2. Introduction
• Understand the reasons for, and the limits
of, First Amendment protections
• Grasp the critical importance of free expression in
democracies
• Understand the broad history of free speech in
the United States
• Understand several key First Amendment
principles and the cases that gave rise to them
3. Violent video games are speech?
• In Brown v. Entertainment Merchants
Association, the United States Supreme Court
struck down as unconstitutional a California law
banning the sale of such games to minors.
• “No doubt a state possesses legitimate power to
protect children from harm. But that does not
include a free-floating power to restrict the ideas
to which children may be exposed.”
Justice Antonin Scalia
4. 45 powerful words…
“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.”
5. It’s about positive vs. negative
liberty
• Freedom “of” is different from Freedom
“from”
• Reflects our revolutionary roots
• It all began with freedom from prior
restraint
• Prior restraint: Government prohibition
of speech in advance of publication
• A rather cramped view of free speech…
6. Prior Restraint
• Colonists suffered under the British system
of prior restraint
• The Crown could stop a publication before
it even hit the presses
• Stopping speech before it happens
• That was the issue in pre-revolutionary
United States
• That IS an issue still in many foreign
countries
7. “Congress shall make no law…”?
• Congress started regulating the press almost as
soon as we became a nation!
• Alien and Sedition Acts (1798) criminalized
criticism of the government. (Under President
John Adams)
• Neither politicians or press could criticize the president
• Sedition: the crime of revolting or inciting revolt
against government. Under First Amendment
doctrine it is quite rare, but sedition remains in
the United States Criminal Code.
• President Thomas Jefferson ended this era
8. Key early developments
• The “clear and present danger test”
• Justice Oliver Wendell Holmes:
• “The question in every case is whether the
words used are used in such circumstances and
are of such a nature as to create a clear and
present danger that will bring about the
substantive evils that the United States
Congress has a right to prevent….”
9. Key early developments
• 1925: Gitlow v. New York: First
Amendment finally applies to state and
local laws
• Free speech as a fundamental liberty
• 1950s: The “Red Scare” cases took a dim
view of free speech…aimed at suppressing
Communist sympathizers
10. Key early developments
• But finally, In Yates v. U.S.
(1957), the Court raised the bar…
• Government forced to prove that the
defendants advocated specific violent
or forcible action toward the
overthrow of the government
11. Today’s Questions
Think about the worst criticism leveled against
President Obama or President Bush on social
networks, blogs, talk shows and other platforms.
Now, view those criticisms through the context of
U.S. First Amendment policy and law starting in
1798 and through 1969.
During which periods would the authors of these
comments land in jail? Have lawmakers and judges
done the right thing of lighting up on punishment?
12. Key early developments
• And in Brandenberg v. Ohio (1969)
they raised it even higher…
• Unlawful conduct is protected by the
Constitution
• Unless it is directed toward inciting or
producing “imminent lawless action and is
likely to incite or produce such action.”
13. The limits of freedom: Defamation
• Example: Defamation
• Defined: Any intentional false
communication, either written or
spoken, that harms a person's reputation;
decreases the respect, regard, or
confidence in which a person is held; or
induces disparaging, hostile, or
disagreeable opinions or feelings against a
person.
14. Defamation Explained
Happens in two ways
1. Orally: known as slander
a) Slander is broadcast or spoken words that
expose someone to public hatred, contempt or
ridicule in writing or pictures.
2. In writing or other media: known as libel.
a) Libel is the publication or airing of false
statements that expose someone to public
hatred, contempt or ridicule in writing or
pictures.
Chapter 16: Libel, Privacy & Ethics, News Writing & Reporting, Scanlan and Craig
15. The limits of freedom: Libel
• It’s all about understanding freedom
of speech and the importance of
reputation.
• In court, a plaintiff must prove:
• A false and defamatory statement about an
identifiable person is published to a third party
causing injury to a person’s/subject’s
reputation.
• Opinion, satire and parody are not considered
libelous.
Chapter 16: Libel, Privacy & Ethics, News Writing & Reporting, Scanlan and Craig
16. New York Times v. Sullivan
• As much a civil rights case as a libel case…
• The Court applies the First Amendment to
libel law for the first time
• The case itself is a study of the Civil Rights
Movement
• Featured a political ad, not a news article
• A landmark case in protecting the rights of
journalists to report the news
17. The lawsuit
• It’s 1964.
• The Committee to Defend Martin Luther King and
the Struggle for Freedom in the South ran an ad
in the NY Times.
• The ad called attention to what the committee
described as a system of repression
• Segregationists hated the NY Times
• L.B. Sullivan, a commissioner of public affairs for
Montgomery, sued the New York Times Co. for
libel
• He believed mistreatment implied his involvement
18. The Ruling
• Supreme Court ruled against the Alabama
city commissioner who said a NY Times ad
protesting civil rights abuses in the South
libeled him.
• Justices ruled that the First Amendment
protects the publication of all statements
about the conduct of public officials, even
if they are false…
• Unless the news organization knew the
statements were false and published them
anyway.
19. Justice Brennan sets the tone
(1964)…
“[W]e 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.”
20. Southern officials v. free expression
• Southern officials had filed at least $388
million in libel actions against newspapers,
news magazines, television networks and
civil rights leaders.
• Bull Connor: Police dogs attacking
protestors was widely covered
internationally
• He filed several libel suits
21. No prior restraints…ever?
• New York Times v. United States made it clear
that they would be incredibly rare
• But limits on free speech began to emerge in the
case law that followed.
22. Online Libel – Lifelong infamy
• Unchartered territory, but its fertile
ground for a wave of legal action
• Bloggers are losing lawsuits against people
who are subject of hostile or insulting
messages if they meet the conditions of
libel.
• Defamation lives on the web forever
• Verification of information is critical
Chapter 16: Libel, Privacy & Ethics, News Writing & Reporting, Scanlan and Craig
23. WikiLeaks…Free Speech?
• Julian Assange, a convicted computer hacker,
creates a website that publishes political and
government documents
• http://www.mediaite.com/tv/snl-imagines-whatwould-happen-if-wikileaks-and-tmz-joined-forces/
• In July 2010, he releases 75,000 documents in a
partnership with The Guardian, The New York
Times and Der Spiegel
• In October 2010, he release another 400,000
classified documents about the War in Iraq
• Secretary of State Hillary Clinton calls release:
“not just an attack on America’s foreign policy
interests; it [was] an attack on the international
community.”
24. Whistle-blowing & Wiki-Leaks
• Assange, Snowden and others are testing
mainstream media offering them leaked,
sensitive information to media outlets or
publishing the information themselves
• What are the limits to privacy? National
security? Government secrets?
• Are they minimizing harm or maximizing
the truth?
Chapter 16: Libel, Privacy & Ethics, News Writing & Reporting, Scanlan and Craig
25. Journalists have no more rights
than anyone else… Shield Laws
• Laws of General Applicability
• Example: Protection for Anonymous Sources
• Branzburg v. Hayes
• 1972 case: Reports have no First Amendment right to
refuse to answer all questions before grand juries if they
actually witnessed criminal activity
• In 2005: Look at the saga of Judith Miller
• Should journalists be able to keep
sources confidential?
26. Journalists have no more rights
than anyone else…
• U.S. Appeals Court in the District of Columbia: A
grand jury’s need for information outweighed any
reporter’s privilege after NY Times reporter Miller
refused to testify about her sources on a story
about CIA Operative Valerie Plame
• NY Times argued she needed to protect her
sources
• US Court of Appeals refused to hear her case
• She spent 85 days in jail before agreeing to
testify
27. Don’t pry…
• Privacy law rears its head quite often in media
lawsuits
• Based on the “expectation of privacy”
28. Four major privacy claims
1. Intrusion/Trespass
• Intentionally intruding or physically or
otherwise upon a person’s seclusion or solitude
or another person’s private affairs
2. Publication of Private Facts
• Publishing information about someone’s
personal life that has not been previously
public and is not of a public concern
29. Four major privacy claims cont.
3. False Light
• Giving publicity to a matter concerning another
person that portrays that person falsely if the
portrayal would be highly offensive to a
reasonable person
4. Misappropriation
• The use of one’s likeness for personal or
commercial gain without consent or
compensation
30. Ethical Decision Making
• Journalists must never place themselves in
comprising situations
• Bob Steele, Poynter Institute:
• “Seek the truth and report it as fully as
possible”
• Act independently
• Minimize hard
• If you’re not sure, ask for help
• Be prepared to answer the tough
questions to defend any actions.
31. Fabrication
• Intentional falsification or invention of
information, data, quotations or sources
• Misattributing information or presenting
information in a false light
• Making up
stories, interviews, sources, description
will get you fired
• Ask Janet Cooke, The Washington Post
Chapter 16: Libel, Privacy & Ethics, News Writing & Reporting, Scanlan and Craig
32. Plagiarism
• Intentionally or knowingly representing the words
or ideas of another person as one’s own
• Deadline pressures often put undue strain on you
to get the information
• The lure and ease of the Internet make it easy to
cut, copy and paste
• Source everything
• Get original documentation
• Do your own interview, reporting, if necessary
33. Key Questions You Need to Ask on
Behaving Ethically
• Have I attributed the information in the
story to the sources who are willing to be
identified by name?
• If I’m relying on public records, can I
verify the information in my story?
• Have I identified all the key sources?
• Have I altered any quote, image or video
that may be misleading?
• Am I ready to defend my story if
challenged by a source?
34. Today’s Questions
The private lives and extra-marital affairs of
celebrities and politicians are in the news everyday.
Based on what you’ve learned about privacy
laws, should readers be concerned about the
“publication of private facts?
Should journalists avoid publishing these stories?
Why would reputable news organizations want to
publish this material? Is it just about money? Have
we gone too far? Not far enough?
Provide examples of the media going too far or
not far enough.
