fair trial is guaranteed by the 6th amendment. The amendment guarantees a trial by impartial jury. Pretrial publicity may be suppressed by judges to secure this right.
7. Right to regulate the public airwaves to see that the public interest is served. FCC regulations are involved here.
8. Right to protect public health through advertising limitations, such as the recent flap about the use of the label "fat-free" on products.
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In the United States, governments usually regulate people and organizations for five reasons:
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1. When people or organizations interfere with the workings of the economic market system. This is Martha Stewart's problem with the government, and Bill Gates and Microsoft had a problem as well. 2. When the use of a product or an industry or company's behavior has a negative impact on society as a whole. How about the tobacco industry? 3. When a product or behavior has a negative impact on individuals that outweighs its contribution to society as a whole. This includes libel and slander. 4. During time of war. Because the Vietnam conflict was never declared a war, formal censorship was never invoked. However, conflicts in Granada and elsewhere since that time have seen the interference of government to limit press coverage. 5. To preserve its own security and power. During the 1970s, President Richard Nixon used government secrecy acts to hide information that would have exposed criminal activity in the White House. His efforts failed. Another example was when the Pentagon Papers were held to be secret until the Supreme Court ruled otherwise.
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Governments exercise three types of regulation over the mass media.
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1. Governments regulate the economic behavior of media companies in the consumer and advertising markets -- for example, it was illegal for a newspaper company to own a television station in the same city.
2. Governments regulate certain internal business activities of media companies -- for example a media company must comply with federal laws that prohibit racial and gender discrimination in hiring.
3. Despite the existence of the First Amendment, governments regulate some content and information -- for example, a company cannot broadcast a deceptive advertisement that might harm consumers. The government has asked media to quit advertising products that make claims about weight loss without dieting or exercise.
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Federal Constitution takes precedence over all other laws.
Look here for Supreme Court cases Federal Statutory: laws passed by the Congress of the United States.
Federal Administrative: laws established by federal administrative bodies such as FCC and FTC.
State Constitution
State Statutory: laws established by state legislatures.
State Administrative
State Common Law: laws created by judicial interpretation; few apply to communication law.
Click here for the First Amendment Handbook.
Click here for more information about media law cases.
Click here for hot cases in media law.
Click here for The News Media and the Law.
Click here for Student Press Law Center for some interesting cases involving high school and college publications.
Thirteen states have enacted statutes aimed specifically at restricting the "disparagement" of food products. The statutes generally authorize food producers to sue anyone who disparages a food product with information unsupported by reliable scientific data. 3
See Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858 (N.D. Tex. 1998); Agricultural General Co. v. Ohio Public Interest Research Group, No. 97 CVC07-7367 (Ohio Ct. of C.P., filed July 31, 1997); and Burleson Enters. Inc. v. American Honda Motor Co. Inc., No. 2:97-CV-98-J (N.D. Tex., filed Oct. 22, 1997).Letters to the editor containing unsupported derogatory accusations, or containing false statements, can also be the basis of a libel suit.
See, e.g., Khawar v. Globe Int'l, Inc., 19 Cal. 4th 254 (Cal. 1998), modified, No. S054868 (Cal. Dec. 12, 1998).Banned books are a problem in some areas. Check out this site. You might be amazed. Check the Copyright Office Web site for rules and regulations. Congress first attempted to curb indecent material on the Internet with the Communications Decency Act of 1996, which prohibited the transmission of such materials to minors. But a unanimous Supreme Court in the 1997 case Reno v. ACLU struck down provisions of the act as unconstitutional. While the court agreed that the government held a compelling interest to keep indecent material from children, it ruled that officials had not devised a narrowly tailored measure to do so. Specifically, the court said the law's "contemporary community standards" would subject the Internet to standards of the most restrictive community. Although use of a famous person's name or likeness without consent to sell a product is usually an invasion of privacy, other infringements may not be so clear. When an Ohio television station filmed a performer's entire 15-second human cannonball act for its evening newscast, the U.S. Supreme Court found that the film posed a substantial threat to the economic value of that performance. Therefore, use of the film was a tortious appropriation of the plaintiff's professional property, the court said.
Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)Intrusion claims against the media often center on some aspect of the newsgathering process. This tort may involve the wrongful use of tape recorders, cameras or other intrusive equipment. Trespass can also be a form of intrusion. In addition to liability for tortious invasions of privacy, reporters should be aware that anti-paparazzi laws may create statutory liability, sometimes both civil and criminal, for newsgathering that involves trespass or harassment. California enacted such a law in 1998, and similar laws are under consideration in several other states and the U.S. Congress.
Cal. Civil Code § 1708.8 (Deering 1998) and H.R. 97, 106th Cong., 1st Sess. (1999).In Williams v. ABC, a plaintiff successfully sued a television station when her hip surgery was filmed without her consent. 4 The presence of television cameras in private surgery was held to be an intrusion - a violation of the woman's privacy - regardless of whether the surgery footage actually was aired.
Williams v. ABC, 96 F.R.D. 658 (W.D. Ark. 1983)The California Supreme Court has held that at an accident scene, audio and videotaping of rescue efforts alongside an interstate would not constitute intrusion, but taping the same accident victims once they have been moved to a rescue helicopter could be considered an invasion of privacy.
Shulman v. Group W Prods., Inc., 955 P.2d 469 (Cal. 1998).
Revised July 7, 2004
© Chester F. "Chet" Hunt and San Antonio College 2002.
San Antonio College is a college of the Alamo Community College District.