When a Commercial is Not a Commercial: Advertising of Violent Entertainment and the First Amendment

The September 2000 release of the Federal Trade Commission's report on the marketing of violent entertainment to children ignited the latest of many rounds of policy debates on violent entertainment and its effects on children. Parties on both sides of the debate have cited the First Amendment as limiting what the government can do to legally restrict the marketing of violent entertainment products to children. However, little detailed analysis of just how the First Amendment would apply to any such marketing restrictions has been presented. That is the subject this article takes up. First, it looks at the First Amendment standard of review applied to restrictions on commercial speech. The article also considers whether violent speech, in either entertainment programming or its advertising, may be restricted under the First Amendment. Finally, this article examines whether the advertising of violent entertainment products is entitled to the same level of First Amendment protection afforded to the products being advertised.     

Cybercrimes v. Cyberliberties

The broad topic of 'crime and cyberliberties' encompasses two major subtopics: firstly, the extent to which online expression may be punished under new criminal laws, even if it would be lawful in the traditional print media; and secondly, the extent to which online privacy may be restricted to facilitate enforcement of existing criminal laws. In both contexts, many law enforcement officials argue that we have to make trade-offs between, on the one hand, individual rights and, on the other hand, public safety. In fact, though, the alleged dichotomy is oversimplified and misleading. Claims about the alleged unique dangers of online expression are exaggerated, and the types of criminal laws and law enforcement strategies that have worked effectively in other media are also effective in cyberspace. For example, children should be protected from exploitation in the production of child pornography through the same measures, regardless of whether the material is distributed through postal mail or e-mail. Indeed, individuals and organizations who are devoted to protecting children from exploitation and abuse-whether for the production of child pornography or any other purpose-have expressed frustration that resources that should be used to enforce existing laws are being diverted toward efforts to create new cyberspeech crimes, such as the two US laws criminalizing online material that is 'indecent,' 'patently offensive', or 'harmful to minors'. The many judges who have ruled on these laws-including the entire US Supreme Court-have agreed that they violate free expression rights and are not necessary for their stated purpose of protecting children. The battle to preserve online privacy has not been as successful in the US, where the government restricts strong encryption despite the vigorous objections of not only cyberlibertarians, but also the business community. Moreover, even some law enforcement and other government officials have concluded that, on balance, security concerns are aided, not undermined, by strong encryption, since it protects innocent individuals and legitimate businesses from cybercriminals, and it also protects governments and vital infrastructures from cyberterrorism. Most governments apparently recognize these facts since they have not joined the US in restricting encryption technology.     

Alachua free‐net: Looking for the First Amendment at one outpost on the information highway*

Many communities are developing civic computer networks to provide citizens with free access to local information resources and the Internet. However, most networks restrict both commercial speech and any language deemed “objectionable.”; Whether such broad discretionary power violates the First Amendment depends on whether the networks are state actors. An examination of one such network, Alachua Free‐Net, reveals a close symbiotic relationship between the network and several local government entities. Symbiotic relationships between the state and a private party in other contexts have been held by the courts to constitute state action. Thus, Alachua Free‐Net appears to be a state actor and must conform its speech restrictions to the requirements of the First Amendment. Moreover, whether state actors or not, civic computer networks such as Alachua Free‐Net should commit themselves to providing full First Amendment freedoms to their users.     

The Heckler’s Veto: Using First Amendment Theory and Jurisprudence to Understand Current Audience Reactions Against Controversial Speech

Pundits have recently used the term “heckler's veto” to describe instances in which vocal audiences seek to silence offensive or controversial speech by putting pressure on institutions that control the private forums that host the speech. The use of the term in these contexts, however, fails to take into account the jurisprudential nuances of the heckler's veto principle, as well as the principle's unique position within First Amendment theory. This article fills a void in mass communication law scholarship by examining the development of the heckler's veto principle in cases from the Supreme Court of the United States that discuss the persistent challenges that the heckler's veto principle presents and by analyzing the principle from the perspective of First Amendment theory. The purpose of these analyses is to distill the social values of tolerating extreme speech, and to apply those values to the governance of private forums of communication.     

Gag orders: Shields or swords in the constitutional conflict between fair trial and free press?

In 1976, in Nebraska Press Association v. Stuart, the Supreme Court characterized gag orders as the “most serious and least tolerable infringement on First Amendment rights.”; Yet courts impose gag orders that restrict media coverage of courts and trial participants. Many groups believe the use of gag orders is increasing. However, no previous study has attempted to quantify the frequency of gag orders or to explore judicial attitudes about the issuance of such orders. This analysis of the case law and exploratory survey of judges in Florida suggests that courts issue gag orders to protect fair trials, participant safety and privacy, and the sanctity of the courtroom.

This article also suggests that conflict over gag orders arises because judges disagree about the core meanings of the First and Sixth Amendments. This research indicates that judges' individual interpretations of the Constitution color their determinations of whether indirect gags on trial participants, rather than on the media, are impermissible assaults on the First Amendment or are permissible shields of fair trials. Judges tend to be either First Amendment apostles or Sixth Amendment followers, and Sixth Amendment judges are more likely to impose and uphold gag orders. The authors suggest that this schism is unlikely to be resolved without guidance from the Supreme Court.     

Pleading the Fifth: Media Economics,Free Air Time and the Fifth Amendment

Some public interest groups use the concept of "free air time"-regulation compelling television stations to provide free advertising time for federal candidates-to advance the cause of campaign finance reform. The purpose of this article is not to rehash arguments over whether the First Amendment prohibits such legislation but rather to examine a newer direction of inquiry through the Fifth Amendment "takings" clause. Although takings arguments have been dismissed by many due to the "public interest" standard to which broadcasters are held and public ownership of the spectrum, this article uses tenets of media economic theory to show that free air time could indeed constitute a "taking." What is at issue is not the use of the spectrum, but rather access to an audience: economic property created and sold by broadcasters.     

Pushing Patriotism: Why Flag Encouragement Doesn't Fly

The federal Freedom to Display the American Flag Act of 2005 prohibits homeowners' associations (HOAs) from forbidding the display of the American flag. At least twenty states also have such laws, most of which have not been challenged in court. This article suggests that these “flag-encouragement laws” would not withstand challenges by either residents of HOAs or by HOAs themselves. HOA residents may use the state action doctrine to apply traditional First Amendment jurisprudence to these content-based laws, and HOAs may attack the laws using other precedents of the Supreme Court of the United States.     

Promises to keep: Enforcement of prepublication agreements and first amendment rights

Since the Supreme Court's ruling in Cohen v. Cowles Media, several courts have found that prepublication agreements are legally binding promises between journalists and their sources of information, and that the First Amendment does not protect journalists from civil sanction for the breach of such agreements. An agreement between a journalist and a private individual not to disclose a source's information or the source's identity might constitute a legally binding commitment, especially if the plaintiff is able to show that a clear and specific commitment was made not to reveal certain information and that as a result of the breach of promise the plaintiff suffered specific harm.

However, the Court's analysis of enforcement of confidentiality promises as having merely incidental effects is flawed. Because it did not balance the enforcement of prepublication agreements against the First Amendment interests in nonenforcement of the agreements, the Court in Cohen departed from its compelling interest analysis of prepublication agreements in Snepp v. United States as well as its previous standards in finding incidental effects of generally applicable laws.     

To Filter or Not To Filter: The Role of the Public Library in Determining Internet Access

To filter or not to filter-that is the question facing public librarians who are trying to decide whether to install Internet blocking software on computers. The filtering question hinges on the First Amendment, balancing adults' rights to constitutionally protected speech against the protection of minors and determining what materials might be considered harmful to minors. The purposes of this article are to examine the theoretical and practical aspects of blocking Internet content and to analyze the 1998 federal district court's ruling that found a Virginia library's filtering policy was unconstitutional. In addition, this article will review alternatives designed to protect minors and propose a three-pronged solution that both ensures adults' access to constitutionally protected speech and restores decision-making to the family in protecting minors from harm.     

Courtroom Access After 9/11: A Pathological Perspective

The dangers that times of national stress inevitably pose for First Amendment freedoms led legal scholar Vincent Blasi to formulate what he called the "pathological perspective." Blasi argued that, because the nation is more willing to give up fundamental liberties during these periods, it is incumbent upon the courts to anticipate such times and create legal rules that will withstand such pressures. This article examines the Supreme Court's courtroom access doctrine from a pathological perspective. It concludes that the confusing legacy of the Court's decisions in courtroom access cases has increased the danger to First Amendment rights during this critical time, and it proposes a more robust doctrine of courtroom access drawn from the pathological perspective.     

Spam and the First Amendment Redux: Free Speech Issues in State Regulation of Unsolicited Email

The scourge of email spam is almost forty years old, and, yet, it does not appear to be disappearing. In fact, spam has expanded to other ubiquitous Internet platforms including social media Web sites. It seems, then, that the many state anti-spam statutes have been unsuccessful in regulating the sending of unsolicited commercial email, but not for lack of trying. This article examines the First Amendment challenges to state anti-spam laws.     

Fredrick Siebert's Absolute,Adjustable First Amendment

Fredrick Siebert is known for his analysis of the role of "stresses" in shaping freedom of expression. How flexible did he think First Amendment rights should be? His career and writings are examined to identify his positions and to understand how they may have been formed. Siebert believed that the founders were absolutists on government restraints, and he questioned subsequent efforts to define liberties in other ways. Like a scholar who influenced his career, Willard Bleyer, Siebert was a prominent journalism educator who could be a critic of the media. While Bleyer complained about communication monopolies and called for self-regulation, Siebert generally took a libertarian approach. He wanted protection for the business interests of the press and few, if any, government restrictions on content.     

Considering Fair Use: DMCA’s Take Down & Repeat Infringers Policies

Courts have recently clarified some aspects of the Digital Millennium Copyright Act safe harbor system, yet other aspects remain hazy. In this haze, ISPs are incentivized to over-block content, and copyright holders are allowed to give a narrow, subjective reading of a user’s fair use. Subjectively, copyright holders can, in good faith, hold objectively unreasonable views about fair use. The asymmetry between copyright holders’ rights and remedies and users’ rights and remedies threatens socially valuable speech and creates a chilling effect. And the risk of extra-judicial termination of Internet access under a vague and variable repeat infringers policies threatens fundamental First Amendment interests. Policy changes are proposed to harness fair use considerations to protect First Amendment interests in the digital sphere. The calculus and consequence for sending takedown notices should be recalibrated. By curbing copyright overreach and minimizing the chilling effect, the potential for robust exchanges over new communication technologies can be realized.     

First Amendment influence in argentine republic law and jurisprudence

The First Amendment to the United States Constitution has influenced the development of freedom of expression in a number of countries, including the Argentine Republic. This article focuses on law as it came to affect mass media beginning with assumptions from the 16th century, when Argentina was under Spanish domination, and continues through the 1853–60 constitutional conventions that marked the initiation of First Amendment influence in Argentine law and jurisprudence. The article explains how the de facto governments that ruled Argentina from 1862 to 1983 gave direction to law and court decisions affecting the mass media, including film censorship, press penal responsibility, prior restraint, state of siege and the right to reply. The article concludes by analyzing how these laws and court decisions have influenced media and Argentine society, especially in fostering self‐censorship.     

POSTAL 2 plays in US court - Schwarzenegger v. Entertainment Merchants Association

In an unprecedented legal development, the case of violence in video games has now reached the highest American court. The US Supreme Court is set to decide whether states can restrict minors from buying violent video games in the case of Schwarzenegger v. Entertainment Merchants Association. The decision could have serious implications on the future of First Amendment rights and children’s ’welfare. To resolve Schwarzenegger, the Justices will need to decide how much First Amendment protection should be extended to violent video games and whether minors have a greater constitutional right to violence than they do to obscenity.     

Clashing conceptions of press duties: Public journalists and the courts

This article bridges the growing, but controversial, public journalism movement with First Amendment jurisprudence and libel law. It examines whether the movement finds support in laws that affect the press and, in particular, in court‐created defenses and privileges that protect journalists in modern defamation law. Do defenses that safeguard journalists in their traditional routines as fact gatherers and reporters also protect them in the kinds of roles and duties envisioned by public journalism advocates? Furthermore, has the United States Supreme Court, in non‐defamation cases involving the First Amendment, expressed concern for protecting what might be called the “public journalism functions” of the press? Does the Court create a different image for the press than the one envisioned by public journalism advocates? This article addresses these questions. It ultimately concludes that public journalists and courts have two very different conceptions about the role that journalists play in a democracy.     

Public Broadcast Stations' Exclusion of Candidates from Debates: A Step Toward Political Independence?

Government-operated broadcast stations are in an anomalous situation in their continuing struggle for political independence. Not only must government stations meet the informational needs of their audiences, the stations must address the market-induced failures of commercial broadcasting. Controlling their programming is one facet of meeting these obligations. Nevertheless, government stations have been accused of violating the First Amendment when they have exercised their editorial discretion to exclude candidates from debates sponsored by the stations. This article explores political candidates' rights of access to debates in light of a United States Supreme Court decision that held that government stations may use subjective criteria to exclude candidates from debates. Although the Court's decision reinforced government stations' First Amendment rights to exercise editorial discretion, the decision did not significantly advance public broadcasting's struggle for political independence.     

Policy of Secrecy-Pattern of Deception: What Federalist Leaders Thought About a Public Right to Know, 1794-98

Legal commentators and journalists have debated for years whether the First Amendment provides the press with special rights of access to government information and facilities. The United States Supreme Court has consistently rejected arguments that such a constitutional right for newsgathering exists. This study examines the issue from a historical perspective. It looks at the question of whether there is historical evidence in the years immediately following ratification of the First Amendment to support the modern rationale that the press has a constitutional right of access to government.     

Public opinion on media presence in the courthouse

Very little attention has been devoted to the public's opinion of media coverage of court cases despite extensive research on pretrial publicity (PTP). Following a provincial judgment to restrict media access in Quebec courthouses, a preliminary unpublished study found that the public was largely in support of these restrictions. The present study sought to expand on this finding in a more widely generalizable sample. Subjects were recruited from continuing education classes and completed a questionnaire that assessed their support for restricting journalists in courthouses. Nearly 80% of the 243 participants supported media restrictions. Although participants in the four experimental conditions and one of the control groups were largely in favor of the restrictions, one control group was opposed to the restrictions. The results suggest that the public prefers that journalists have restricted access to courtroom participants, resonating research on PTP and the Supreme Court's decision on the case.