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38 Cards in this Set
- Front
- Back
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Federal Communications Committee
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- Committee of 7 people who regulate the broadcast industry. In 1982, members were cut down to 5. Members of the FCC are appointed by the president, with the approval of the Senate, to serve a five year term. No more than a simple majority (three members) can be from the same political party.
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Cable Television Consumer Protection and Competition Act (1992)
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- Imposed rate regulations on most cable systems, directed the FCC to develop mandatory service standards for cable television, and greatly strengthened the competitive position of local, over the air television stations vis-à-vis cable.
- The federal government has jurisdiction to regulate cable television, but has given local governments the power to impose a variety of obligations on cable operators. - Local government is what is called the “franchising authority”; it is given the power to grant the cable system the right to operate in a particular area. This right is contained in a franchise agreement, which gives the cable operator the right to serve customers in a particular area in exchange for the promise to provide certain standards of service. |
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Prior Restraint
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- Restraining something prior to its occurrence.
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Signal Bleeding
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- The ability to see and hear portions of a scrambled program.
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Contempt
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- Violation of a court order
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Injunction
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- Court order stopping you from doing something you want to do. I.E. Prior restraint
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Clear and Present Danger Test
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- Came from Schenck v. US
- “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the about the substantive evils that Congress has a right to prevent.” - Overturned by Brandenburg v. Ohio |
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Incitement Test
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- Came from Brandenburg Case
- Speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.” - The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. |
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Incitement Test PROCEDURE
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Incitement Test
1) Must have advocacy 2) someone trying to incite people to do something illegal right now 3) Must be a likely chance that the action will occur |
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Sedition Act
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- Made it illegal to publish malicious, false, and scandalous opinion about US government, Congress and the President
- Sedition Act of 1917 was an amendment to the Espionage Act which said it was a crime to publish something that would cause insubordination and disloyalty in the army and the Sedition Act just added attempting to publish anything listed by the Espionage Act -Schenck was prosecuted under the Espionage and Sedition Act of 1978 for printing pamphlets against the draft. |
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Criminal Syndicalism
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- Derived from Espionage Act of 1918
- The additions that states added on to the Sedition Acts in their individual states because they were not satisfied with the federal regulations - These did not become federal laws, just state laws. Such things like flag burning, destroying of soldier’s uniforms, etc. |
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Gitlow V. Newyork
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- Linked the 14th Amendment to the 1st Amendment and it was applied to all states; this linkage is known as the Incorporation. First Amendment applied to all states; specifically “liberties” as outlined in the 14th Amendment.
How They (Supreme Court) were able to apply the First Amendment to all states: 1. Liberty is key to using the 14th Amendment for it incorporation 2. Liberty Interpretation is key to the rest of it. 3. Liberty includes the First Amendment |
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Shneck V. US
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- Creation of clear and present danger test
- First time the Supreme Court ruled on the First Amendment - Circumstances of war time permit greater restrictions on speech - Before Brandenburg |
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Brandenburg v. Ohio
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- Creation of the Incitement Test
- Refined clear and present danger test (made it more specific) - Claimed that criminal syndicalism laws were questionable based on their constitutionality based on the 1st and 14th Amendment - Overruled, cannot punish for mere advocacy. - Held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action. - Criminal Syndicalism allows the punishment of speech unless imminent. |
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Regulation of Express v. Issue Advocacy
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-Issue advocacy: enjoys full protection of First Amendment, while express advocacy does not:
“The only time something is expressed advocacy is when a message says ‘throw ________ out of office’, ‘vote for ________’, etc. Otherwise, its protected as” –the First Amendment between issue and express advocacy Issue speaks of the issue. Express speaks of the individuals. |
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Electioneering communication
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McConnel v. FEC Broadcast cable: Broadcast, cable or satellite communication referring to a clearly identified candidate for federal office made 60 days before or 30 days before a primary election
The Court rules… Things that are excluded from electioneering communication: - Any news stories, commentary, or editorial communications distributed through a broadcasting station unless those facilities are owned by a political party, committee, or candidate Electioneering communication in Political Advertising If candidate receives over $10,000 for a campaign, they must report how they got that money. Whoever gave $1,000 to the campaign or more must be listed |
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Spectrum Scarcity
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Because of the scarcity of air waves, the government decided that it was the government’s responsibility to ensure the fairness of equal airtime/information and that the public’s interest is best served:
-Broadcast television -RED LION v. FCC |
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Scarcity Document
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there is a finite amount of frequency and there are too many people who want to use these frequencies
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Trusteeship Model of Regulation
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“Those who have the privilege to use these airwaves must serve the best public interest and to ensure this the gov’t enforced content basis on renewal of airwave licenses; thus the broadcaster is a trustee of the public interest”
- Government imposed content-based requirements; made sure broadcasters had to meet the public interest; Government and FCC decides what the public interest is |
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Marketplace Model of Regulation
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-Movement during the 1980s in which broadcasters said the government shouldn’t be the “nanny” of the media; public interest should be defined by the marketplace meaning the highest ratings (whatever it is) no matter how unfair, truly shows the publics interest)
-Public interest should be what the public demands; which is reflected in marketplace/”ratings” of shows |
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Communications Act
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Combined communications act on radio with communications act with the communications act for broadcast
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Non-censorship Provision
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- Nothing in this act shall be understood or construed to give the commission the power of censorship over radio stations ; no regulation or condition should be prominently regulated or fixed by the condition which shall interfere with the right of free speech by means of radio communications.
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Equal Time Law
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- If any licensee shall permit any person who is legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station; provided that such licensee shall have no power of censorship over the material broadcast under the provisions of this section
- Not necessarily equal time, but equal opportunity - However, radios are able to charge - Appearances by legally qualified candidates on any of the following are exempt from |
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Equal Time Exceptions
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1) Bona fide newscast
2) Bona fide news interview 3) Bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or 4) On-the-Spot coverage of bona fide news events including but not limited to political conventions and activities incidental thereto… - Mainly applies to advertising time |
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Federal candidate access law
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- The commission may revoke any station license or construction permit; for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for federal elective office on behalf of his candidacy
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Fairness Doctrine
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- Policy saying that a reasonable percentage of time devoted to coverage of controversial issues of public importance
-Editorial licenses: Agreement between the FCC and Broadcasters in 1950s (“I scratch your back you scratch mine”) -Must provide opportunity for presentation of contrasting points of view |
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Personal Attack and Political Editorial Rules
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- Broadcasters must to allow free access time to individuals being personally attacked on air; no access for any specific-individual required
- No perfect symmetry: no requirement of equal time for different views - Balanced required in overall programming, not within programs - No FCC monitoring (enforced only on complaint basis) |
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Red Lion Broadcasting v. FCC
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- Fairness doctrine: personal attack and political editorial rules enhance rather than abridge expression
- Equal Time Law is OK - Scarcity Rationale justified: Broadcasters have some First Amendment protection but scarcity rationale justifies different standards/trusteeship model - No First Amendment rights to a license - Rights of viewers and listeners more paramount than broadcasters’ |
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Miami Herald v. Tornillo
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- Government cannot compel the print media to give space to the political candidates that they criticize
1) Newspapers cannot infinitely expand (expensive) 2) Newspapers will self-censor to avoid the law (“The Chilling Effect”) 3) It will intrude on the functions/discretion of the editors |
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Types of access to Cable
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- PEG (Public, educational, government)
Local channels -Leased access EX: When there is regular programming; but individuals can lease time (infomercials) - Must Carry/Retransmission consent Retransmission: Access is negotiated with no guarantees -What will you give me if I put my local channel on your station Must carry (see below) |
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Must Carry
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- Cable access must be provided for local channels to free of charge upon request
- Government make cable channels to put broadcasters on the air with no charge |
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US v. O'Brien Test
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- Establishes 1st Amendment standard to be used when regulating action also impinges on speech
- When speech and non-speech elements are combined in the same course of conduct, government interest in regulating the non-speech element is constitutional, PROVIDED: (“Three Prong Test”/Intermediate Scrutiny) 1) Regulation furthers important or substantial government interest 2) The interest is unrelated to the suppression of free expression 3) Any incidental restriction of expression must be no greater than necessary to further the interest (but not the least restrictive possible) |
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Indecency
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-Language or material that in context depicts or describes, and turns patently-offensive as measure by the contemporary community broadcast standards for the broadcast medium, sexual or excretory activities and organs
- Easier to prove indecency vs. obscenity |
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FCC v. Pacifica Foundation
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Constitutional Issue: Does the First Amendment permit the FCC to regulate broadcast expression that is indecent but not obscene?
They can!- Rationales for regulation: -Uniquely pervasive presence -Accessibility to children - The Court accepted as compelling the government's interests in 1. Shielding children from patently offensive material, and 2. Ensuring that unwanted speech does not enter one's home. - The Court stated that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience, and gave the FCC broad leeway to determine what constituted indecency in different contexts. |
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Internet and First Amendment
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- Internet Indecency: ACLU v. Reno
Challenge to the Communications Decency Act of 1996 Raises question of what standard of First Amendment review will apply to the Internet |
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Communication Decency Act
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- Makes it a crime to use an interactive computer service to send to a specific person under 18 or display in a manner available to a person under 18 any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms…
"It is a defense to take 'good faith, reasonable, effective, and appropriate actions' to restrict - Those making claim against the government: Unconsitutional on its face, not as applied, and should be struck down before a claim was brought from it! - Court did not see it as anything like broadcast, somewhat like print, and even better than print (more access); so why would gov't try to come over and squash it Court: Apply Strict Scrutiny to internet-- government should have very compelling argument to restrict this speech - Court doesn't challenge the interest but focuses on the vaugeness and breadth of The law which sweeps incredibly broadly, not only because indecency isn't defined, but because It covers work that has social value, including works of art, educational material, probably even library catalogues - The "defenses" don't save the law, because in effect there is no defense - Strict Scrutiny applied |
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Cable and First Amendment
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- Cable gets the same kind of strict scrutiny as the internet
- Cable can be blocked by the viewer; you allow it into your home - There is a law already that says cable companies must come to your house and block |
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The Playboy Channel indecency case
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- The Playboy Channel Case
- The address "signal bleed" despite scrambling of sexually explicit channels, system operators were required to either fully scramble images and sound OR not place such channels on system except between 10pm and 6am - Court declares that content regulation of cable should be subject to strict scrutiny - Unlike over-the-air broadcasting, cable signals can be blocked effectively on viewer demand, so the same accessibility problems are not presented - Strict scrutiny cannot be satisfied here because there is already a more narrowly tailored statute on the books - Even the importance of the gov't's asserted compelling interest in protecting children and facilitating parental supervision is questionable given the relative lack of complaints |
