FA Contemporary Problems-Ch. 3

Vietnam-general security guidelines, but had free access to most everyone

Pentagon did not like the frank accounts of the war and made changes

Grenada-1983

Kept press out for 72 hours

Journalists not pleased with treatment; formed press pools

Press pool used 3 times before Gulf War

Worked well in Libya and Iraq-Iran War

Worked poorly in Panama

Press pool arrived late; "Missed the war"

Cheney ordered the delay in activation of press pool and blocked attempt to form pool from press already there

Major censorship in Gulf War (3 factors)

Civilian authorities yielded to military officers who were bitter about Vietnam

U.S. respect Saudi gov’t., which restricted press coverage

Bush wanted to avoid opposition to war that plagued LBJ

Three-pronged censorship in Gulf

Reporters that left rear area were confined to press pools

Press pools escorted by military public affairs officers

All print and broadcast reports had to be reviewed before they could be released

Press filled vacuum with reports from military briefings (very little info)

Military provided incorrect or misleading information

Press protested little for fear of being left on the sidelines

Two lawsuits against gov’t. were for naught b/c courts refused to consider prior restraint

Gov’t and press have had limited success since Gulf War to establish guidelines

Press pool ok in Haiti, problems in the Balkans

Tinker v. Des Moines (1969)

2 boys and 1 girl wear black arm bands to protest Vietnam

SC ruled that students in public schools don’t give up their right to free speech when enter schoolhouse gate

Tinker v. Des Moines (1969)

Students can express opinions if they do so"without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others."

Lower courts didn’t uphold this too often b/c they wanted principals judge

East Hazelwood High School (St. Louis)

Principal took out 2 pages of paper

Teen pregnancy and divorce articles

Interviews with students

Censored on grounds of privacy and editorial balance

Pregnant girls might become known

Unbalanced b/c gave only students views

SC ruled (1988) (5-3) that censorship ok

Paper was part of school curriculum

Force of ruling not as applicable to extracurricular activity

SC distinguished Tinker from this case

Tinker deals with students’ personal expression

Hazelwood concerns authority of educators over school-sponsored publications

Brennan’s dissent said the ruling failed to teach children respect for diversity of ideas

Since Hazelwood…lots of censorship

550 calls 1988; 1,600 calls in 1998 to Student Press Law Center

School shootings have prompted crackdown on any hints at school violence

Focus of much of censorship today is school image

Naperville Central-administrators took trips ($5,600) during tight budget crisis

Principal didn’t want to affect administrators ability to lead

One administrator-reimbursed for 5 nights, but conference only lasted 2 days

Public vs. Private school

Type of newspaper?

School-sponsored, part of journalism class

Unsupervised or student controlled, extracurricular activity

Student paper produced and distributed off campus

Hazelwood deals with first type of paper

Criteria used to censor HS paper produced as part of a class

Stories or photos that materially or substantially interfere with the requirements of appropriate discipline

Material that interferes with rights of students

Material that fails to meet standards of academic propriety

Material that generates health or welfare concerns

Matters that are obscene, indecent, or vulgar

Dickey v. Alabama State Board of Education (1967)

Troy State College newspaper editor ran blank space in protest to an editorial banned by the administration

District court ruled that the state can’t force student to forfeit his right to freedom of expression as a condition of attending school

Kincaid v. Gibson (1999)

Kentucky State confiscated and locked up the yearbook

Lack of quality, not school colors, "Destination Unknown" title, lack of captions and photos, too many current event photos

Appeals Court ruled 2-1 in favor of the school

En banc hearing ruled in favor of the students and said their FA rights had been violated

www.splc.org

Crime reports are often an issue of contention

Schools want people to think their campuses are safe

Journalists want to see to police reports

Congress has said police reports should be fair game for the press

College papers not part of curriculum

Age of the audience (college deals with adults)

Administrators encouraged by the courts to keep their hands off

School won’t be held liable

Three reasons for censorship

Disruption of the school (take away from message of school)

Protect students from offensive speech (racist material)

Don’t want certain views attributed to the school

Tough to call when not sure if newspaper is a student or university publication

Prior restraint may be based on time, place, or manner of a communication

Speech on mushrooms is ok

Not ok in middle of busy street

Not ok at 3 a.m. in neighborhood

Four criteria to consider to determine if prior restraint is constitutional

The rule must be content neutral, both on the face and the manner in which it is applied

Apply rule regardless of what is said or printed

Brentwood, TN: TN SC ruled law prohibited distribution of commercial handbills in public places was not content neutral (did not apply to newspapers, political material)

The law must not constitute a complete ban on a kind of communication

Has to be an alternative means of communication

Exiting polling can only be done outside voting centers during an election

Banning exiting polling restricts the type of questions reporters can ask

The state must articulate a substantial interest to justify this restraint on speech

Ban loudspeakers after 10 p.m. b/c folks trying to sleep

Beacon Hill able to get ban on NP boxes

State asserts substantial interest and bring evidence to prove its case

SW Texas St. U.- restricted distribution of community newspaper on campus

U.S. Court of Appeals ruled evidence was weak

The law must be narrowly tailored so that it furthers the state interest that justifies it, but does not restrain more expression than is actually required to further this interest.

Sylvania, GA-litter problem; illegal to distribute free, printed material in yards, etc

GA SC ruled ordinance was not narrowly tailored; it blocked distribution of others

TPM restriction depends on Forum (place) a rule applies

Traditional Public Forum

Street corners, public parks, steps on campus

Lovell v. Griffin (1938) SC established the FA protect distribution/publication of ideas, opinions, news

Designated Public Forum

City-owned auditorium, meeting hall, student newspaper

Gov’t has greater power to use TPM rules in these places

Public Property (not a public forum)

Prison, military bases, concourses leading to airport ramps, subway stations (NY), interstate rest stop (S. Dakota), computer network (OU)

Private Property

Backyard patio, shopping mall

Son of Sam Laws

Deny criminals right to earn profits from books or films about their crimes

Most current S of S laws are not narrowly tailored (so have hard time passing as constitutional)

Laws are content-based statutes

State has to demonstrate a compelling state interest is at stake

Then prove the law does not bar more speech than necessary

Convince the court the law stops a criminal from making a profit while victim remains uncompensated

Law aimed only at commercial exploitation, not at all expressive activity in which the criminal reflects his or her thought about the crime

"Invective, written, or spoken, attacking individuals or groups because of their race, ethnic background, religion, gender, or sexual preference

Printed, broadcast, painted signs that contain hate speech generally protected

Face-to-face confrontation does not have same FA protection

Chaplinsky v. New Hampshire (1942)

Chaplinsky was a Jehovah’s Witness; confrontational style

Called city marshal a "God-damned racketeer" and a "damned facist."

SC (9-0) affirmed lower court’s conviction based on Fighting Words Doctrine

Gooding v. Wilson (1972)

SC emphasized that laws prohibiting fighting words be limited to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed"

Not about insult to person, but fear of breach of peace, fight, riot

Village of Skokie v. National Socialist Party (1978)

Nazis wanted to march peacefully against racial integration in Chicago schools

Skokie officials said Nazis had no insurance and halted the protest

Skokie passed ordinances saying no marching in military style uniforms and no distribution of material inciting racial hatred

Illinois SC ruled ordinances abridged free speech

IL SC said displaying swastika and other Nazi symbols did was not sufficient enough to apply prior restraint

Swastika not considered fighting words

Prior notice of message gives others opportunity not to listen

R.A.V. v. St. Paul (1992)

SC reaffirmed right of gov’t. to censor fighting words

But, said gov’t could not be selective by banning only certain categories of fighting words

Teens burned wooden cross in African-American family’s yard

Scalia wrote that MN statute was content-based (fighting words that provoke violence on the basis of race, color, creed, or gender)

Message content determines how gov’t. regulates; but medium of transmission is also considered

Print-enjoys most freedom of the mass media

TV/Radio-least amount of freedom

Cable TV-more than TV/Radio, less than print

Telephone-very few limits

Convergence is making it difficult to distinguish among media

Courts use 4 criteria to distinguish

Capacity of medium to carry messages

Traditional relationship between gov’t. and medium

Pervasiveness or invasiveness of medium

Accessibility of medium

Reno v. American Civil Liberties Union (1997)

SC ruled (7-2) that communication via the Internet deserves highest level of FA protection (like that given to books, newspapers)

Court said Internet was not scarce, no tradition of censorship in cyberspace, Internet is not invasive, and protection of children does not outweigh encouraging freedom of expression in a democratic society

© B.L. Yates 2001