Regulation of Broadcasting in America

Over time a great deal of consolidation occurred among cable companies with many being gobbled up by larger conglomerates. AT&T, Disney, and Viacom, for example, bought up many cable companies. The rapid consolidation of cable companies led to another round congressional regulation in 1992 and 1996. When the dust settled, cable owners were free to screen out indecent moments on cable access channels thereby reinforcing their role as an editor. Some producers, notably the Playboy Channel, have challenged this provision to no avail. Cable owners were also allowed to set their own cable rates but soon faced stiff competition from satellite or dish systems. Telephone companies that had been prohibited from using their phone lines to carry cable, were suddenly encouraged to do with advent of fiber optic technology.

Today, most Americans have access to cable system which can provide hundreds of stations, many converted to high quality digital signals and down loaded from satellites. The most important case in terms of defining cable=s First Amendment rights was Turner Broadcasting v. FCC[xxv] in 1994. The Supreme Court ruled that while cable owners deserved a good deal of First Amendment protection because of the diversity of voices they were bringing to subscribers, they still could be required to carry local stations since they operated much like a local monopoly. On re-hearing in 1997, the Supreme Court again upheld the Amust carry@ provision despite cable owners arguments that they were tantamount to newspaper publishers and editors and should have the right to decide what channels they will carry. On a five to four vote, the Court sided with localities and broadcasters thereby retaining the Amust carry@ rule in part because cable operators are licensed by localities and bare some resemblance to local utilities often using utility poles.

Media and Violence

At least since Socrates was condemned for “corrupting” the youth of Athens, societies have been concerned about how to protect themselves from bad influences. While most of the classic cases of alleged corruption have dealt with indecency and obscenity (see chapters 8 and 9), in the United States in recent years, there has been outcry against violence in the media whether it be a violent film about mass murder or a computer game that scores body counts. Unlike Socrates, the purveyors of violent programming tend to be media giants who may own motion picture studios, cable channels, and computer companies. Their adversaries tend to be members of Congress responding to pleas on the part of their constituents to end violence on the media. The arbiters in these cases are members of various judicial panels including the Supreme Court.

The cases that emerge raise several important philosophical and psychological questions. How much influence does a given medium or program have on an individual? How much responsibility does a programmer have for the influence of the program on the average viewer or player? What is the value of social scientific evidence in a court of law?

The Burden of Proof: A Provable Link

Perhaps the most direct challenge that has come to program producers has been the charge that they are responsible for imitative actions on the part of viewers. Suppose a sixteen-year-old boy watches a wrestling match on a cable channel and then while trying to imitate the feigned violence breaks his buddy’s neck. Can the parents’ of the victim sue the cable channel and the wrestling producer for inducing the damage? To date, the courts have ruled against such torts.

In fact, no court has granted monetary compensation for harm allegedly caused by a television program or music recording because the courts doubt the existence of a provable link between television and violence. In Zamora v. Columbia Broadcasting System²⁶, Olivia N. v. NBC,²⁷ Walt Disney Prod. v. Shannon,²⁸ DeFilippo v. NBC,²⁹ and Waller v. Osbourne,³⁰ the plaintiffs were denied damages when they alleged that they were victims of violence incited by television programming or in the last case, an Ozzy Osbourne recording. Instead, the courts sided with the defendants’ claim to a First Amendment right to freedom of expression. Based on Brandenburg v. Ohio (1969, see above), the scope of the advocacy of "imminent lawless action" doctrine has been limited; the Supreme Court has specifically ruled that televised violence does not fall into that category, especially if it is entertainment. The same is true of the “clear and present danger” standard articulated in Schenck v. United States (1919, see above). That test was strengthened in Whitney v. California (1927), where Justice Louis Brandeis in a concurring opinion joined by Justice Oliver Wendell Holmes wrote that “Fear of serious injury cannot alone justify suppression of free speech . . . . Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.”

The First Amendment was adopted to protect the creative, the free thinkers, and those that question. Only in this way can the cauldron of thought be allowed to bubble freely to produce the new, the innovative, and the corrective. The price is that cauldron will also produce some things that are rank. That is the price of freedom and often the price of truth. Viewing Shakespeare’s Hamlet shocks the system while providing a catharsis. Hamlet's father is poisoned, Ophelia commits suicide, Polonius is stabbed to death, Queen Gertrude and King Claudius are poisoned, Hamlet is stabbed with a poison rapier and kills Laertes. However, Shakespeare finds these murders necessary to advance several important themes concerning existential existence. If violent entertainment is the cause of our ills, and if that cause is to be exterminated, then a great many works of art would have to be destroyed in the name of protecting society.

In the United States, the First Amendment was established in part to protect minority views that contributed to the public understanding, the search for knowledge, and political reform. However, new media have often aroused legislators’ and judges’ suspicions. In some cases, they have argued that a compelling government interest trumps the First Amendment. For example, during World War I, President Woodrow Wilson established a review board for the newly emerging motion picture industry to make sure its films did not undermine the war effort. Censorship of motion pictures lasted until 1952, though it tended to focus on sexual content as opposed to violence.³¹

Media Violence & Social Violence

Recently, some have argued that violence in the media contributes to violence in society as a whole; thus, government has a compelling interest to reduce and/or censor violence in programming. A host of national policy makers has brought pressure on producers and broadcasters of violent programming to curtail "gratuitous violence." In 1994, for example, Congressman Edward Markey (D-Mass.) attached legislation to a communications bill that required the installation of a so-called V-chip (see below) in all new television sets.

Given its popularity, politicians have been unable to resist the urge to blame television for the ills of society. In 1954, for example, Senator Estes Kefauver (D-Tenn.) investigated the relationship between juvenile delinquency and television programs. Senator Chris Dodd (D-Conn.) revived this issue in the early ‘60s; he eventually persuaded President Lyndon Johnson to establish the Eisenhower Commission on the Causes and Prevention of Violence in 1968. Since its conclusions were not in accord with his impressions, Senator John Pastore (D-R.I.) requested that the Surgeon General issue another report on the problem. Three years later under the watchful eye of the Congress, a report was published that hinted at a weak correlation between the viewing of violence and violent activity: "The effect is small compared with many other possible causes, such as parental attitudes or knowledge of and experience with the real violence in society. [The evidence does not] warrant the conclusion that televised violence has a uniformly adverse effect . . . [or] an adverse effect on the majority of children.”³² Nonetheless, the Surgeon General appeared before Senator Pastore's committee and claimed a causal link had been documented though "carefully phrased and qualified in language acceptable to social scientists.”³³ By the fall of 1974, the Chairman of the Federal Communications Commission, Richard Wiley, was urging the three networks to curtail "sex and violence" on television. Unfortunately, his call intertwined indecency with violence. In reaction, the networks and the National Association of Broadcasters Television Review Board adopted the "family viewing" policy, which shoved violent and sexual programming into the 9 to 11PM time slot. Nonetheless, the Commission made clear that "industry self-regulation" was preferable to governmental regulation, that such standards were highly subjective and raised "serious constitutional questions.”³⁴ Sure enough in November of 1976, the courts found the "family viewing" hour unenforceable and unconstitutional in Writers Guild of America W., Inc. v. FCC in 1976.³⁵ More recently, the courts have ruled that the FCC can put in place a restriction on "indecent" material limiting it to broadcast in the 10 PM to 6 AM time period (see chapter 9), but they have not included “violent” material in their rulings.

Vagueness & Violence

In Winters v. New York (1948), Justice Stanley Reed, writing for the majority, protected entertainment from infringement by ruling that "[t]he line between . . . informing and . . . entertaining is too elusive . . . . Everyone is familiar with instances of propaganda as fiction. What is one man's amusement, teaches another's doctrine.”³⁶ That was an important ruling because Winters is one of the few Supreme Court cases that deals with the question of the effect of violence in the media. The state of New York had arrested Winters under a statute that prohibited the sale of stories of bloodshed. After three arguments before the Supreme Court, the law was deemed unconstitutional on the ground that it was too vague.

The vagueness of the term "violence" is one of the most persistent problems for those who seek to regulate it because it encourages arbitrary regulation that violates free, let alone creative speech. The Supreme Court has consistently ruled that inhibiting speech is unconstitutional, especially when the inhibition is caused by the application of an "arbitrary and capricious" standard. Television programs from reruns of The Three Stooges to Will & Grace achieve comic effects using what some have called violent activity. Because conflict makes drama, it is hard to find a serious fiction, whether it is Macbeth or The West Wing, that is not violent in some way. Furthermore, philosophically, it is not difficult to demonstrate that violence can be used to reinforce in the mind of audience members what is moral and what is immoral. In The Case for Television Violence (2000), Jib Fowles demonstrates that violence in programming is cathartic and might actually prevent further violence on the part of viewers.

Social Science Studies

Thus, the use of social scientific studies in the courts is a troubling question. President Bill Clinton’s last Surgeon General issued a report linking violence with the media in 2000. It came under immediate attack by numerous scholars. For example, Professor Karen Sternheimer, a sociologist at the University of Southern California and a researcher at the Center for Media Literacy, wrote: “One of the studies the surgeon general cites equates programs as diverse as cartoon and police dramas with video games and action movies.”³⁷ This procedure, claims Sternheimer, negates “the importance of context and meaning.” The Surgeon General’s comparisons are misleading and dangerous because they ignore the more like causes of violence such as “alcohol abuse, the deterioration of public education and the lack of economic opportunity in impoverished areas.” Thus, the issue of causation is a problem for social scientists because they can never eliminate all possible causes and must rely instead on a substantial “correlation” of activities to make their case.

A further problem for social scientists is the definition of violence. Aside from reality and news programming, most violence on television is acted; it is not real. When viewers see a motion picture, they know that it is not real. So how does one measure the impact of violence that is not real, but imagined. Sometimes violence is described as aggressive behavior; sometimes it is described as verbal abuse and teasing. Constitutional scholars Thomas Krattenmaker and Scott Powe put the problem this way in their landmark two-hundred page review of social scientific research:

Finally, and most damaging to proponents of the violence hypothesis, no one yet has been able to suggest an acceptable operational definition of the very kind of behavior sought to be measured: "violence." To be useful as a basis for policy making, studies of the causes of violence must rest upon a definition incorporating normative, social connotations. To illustrate, if violence is defined simply as a willingness to stand one's ground when physically attacked, it is extremely unlikely that violence caused by television would produce an outcry for increased regulation. What then can the researcher take as an objective observable conception of violence capable of measuring behavior that produces social concern?³⁸

The most recent case in this regard concerns an ordinance written by the city of Indianapolis attempting to limit access to violent video games by minors in arcades. The ordinance defined “graphic violence” in two ways. First, it bracketed “graphic violence” with obscenity arguing that it caters to a “morbid interest” and is “patently offensive to prevailing standards in the adult community as a whole. . . lacks serious literary, artistic, political or scientific value.” Secondly, the ordinance defines “graphic violence” as “amputation, decapitation, dismemberment, bloodshed, mutilation, maiming, or disfigurement.” The local judge approved implementation of the ordinance on the grounds that psychological studies of other games provided enough data to convince him that such games induced minors to aggressive acts of violence. He also ruled that because the ordinance defined violence in a very specific way it was not open to arbitrary and capricious interpretation.

The case was appealed to the Seventh Circuit Court before the ordinance could be put in place. In 2001 Judge Posner issued the ruling in American Amusement Machine Association v. Kendrick. Citing Winters , which makes clear that “depiction of torture and deformation are not inherently sexual,” he rejected the bracketing of violence with obscenity and the use of court sanctioned obscenity prohibitions to apply to violence. Furthermore, Posner argued that “no showing has been made that games of the sort found in the record of this case” induce violence. “The grounds” for such an ordinance” must be compelling” not merely plausible because “[c]hildren have First Amendment rights.”³⁹ Posner compared the video games to literature containing graphic violence and concluded that video games, despite their interactive nature, were still stories that taught lesson.

As in the case of video games above, there has been much research on the effect of broadcast violence on its audience. However, much of it is subject to criticism because of methodological flaws.⁴⁰ The laboratory tests are not scientific, not representative of the population, and do not use an operational definition of violence. As Marcia Pally has reported, the Department of Education concluded that "a disturbing amount of scholarship has been slipshod . . ."⁴¹ That is why it is very difficult to get such evidence admitted in courts of law.

Professor Edward Donnerstein is one of the leading experts on violence in the media. He recently gave a lecture in which he argued that "viewing violence per se does not cause people to become violent.”⁴² Donnerstein points out that countries with much more violence on broadcast media than America do not have high levels of violence in society. He cites Japan and Canada as his examples. What America has that Japan and Canada lack is a high level of poverty, excessive gun ownership, drug abuse, broken homes, illegitimacy, and gangs. Donnerstein demonstrates that violence in America has declined for every age group except teenagers, where the increase skews the results for the rest of the population. James Q. Wilson, the Collins Professor of Management and Public Policy at UCLA, reaches a similar conclusion in his book The Moral Sense (1995). Wilson points out that in Japan incredible violence pervades the media. And yet Japan has remarkably low rates of crime, especially violent crime.

Programming & the Future

In light of these findings, those calling for censorship of violence have fallen back to imposing bans or labeling what they deem to be "violence." Ostensibly, parents can then program a V-chip that would block programs rated at a level the parents did not want their children to see. However, critics found the ratings wanting because they did not contain enough information to be useful or accurate. Five months after the ratings were in place, a survey taken by the Annenberg School East revealed that 70 percent of parents were familiar with it; however, only 35 percent used it to advise children's viewing. Only 6 percent could correctly identify what "TV-14" means and this was on a multiple choice answer with the correct choice staring them in the face.⁴³ Thus, the networks, with the exception of NBC, and producers reluctantly agreed supplement their age-based ratings with V for violence, S for sexual conduct, D for dialogue not suited for children, and FV for fantasy violence. TV-Y means this program is designed to be appropriate for all children; TV-Y7 means the program is directed to children age seven or older; a TV-Y7-FV rating means the same thing except that the program contains fantasy violence. TV-14 means this program contains some material that many parents would find unsuitable for children under 14 years of age. TV-MA means this program is specifically designed to be viewed by adults and therefore may be unsuitable for children under 17.

The networks and cable companies have cooperated with the government in other ways. For example, in 1994, the broadcast networks chose the UCLA Center for Communication Policy to monitor programming; cable networks selected MediaScope to conduct a parallel study coordinated through four different campuses. Both studies were set for three years. The UCLA study quickly narrowed its purview to the hours that children were most likely to watch, that is, Saturday morning and prime time programming, and argued that context was the most important factor in deciding whether or not violence was appropriate. The 1994-95 report stated that television series raised relatively few concerns. Movies for television were more violent, but not as violent as versions shown in motion picture theaters. The report recommended that violent programming be moved to later in prime time, but not eliminated. It also recommended that the major networks re-examine their policy of importing films made for theaters on to television screens. The 1995-96 report reinforced the findings of the first year's report. While fourteen percent of programs raised some concerns regarding violent content in the first year study, only ten percent raised concerns in the second year.

The Center for Communication Policy at UC Santa Barbara took over the cable project. It’s first-year report was based on an examination of 2,500 hours derived from 2,693 programs. It warned that the consequences of bad behavior needed to be emphasized and that the use of handguns in violent acts should be reduced. However, the study concluded that television violence is usually not explicit or graphic. Most violent acts portray a minimum of blood and gore; camera angles often protect the viewer from more graphic portrayals with the exception of news and reality-based programming. The Center’s report also concluded that most violence was concentrated on premium cable channels that required extra payment for viewing. The report made very clear that it was merely describing the gathered data and not recommending government censorship of any kind.

Much more to the point were studies and statements released in 2000 that analyzed these and other violence studies. Jonathan Freedman, a professor at the University of Toronto who has studied violence and the media for many years, concluded that none of the 200 or so recent violence studies support a causal relationship between violence in programming and violence in society. Richard Rhodes, a Pulitzer Prize winning scientist, told ABC News: “There is no good evidence that watching mock violence in the media either causes or even influences people to become violent.”⁴⁴

Conclusion

With regard to violence and the media, there are several conclusions we can reach given the current status of research and court rulings. First, given the controversy over social scientific data, the courts have usually found that violence in programming cannot be regulated without creating a chilling effect on its content. Such an effect could only be justified if convincing data existed to establish a causal link between violence on the media and violence in society. As we have seen, studies to date have yet to establish such a link.

Second, since violence is very difficult to define, it presents regulators with the opportunity to censor in an arbitrary and capricious manner, which is also unconstitutional. Thus, until a viable, legally tenable definition of violence can be found, regulating it may prove impossible in light of the arbitrary and capricious standard. The movement to conflate violence with indecency has also fallen on deaf ears.

Third, other remedies, such as the V-Chip, have been imposed only because the media involved have cooperated with regulators. The constitutionality of such government mandated labels has not been tested. Thus, at the current time, while members of Congress and others seek way to curtain violence in the media, it is likely to remain a staple of the entertainment industry.

Freedom of Information, National Security, and Privacy

Ever since the war in Vietnam, reporters have sought information that the government claims it cannot release due to national security considerations. During the war in Vietnam in 1966, President Johnson signed the Freedom of Information Act making it easier for reporters to get access to information they believed was important to their jobs. Later in the war an incident occurred which demonstrated why such laws are important. Daniel Ellsburg, who had served in the administration of Lyndon Johnson, sought release the infamous “Pentagon Papers” which revealed a great deal about decision making in the military during the war. The Nixon administration attempted to prohibit the release of the papers on national security grounds. However, the case became moot when the Village Voice published the papers. Most readers of the papers concluded that their release posed no threat to the United States and revealed that Johnson’s war policy was tragically flawed. Preventing the release of the papers was a classic case of “prior restraint” which is prohibited under the First Amendment unless some overwhelming government interest in suppressing the information can be shown.

The Freedom of Information Act, FOIA (5 U.S.C.A. Sec. 552) makes the records of all federal agencies available to the public unless the records fall into any one of nine categories that allow the agencies to withhold the information. These include national security, internal agency rules, information specifically exempted by other federal laws on the books, trade secrets, internal agency memoranda, personal privacy, law enforcement records, bank reports, and oil and gas well data. In the case of law enforcement records, they can only be withheld if their release would adversely affect on-going investigation or trial. The FOIA does not apply to Congress; it exempted itself and federal courts, private corporations and federally funded state agencies.

To get information under the Act, a requester is required to make a request, usually in writing, that “reasonably describes” the information you seek. A requester may be asked to pay for the cost of duplication of the material. If someone is denied the information one seeks, a person may appeal the decision to higher authorities and eventually to the courts.

The FOIA has been supplemented by the Federal Government in Sunshine Act (5 U.S.C.A. sec. 552b) which requires a variety of government meetings to be held in public. The law requires that public notice be given of federal commission and agency meetings. The meetings can go into closed session only if the item being covered falls under one of the nine exemption listed in the FOIA. Most states have also adopted “sunshine” laws for their commissions and agency board meetings.

The FOIA’s spirit is often violated because of the broad nature of the exemptions it lists. In 1982 President Reagan issued an Executive Order ( No. 12356) in 1982 further closing down access to government records by telling bureaucrats to use the highest possible security assignments for government documents. However, when the Senate tried to weaken the Act during the Bush Administration, the administration stopped the initiative. Nonetheless the Bush administration continued the Reagan policies regarding the restriction of reporting from the battlefield. The invasions of Grenada under Reagan, Panama under Bush,⁴⁵ and the Gulf War imposed restrictions on reporters that did not exist during the Vietnam war. Pete Williams, now the legal correspondent for NBC News, was the spokesperson for the Pentagon during the Gulf War. On January 7, 1991, he set out the ground rules for what was NOT to be reported: “numerical information on troop strength, aircraft, weapons systems, on-hand equipment, or supplies.” Reports were allowed to describe numbers of troops in such general terms as “company-size” or “multi-division.” Reporters were not allowed to divulge future plans, specific locations of troops, intelligence information about the enemy obtained by American military forces, bases for air sorties, or any support weaknesses they might discover. Of the 200 stories the Pentagon felt obligated to review, only 5 were submitted to “high level” review for possible breach of the rules. Competition between news organizations was great reduced by the requirement that all reporters be escorted into battle areas and that all news would be the product of pool reporting of the two news briefings conducted each day. When CBS News reporter Bob Simon and his crew broke away from the escort, they were captured by the enemy, beaten, and eventually released.

In 1995 President Clinton issued an Executive Order (12958) that declassified most government files that were more than 20 years old. The battle over information is reflected in the fact that the FOIA has been amended several times (1974, 1986, 1996) trying to balance an open, informative government against the needs of national security. The 1974 revision gave the Justice Department more discretion in keeping its files secret. The 1986 revision gave the FBI the power to protect under cover agents and gave judges the right to review documents before their release.

One of the most interesting cases to arise under these laws was Wiener v. FBI, a Ninth Circuit ruling in 1991. Professor Wiener sought FBI records on Beatle John Lennon for his scholarly research. The FBI refused to surrender the information claiming it was exempted under the FOIA rules. The court ruled that Wiener deserved a fair hearing and that the FBI had to provide a better rationale for withholding its information.

That includes information gathered from outer space. The Land Remote-Sensing Commercialization Act of 1984 provided the guidelines for the use of satellite information. It authorized the Department of Commerce to license any private party, including a news organization, to construct, launch and operate a remote sensing system. However, LANDSAT also put barriers in front of news organizations in the form of national security regulations. The National Oceanic and Atmospheric Administration (NOAA) was given the authority to define what constituted national security and international treaty concerns. As with other new technologies, this one raised the question, what First Amendment standards apply to remote sensing, and how would NOAA incorporate them to serve the national interest?

One could easily argue that since the law allows private parties to build and launch satellites, and since the U.S. does not own outer space, it would have no jurisdiction over satellites. Remember also that the United States has adhered to an “open skies” policy since the Eisenhower administration, a position that was reinforced with the Treaty on Outer Space in 1967. After Congress endorsed this approach, the Defense Department intervened to propose certain limitations on access to government property and documents. Any information obtained would be subject to prior restraint before publication. The news media claimed that such rules violated the First Amendment. Furthermore, since the standards seemed vague to the news media, they argued that they could be applied in an arbitrary and capricious way, also violating basic rights.

The Defense and State Departments responded that the national security required a certain latitude in the language of the rules. For example, the State Department argued that even weather information has national security implications. However, legal precedents required the government to articulate a specific procedure concerning clearly defined content in order to exercise prior restraint. The news media quickly pointed that out and the fact that much of the information the government sought to restrict was readily available in the Soviet Union. Like the citizens of Frankfurt who denied certain books in the 18^th Century, American citizens would be denied information that citizens of other countries could readily access. With the advent of advanced computer systems, the government’s argument simply melt under the heat of Internet access.

Access and Privacy

Freedom of information is about access to information. For example, broadcasters have for years sought to televise the proceedings of the Supreme Court and the Federal District Courts, but federal justices have refused to allow such an intrusion on the grounds that it would demean the Court. Current Chief Justice Rhenquist did permit radio broadcasts of the oral arguments in the Bush v. Gore case because the case would decide the outcome of the presidential election in 2000. In most cases, judges have the run of their court room and therefore have the power to decide how their cases will be reported.

All states have adopted rules governing the admission of television cameras, radio equipment and the like into their courts. In all most every case, the presiding judge must give his consent. Most states require written application before the trial begins. Most states prohibit cameras and other means of identifying juvenile offenders, even when they are tried as adults, though most states are more liberal on this policy during the penalty stage. Coverage of the examination of jurors is usually prohibited as are their deliberations.

Access to prison inmates has also been a bone of contention between the press and the government. There are over 1 million adults incarcerated in fourteen hundred state prisons across the country. Wardens often argue that providing access to reporters takes up time, compromises security, and is a nuisance. The Supreme Court issued important rulings on this issue in at least two cases: Pell v. Procunier (1974) and Turner v. Safley (1987). The Pell ruling held that reporters have no more right than the general public to have access to prisoners. In the Turner ruling, the Court refined its position by requiring that prison officials provide a rationale for their policy of access (such as security concerns) and that it be regulated fairly and equitably (one reporter may not be preferred over another).

Media Protection

The flip side of this issue occurs when the government or its courts want information that the media refuse to turn over on the grounds that freedom of the press requires that reporters be allowed to protect their sources. The courts respond that the Sixth Amendment guarantees to a fair trial require them to demand that reporters reveal sources of information. The result is that reporters are often held in contempt and incarcerated.

The news media have sought rulings to protect them from intrusions into news gathering by the courts. Such intrusions have a chilling effect on news operations which are essential for the proper education of the citizens in a democracy. In 1972, the Supreme Court took this issue up in Branzburg v. Hayes⁴⁶ which ruled that basic materials of news reporting are protected from confiscation but reporters are required to testify when called. Justice Byron White wrote the 5-4 majority opinion that argued even the president of the U.S. must testify when called. The case at bar involved a reporter who had written a story about the transformation of marijuana into hashish. He got the story by promising those involved that their identities would be protected. Branzburg refused to testify when the Kentucky court ruled that what he witnessed personally was not protected by his First Amendment rights. White wrote:

The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to publish its sources . . . . The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime. . . . [T]he great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. . . . Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant news men a testimonial privilege that other citizens do not enjoy. This we decline to do.⁴⁷

In writing for the minority, Justice Potter Stewart did try to establish a special status for reporters under the First Amendment. Despite the fact that this decision was very narrowly decided by the Supreme Court, it has not been re-visited and remains the ruling precedent to this day, though the lower courts have made some modifications to protect news persons notes, photographs, tapes and the like somewhat vindicating Stewart. However, reporters with specific knowledge of information about cases who refuse to testify have regularly been held in contempt.

Personal Privacy

Other clashes occur between reporters and citizens who seek to protect their privacy. For example, reporters often see information about voting patterns, drivers licenses and medical records. You may ask why should reporters have access to such information at all. Those coming down on the side of privacy argue that access to credit card, medical, and driving information makes people prey for telemarketers or even stalkers. Some with a memory of past history recall that the Nazi regime used public records to locate Jews, who were then sent to concentration camps. In California persons opposed to abortion recorded license plate numbers of people going into abortion clinics. They then used the motor vehicle registration information to locate their homes and harass them. In some cases, the federal government agrees with privacy advocates. In 1994 it passed the Driver’s Privacy Protection Act which allows any one to have their records closed to the media and the public. But there is a flip side to such laws. Consider the case of Providence, Rhode Island, where a reporter got a list of the drivers’ licenses of school bus drivers and ran it against a list of state criminal records. The result was that several of the school bus drivers had not only bad driving records but criminal records. This was information the school board should have had during their interviewing process.

There are limits, however, to what media may seek. Under NOIA, millions of requests are filed annual for information the government possesses. But sometimes the government holds information that was originally generated by other entities such as the court system. When CBS tried to obtain information about the criminal indictments of mob family, the government refused to supply them under one of the exemptions to the NOIA. CBS went to court all the way through the Court of Appeals. However, once the case reached the Supreme Court, the rulings were reversed. Justice Stevens wrote the majority opinion in Justice Department v. Reporters Committee:⁴⁸

We hold as a categorical matter that a third party’s request for law-enforcement records or information about a private citizen can reasonably be expected to invade that citizen’s privacy, and that when the request seeks no “official information” about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is “unwarranted.”

On the other hand, to protect reporters, many states have passed so-called “shield laws” which generally read like this composite version:

A person engaged in the gathering and dissemination of news for the public through a newspaper has a qualified privilege against disclosure of any information obtained in the gathering or dissemination of news in any judicial proceeding in which compelled disclosure is sought and where the one asserting the privilege is not a party in interest to the proceeding. The person may not be compelled to disclose any information obtained in the gathering or dissemination of news unless the party seeking to compel establishes by clear and convincing evidence that the material sought is relevant to the controversy, cannot be obtained by other reasonable means, and is necessary to the proper preparation of the case of a party seeking the information.

The citizen rights versus the news media was most clearly addressed in the per curiam ruling in CBS v. Jackson.⁴⁹ In this case, a CBS news team piggy backed onto a cocaine raid on Jackson’s home. Jackson claimed that his rights violated during the raid and asked the court to subpoena the out-takes of the CBS broadcast of the event. CBS claimed that its work product was protected under the First Amendment and therefore compelled disclosure of the material was unconstitutional. Since the out-takes were not from a confidential source, the trial court ruled against CBS and demanded a look at the out-takes. The appellate court refused to overturned the lower courts and ruled against CBS. It held that the tapes of Jackson’s arrest might contain evidence that was useful to Jackson’s defense.

Private citizens also have the Fourth Amendment right to protect their privacy against intrusions that are highly offensive to a reasonable person. This right has been used to keep intrusive photographers, such as paparazzi, from interfering with normal family functions and outings. It keeps reporters from entering your house without your permission and it keeps them from harassing you when you travel. In 1972, for example, Jackie Kennedy Onassis, the former first lady, sought an injunction to prevent paparazzi photographer Ron Galella from harassing her and her children. Onassis was supported in her claims by the U.S. Secret Service which guarded her and her family. Galella stalked the family and would then yell at them to get them to look at his camera. In Galella v. Onassis, the district judge wrote:

The essence of the privacy interest includes a general ‘right to be left alone,’ and to define one’s circle of intimacy; to shield intimate and personal characteristics and activities from public gaze; to have moments of freedom from the unremitted assault of the world and unfettered will of others in order to achieve some measure of tranquility for contemplation of other purposes, without which life loses its sweetness. The rationale extends to protect against unreasonably intrusive behavior which attempts or succeeds in gathering information.⁵⁰

Galella was not banished completely, however. The carefully written injunction kept him 225 feet from her children and 150 feet from Mrs. Onassis when she was not with her children. Given the range of cameras, Galella was able to continue his work. The ruling was upheld in the Court of Appeals from the Second Circuit, but it reduced the distances at which Galella could be kept, almost completely eviscerating the injunction. He could come to within 25 feet of Mrs. Onassis and 30 feet of the children.⁵¹ Nonetheless, Galella violated even these standards and was eventually convicted of contempt of court in 1982.

Justice Louis Brandeis claimed that each citizen has the “right to be left alone.”⁵² And recently the Supreme Court returned to the issue in Hill v. Colorado, when the Court ruled that we cannot be compelled to listen to speech if we do not want to hear it. In Hill, the Court upheld a statute that prevented protesters from coming within eight feet of a person seeking entrance or leaving an abortion clinic.⁵³ The decision flows naturally from the captive audience cases in which those who have no choice but to be somewhere, such as a work place or a classroom, may not be taken advantage of in terms of propaganda, harassment, or other forms of indoctrination.

In other cases, these intrusions may be prosecuted under the tort of “trespass.” An owner has the right to exclusive possession of his or her property unless they give permission for someone to enter. Party crashers are trespassers and can be prosecuted, so can reporters, who again in this instance are treated the same as private citizens. In the age of long range surveillance, preventing such intrusions has become more difficult. While in this case no trespass may take place, the surveillance may constitute a nuisance which can be prosecuted. However, if the surveillance is not used for profit or illicit gratification, but instead serves a good cause, the courts have sometimes allowed it. Courts have ruled that if reporters act as agents of the law, they can be prosecuted because have intruded without a warrant. Probably the most important case in this regard is Dietman v. Time, Inc., ⁵⁴ which held that undercover reporting can be intrusive and therefore subject to damage claims.⁵⁵ The most famous followup case came in Food Lion, Inc. v. Capital Cities/ABC wherein Prime Time Live reporters pretended to be job seekers, then surreptitiously reported on unhealthy practices in the Food Lion stores. Food Lion sued and won a $5.5 million judgment from the jury against ABC. The jury apparently felt that the lies the reporters told on the job applications constituted a breach of journalistic ethics and violated the store’s right to privacy. In these cases, the court refused to give preference to the First Amendment over the Fourth. The intrusive act was seen as more offensive than the story obtained was newsworthy. Such judgment calls by the courts are not uncommon in this area of the law.

Conclusion

It is odd that in a country that was founded on political rhetoric and a free press, that restrictions should be placed on political speech broadcast over the electronic media. We have seen that even burning an American flag is protected “expression.” We also saw, however, that during times of crisis First Amendment rights have been suspended or curtailed. In our own time, many believe that restrictions on broadcasters could promote political speech rather than hinder it. The rationales begin with the argument that since broadcasters do not enjoy the same degree of freedom of expression as the print media, they can be required to provide free and equal time and access to federal candidates, and to guarantee them a right to reply to broadcast editorials and commercials. Variations on this theme date back to the first rules imposed on broadcasters stemming from the vague requirement that they serve the public interest. No such requirement is imposed on newspapers since the Supreme Court ruled in Miami Herald v. Tornillo (1974) that equal space and reply requirements could not be imposed on newspapers, a decision quite at odds with the Red Lion decision of 1969 that imposed upheld the personal attack rule for broadcasters.

What seems clear is that media are accorded different degrees of First Amendment protection based on their history and their form. Newspapers receive the highest degree of protection since they existed at the time of the ratification of the First Amendment and were instrumental in securing independence from Great Britain. Television and radio receive the least protection since they are “new technologies” that are pervasive and intrusive, and because broadcasters receive their licenses from the federal government. Cable lies somewhere in between because it often has monopoly status but provides a multiplicity of channels. The difficulty the courts and the Congress faces is that the technology is developing so rapidly that the law cannot keep up.

Study Questions

1. What is the “public interest” standard under which broadcast licensees are required to operate? It is “content neutral” as required by Supreme Court precedent in such cases as O’Brien and Texas v. Johnson?

2. How did the so-called Fairness Doctrine and its corollaries evolve? How and why was the Fairness Doctrine suspended?

3. What are the differences and similarities in the Miami Herald and Red Lion cases?

4. To what does the Freedom of Information Act give reporters access? Why is it important that reporters obtain this information?

5. How have the courts balanced Fourth, Fifth, and Sixth Amendment rights of citizens against First Amendment rights of reporters when they have come into conflict? All things being equal, which right is more important privacy or free press?

Simulation

1. Michael Buck, a local anchorman who often gives his opinion on the news, says, just after a series of riots in Beverly Hills, that Mayor Minny Bradley “incited the riots with her statement following a verdict in the case of a beating an aged man at a bus stop.” The man had been pulled off his walker by police who had been in hot pursuit of him suspecting that he was the aged man school children reported as a lewd flasher. When the man refused to fall to the ground to be cuffed, the police pulled him from his walker, shot him with tazers, and beat him severely. Despite a video tape of the incident provided by an unemployed Hollywood director who lived on the street, the police were found not guilty of the use of excessive force. Mayor Minny Bradley, then said, "If ever there was a justification for the people of Beverly Hills to riot, this is it. This decision is outrageous and a clear case of prejudice against the aged of our community." Immediately following her press conference, thousands of senior citizens in Beverly Hills stormed out of their rest homes and condos, and began setting cars on fire, looting stores, and beating up passersby. Buck, giving his opinion over the air at the end of his "action news" segment, said that the Mayor's remarks were inflammatory and "caused people to burn, kill and loot. The Mayor ought to be put in jail for her criminal inducement to riot." Mayor Bradley demanded response time to Buck, invoking the "Personal Attack Rule" of the Fairness Doctrine and relying on the Red Lion Broadcasting case. Buck's station told the Mayor to take a hike. It claimed their First Amendment rights would be violated if they were forced to grant the Mayor's wish and that the Court’s had suspended the “Personal Attack Rule.” They argue that the appellate court of the District of Columbia ruled in TRAC v. FCC that the fairness doctrine had not been codified in 1959, and the FCC had subsequently (Aug. 1987) repealed the fairness doctrine. Then in 2000 the FCC did not respond to the same court’s request for a justification of the “Personal Attack Rule” and also suspended it. Mayor Bradley went to the FCC asking it to force Buck's station to put her on the air by ending the suspension of the Fairness Doctrine and its corollaries (which the FCC was empowered to do according to TRAC and other court rulings). The FCC, populated with appointees who favored the re-establishing the Fairness Doctrine, agreed and ordered the station to put Bradley on to respond to Buck. The local station and Buck appealed the FCCs ruling to the Supreme Court asking that it declare the Fairness Doctrine and its corollaries null and void once and for all. Side A = Buck and Local Station. Side B = FCC and Bradley. Supreme Court: Do you find for Buck and his station or for the FCC and Mayor Bradley?

Simulation #2

District Attorney Bobby Copps believes that the owner local video store, Buster Luster, is secretly selling videos of sixteen year olds having sex. Copps hears that local television reporter Jason Roberts has been put on probation by his boss because Roberts has not been getting the kinds of stories that increase ratings of the station. Copps calls in Roberts and offer him the chance to investigate the probability that Luster is selling illegal materials. Roberts disguises himself with a beard and cap, and enters Luster’s store wired for sound. Video cameras operating in the store show that Roberts entered a side door after looking over the standard shelves in the store. It turns out that the door Roberts walked through led to Luster’s living room; he lived on the premises of his store. While in the living room, Roberts grabs some videos on a shelf and tries to exit. But he is confronted by Luster who tries to grab the videotapes back. There is much yelling between the two, but Roberts makes off with some of the tapes. It turns out that one of the tapes shows two sixteen year olds having sex. Roberts reports the story on the news and Copps arrests Luster. Luster sues Roberts for invasion of privacy; he further asks that the audio tape of the confrontation between himself and Roberts be made available to the court. Roberts and Copps refuse to make the tape the available on the grounds that it is irrelevant to the crime at hand. The first court to consider the case finds Luster guilty of selling illegal material when witnesses come forward claiming they had purchased copies of Luster’s obscene videotape from him. A second court rules that Copps and Roberts must make the audio tape available. After hearing the tape, a jury finds for Luster and awards damages of $2 million against Roberts and his television station. Roberts and his station appeal the ruling to the Supreme Court. Do you find for Roberts and the television station reversing the damage award on the grounds that Roberts was simply doing his job as an investigative reporter? Or do you find for Luster and sustain the damage award on the ground that his privacy was invaded? Side A= Roberts and his station; Side B = Luster.

NOTES

[i]. 67 Congressional Record 5,480 (1926)>

[ii]. Chicago Federation of Labor v. FRC, 1929; cf. Great Lakes Broadcasting et al. v. FRC, 1929.

[iii]. KFKB Broadcasting Ass'n v. FCC, 47 f.2d 670 (D.C. Cir. 1931).

[iv]. This rule is contained in section 315 of the Act and remains in effect to this day as does Areasonable access@ rule.

[v]. The crisis necessitating the revision was caused a presidential candidate in 1956 named Lar Daily who dressed up in an Uncle Sam costume. He demanded Aequal access and equal time@ to that given by the news networks to Republican Presidential candidate Dwight Eisenhower and Democratic Presidential candidate Adlai Stevenson.

[vi]. Mayflower Broadcasting Corp., 8 FCC, 1941, at 333.

[vii]. 319 U.S. 190, 216 (1943).

[viii]. Editorializing by Broadcast Licensees, 13 FCC 1246 (1949).

[ix]. Cullman Broadcasting, Co., 40 FCC 576 (1963).

[x]. Later Fred Friendly, Edward R. Murrow's producer, discovered that while on the payroll of the Democratic National Committee, Cook had written a book called Barry Goldwater: Extremist on the Right, an article in Nation magazine attacking the right, and was coordinating an effort to suppress right wing attacks on the Johnson administration (1976, pp. 32-42). The overall strategy of the DNC under the direction of Martin Firestone, a former FCC Commissioner, was to intimidate stations into dropping rightist editorials. L. Powe in American Broadcasting and the First Amendment(Berkeley: U. of California Press, 1987) has chronicled a long list of cases dating back to Franklin Roosevelt's press secretary in which the public interest standard in general and the Fairness Doctrine in particular were used to threaten broadcasters. See also, L. M. Benjamin, "Herbert Hoover, Issues of Free Speech, and Radio Regulation in the 1920s," (pp.XXXX) and R. W. McChesney, "Constant Retreat: The American Civil Liberties Union and the Debate Over the Meaning of Free Speech for Radio Broadcasting in the 30s," (pp.XXXX) Free Speech Yearbook, ed. Stephen Smith, (Carbondale, IL: Southern Illinois U. Press, 1988).

[xi]. In a dissent, in 1973 in CBS v. Democratic National Committee (412 U.S. 94, 161), William J. Brennan had reached a similar conclusion: "The Fairness Doctrine tends to perpetuate coverage to those 'views and voices' that are already established, while failing to provide exposure to ... those ... that are novel, unorthodox, or unrepresentative of prevailing opinion." In a majority concurring opinion, Justice William O. Douglas said: "Television and radio ... are ... included in the concept of press as used in the First Amendment and therefore are entitled to live under the laissez-faire regime which the First Amendment sanctions." Proxmire also discovered that Presidents Johnson and Nixon had used the doctrine to intimidate their enemies in the media.

[xii]. Ironically, as Proxmire was launching his attempt to get the rule repealed, the FCC, then composed mainly of Nixon appointees, re-affirmed its faith in the Doctrine while limiting its application to commercial programming (FCC, The 1974 Fairness Report, 48 FCC 2d.). As we shall see, there have been times in Congress when this issue has become partisan. However, on the whole, prominent leaders of both parties can be found on each side of this issue. Governor Mario Cuomo (D -- New York) and President Ronald Reagan supported repeal of the Doctrine. Senators Jesse Helms (R-- North Carolina) and Edward Kennedy (D -- Massachusetts) has opposed repeal.

[xiii]. 468 U.S. 364 (1984), 379, nn.11-12).

[xiv]. United States Senate, Hearings on the Freedom of Expression Act before the Committee on Commerce, Science, and Transportation, 98th Congress, 2d. Session (January 30, February 1 and 8, 1984), p. 227.

[xv]. Federal Communications Commission, Fairness Report, 102 FCC 2d (1985), pp. 225-26; see also pp. 156-57.

[xvi]. See, for example, Freedom of Expression Foundation, Comments before the FCC on the Inquiry into Section 73.1910, 102 FCC 2d (Washington, D.C., 1985).

[xvii]. No. 85-1160, slip op.

[xviii]. TRAC, 1986, no.85-1160, slip op.

[xix]. Judge Williams wrote, "Although the Commission somewhat entangled its public interest and constitutional findings, we find that the Commission's public interest determination was an independent basis for its decision and was supported by the record. We uphold that determination without reaching the constitutional issue" (Syracuse Peace Council v. FCC, No. 87-1544, slip op. (D.C. Cir., 1989) p. 1). Judge Kenneth Star disagreed in his concurring opinion. He believed that evidence of a chilling effect and lack of scarcity rationale called for a ruling on the constitutionality of the Doctrine. (Syracuse Peace Council v. FCC, concurring op., pp. 1-2).

[xx]. For example, S. 577, a bill to codify the Doctrine, was introduced in the Senate and a companion bill was introduced in the House in January of 1989. In anticipation of Senate hearings scheduled for March 15, the March 6, 1989 issue of USA Today, a supporter of repealing the doctrine, devoted its editorial page to the controversy. The Washington Post followed suit on April 4 and again on September 27, 1989. The March, 1989 issue of Quill, the magazine of the Society of Professional Journalists/Sigma Delta Chi, carried a speech by the president of the American Society of Newspaper Editors, urging them to fight attempts to codify the doctrine. In October of 1989, the House voted 261 to 162 to keep the codification of the doctrine in the budget reconciliation bill, but these figures represented the smallest majority such a measured has received over the last three years. As at the end of 1988, the threat of a presidential veto prevented the legislation from being enacted by the time Congress adjourned in November of 1989.

[xxi]. Section 315 of the Communications Act. There are four exemptions to the rule: when a candidates appears on a newscast, a news interview program, a documentary, or on the spot news coverage.

[xxii]. Section 312 (a) (7) of Communications Act.

[xxiii]. In fact, the courts have ruled that once a community access channel is established, it becomes a public forum that cannot be closed simply because locals find some of the things said on the channel to be offensive. Even the right of the Ku Klux Klan to have access to these channels has been upheld.

[xxiv]. 755 F. 2d 1415 (11^th Cir., 1985).

[xxv]. 129 L. Ed. 2d 497 (1994).

26. 480 F. Supp. 199 (S.D. Fla 1979).

27. 74 Cal. App. 3d 383 (1977).

28. 247 Ga. 402 (1981).

29. 446 A. 2d 1036 (R.I. 1982).

30. 763 F. Supp. 1144 (MD Ga. 1991).

31. See Joseph Burstyn, Inc. v. Wilson.

32. Television and Growing Up: The Impact of Televised Violence, (U.S. Government Printing Office, 1972), pp. 4, 7.

33. Surgeon General's Report by the Scientific Advisory Committee on Television and Social Behavior: Hearings Before the Subcomm. on Communications of the Senate Comm. on Commerce, 92d Cong., 2d Sess. 25, 26 (1972).

34. Broadcast of Violent, Indecent, and Obscene Material, 51 F.C.C. 2d 418, 419 (1975).

35. 423 F. Supp. 1064, 1161 (C.D. Cal. 1976).

36. See also Cohen v. California (1971) discussed above.

37. “Blaming Television and Movies Is Easy and Wrong,” Los Angeles Times (February 4, 2001), p. M5.

38. "Televised Violence: First Amendment Principles and Social Science Theory," 64 Virginia L. Rev. 1155 (1978).

39. Erznoznick v. City of Jacksonville, 1975; Tinker v. Des Moines, 1969.

40. See, for example, Jonathan Freedman, "Television Violence and Aggression: A Rejoinder," Psychological Bulletin, 100 (1986): 372-78; Victor Strassburger, "Television and Adolescents: Sex, Drugs, Rock 'n' Roll," Adolescent Medicine, 1 (1990): 161-94.

41. Sex and Sensibility, (NY: Perseus Publishing, 1994), p. 93.

42. Marcia Meier, "Violence in Our Society: Who's to Blame and What's to be Done?" Santa Barbara News-Press, March 5, 1995, G5.

43. "Parents Don't Understand, Study Concludes," Broadcasting & Cable, June 9, 1997, p. 7.

44. Broadcasting and Cable, October 30, 2000, p. 82.

45. Congressman Charles Rangle was forced to file a FOIA claim to obtain footage of the Panama invasion.

46. 48 U.S. 665 (1972).

47. For the remainder of their careers on the Court, Stewart defended the press as a special class and White continued to carry a majority with him treating the press as part of the general public.

48. 498 U.S. 749 (1989).

49. 578 So. 2d 698 (Fla. 1991).

50. 353 F. Supp. 196 (S.D. N. Y., 1972).

51. 487 F.2d 986 (2d Cir. 1973).

52. Olmstead v. U.S. , 277 U.S. 438, 478 (1928). Brandies dissenting.

53. 530 U.S. 703 (2000).

54. 449 F. 2d 245 (9^th Cir., 1971).

55. For a different kind of ruling see Desnick v. Capital Cities/ABC, Inc. 851 F. Supp. 303 (N.D. Illinois, 1994) in which the court ruled that Prime Time reporters had not been overly intrusive in videotaping activities in an eye doctor’s office since the public was regularly invited on to the property. Of course, the court was influenced by the fact that the eye doctor was guilty of immoral practices.