Lecture 3

The protection of media freedom under the First Amendment

 First Amendment

‘Congress shall make no law…abridging the

freedom of speech, or of the press…’
 Absolutist theories
Justice Black in Ginzburg v. United States, 383 US 463, 476
(1966) (diss.):
The federal government is ‘without any power whatever
under the Constitution to put any type of burden on speech
and expression of ideas of any kind’.
 Absolutism condemned
Holmes J. in Schenck v. US 249 US 47, 52 (1919):

The ‘most stringent protection of free speech would not

protect a man in falsely shouting fire in a theatre and causing
a panic.’
First Amendment principles
 I. Rights against the state
The First Amendment guarantees rights against the state, not
against private corporations. The media do not violate the
First Amendment if they:
• refuse to carry a controversial advertisement e.g. CBS Inc. v.
Dem Nat’l Comm, 412 US 94 (1973) or to publish a reply e.g.
Miami v. Tornillo, 418 US 241 (1974)
• remove potentially fake videos
 Excursus (I): Fairness doctrine
• The fairness doctrine was introduced by the FCC in 1949.
• In 1987, the FCC repealed the fairness doctrine.
• In 1989, the US Court of Appeals upheld the FCC’s decision to
eliminate the fairness doctrine (Syracuse Peace Council v. FCC, 867
F.2d 654).
 Excursus (II): Equal time requirements
• If broadcasters grant airtime to candidates for public office, they must
afford equal opportunities to all other candidates for such office…
• …and they are absolutely protected from libel suits resulting from
such broadcasts

s. 315 Communications Act; Case Farmers Educ. And Coop. Union of

Am. v. WDAY Inc., 360 US 525 (1959)
 II. First Amendment due process
• The government bears the burden of proving that a restriction of free
speech is necessary
• Case Freedman v. Maryland 380 US 51 (1965):
The censor has the burden of proof of showing that distribution of a
film should not be allowed.
 III. Content regulation
• Police Dep’t v. Mosley, 408 US 92 (1972):
‘…government has no power to restrict expression because of its
message, its ideas, its subject matter or its content’.
• Content-based restriction of speech is subjected to strict scrutiny
 Example: Flag desecration
• Texas v. Johnson 491 US 397 (1989):
Supreme Court: Johnson’s act did not provoke disorder. There was no
compelling justification for the prohibition of expressive conduct.
 Viewpoint discrimination (I)
• A particularly serious form of content regulation
• Lamb’s Chapel Center Moriches Union Free Sch. Dist., 508 US 384
(1993):
Unconstitutional prohibition of after school classroom use by religious
organisations to discuss child rearing
 Viewpoint discrimination (II)
RAV v. St. Paul, 505 US 377 (1992):
The Supreme Court overturned the conviction and found the ordinance
unconstitutional on the ground that it only prohibited hate speech
motivated by ‘race, colour, creed, religion or gender’ but not by other
protected interests.
 The hierarchy of expression

Political, social and

cultural speech
Commercial and
non-obscene
False advertising, sexual speech
obscene sexual
speech, fighting
words, true threats
NO PROTECTION
First Amendment tests
 Bad tendency test
• Gitlow v. New York, 268 US 652, 667 (1925):
‘a State…may punish those who abuse this freedom by
utterances inimical to the public welfare, tending to corrupt
public morals, incite to crime or disturb the public peace’
• This test has been abandoned as it offered no protection for
speech.
 Clear and present danger test
• Holmes J. in Schenck v. US 249 US 47, 52 (1919):
Speech should be punished only when words are ‘of such a
nature and used in such circumstances a to create a clear and
present danger that they will bring about the substantive evils
which Congress has a right to prevent.’
Brandenburg v. Ohio,
395 US 444 (1969):

‘Freedoms of speech and

press do not permit a State to
forbid advocacy of the use of
force or of law violation
except where such advocacy
is directed to inciting or
producing imminent lawless
action and is likely to incite or
produce such action. ’
 Fighting words
• Legal treatment of hate speech: a universal challenge
• Most hate speech is protected under the First Amendment
• Only so-called fighting words are beyond constitutional protection
• Fighting words: speech which by its nature was calculated to cause a
breach of the peace or injure its addressees.
Chaplinsky v. New Hampshire, 315 US 568 (1942)
 True Threats
• Virginia v. Black, 538 US 343 (2003):
A true threat is speech of symbolic expression ‘intended to create a
pervasive fear in victims that they are a target of violence’.