A Brief History of the First Amendment - Freedom of the Press
By David Demers
In 1789, James Madison had a problem. (1) He wanted a strong federal government. But some of the new U.S. states were leery of centralized power. After all, they had just finished fighting Great Britain partly over the lack of local control. (2)
But to ensure passage of the U.S. Constitution, Madison agreed to head a committee that wrote the 10 Bill of Rights. Actually, there were 12 amendments, but the first two failed to get approval. By default, the third one became the First Amendment. It prevented Congress and the federal government from passing laws limiting people's rights to worship, speech, freedom of the press and assembly to grieve against the government.
The history of freedom of speech and the press is much older than the U.S. Constitution, as Chapter 2 demonstrates. But most of the legal regulation of speech and the press in the United States today can be traced to passage of the First Amendment in 1791.
In the early years, the regulatory concern focused mainly around libel and censorship. The Alien and Sedition Acts of 1798, for example, jailed editors who wrote false statements about the Federalists. But since then, the scope of regulation has become much broader, encompassing not only speech and the press but also privacy, obscenity, access to government records, access to media, copyright, and regulation of electronic media.
What Is Freedom of the Press?
The mass media can publish or broadcast almost anything without prior restraint, but they can be punished after the fact for libel, invasion of privacy, and printing obscene material. That statement crudely sums up freedom of the press in the United States.
Can the government censor the mass media? As already noted in the introduction, the answer to this question is "yes," but there is a "heavy burden" of proof on the government when it comes to prior restraint. The government must show grave harm.
In the 1760s, one British scholar defined freedom of the press as freedom from "previous restraint," or prior restraint. Today, freedom of the press is much more broadly defined. However, prior restraint is often considered to be the most insidious kind of government control, because speakers and publishers are stopped before they can speak or print.
Near v. Minnesota
The U.S. Supreme Court decided its first major case on prior restraint in 1931. In Near v. Minnesota (1931), the court ruled that city and county officials could not halt publication of a newspaper even if it printed false information and lies.
The newspaper was the Saturday Press, a small weekly in Minneapolis. The publishers, Jay M. Near and Howard Guilford, thought of themselves as reformers who were helping to clean up city and county government in Minneapolis. Some historians see them as racists. They charged that Jewish gangsters were in control of gambling, bootlegging, and racketeering in the city and that city government and its law enforcement agencies did not perform their duties energetically.
City and county officials in Minneapolis obtained an injunction to halt publication of the Saturday Press. They cited a Minnesota statute that empowered a court to declare as "a public nuisance" any defamatory, obscene, malicious, or scandalous publication. Violation of the injunction could result in punishment for contempt of court.
The Minnesota Supreme Court upheld the lower court order, saying that the state had broad police power to regulate public nuisances, including defamatory newspapers. The U.S. Supreme Court voted 5-4 to reverse that decision and declared the state statute unconstitutional. The majority opinion said the object of that law was not punishment, but censorship. This constituted prior restraint and, consequently, violated the First Amendment. The Court also wrote, however, that censorship is permissible when the publication is obscene or incites people to acts of violence.
New York Times v. United States
The Near decision was supported 40 years later by the Pentagon Papers case (New York Times v. United States, 1971), which has already been discussed. The Pentagon Papers case also made it clear that the government could use prior restraint under some circumstances. Even the newspapers conceded this point. But some media scholars believe this was a mistake. The newspapers appeared to be more concerned about winning the immediate case than in establishing a long-lasting constitutional principle. (3)
United States v. Progressive
The fragility of the Pentagon Papers decision became apparent in 1979, when the government again tried to block publication of material it claimed could endanger national security (United States v. Progressive, 1979). (4) Freelance writer Howard Morland had prepared an article, titled "The H-Bomb Secret: How We Got It, Why We're Telling It." The article was scheduled for publication in the April edition of the Progressive magazine, a liberal publication.
Morland had gathered material for the article from public sources, including libraries. After completing a rough draft, he sought technical criticism from various scholars. Someone sent a copy to federal officials. Since it was no longer a secret, the Progressive sent a final draft to the government for pre-publication comments on technical accuracy. The government said the piece was too accurate--someone could use it to build a bomb--and moved to obtain an injunction against publication. The defendants argued that all of the information in the article was publicly available.
But U.S. District Court Judge Robert Warren ruled in favor of the government. He conceded that the article was not a do-it-yourself guide for building a hydrogen bomb. Nevertheless, it could help some nations move faster in developing a hydrogen bomb. Warren concluded that the government had met the heavy burden justifying prior restraint.
The Progressive appealed. But in September 1979 a small newspaper in Madison, Wisc., published a story containing much of the same information as was in the Morland article. The Department of Justice withdrew its suit against the Progressive.
If a media organization writes something that is false about a person and damages his or her reputation, can the organization be punished? The answer depends on whether the person is a private citizen, or a public official or public figure. Private citizens have a much greater chance of suing and winning damages. Public officials and public figures, in contrast, have to prove what the courts have called "malice" (or "actual malice"), which means they knew the information was false or they showed a reckless disregard for the truth when they published it.
Libel is a defamatory statement in writing. Defamation is communication that injures the good name or reputation of a person or corporation, or which tends to bring a person or corporation into disrepute. Slander is oral, or spoken, defamation. Broadcast defamation is libel when there is a written script and it is slander when there is no script.
Definitions of libel vary from state to state. But in general stories that deal with crime, immorality, financial unreliability, or incompetence generate the most problems. Words that expose people to public hatred, shame, contempt, ridicule, or disgrace, or derogate people in their personal or professional lives can be defamatory if they are false.
Libel can be subdivided into three categories: civil libel, seditious libel and criminal libel. Civil libel is defamatory statements against citizens or groups. Seditious libel is defamation or criticism of the government or its officers. Sedition is an illegal act intended to disrupt or overthrow the government. Criminal libel is libel for which a person may go to jail. Some states still have criminal libel statutes on the books, but few cases of criminal libel have occurred in recent years.
Any living person can file a civil libel lawsuit. If a dead person is libeled, relatives cannot sue in the name of the deceased. However, if the libelous material defames the family, it may sue.
To prove libel, a plaintiff generally must show that:
1. the libelous communication contained defamatory language.
2. he or she was identified in the communication. The most obvious is direct identification, in which the person is named or clearly identified (e.g., a photograph). But identification can also occur if two different stories can be put together to make an identification.
3. the defamatory language is false.
4. the defamatory language damaged his or her reputation. Theoretically, a person without a good reputation, such as a murderer, cannot be libeled. In addition, at least a significant minority of the community must believe that the plaintiff's reputation has been damaged.
5. the libelous communication was published or broadcast. Publication occurs when one person, in addition to the writer and the defamed person, sees or hears the material.
6. the libelous communication was published as a result of negligence or recklessness.
As noted above and discussed in more depth in the section that follows, if the libeled person is a public official or public figure, he or she must also prove malice.
Plaintiffs who bring libel lawsuits may sue for actual damages as well as punitive damages, which are designed to punish the offender and to serve as a general deterrent to the rest of the community. Punitive damage awards can be very large, so media organizations are especially concerned about libel lawsuits.
Until the 1960s, libel law was governed by a standard known as "strict liability." This meant that if a media organization defamed someone, they were responsible for that harm, regardless of how it came about.
But in 1964 the U.S. Supreme Court eliminated strict liability as it applied to government officials. Government officials would have to prove malice in order to win a libel lawsuit.
The case involved an advertisement placed in The New York Times by a civil rights group called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South (New York Times v. Sullivan, 1964). (5)
The ad stated that Alabama State College student leaders were expelled from school after singing "My Country 'Tis of Thee" on the State Capitol steps, that police armed with shotguns and tear gas ringed the campus, and that the dining hall was padlocked in an attempt to starve them into submission. The ad also contained information about King.
While the ad was generally true, it did contain several errors. Student leaders were not expelled for singing. The dining hall had not been padlocked. Although deployed in large numbers, the police had not "ringed" the campus. The New York Times ad staff did not check the accuracy of the advertisement.
Five Alabama government officials, including L. B. Sullivan, one of three elected Montgomery police commissioners, retaliated by filing a lawsuit against the Times for $3 million. At trial, Sullivan argued that even though he was not personally named in the ad, the charges defamed him because he supervised the police department. Relying on the rule of strict liability, the Alabama trial court ruled in favor of Sullivan and the other plaintiffs, awarding them $500,000, the largest libel judgment in Alabama at the time. The Supreme Court of Alabama upheld judgment, but the U.S. Supreme Court reversed the decision.
The high court said Alabama's libel law was unconstitutional because it did not adequately safeguard freedom of speech and press. At issue was "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials." The court said First Amendment freedoms could not survive if a "pall of fear and timidity" was imposed upon the press and public.
The Court threw out strict liability as it applied to government officials and established a new constitutional rule: Public officials, such as elected politicians and government administrators, could recover damages for defamation only if they could prove the statement was made with actual malice. To prove malice, plaintiffs who were public officials would have to show that a defendant published the statement either (1) knowing it was false, or (2) with reckless disregard for the truth. The court said the malice rule was reasonable because public officials have greater access to mass media and, thus, are better able to counter false statements made against them.
Although the Supreme Court ruled in favor of the Times, the Sullivan opinion left two key questions unanswered: What is actual malice? Who is a public official? The first question was partially answered the same year, when the Supreme Court ruled in a separate case that the malice rule applied to criminal libel cases, not just civil (Garrison v. Louisiana, 1964). (6)
In 1967, the court also expanded the definition of who must prove malice to include public figures, such as sports stars and celebrities (Curtis Publishing Co. v. Butts and Associated Press v. Walker, 1967). (7) Public figures, the court said, were persons who could command public interest and counter defamatory remarks through their access to the media. The court also ruled against the media in one case because they had time but did not adequately check the facts of a story (Curtis Publishing Co. v. Butts, 1967).
In 1974, the court refined the definition of a public figure even more, basically limiting it to people who are in the limelight or who voluntarily thrust themselves into the limelight (Gertz v. Welch, 1974). (8) Those who are involuntarily drawn into a public dispute do not need to prove malice.
The court also said public figures, such as public officials, differ from private individuals because (1) they invite attention and comment and (2) they ordinarily have access to media so they can counteract false statements about them.
Inquiry Into a Journalist's Mind
Can a libel plaintiff probe into the mind of a journalist in an attempt to prove malice? Yes.
In Herbert v. Lando (1979), (9) the U.S. Supreme Court ruled that journalists could be required to testify about thought processes and editorial conversations. This case began in 1973, when CBS's 60 Minutes examined allegations of a cover-up of atrocities committed by U.S. troops in Vietnam. The program raised questions about the veracity of statements made by Col. Anthony Herbert, a retired Army officer who made the allegations. Herbert sued, claiming the program falsely and maliciously portrayed him as a liar.
Herbert conceded he was a public figure, which meant he had to prove malice. His attorneys questioned CBS personnel for more than a year. Nearly 3,000 pages of testimony were obtained from the producer, Barry Lando. Yet Lando refused to answer questions about his evaluation of the information gathered for the story on the grounds that the First Amendment protected against an inquiry into the state of mind of editors.
The U.S. District Court judge rejected Lando's argument. The judge allowed Lando to appeal before the case was tried. The Supreme Court upheld the trial court judge's decision. The high court ruled that if public officials and public figures were prevented from probing journalists' state of mind, the balance between the protection of reputation and protection for the First Amendment would be unacceptably skewed in favor of the press.
The Supreme Court returned the case to the federal district court, but the trial judge eventually dismissed the case because Herbert could not prove malice.
What Are the Defenses for Libel?
In addition to the "malice rule," the three most important defenses for libel are truth, reporter's (or qualified) privilege, and fair comment and criticism. Other major defenses include statutes of limitations, consent, absolute privilege for broadcasters, self-defense and showing proof of a bad reputation.
1. Truth. Truth is almost always a defense, and the best defense, for libel. But truth does not protect a journalist from invasion of privacy lawsuits (see below).
2. Reporter's privilege. News stories that quote defamatory comments made in official proceedings are protected if the stories are fair and accurate. Reporter's privilege, sometimes called qualified privilege, helps ensure a robust debate. But it protects only the reports of official proceedings and records of public institutions. Some courts also have adopted a legal defense called neutral reportage, which protects reporters who quote defamatory remarks outside of official proceedings even if the reporter thinks the remarks are untrue.
3. Protection for fair comment and criticism (opinion). Editorials and commentaries often use harsh language when criticizing a person, group or idea. The Supreme Court has ruled the First Amendment protects any expression about matters of public concern that cannot be proven false. (10) Moreover, editorials and commentaries that use "exaggerated language" are protected from libel suits, as long as it is obvious the statements are not true. For example, in one case (Greenbelt Publishing v. Bresler, 1970), the Supreme Court said the word "blackmail" did not defame a real estate developer who refused to sell a piece of land to a city unless it gave him a favorable zoning for another parcel. (11) The court said it was "simply impossible to believe" that a reader would have interpreted "blackmail" to mean the developer was being charged with a crime.
4. Statutes of limitations. Most libel actions cannot be initiated if they are not filed within a specified amount of time. The statute of limitations for most libel and slander cases is one to two years. Statutes of limitations allow the courts to focus on new legal claims and reduce the number of frivolous lawsuits.
5. Consent. People who give their consent to publish a defamatory statement cannot win a libel suit. Explicit consent is rare. But consent can be inferred when the plaintiff encouraged or participated in the defamatory publication.
6. Privilege for broadcast by political candidates. Broadcast stations have an absolute privilege to air libelous comments during political broadcasts, such as live debates. The Supreme Court created this protection in 1959. (12) Before this, broadcasters were in a difficult position, because Section 315 of the 1934 Communication Act required them to provide equal air-time opportunities to political opponents.
7. Self-interest or self-defense. The courts have allowed some people to defame others if they are responding to attacks on their own reputation. The courts have ruled that people can use reasonable means to defend their reputations, but the line between self-defense and libel is not very clear.
8. Proof of previous bad reputation. A plaintiff who has a "bad reputation" cannot win a libel lawsuit, so one defense is to attack the plaintiff's reputation. However, the courts usually have interpreted "reputation" very narrowly. Thus, a drug dealer may still win damages if a news report incorrectly accuses him or her of murder.
How Can the Media Protect Themselves?
Winning a libel suit in court is difficult. Mass media come out on top about four out of five times. However, losing one case can seriously impact the bottom line. The average award is $2.5 million. Although the best way to avoid lawsuits is to be accurate and truthful, there are at least six other ways to avoid or reduce liability.
1. Libel Insurance. About half of all broadcasters and publishers carry libel insurance, which can help defray the cost of large punitive judgments.
2. Retraction. One of the ways to prevent a lawsuit or reduce the amount of damages is to print a retraction, or correction and apology, as soon as possible. More than 30 states have "retraction statutes" that minimize damage awards if media admit their errors. Courts also often reduce damages if a retraction is published.
3. Reliance on a usually reliable source. If the libelous information comes from a source that traditionally has been very reliable, the courts may also mitigate damages. Relying on a reliable source shows that a media organization was not overly negligent in collecting the defamatory information.
4. Stopping the presses or retrieving copies. Libel awards can also be mitigated when media organizations halt distribution of the libelous content as soon as possible.
5. Have lawyers review sensitive stories. Media lawyers are trained to spot libel and other potential legal problems in stories. However, they tend to err on the side of caution, so journalists should be involved and negotiate alternatives to ensure content integrity.
Alternatives to Libel Litigation
Researchers at the University of Iowa found that many libel plaintiffs would not have filed lawsuits if the media organization simply had listened to their concerns. (13) But when they contacted the organization, journalists and editors treated them rudely or became defensive. News organizations could defray many lawsuits by simply being better listeners.
Press councils (or news councils) may also help deter lawsuits. In Minnesota and Washington state, a potential libel litigant can file a complaint with nonprofit press councils composed of citizens and journalists. In exchange, the parties make a contractual agreement not to sue each other. The council hears the complaint and renders a verdict. The councils have been slow to catch on because many journalists and news organizations continue to be defensive about their First Amendment rights.
About two dozen daily newspapers, mostly large ones, also employ ombudsmen. These are usually experienced journalists who have been given the authority and independence to investigate complaints filed against the newspaper and to criticize the newspaper, if necessary. Ombudsmen can help defray criticism of the news organization because they show that the organization is sensitive to readers' and sources' concerns. However, most news organizations cannot afford them, and some see them as an encroachment upon First Amendment rights.
If a news story causes a person extreme anxiety or emotional distress, can he or she sue for damages? Yes, but it is very difficult to win such lawsuits and public officials and public figures must prove malice.
A plaintiff can sue for emotional distress when a story or defendant's actions are outrageous and go beyond the bounds of decency. For example, the evangelist Jerry Falwell sued Hustler Magazine, a pornographic publication, for libel and emotional distress after it published a parody advertisement which stated that Falwell had sex for the first time in an outhouse with his mother.
The high court ruled in Hustler Magazine v. Falwell (1988) that no libel occurred because no reasonable person would believe the statements about Falwell were factual. (14) However, the court also ruled that public figures can collect damages for emotional distress inflicted by a cartoon or caricature if the plaintiff can prove malice. Falwell was unable to win because he could not prove that the ad was published with malice.
In rare instances, plaintiffs may also win lawsuits against the media for negligent infliction of emotional distress. For example, one court ruled in favor of rape victims who agreed to be interviewed on camera on the condition that they not be identified. However, the faces and voices of the women were not masked well enough and one woman was identified by her family.
If the media produce content that appears to lead some people to commit crimes or hurt themselves, can the victims or their families blame the media and win judgments against them? No.
Plaintiffs cannot win the so-called "copycat crimes" because they are unable to prove cause and effect. For example, the mother of a boy who accidently asphyxiated himself sued Hustler magazine for an article about autoerotic asphyxia, which entails masturbation while "hanging" oneself. Cutting off the blood supply to the brain at the moment of orgasm is supposed to increase sexual pleasure. The boy allegedly got the idea from the article.
The trial court ruled in the parent's favor. But an appeals court reversed, saying it did not incite the boy's death. (15) The U.S. legal system in general assumes that people are generally responsible for their own behavior, despite social, political and economic conditions. (Another example in which a criminal tried to blame television for his violence is contained in the introduction to Chapter 14).
If investors depend upon the mass media for news and commentaries about business and finance and they lose money, can they sue the media? No. The courts generally rule that media owe no duty to investors. The risks must be borne by the investor.
Can high school or college administrators control the content of student publications? Yes, if the publication is part of a curriculum at an institution. Most high school newspapers are produced through the curriculum. But many college newspapers are independent and, thus, enjoy the same, or nearly the same, protections as the commercial press.
During the 1970s and early 1980s, most courts followed the U.S. Supreme Court's ruling in Tinker v. Des Moines Independent School District (1969). In that case, the Court upheld the rights of students to wear black arm bands as a protest against the war in Vietnam. The First Amendment protected expression by high school students as long as it was not disruptive or obscene or did not violate the rights of other students. (16)
However, in 1988 the Court upheld a high school principal's decision to censor stories about teen pregnancy and divorce in the student newspaper. (17) The Court ruled that the student newspaper was not a public forum because it was produced in a journalism class. The school has the right to regulate expression the public might associate with it, the court ruled.
College student newspapers that are not produced through a journalism class enjoy the same protection as commercial newspapers, even though they may receive funding from the university and student fees. This freedom may be circumscribed, however, if administrators or teachers have a history of control over the content. Some states limit by statute the censorship power of high school and college administrators.
Invasion of Privacy
Do people have a right to privacy? Yes, but the scope of that privacy is not yet well defined and it is difficult to win a privacy lawsuit.
Boston lawyers Samuel Warren and Louis Brandeis are often credited for originating privacy law in the United States. (18) In 1890, they complained that "instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life. Numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the housetops." The individual, they argued, has the right to be let alone.
Laws protecting people's privacy took many years to develop. But today nearly all the states recognize a legal right of privacy. This includes the right to prohibit the unauthorized commercial exploitation of one's name or picture, as well as freedom from unwanted snooping and electronic surveillance. State and federal statutes also give citizens the right to inspect medical, tax and other personal records.
The Constitution doesn't specifically mention privacy, but the Supreme Court has fashioned a limited right from the Fourth, Ninth and Fourteenth Amendments. The Fourth Amendment prohibits unreasonable government searches of citizens' homes and papers. The Ninth and Fourteenth Amendments have been used to give people a limited right to sexual privacy and a right to use contraceptives (a private matter), and to give women the right to an abortion.
Four areas of privacy have a direct impact on mass media: private facts, intrusion, false light, and appropriation.
Private facts is generally defined as content that (1) would be highly offensive to a reasonable person and (2) is not of legitimate concern to the public. The private-facts plaintiff sues for shame, humiliation, and mental anguish stemming from publication of truthful information. Thus, truth is not a defense in privacy lawsuits.
The media generally win private facts cases. But plaintiffs have been successful from time to time when stories reveal highly personal information about them, such as physical or mental illness, or exposure of intimate parts of the body. For example, some states have allowed parents of mentally handicapped children to sue news organizations when the children's conditions are revealed in stories without parental permission.
The U.S. Supreme Court has ruled the news media can publish just about anything that it legally obtains from official (court, police and government) records. (19) Privacy laws and judges normally cannot impose a prior restraint on media organizations. However, laws and judges can prohibit government officials from releasing private information about people to the news media.
To defend themselves, news media also try to show that the published information is newsworthy, and that this newsworthiness outweighs any right to privacy. For example, Oliver Sipple, a homosexual who saved President Gerald Ford's life when he deflected Sarah Jane Moore's hand as she aimed a gun at Ford, lost his privacy lawsuit because a lower court said his homosexuality was newsworthy. It was newsworthy because his courageous act cast homosexuals in a positive light. (20)
Consent is also a defense in private facts cases. If a source gives private information to a reporter, consent is implied. However, the source must know he or she is talking to a reporter. That's one reason why it's important for reporters to identify themselves before interviewing people.
Intrusion involves a physical or technological invasion of a person's privacy. The Fourth Amendment provides protection from unjustified government searches of homes and offices.
The government also cannot tap phone lines without a court order. Citizens are never allowed to tap phone lines, which is called third-party tape-recording. However, about 40 states allow one party to a conversation to tape record that conversation without permission of the other party or parties.
There also is no federal law against participant monitoring (or second-party tape-recording). Some journalists tape telephone conversations to protect themselves from complaints and false allegations. Some attorneys also routinely do this without consent of their clients. However, some journalists believe participant monitoring is unethical.
State and local statutes also provide protection from trespassers. Trespassing is entering private property without the permission of the owner. As a rule, journalists may photograph or observe any activity from public property or from a place in which they have permission to be. However, courts are divided on whether quasi-public places like restaurants are private. In some jurisdictions, journalists may be sued for overzealously following celebrities or for using extreme methods of obtaining pictures of activities on private property (such as using a ladder to see over guard walls).
In general, journalists are not held liable for receiving stolen property. The Pentagon Papers case is a good example. Ellsberg technically stole the documents and turned them over to the newspapers. Ellsberg could have been prosecuted for theft. But journalists are not generally liable if they didn't break the law.
False light involves the public portrayal of someone in a distorted or fictionalized way. False light is similar to libel because both allege they are victims of falsehood. However, false light plaintiffs do not sue for damage to their reputations--they sue because someone has distributed embarrassing, private facts about them.
One example of false light occurred when a newspaper story portrayed a widow whose husband had died in a bridge accident as embittered and living in abject poverty. The allegations were false, and the Supreme Court ruled in favor of the woman (Cantrell v. Forest City Publishing Co., 1974). (21) Another example involved a biography of a famous baseball player in the 1950s, which falsely portrayed the player as a World War II hero. The New York Supreme Court ruled in favor of the baseball player and prohibited distribution of the book. (22)
Appropriation is the unauthorized exploitation of someone's identity. Most often this involves commercial exploitation, in which someone uses a celebrity's identity to sell a product without his or her authorization. But noncommercial use of a name or likeness is also prohibited.
One example involved a star football player whose portrait was painted for a sports magazine. Sometime later the portrait appeared in a Coca-Cola advertisement. A court ruled that even though sports star was a public figure, he still was entitled to control his identity for commercial purposes. (23)
Consent is normally needed to use someone's name or likeness. Photographers, advertisers and public relations professionals usually prefer to obtain consent in the broadest context possible. They can then use the photographs or images in a variety of ways. But actors and models should be aware that this can come back to haunt them.
For example, at age 10, actress Brooke Shields, with the permission of her mother, posed nude for a book called Sugar and Spice. The pictures were not pornographic but they were revealing. Her mother was paid $450. When Shields became famous years later, the photographer sold some of the pictures to other media outlets. The courts eventually ruled against Shields' mother because the contractual agreement allowed the photographer full control of the pictures. (24)
The courts have also ruled it is illegal to copy a person's likeness with the intent of exploiting it. Thus, advertisements cannot use studio singers whose voices sound like famous singers, unless the audience knows the difference.
Is pornographic material protected under the First Amendment? Only if it is not obscene. But there is no clear definition of obscenity and it may vary from community to community.
No area of the law is less settled and more controversial than that associated with obscenity. The courts, police and pornographers have all struggled to define the term, and no solution is in insight. Almost everyone agrees pornography is content intended to be sexually arousing. But not all pornography is obscene, which means it does not have protection under the First Amendment.
The U.S. Supreme Court has handed down two major rulings on obscenity. The first, Roth v. U.S. (1957), stated that obscene material is not protected by the First Amendment because it is "utterly without redeeming social importance." (25) However, after that decision it was difficult for prosecutors to convict people who produced and distributed hard-core pornography, because it was hard to prove something had no redeeming social importance.
Sixteen years later, the court relaxed the standard and established a three-part test for determining whether sexual materials are obscene. The case (Miller v. California, 1973) involved a California man who was convicted under a state law for mailing a brochure that advertised four books (An Illustrated History of Pornography, Intercourse, Man-Woman, Sex Orgies Illustrated) and a movie (Marital Intercourse). The brochure contained graphic pictures of genitalia and sexual activities.
The court held that the materials were obscene because they (1) appealed to the "prurient interest" (i.e., they incited unwholesome lust and desires) of the "average person applying contemporary community standards," (2) were "patently offensive" (i.e., excess of hard core sexual detail, such as bestiality, sadomasochism), and (3) lacked serious literary, artistic, political or scientific value, when judged as a whole. All three criteria must be met for something to be labeled obscene.
In the Miller case, the court also decentralized the process of determining whether something was obscene. The local community, which might be defined as a city, county or state, could now determine what was obscene. This meant definitions could vary from community to community. Needless to say, this created problems for the pornographic industry, whose products were often distributed through national distribution networks and chain stores. A magazine could be judged obscene in one jurisdiction and legal in another.
Despite making it easier to prosecute producers of obscene materials, the Miller case has not put a damper on the production of pornographic material. The industry has grown dramatically since the 1970s. About $15 billion a year is spent on pornographic materials. Easy access to pornography on the Internet has contributed greatly to its expansion since the 1990s.
Freedom of Circulation and Distribution
Can the government limit distribution of a publication by revoking an organization's mailing privileges? Under most circumstances, no. But during wartime, it may.
In Milwaukee Social Democratic Publishing Co. v. Burleson (1921), (26) the Supreme Court upheld a decision by the postmaster to revoke the second-class mailing privilege of a socialist publication, citing the Federal Espionage Act. The court said the article at issue conveys "false reports and false statements, with intent to promote the success of the enemies of the United States."
But in Hannegan v. Esquire, Inc. (1946), (27) the court criticized the postmaster for revoking the second-class mailing permit of Esquire magazine for allegedly violating a federal statute that prohibited the mailing of obscene information. The magazine had printed jokes, cartoons, pictures, articles, and poems about sex. The court wrote: "To uphold the order of revocation would, therefore, grant the postmaster general a power of censorship. Such a power is so abhorrent to our traditions that a purpose to grant it should not be easily inferred."
The Esquire case did not overturn the Milwaukee Social Democratic Publishing case. The court may have been hesitant to do that since the Milwaukee case occurred during World War I, when concern about espionage was very high.
In 1965 (Lamont v. Postmaster General), (28) the court ruled again in support of freedom of circulation. The court ruled the postal service could not require a man to sign a form to receive mail that the postal service determined contained "communist" material.
1. Madison is considered the "father of the U.S. Constitution" and was the fourth president of the United States.
2. Nine of the 13 original colonies already had enacted legislation protecting freedom of speech and the press. But many legislators in those and the other colonies wanted to ensure that the powers of the federal government were limited.
3. This is a common error in freedom of information cases as well. Journalists and the their organizations often are more focused on getting access to specific documents or records than on legal challenges that might create more openness in government.
4. United States v. The Progressive, 467 F.Supp. 990 (W.D.Wis. 1979).
5. New York Times v. Sullivan, 376 U.S. 254 (1964).