The First Amendment. This course is fundamentally a study of the First Amendment freedoms and how they apply to the media.

Transcription

1 The First Amendment This course is fundamentally a study of the First Amendment freedoms and how they apply to the media. The First Amendment says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Slide 1

2 The First Amendment 2 The five freedoms of the First Amendment are the freedoms of: Religion Speech Press Assembly Petition This course primarily deals with freedom of speech and the press (which are, themselves, often interrelated), but also involves the freedoms of assembly and petition. Slide 2

3 Free Speech/Press Issues Dealt With in this Course Some of the First Amendment issues dealt with in this course are: The extent of the Constitution s free speech guarantee; How, and in what manner, the government may control public speech; Defamation lawsuits and constitutional issues that arise from them; Invasion of privacy torts and related Constitutional issues; Political and election speech rules; Commercial speech and government regulation thereof; The obscenity rule, and when it applies; and Free speech exceptions developed to protect the integrity of the judiciary. Slide 3

4 Other Issues Dealt with in this Course In addition to issues governed solely by First Amendment principles, these issues will also be addressed in this course: Intellectual Property rules, in terms of how they interact with the media Protection of sources of journalists Access to information Including the all important Freedom of Information Act Slide 4

5 Sources of Law Relevant to this Course Constitutional Law Since this course is based on the First Amendment, cases interpreting the First Amendment are the cornerstone of this course. Statutory Law Congress has passed many laws regulating media activity, political speech, etc. Administrative Law Congress has created many administrative agencies which control media dissemination of information. Slide 5

6 Administrative Agencies that Govern Dissemination of Information Federal Communications Commission (FCC) Regulates television, radio, telephone, satellite communications, etc. Federal Trade Commission (FTC) Regulates many types of advertising Food and Drug Administration (FDA) Regulates media information and advertising regarding food, drugs, cosmetics, etc. Securities and Exchanges Commission (SEC) Regulates closely the dissemination of all types of information regarding corporations, traded securities, etc. Slide 6

7 Sources of Law Relevant to this Course (cont.) Executive Actions The President: Appoints regulators who work for the administrative agencies Can issue executive orders and proclamations that can impact what can be said and published (subject to court review) Nominates judges Common Law Judge made law, not necessarily based on the First Amendment, can also have impact on communications law, as certain rights and privileges held under the common law still apply Slide 7

8 Federal System District courts Circuit Courts Supreme Court Court Systems (review) State Systems Trial and lower courts Appellate courts State Supreme Courts Slide 8

9 Concepts in Supreme Court Decisions Precedent/Stare Decisis This is the rule that previous Court decisions will generally be followed unless there is a significant reason to overturn them Majority opinions ( the decision ) Concurring opinions Agree in result, but not necessarily with all the reasoning Dissenting opinions Disagree with the result A decision can be written by a single judge and may be joined by others, or a decision can be rendered: per curiam (on behalf of the entire court) Slide 9

10 Remedies If a party oversteps freedom and commits a wrong in a communication, remedies can include: Civil lawsuit e.g., defamation, breach of copyright, etc. Criminal prosecution e.g., prosecution for aiding the enemy in a war Injunction Here, the court forces a stop to the illegal activity Prior restraint This occurs when a court stops a planned, offending communication by injunction before it is issued. These are very difficult to obtain in cases with First Amendment implications; as courts are reluctant to enjoin free speech ahead of time before its effects are clear. Slide 10

11 When Attorneys Get Involved Attorneys and law firms usually become involved in issues relevant to this course when: A media outlet is served with a subpoena demanding some action related to their communications; A story is being considered for publication that may be defamatory; A retraction or correction is demanded of a media outlet; A lawsuit over a prior communication is threatened; A communicator is considering any action that may be illegal or a tort; or A victim of a communication approached the attorney for advice as to possible legal remedies. Slide 11