First Amendment and the Media
FIRST AMENDMENT AND THE MEDIA
The courtship between the First Amendment and the mass media can trace its roots back to Colonial America. The mechanical printing press, invented in the fifteenth century, had come across the ocean and was being employed by the American colonies for the dissemination of many messages, some of which were political. England, angered that these certain messages openly criticized their government of the New World, sought to inhibit free speech. The three mechanisms that they used, government censorship, taxation, and seditious libel, comprised America's first encounter with prior restraint.
Early Prior Restraint
The first mechanism of prior restraint in the American colonies was government censorship. This practice, though not shared by all colonies, was a younger brother of England's mandatory licensing of all printing presses. The English licensing, introduced in 1530, required that all persons wishing to run a press meet certain criteria, mainly to refrain from criticizing the church or state. Those persons who published any material without a license were subject to severe penalties. Across the ocean, the American colonies did not require official licensing of newspapers and the like. However, some colonies still exercised the philosophy that printing was under state jurisdiction.
The second mechanism of prior restraint was the 1712 Stamp Act, which England imposed on the colonies. With this act, effective until 1855, publishers had to pay taxes on all newspapers, pamphlets, advertisements, and the paper itself. This meant that not only did the government know who was printing, via tax records, but the government also had monetary control over who could afford to print. Unlike the licensing philosophy, American colonists strongly objected to the taxation, the objection of which manifested itself in several acts of revolt.
The third mechanism of prior restraint was the punishment of seditious libel. Seditious libel was the printed criticism of any people in authority, be they government officials or leaders of the English Church. Consequences for this were so severe that many publishers refrained out of fear from printing anything controversial about an official. However, one man would prompt the colonies to rethink this accepted restraint. John Peter Zenger, publisher of the New York Weekly Journal, printed a negative piece about Governor William Crosby. Crosby reacted to the article by accusing Zenger of seditious libel, thus taking Zenger to court. Before the jury, Zenger, represented by Alexander Hamilton, admitted his "guilt" in publishing criticisms of the governor. However, Hamilton argued that these criticisms were true, in which case the truth should acquit Zenger from any wrongdoing. In the end, the jury decided to release Zenger on the basis that his message, though critical of an official, was nonetheless true. The acquittal of Zenger was the first stepping stone in a series that would finally lead to the birth of the First Amendment. After the American Revolution was fought and won, the new Constitution of the United States was created, and in 1791, the First Amendment was accepted. This first amendment (part of the Bill of Rights) simply stated:
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.
It is unlikely that the writers of this simple sentiment, that "Congress shall make no law… abridging the freedom of speech, or of the press," could foresee the intricate web of arguments that would surround the amendment's interpretation. However, history shows that several competing philosophies and many court decisions would cause this "freedom" to take on different meanings for each new medium.
A nonchalant glance at modern media regulation quickly reveals a disparity between regulation of print media and regulation of electronic media—mainly that there is much less regulation of print media than there is of electronic media. This is because the electronic media, and broadcasting in particular, were treated differently by the U.S. Congress at their inception. The rationale for this difference in treatment for broadcasting was that the airwaves were a scarce, public resource, and that messages traveling on these public airwaves could potentially reach, and indeed affect, a great many more people than print messages. Therefore, the government thought that, in the public interest, it was necessary to regulate broadcasting. Furthermore, broadcasting was seen as a form of interstate commerce, which, under Article I, Section 8, of the U.S. Constitution, Congress had the authority to regulate. Other electronic media were categorized similarly and are regulated under the Communications Act of 1934 as amended by the Telecommunications Act of 1996. Print, however, is only regulated under the ownership, antitrust, and criminal laws shared by all businesses in the United States.
Despite these regulatory differences, all forms of media, be they print or electronic, are subject to the courts. Unfortunately, it is difficult to say with certainty how the courts will interpret the First Amendment for a given media case because the judicial system has frequently changed its philosophies regarding the amendment throughout media history. However, four theories regarding free speech have taken turns influencing judicial decisions, and they continue to influence judges and lawmakers. These theories are the marketplace of ideas, political speech absolutism, absolute expression, and public access.
Theories of Free Speech
The marketplace of ideas theory, introduced in 1644 by John Milton in his book Areopagitica, suggests that all ideas should be allowed to be disseminated into the public marketplace. These ideas would then be individually weighed and compared to other ideas in the marketplace. The result would be a forum through which the available ideas would be debated and from which the proverbial truth would emerge. For practical purposes, it is assumed that the public would be able to choose, from the multitude of ideas, which idea would be the most suitable or valid for its time. Because it assumes an open forum, the marketplace of ideas implies that the government should either adopt a laissez-faire policy toward media content or promote diversity among mediated messages.
The second theory regarding free speech concerns the absolute freedom of political speech. Championed by Alexander Meiklejohn in the early 1960s, the idea of absolute freedom of political speech proposed that the government should under no circumstances inhibit or interrupt any speech regarding the regulation of the country, community, or self. This speech included scientific, artistic, political, social, and moral or religious speech. It did not, however, include personal, private speech.
The third theory takes Meiklejohn's idea to its limits. This absolutist interpretation of the First Amendment draws its fuel from a U.S. Supreme Court decision (United States v. Washington Post Co., 1971), in which Justice Hugo L. Black, supported by Justice William O. Douglas, wrote:
Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions or prior restraints.
This stance was translated as the endorsement for the U.S. government to refrain from any and all interference with public or private speech, absolutely. This absolutist interpretation of the First Amendment was too extreme for many to support.
The fourth popular interpretation of freedom of the press is the public access theory that was argued by Jerome Barron in 1967. This theory assumes that the purpose of the First Amendment is to allow the public to openly voice the various opposing views surrounding a public issue. This assumed purpose, whose roots can be seen in the marketplace of ideas and the absolute political speech theories, therefore implies that the general public should be guaranteed access to the different media in order to voice these views. This theory is arguably the most visibly manifested theory in broadcast regulation, as evidenced by the Fairness Doctrine (officially set forth in 1949 by the Federal Communications Commission as In theMatter of Editorializing by Broadcast Licensees) and other Communications Act of 1934 stipulations that required broadcasters to provide equal opportunity to air the various sides of public issues. Print media, however, were never subjected to access rulings, and broadcasting later received a similar reprieve when the Fairness Doctrine was abolished in 1987.
Tests for Possible Violations of the First Amendment
Regardless of which theory was popular at any given moment, there have always been media messages that would cause such controversy as to require the court system to test their validity against the First Amendment. Therefore, in answer to this periodic need, three main tests eventually evolved that were used widely in U.S. Supreme Court decisions when possible violations of the First Amendment were involved. These tests were the clear and present danger test, the O'Brien test, and the strict scrutiny test.
Clear and present danger has historically been the popular standard for whether the First Amendment has been violated. Seen as early as 1917, clear and present danger is based on the premise that the government may protect citizens from messages that would "create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." This statement, written by Justice Oliver Wendell Holmes in Schenck v. United States (1919), was used to convict two men who had circulated print messages against the draft during World War I. It is interesting to note that the same judge later amended his earlier position to specify in Abrams v. United States (1919) that messages must show a purposeful and immediate intent to cause danger.
In 1968, another case gave birth to a new First Amendment test. United States v. O'Brien involved a young man, David O'Brien, who was convicted of burning his draft card in front of a Massachusetts courthouse in 1966. O'Brien appealed his conviction on the grounds of free speech, and he won the review of the U.S. Supreme Court. The Court evaluated the case under three grounds. First, the conviction was tested to see if it aided a substantial government interest. Second, the substantial government interest was tested to see if it was necessarily tied to the suppression of free speech. Third, the government's actions were tested to see if they were no more severe than needed to further the substantial interest. This three-pronged test, which led the Court to uphold O'Brien's conviction and subsequently came to be referred to as the O'Brien test, is still used by federal and state courts to decide many First Amendment cases that involve government interference.
A more stringent test of government interference and violation of the First Amendment is the strict scrutiny test, which was first applied in Preferred Communications v. City of Los Angeles (1989). This test mirrors the O'Brien test, but there are two major changes. First, the government interest that the O'Brien test claimed should be "important" or "substantial" must, under strict scrutiny, be "compelling." Second, the way in which the government furthers this compelling interest must be in the least restrictive manner possible, as opposed to "no greater than necessary." The strict scrutiny test is employed whenever a government restriction directly affects First Amendment protections. In contrast, the O'Brien test is used in cases where First Amendment rights are indirectly affected by government involvement. Consequently, the government usually prefers the use of the O'Brien test over the strict scrutiny test because it is easier to prove that an interest is "substantial" rather than "compelling," and it is much easier to argue that an imposed restriction is "no more severe than needed" rather than "the least restrictive manner possible."
Of course, these three tests, which apply to all media, only constitute a fraction of the tests that may apply to broadcasting. Whereas print media enjoy relatively few restrictions and regulations, the electronic media must operate with substantial regulation. For example, section 1464 of the U.S. Criminal Code prohibits the broadcasting of "obscene, indecent, or profane language."
Restrictions on Electronic Media
Through the years, definitions of "indecency" and "obscenity" have evolved as a result of various court decisions, including Federal Communications Commission v. Pacifica Foundation (1978) and Miller v. California (1973), respectively. In both instances, the definitions include an aspect that references current community standards as a guide to identifying indecency or obscenity. Other aspects of the definitions include the identification of such material as offensive, sexual in nature, and devoid of any social value. Clearly, the definitions still require considerable interpretation, as does the First Amendment itself. Therefore, the application of these definitions will change according to the times, morals, and community standards in which the questionable messages are disseminated. Profanity, or the utterance of irreverent words, is not deemed to be seriously offensive, and consequently, cases involving profanity are not often seen in the courtroom.
Many of the historic regulations restricting the First Amendment privileges of the electronic media are still in place. Examples of this include section 312 and 315 of the Communications Act of 1934. Section 312 requires that broadcasters provide airtime to legally qualified candidates during federal elections. Section 315 requires that media outlets that give one political candidate media time must provide an equal opportunity for all other competing political candidates who wish to have media time. Other regulations that restrict the First Amendment rights of the electronic media are more recent, such as the Children's Television Act of 1990, which restricts certain advertising practices and imposes certain programming requirements for children's viewing. However, the general trend appears to be a relaxing of First Amendment restrictions and a more equal interpretation of the First Amendment with respect to both print and electronic media.
An example of the relaxing of restrictions for radio is the landmark case Federal Communications Commission v. WNCN Listeners Guild (1981). This case upheld the commission's policy that it would not become involved in the decision of a radio station to change its programming format. Radio could choose its programming strategy without government oversight.
Regarding broadcasting in general, League of Women Voters v. Federal Communications Commission (1982) found that the decades-old ban on broadcast editorializing was unconstitutional. In a similar vein, the 1987 repeal of the Fairness Doctrine furthered the freedom of speech of broadcasting by lifting the previous requirement to air opposing viewpoints of controversial public issues in a balanced manner. As a result of these changes, broadcasters gained more control over the content that was aired.
An example of relaxed restrictions for cable television is the outcome of Federal Communications Commission v. Midwest Video Corporation (1979). In this case, the U.S. Supreme Court officially struck down the commission's requirement that larger cable systems provide a certain number of public-access channels. The resulting effect of this court decision was to allow cable operators greater freedom in selecting channel line-ups and in acquiring programming.
Other media, such as digital cable, satellite television, digital broadcasting, and the Internet, remain somewhat ambiguous in terms of their First Amendment status. These media, of course, have First Amendment protection. However, recalling the disparate treatment between broadcasting and print, it is uncertain how the newer media will eventually be treated by the government and the judicial system. The merging of broadcast and print characteristics in the various new media will undoubtedly muddy the interpretive waters even more, rendering definitive decisions extremely difficult. Nevertheless, despite conflicts between protection of the public interest and freedoms of speech and press, the relationship between the First Amendment and the media will continue to evolve and shape the messages that are heard.
Barron, Jerome. (1967). "Access to the Press: A New First Amendment Right." Harvard Law Review 80:1641-1678.
Kahn, Frank J., ed. (1978). Documents of American Broadcasting, 3rd edition. Englewood Cliffs, NJ: Prentice-Hall.
Meiklejohn, Alexander. (1961). "The First Amendment Is an Absolute." Supreme Court Review 1961:245-266.
Pember, Don R. (1992). Mass Media in America, 6th edition. New York: Macmillan.
Smith, F. Leslie; Meeske, Milan; and Wright, John W., II.(1995). Electronic Media and Government: The Regulation of Wireless and Wired Mass Communication in the United States. White Plains, NY: Longman.
Francesca Dillman Carpentier