Media Law
Fall, 2009
Professor Harpaz


Fall 2009 Media Law Review - Part One


I. The First Amendment and the Media: Values Served By Protection of Speech

The First Amendment serves a number of values.  These include: (1) to advance knowledge and discover truth (the marketplace of ideas rationale); (2) to advance participation by citizens in the process of democratic self-government and develop an informed citizenry; (3) to allow citizens to check the abuse of power by public officials; (4) to assure individual self-fulfillment; (5) to protect the dignity and equality of individuals; (6) to prevent government from regulating speech; and (7) to produce a more tolerant society that protects the right to speech even when the content of the speech is loathsome. Of these values, the first two are the ones mentioned most frequently by the United States Supreme Court.     

II. Methods of First Amendment Analysis

A. Methods of First Amendment Analysis: Balancing

1. Ad Hoc Balancing

Balancing is ubiquitous in First Amendment analysis.  However, there are various forms of balancing. First, there is ad hoc balancing where a court examines the competing values in a case and compares the extent to which free speech values would be promoted by protecting the speech at issue vs. the importance of the interests asserted by the government as justifications for regulating the speech at issue.  In engaging in this case-by-case balancing, the court examines only the specific facts of the case before it rather than depending on a general assessment of competing values in an entire category of cases.  Such decisions resolve the particular dispute before a court, but may not be helpful in forecasting how future cases will be decided since the court is not relying on a generally applicable rule.  An example of a case in which the Supreme Court described its methodology as relying on ad hoc balancing is Landmark Communications, Inc. v. Virginia (page 32).  However, even in cases where a court asserts it is engaging in ad hoc balancing, it is often possible to identify suggestions of a more categorical approach.
 
2. Categorical Balancing

Another form of balancing is categorical balancing.  Using this approach, a court balances by weighing the general characteristics of the case: the government interests that generally justify regulation of the category of speech at issue vs. the First Amendment interests that generally justify protection of the category of speech at issue.  This general balancing of competing interests results in a decision about a general approach to the category of speech at issue.  This approach can involve creating a rule to apply to a category of cases, excluding a category of speech from receiving any First Amendment protection or selecting a standard of review to apply when the government regulates speech that falls within the particular category.

(a) Categorical Balancing: Crafting a Rule

Sometimes the consequence of categorical balancing is that the Court crafts a rule to apply to cases within the category.  The rule attempts to accommodate the competing interests so that both the governmental interests and the speech interests are taken into account to the appropriate degree.  The rule in New York Times v. Sullivan (page 272) is an example of such a rule since the actual malice standard was crafted after balancing the general interest of the press in having a breathing space to allow it to publish articles about public officials performing their official duties as contrasted with the interest of public officials in being able to vindicate their reputation by bringing libel suits.  The Court examined these interests in general, rather than focusing on the specific value of the advertisement published in the New York Times or Sullivan’s need to vindicate his reputation.  The rule it created, allowing liability only upon a showing of actual malice, tracked the values assigned to the competing interests.  It allowed vindication of reputation, but only in limited circumstances because public officials have other techniques available to vindicate their reputations and it protected the press by giving it the breathing space to make factual mistakes in what it published, but did not give the press the right to print knowing falsehoods.

(b) Categorical Balancing: Exclusionary Categorization

Another form of categorical balancing is exclusionary categorization.  Under this approach, the Court balances the competing interests in protecting a category of speech vs. the interests in permitting the government to censor the category of speech.  The result of that balancing is so heavily weighted in favor of the government, because the speech at issue is considered to have very minimal First Amendment value and the government interest in regulating the speech is considered to be very great, that the Court decides to exclude the category from receiving any First Amendment protection thus rendering the speech unprotected by the First Amendment.  This is the approach taken by the Court to the category of obscenity (page 145).  Other excluded or unprotected categories include subversive advocacy, fighting words, child pornography, true threats and commercial speech that concerns illegal activity or is false or misleading (link to definitions of these categories). One of the principal difficulties with exclusionary categorization is that the consequences to speech that falls within the excluded category is so great that it is necessary to precisely define the excluded category to distinguish in from speech that is similar, but not identical to the excluded speech.  The Court has attempted to do this by defining obscenity narrowly in Miller v. California (page146) and separating speech that is obscene (unprotected) from speech that is sexually explicit but not obscene (protected speech such as indecency).  If speech falls outside the protection of the First Amendment, regulations of such speech are subjected to only minimal rationality (or rational basis) review.  In United States v. Stevens, a case currently before the United States Supreme Court, the government is arguing that the Court should create a new category of unprotected expression to consist of depictions of animal cruelty.  In making this argument, the government is attempting to analogize animal cruelty to child pornography found to be an unprotected category in New York v. Ferber.   

(c) Categorical Balancing: Selecting a Standard of Review

In addition to crafting a rule or excluding a category, the results of balancing in the context of a category of speech can be to select an appropriate standard of review to apply to cases within the category.  The application of the standard of review will balance the competing interests, but with some bias or predetermined weight attached to the balancing.  For example, in rationality review, the balancing favors the government in weighing the competing interests.  By contrast, in selecting strict scrutiny review when speech is at issue, the balancing favors the speaker in weighing the competing interests.  It is possible to view Smith v. Daily Mail Publishing Co. (page 36) as a case in which the Court applies strict scrutiny to evaluate government attempts to punish the press for publishing lawfully obtained truthful information because the Court determines that the government can only justify such punishment by the highest form of state interests and only if necessary to further those interests.  Another example of categorical balancing to select a standard of review is the treatment of commercial speech.  In Kasky v. Nike, Inc., the Supreme Court of California struggled to decide whether Nike’s speech fell into the category of less protected commercial speech or fully protected political speech because as commercial speech it would be subject to the intermediate scrutiny test of Central Hudson Gas & Electric Corp. v. Public Service Commission (page 32 in casebook and page 5 of the decision in Kasky v. Nike, Inc.) whereas as a content-based regulation of fully protected speech it would be subject to strict scrutiny.

B. Levels of Scrutiny: Standards of Review

While selecting a standard of review is one of the outcomes of categorical balancing, the application of an appropriate standard of review can also be viewed as a general approach to First Amendment analysis.  Often the selection of the standard of review is critical to the outcome of the case.  Standards of review can be selected, as demonstrated above, because of the category of speech involved.  In such cases, classifying the speech as falling within a particular category will be a critical part of the advocate’s job.  The speaker will always try to argue that the speech at issue is highly protected, if at all possible, in order to get the benefit of a more rigorous standard of review.  By contrast, the government will always try to argue that the speech at issue is less protected, if at all possible, in order to get the benefit of a more deferential standard of review.  This battle over classification can be seen in Kasky v. Nike, Inc. even though the case involved a conflict between two private parties and not a conflict between the government and a private party.  In the case, Nike tried to argue that its speech was fully protected to be get the benefit of strict scrutiny and Kasky tried to argue that Nike’s speech was commercial speech to get the benefit of intermediate scrutiny.

The classification of the speech is not the only way that a standard of review is triggered in First Amendment analysis.  Another trigger for the standard of review is the nature of the regulation.  Content-based regulations are typically subjected to strict scrutiny review (e.g., Simon & Schuster, Inc. v. New York State Crime Victims Board - page 87) whereas content-neutral regulations are typically subjected in intermediate scrutiny review (e.g., Turner Broadcasting System, Inc. v. FCC (Turner I) - page 202).  As with other issues of characterization, it is sometimes possible for the speaker to argue that the challenged regulation is content-based to get the benefit of strict scrutiny review and for the government to argue that it is content-neutral to get the benefit of intermediate scrutiny (see Turner Broadcasting System, Inc. v. FCC (Turner I) for an example of such characterization arguments).  

A third trigger for the standard of review turns on the location of the speech.  If government property is classified as a public forum, government efforts to exclude speech from that property will be subject to more rigorous review than if the government property is classified as a nonpublic forum.  As a result, litigants seeking access to a forum argue that the property is a traditional or a designated public forum whereas the government seeking to deny access argues that the property is a nonpublic forum or is immune from public forum analysis altogether.

A forth trigger for the standard of review is the identity of the speaker.  If the speaker is a television broadcaster, the broadcaster will receive less protection than if the speaker is the operator of a website or the publisher of a newspaper.  Most of the time, the identity of the speaker is not arguable, but occasionally speaker identity can be debatable.  One such circumstance occurs where the government claims it is the only speaker and can reserve a forum exclusively for its own speech while a private speaker seeking access to the forum argues that private speakers are allowed to participate in the forum, thereby opening the way for the excluded speaker. A current controversy before the Court in Citizens United v. FCC involves an issue of speaker identity.  In Citizens United, the Court appears interested in confronting the issue of whether the First Amendment permits corporate speakers to be regulated in ways that individual speakers cannot be in the context of election speech.  
 
The various standards of review used in First Amendment analysis are as follows:

1. Strict Scrutiny

Strict scrutiny requires that the government prove it has chosen a narrowly tailored means to achieve a compelling governmental objective. The means required under such a test are usually described as narrowly tailored and occasionally described as necessary, but the hallmark of strict scrutiny is that the government must choose the least restrictive means of achieving its compelling government objective.  Under this test, the burden is on the government to prove that it has a compelling objective and that there are no equally effective less restrictive alternative means available to achieve that objective.  In proving the existence of a compelling objective, the government cannot simply assert such an interest, it must show that the compelling objective is the real reason for its actions and that the objective actually is at risk if it refrains from regulation.
 
2. Intermediate Scrutiny

Various forms of intermediate scrutiny are used in First Amendment analysis.  The various forms, while they each have some unique elements, also have a common core.  In each case, the government must prove it is acting to further an important or substantial government interest and that it has chosen a narrowly tailored means to achieve its important objective. To satisfy the requirement of narrow tailoring of the means employed under intermediate scrutiny, the government does not need to select the least restrictive means, as it does under strict scrutiny.  Instead, the government must show that the means are narrowly tailored in that there is a close fit between means and ends.  This can be shown by demonstrating that the means are not substantially broader than they need to be to protect the important government interest.  As one method of determining if the means employed are substantially broader than they need to be, courts will often examine available less restrictive alternatives even though the government is not required to choose the least restrictive alternative.  

One form of intermediate scrutiny used in First Amendment analysis is the test in United States v O’Brien.  This test is used to analyze content-neutral regulations that impose incidental burdens on speech.  To satisfy the test, the government must show that the regulation furthers an important government interest, that the interest is unrelated to an effort to suppress expression, and that the regulation is narrowly tailored to achieve the important government interest.  The O’Brien test was applied in Turner Broadcasting System, Inc. v. FCC (Turner I) (page 207).  Another form of intermediate scrutiny is used to analyze reasonable time, place and manner restrictions.  Such less than total restrictions on speech are constitutional if they are content neutral, are narrowly tailored to serve a significant government interest and leave open ample alternative means of communication (page 32).  A third form of intermediate scrutiny is the version of the test applied to analyze restrictions on commercial speech (page 32).  Under the Central Hudson test, to be protected the speech must concern lawful activity and not be false or misleading.  If the speech satisfies these preliminary hurdles, the regulation will be constitutional if the government has a substantial interest for the regulation, the regulation directly advances the asserted government interest, and the regulation is narrowly tailored to achieve its substantial interest.

3.  Minimum Scrutiny

Minimum Scrutiny (also called rational basis review and minimum rationality review) is the least demanding level of scrutiny applied by the Court.  This standard requires that the regulation be rationally related to a legitimate government interest.  It is used when no fundamental right is infringed and therefore it is not typically used when First Amendment rights are at stake.  It is used in First Amendment cases only when the category of speech is unprotected by the First Amendment. A version of this test arguably is also used when the speaker seeks access to a nonpublic forum.  In such cases, the denial of access must be reasonable (considered to be a synonym for rationality) and not based on viewpoint.  Some members of the Court apply this reasonableness test so that it requires a slightly higher level of justification than traditional minimum scrutiny.  This is because reasonableness is judged in relation to the nature of the forum and not in the abstract.

III. The Press Clause

The First Amendment separately mentions abridging freedom of speech and freedom of the press.  The issue this raises is whether the press clause is a separate and distinct form of constitutional protection or whether the press are simply entitled to those rights protected by the speech clause rather than independently protected by the press clause.  For the most part, when this issue has arisen the Supreme Court has not considered the press clause to be an independent source of constitutional protection and has instead used the terms speech and press interchangeably.  This view is clear in Branzburg v. Hayes (page 561), for example.  From time to time, individual Justices have suggested the press clause has independent content, but this view has never attracted anything close to a majority.  Nevertheless, some of the Court’s decisions may be easier to explain based on special protections available to the press than in other ways.

IV. Different Media Get Different Levels of Protection

Different media are granted different levels of constitutional protection.  The print media have always received the full protection of the First Amendment.  For example, in Miami Herald v. Tornillo (page 69), the Court struck down a requirement that a candidate for office be entitled to a right of reply in the newspaper to respond to an assault on his personal character or an attack on his official record.  Even though the compulsory access requirement did not censor speech in the paper, the requirement had a chilling effect on the paper by discouraging the printing of personal attacks.  The requirement operated as a penalty for printing particular content.  It was struck down because it interfered with the editorial function of the newspaper, its ability to choose what to print and what not to print.  The analysis was either based on a per se rule of invalidity or, at the least, the application of strict scrutiny.

By contrast, in Red Lion Broadcasting Co. v. FCC (page 77), an analogous right of reply rule was upheld as applied to radio and television broadcasting.  The decision was rooted in the technological scarcity of the broadcast spectrum which the government allocates by its issuance of broadcast licenses.  When the FCC issues a license, the FCC can impose restrictions on the broadcaster because the broadcaster operates as a proxy or fiduciary for the public.

One of the most concrete ways in which the Supreme Court has clarified the less protected status of radio and television broadcasting is by the application of a different standard of review to evaluate content restrictions.  In FCC v. League of Women Voters of California (page 196), the Court struck down a law that prohibited editorializing by noncommercial stations receiving money from the Corporation for Public Broadcasting.  While the prohibition was content-based, the Court nevertheless applied intermediate scrutiny because of spectrum scarcity and the unique role of noncommercial broadcasting.  Even under the intermediate scrutiny standard, the ban was found to be unconstitutional.  A similar reduced level of scrutiny was applied by the Court in FCC v. Pacifica Foundation (page 149) to uphold the regulation of broadcast indecency at least in part because of the broadcasting context of the case. In contrast to Pacifica, in evaluating the constitutionality of a regulation of cable indecency in United States v. Playboy Entertainment Group, Inc. (page 159), the Court applied strict scrutiny and struck down the regulation because of the availability of less restrictive alternatives.    

While print and broadcast were the first methods of communication to be treated differently, the Court has continued to consider the nature of new methods of communication to decide what level of protection they receive.  This assessment is based on factors that include its scarcity, its prevalence, its intrusiveness, its accessibility to children, and its regulatory history.  In this way, the status of cable television was considered in Turner Broadcasting System, Inc. v. FCC (Turner I) (page 202).  In Turner, the Court rejected the scarcity rationale of Red Lion as applied to cable television since the scarcity that existed in the number of cable operators was a matter of economics rather than physical scarcity.  However, the Court did state that it wouldn’t ignore the unique physical characteristics of cable transmission when analyzing the constitutionality of regulations of cable speech.  These physical characteristics included the fact that cable operators exercise bottleneck or gatekeeper control.  However, despite rejecting the applicability of Red Lion, the Court refused to apply the analysis used in Miami Herald to the must-carry rules that required cable operators to carry local broadcasting channels.  Instead, the Court characterized the regulations as content-neutral rather than content-based and applied intermediate scrutiny to uphold the rules.  However, in evaluating a regulation of cable television that it considered to be clearly content-based, the Court applied strict scrutiny (United States v. Playboy Entertainment Group, Inc. - page 159) and struck down the regulation.   
 
Each time a new media is regulated, the Court must decide on its First Amendment status.  Print and broadcast are the two paradigms.  In the case of the internet, the Court chose to grant internet speech the full protection provided to print media.  This decision was based on the absence of a history of government regulation, the absence of scarcity, and the fact that the internet is not as pervasive as radio and television, but requires a more conscious series of decisions to connect to the internet as compared to receive broadcast signals.  As a result of its fully-protected status, the Court has applied strict scrutiny to evaluate content-based Congressional regulations of internet indecency.

V. Prior Restraints

Prior restraints include various censorship methods used by government that prevent speech from reaching its intended audience.  These include prepublication submission of material to a government censor, a need to request a permit prior to engaging in a particular form of expression, and a court-issued injunction barring future speech.
 
Prior restraints on publication, based on the history of the English licensing laws, come before a court with a heavy presumption against their constitutional validity. Therefore, the government has a very heavy burden of justification when it seeks to use a prior restraint under the Court’s decisions in Near v. Minnesota (page 91) and New York Times Co. v. United States, the Pentagon Papers case (page 98).  This standard will be satisfied only in exceptional cases, such as if the government attempts to preclude publication of information about the location of its military forces in a time of war or other national security information (Near v. Minnesota - page 93).  The government cannot rely on surmise, conjecture or speculation to satisfy this standard.  A federal district court granted a preliminary injunction under the Pentagon Papers standard in United States v. Progressive, Inc. (page 101) barring publication of an article about how to build an H Bomb.  The court based its decision on  the existence of a statute authorizing an injunction (in contrast to the Pentagon Papers case) and the fact that the article contained information that could speed up the development of a hydrogen weapon by a medium size nation.  While an appeal was pending, the information was published elsewhere and the government dropped the case.

Not all prior restraints are unconstitutional, but to be a valid prior restraint scheme, such as a parade permit requirement, the prior restraint scheme must be accompanied by procedural protections that assure, among other things, speedy review of an anti-speech decision. These procedural safeguards were first spelled out in Freedman v. Maryland (page 103).  In addition, the discretion of a government official assigned the role of censor under a prior restraint scheme must be limited so that the government official cannot exercise unbridled discretion.  The presence of clear standards that limit the discretion of the government censor is essential to a constitutional prior restraint scheme (See City of Lakewood v. Plain Dealer Publishing Co. (page 233) striking down a permit requirement for placing newsracks on city streets because it gave the mayor unfettered discretion to deny a permit).    

When an injunction against speech is issued by a court it can be challenged on direct appeal.  The person against whom it is entered is not free to violate the injunction and then challenge its constitutionality because of the effect of the collateral bar doctrine (page 104).  There is an exception recognized by some courts to the collateral bar doctrine for cases where the injunction is transparently invalid.  However, some courts still require that the person against whom the injunction issues seek modification or clarification of the injunction or speedy appellate review if it is available rather than proceed to violate the injunction.

One area where prior restraints in the form of injunctions have been more readily available is in order to protect speech that is protected as intellectual property including copyright, trademark and trade secrets.  In these areas, courts generally have believed that First Amendment values are upheld by the grant of an injunction to protect the rights of exclusivity granted by intellectual property law.  In addition, the injunction in such cases is not sought by the government to censor speech, but is sought by a private party.  

Prior restraints are distinguished from subsequent punishments where the speaker is permitted to speak, but is punished thereafter because, for example, the speech violates a criminal statute.  While the Supreme Court has spoken about the importance of distinguishing prior restraints from subsequent punishments (Alexander v. United States - page 96), in some cases it is not easy to tell whether a particular regulatory scheme is a prior restraint or a subsequent punishment because it has elements of both.  In both Landmark Communications, Inc. v. Virginia (page 32) and Smith v. Daily Mail Publishing Co. (page 36), the challenger attempted to argue that the law was a prior restraint.  In both cases, the Court refused to accept this categorization, but nevertheless struck down both laws.  In addition, in Daily Mail, the Court applied strict scrutiny to examine the statute even without characterizing it as a prior restraint.  It can be seen by these cases that the failure to convince a court that a law is a prior restraint will not necessarily result in the law being upheld.  Many other forms of regulation are subject to strict scrutiny review when First Amendment interests are at stake.    
   
Some of the issues over the use of prior restraints against the press arise in the context of press coverage of criminal trials.  While not identical to Near and the Pentagon Papers case, these cases also demonstrate that the government must satisfy a very high level of justification (typically a form of strict scrutiny review) to justify the use of a prior restraint.  For example, in Nebraska Press Association v. Stuart (page 116), the Supreme Court decided that a judge can only impose a prior restraint on the press as a technique for protecting the defendant’s Sixth Amendment fair trial right if the judge determines that (1) there are no other techniques available (such as sequestration, change of venue, postponement, restraints on the speech of trial participants including attorneys, extensive voir dire, etc.) that would adequately protect the defendant’s interests and (2) the prior restraint would be effective in protecting the defendant.  This case is consistent with the national security prior restraint cases in that both erect strong presumptions against the use of a prior restraint.

While the barrier to a prior restraint on the press is very high even when it is used to protect the Sixth Amendment rights of the defendant, prior restraints can be used against trial participants, such as attorneys, without satisfying the same standard.  While the issue is not free from doubt, the Court has held that the Nebraska Press Association standard will not be used to evaluate regulations of attorney speech (Gentile v. State Bar - page 127).  Instead, a standard closer to intermediate scrutiny has been suggested to review such restraints.  The Court has not considered the constitutionality of restraints on other trial participants such as witnesses.

VI.  Content-Based vs. Content Neutral Regulations of the Media

First Amendment analysis distinguishes between content-based regulations of speech and content-neutral speech regulations.  As a general matter, content-based regulations (including both subject matter and viewpoint-based regulations) of speech are subject to strict scrutiny and content-neutral regulations of speech are subject to intermediate scrutiny.  While there are exceptions to this general rule, when in doubt apply the general rules for the treatment of content-based vs. content-neutral regulations.

There are, however, a variety of exceptions to this general treatment.  For example, content-based regulations of broadcasting are subject to intermediate scrutiny as are content-based regulations of lesser protected categories of speech, particularly commercial speech.  In addition, under the public forum doctrine, some content-based restrictions on access to a limited forum are not subject to strict scrutiny review and neither are some content-based restrictions on access to a nonpublic forum.  This lesser standard applies to subject matter restrictions, but not to viewpoint restrictions.  In addition, regulations that are content-neutral on their face, but which are motivated by a desire to suppress particular kinds of speech are subject to strict scrutiny as are time, place and manner restrictions that do not leave open ample alternative avenues of communication.

The mass media are subject to a variety of both content-based and content-neutral regulations.  The regulations in Landmark Communications, Daily Mail, Miami Herald, and Nebraska Press, to name a few, are content-based.  Some areas where content-neutral regulations are applied to the media are in the areas of taxation, labor relations, regulations of methods of distributions of publications, and antitrust law.  However, even in these areas not all regulations are content-neutral and not all regulations are upheld as constitutional.
 
A. Content-Based Regulation of Media

Content-based regulations of media speech are typically subjected to strict scrutiny review.  Under this test, the law must be narrowly tailored to accomplish a compelling government interest.  Under this inquiry, the Court examines the means employed to make sure they are no broader than necessary to serve the compelling interests (there are no equally effective less restrictive alternative means available).  In the majority of cases applying this standard, the speech regulation is struck down because less restrictive alternative methods of regulation are available.  

1. Speech Concerning Elections

In this area, restraints on the print media have generally been subjected to strict scrutiny review and been struck down.  For example, the Court struck down a ban on a newspaper publishing an editorial for or against a ballot proposition on election day in Mills v. Alabama (page 133) and struck down a statute granting candidates a right to reply to newspaper attacks on their candidacy in Miami Herald v. Tornillo (page 69).  Lower courts have struck down statutes that prevented exit polling, but have struggled to decide cases involving laws designed to prevent or punish the publication of false statements affecting an election campaign.  One case decided by the Supreme Court which upheld a restriction on campaign speech is Burson v. Freeman (page 137).  In that case, the Court applied strict scrutiny to a content-based regulation of political speech, but nevertheless upheld a ban on the “display or distribution of campaign materials” within 100 feet of a polling place while an election is taking place because it was justified by the state’s interest in protecting voters against fraud and intimidation.

Federal law imposes a number of restrictions on radio and television broadcasters in connection with campaign speech.  For example, broadcasters who allow a candidate to use a broadcasting station must afford an equal opportunity to all qualified candidates for that office (page 138).  The equal opportunity requirement contains a number of exemptions for newscasts, news interviews and similar events that limit the reach of the statute.  The exemptions have been broadly interpreted.  Allowing a use by a supporter or friend of a candidate also triggers equal access rights under this provision.  The law prevents broadcasters from censoring any speech presented under the equal opportunity rules and immunizes the broadcaster against liability for defamation.  Another provision of federal law enacted in 1971 imposes a requirement of reasonable access to the use of broadcasting stations by legally qualified candidates for federal elective office.  A First Amendment challenge by broadcasters to this mandatory access requirement arguing it interfered with their right to editorial discretion was rejected in CBS, Inc. v. FCC (page 139).

Federal campaign reform laws also regulate election speech.  Under the Bipartisan Campaign Reform Act of 2002 (BCRA), corporations (including non-profit corporations) and unions are not permitted to use their general treasury funds to pay for television advertisements that refer to a clearly identified candidate for federal office, are made within 30 days of a primary or within 60 days of a general election, and are targeted to the relevant electorate.  This statute attempts to close a loophole that was created in the Federal Election Campaign Act.  Under that statute, corporations and unions were barred from using general treasury funds to expressly advocate the election or defeat of a candidate for federal office, but were not prevented from airing issue ads that referred to a particular candidate’s stance on the issue.  Section 203(a) of the BCRA was designed to broaden the definition of express advocacy by substituting the term electioneering communications and thereby ban such “sham” issue ads.  The Supreme Court rejected a First Amendment facial challenge to this provision of the BCRA in McConnell v. FEC (page 64).  In the course of its decision, the Court rejected the argument that the regulation was unconstitutional because it permitted media corporations to air news items and commentary, treating such corporations more favorably than other corporate entities.  In rejecting the argument, the Court commented that there was a valid distinction between media corporations and other corporations.  In addition to the different treatment of media corporations, an assumption underlying the different treatment of corporate as compared to individual speech under the BCRA is that corporations have fewer First Amendment rights than individuals so that corporate speech can be regulated in ways that individual speech cannot.  The majority in McConnell appeared to accept that view.  By contrast to the view expressed by the majority, Justice Scalia argued that corporations were entitled to the same rights as individuals to engage in electoral speech and found no justification for this difference in treatment in the text of the First Amendment or in the values it serves.

The Court appears poised to revisit the issue of corporate electoral speech addressed in McConnell v. FCC.  In Citizens United v. FEC, the Supreme Court is considering once again whether corporations (including nonprofit corporations) and unions can be prevented from using general treasury funds to pay for television advertisements to support candidates for federal elective office.  The oral argument in the case focused on two important issues: whether corporations have fewer First Amendment rights than individuals and whether there is a sufficient government interest to justifiy such a restriction as applied to corporations even though such a justification is lacking in the case of individuals.       

2. Sexually Explicit Speech

(a) Obscenity and Child Pornography

Obscenity is not protected by the First Amendment.  Obscenity is defined in Miller v. California (page 146) and, under that definition, to be obscene, material must (1) be a work that the average person, applying contemporary community standards would find, taken as a whole, appeals to the prurient interest and (2) the work must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable obscenity law, and (3) the work, taken as a whole, must lack serious literary, artistic, political or scientific value.  The Court has also recognized the concept of variable obscenity so that a work can be nonobscene as to an adult, but obscene as to a minor.  However, the Court has made clear that adult access cannot be limited to material that is suitable for children in order to protect children from access to such material.  This First Amendment limit has played an important role in striking down laws that limit sexually explicit internet speech.  A related category of unprotected speech is child pornography which involves visual depictions of actual children in sexually explicit images and is unprotected even if the pictures have serious value because of the harm the distribution does to the child victim involved in the production of the pictures.

(b) Broadcast Indecency  

Federal law prohibits the uttering of indecent or profane speech over the broadcast airwaves.  The application of this requirement to an FCC decision to impose possible sanctions on a broadcaster for the broadcast of George Carlin’s “Filthy Words” monologue on a weekday afternoon was upheld by the Supreme Court in FCC v. Pacifica Foundation (page 149) because of the pervasiveness of broadcasting, its easy accessibility to children, the ineffectiveness of warnings when listeners are constantly tuning in and out, and the fact that the FCC restriction was not a 24-hour ban but allowed broadcast of indecency at times when children were not likely to be in the viewing audience (10 p.m. to 6 a.m.).  The current generic definition of indecency used by the FCC is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standard for the broadcast medium, sexual or excretory activities or organs.”  Fines for the broadcast of indecency which were originally fairly modest have increased so the maximum fine is now $325,000 per incident per station.

After years of interpreting its indecency definition to apply to material that dwells on or repeats descriptions of sexual or excretory organs or activities and not to isolated instances of the use of such material, the FCC altered its position on this issue in 2004.  Its current policy allows broadcasters to be fined even for “fleeting expletives.”  Recently the FCC applied its indecency rules to single uses of the words fuck and shit in the context of live music award shows.  This change in policy was upheld by the Supreme Court in FCC v, Fox Television Stations, Inc.  (Supplement pages 16-19).  In that case, the Court addressed only the issue of whether the change in policy violated the Administrative Procedure Act because it was arbitrary and capricious.  The Court concluded that it was not arbitrary or capricious.  The case did not resolve a First Amendment challenge to the change in policy which is still being considered by the lower courts, although 5 members of the Court expressed skepticism about the fate of the new policy under the First Amendment.

(c) Indecency on Cable

Cable indecency is not prohibited unlike broadcast indecency although some members of Congress have proposed the extension of the indecency standards to cable.  In general, court challenges to local ordinances banning cable indecency have distinguished Pacifica because of the greater First Amendment protection afforded cable as compared to broadcast.  In one case involving a federal regulation of cable indecency due to signal bleed, the Supreme Court applied strict scrutiny to review the content-based restriction of cable broadcasting and struck down the provision because there were less restrictive alternative means available (United States v. Playboy Entertainment Group, Inc. - page 159).

(d) Indecency on the Internet

The internet is a fully protected means of communication like print and unlike broadcasting.  Therefore content-based restrictions on sexually explicit internet speech have been subjected to strict scrutiny review.  The application of this standard resulted in the Court striking down key provisions of the Communications Decency Act (CDA) because there were less restrictive alternatives available, such as filtering, to protect children, the law had too adverse an impact on the rights of adult users of the internet (by requiring adult identification to access indecent and patently offensive speech online) and the law was too vague to satisfy strict scrutiny review (Reno v. ACLU - page 166).  A revised version of the CDA called the Child Online Protection Act (COPA) was slightly narrower in its scope and attempted to cure the constitutional defects that resulted in the CDA being struck down.  However, the Supreme Court upheld the issuance of a preliminary injunction against the enforcement of COPA on the ground that the challengers were likely to succeed on the merits of the case (Ashcroft v. ACLU - page 167).  On remand, the lower courts struck down COPA on the merits finding that the installation of filtering software was a less restrive alternative means of protecting children and the Supreme Court refused to review that decision (supplement page 21).

B.  Content-Neutral Regulation of Media

Some areas where content-neutral regulations are applied to the media are in the areas of taxation, labor relations, distribution of publications, and antitrust law.  However, even in these areas not all regulations are content-neutral and not all regulations are upheld as constitutional.  While the media can often be regulated along with other businesses under laws of general applicability, regulation of the media cannot violate the First Amendment rights of the media. While the press can be subject to laws of general applicability in a variety of areas including taxation, the government is not free to discriminate against the press, is not free to target small groups within the press (Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue - page 226), and is not free to discriminate among publications based on their content unless the government can satisfy strict scrutiny review (Arkansas Writers’ Project, Inc. v. Ragland - page 227).  However, the government can treat general categories of media differently than others, such as when it treats cable television differently than the print media, without satisfying such a rigorous standard of scrutiny (Leathers v. Medlock - page 225).

Some additional special areas of concern arise when the government regulates the efforts of the press to distribute its publications such as by door-to-door distribution, or through the use of newsracks.  In such cases, the court will be concerned with whether the government is engaging in content discrimination which is subjected to strict scrutiny review, whether the government is employing a standardless prior restraint scheme which allows too much discretion to a government decisionmaker to grant or deny a permit, City of Lakewood v. Plain Dealer Publishing Co. (page 233), and whether the publisher seeks access to a public forum where rights of access are at a maximum or a nonforum where access can be denied if the regulation is reasonable (Atlanta Journal and Constitution v. The City of Atlanta Dep’t of Aviation - page 234).
 
In Turner Broadcasting System, Inc. v. FCC (Turner I) (page 202), the Supreme Court characterized the must-carry rules as content-neutral and subjected them to intermediate scrutiny review.  The Court distinguished Miami Herald v. Tornillo despite the fact that the must-carry rules interfered with a cable operators editorial discretion by compelling it to carry certain stations.  The Court reached this result because the must-carry rules were not a content-based penalty since they weren’t triggered by the content selected by the cable operator.  In addition, the Court concluded that the rules would be unlikely to cause the cable operator to alter its speech.  Moreover, the rules did not favor particular content because the rules were content-neutral in their application and provided access to all local broadcasting stations based on geography no matter what content they broadcast.  The Court rejected the cable operators’ argument that Congress was motivated by a desire to protect programming with a particular content, but instead accepted the view that Congress was attempting to preserve access to free television for Americans without cable.  Moreover, the must-carry rules were justified by the special characteristics of the cable medium, particularly the bottleneck monopoly power exercised by cable operators.  For all these reasons, the Court analyzed the rules under the intermediate scrutiny test of United States v. O’Brien (page 207) rather than under strict scrutiny.  The government satisfied this standard in Turner Broadcasting System, Inc. v. FCC (Turner II) (page 211) because it had substantial interests that were unrelated to a desire to suppress expression.  Moreover, the Court concluded that the must-carry rules were designed to address a real harm and that Congress’s judgment that the rules would alleviate that harm in a material way was a reasonable inference based on substantial evidence.  In examining the fit between the means and the ends, the Court concluded that the rules imposed a relatively minor burden on cable operators and the extent of the burden was congruent to the benefits of the must-carry rules.  Further, the Court rejected the alternatives suggested by the cable operators both because they were not likely to be as effective as the must-carry rules and because the government was not obligated to choose the least restrictive alternative means.

VII. Government-Sponsored Speech

Government-owned and operated media are subject to First Amendment restrictions that do not apply to their private counterparts.  When the media is state-owned, such as a public high school newspaper, its activities directly implicate the First Amendment.  To gain access to a state-owned medium of communication, the challenger may attempt to characterize it as a public forum. For example, in Hazelwood School District v. Kuhlmeier (page 186), students who attended a public high school brought suit after the principal censored the content of the newspaper.  They unsuccessfully argued that the paper was a public forum and that the content-based censorship was unconstitutional.  The Court rejected their argument, finding that the newspaper was a school-sponsored curricular activity and not a public forum.  Because the paper was part of the school’s curriculum, the school could exercise editorial control over its content so long as it had a legitimate pedagogic reason for its actions.

In general, challenges to editorial discretion by state-owned media often fail for a variety of reasons.  First, as in Kuhlmeier, a state-owned newspaper may not be considered a public forum because the government’s purpose in creating it is not to provide opportunities for speech by members of the public and therefore the government can exercise some level of control over its content without violating the First Amendment.  Second, when the challenge is to editorial decisions made by students who staff the paper rather than school officials, there will be no state action necessary to challenge the censorship as violative of the First Amendment because the students are not state actors.  Third, in Arkansas Education Television Commission v. Forbes (page 187), the Court also recognized that government-operated media such as broadcast stations need to be able to make a variety of content-based programming decisions and that the application of the public forum doctrine interferes with their exercise of editorial control.  This is because under the public forum doctrine even the nonpublic forum category of government property can only be regulated by regulations that are reasonable in light of the nature of the property and not based on viewpoint. To avoid the application of the public forum doctrine, the Court decided that in many cases programming or editorial decisions by government broadcasters will be immunized from the application of the public forum doctrine and government broadcasters will be able to exercise the same sort of editorial judgment as their private counterparts.  Fourth, state-owned media may publish the government's own speech rather than provide an opporunity for private speakers to express themselves.  No First Amendment rights of access exist to government-owned and operated media outlets that publish only the government's own views.  The government is allowed to express its own views without incurring any First Amendment obligations because the First Amendment only limits the government's ability to regulate private speech and does not restrict the government's own speech.

Many of the cases involving government-owned media involve applications of the public forum doctrine.  At its basic level, the public forum doctrine is a doctrine used to classify government property and to use that classification scheme to evaluate free speech access claims to the property at issue.  Under the doctrine, government property is divided into traditional public forums (streets and parks), designated public forums (places that the government has purposefully made available for expression) and nonpublic forums.  In the first two categories, the government can impose reasonable content-neutral, time, place and manner regulations on access, but can only apply content-based regulations if it satisfies strict scrutiny.  In the third category, the government can restrict access if its actions are reasonable in light of the purpose of the property and not based on viewpoint.  To determine if particular government property qualifies as a designated public forum, courts examine the policy and practice of the government (to determine if it intended to designate a place as a public forum) as well as the nature of the property and its compatibility with expressive activity.  The fact that the government has allowed access to selected members of the public is not always determinative of designated public forum status.  To complicate matters further, designated public forums may be limited in various ways to reflect their specialized nature and therefore only allow access to a specific category of speakers (students at a school, but not nonstudents) or for a specific variety of speech.  For students wanting further material about the public forum doctrine, additional information about the public forum doctrine is available in the review materials posted on the First Amendment section of this website.