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WR 201 The Freedom of Speech and Media Law

0 Seminar Topics o The Bill of Rights

o The Ten Amendments

o Why We Care

o The First Amendment

o Freedom to Speak

o Defamation: Two Basic Types

o Telling the Truth

o Defamation Protections

o Accuracy and Attribution

o Guiding Lights

o Summing It Up

Overview: Free Speech - hree Sides of the Coin

People Must Know What's Happening BUT Speech Can Be DANGEROUS

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The First Amendment matters to all journalists today, because it guarantees our right to write and say how we feel about whatever is happening around us. Ever since the First Amendment was adopted into the US Constitution on December 15, 1791, this guarantee has been tested and re-tested, to hammer out, like tempered steel, what free speech really means. At the core of this debate have been several questions that twist into ever-changing forms with every landmark decision. How free can you get? At what point does speech become dangerous, and how dangerous should its tendencies become before we attempt to stifle it? What things can you say that the US Constitution does not support? When does obscenity become so obscene that it threatens the community? When is invasion of privacy merited to protect the community? When an outraged person is condemning others with no regard for truth, how much of what they say can we quote? When it comes an absolute Freedom of Speech, the answer is simple. Like everything else in life, nothing is absolutely free; indeed, there are pressures and forces bearing down on us from all levels of society. And there are several types of things you can particularly not say or do with your freedom of speech. This presentation in WR201 will break some of these down in a simple and perhaps palatable fashion.

0 The Orlglnal US Constitution o Original US Constitution had no Bill of Rights

o It set out:

o Tripartite System of Government = Executive Branch, Congress, Courts o The states and their governance

o The Military (preventing military dictatorship)

o Infrastructure: Roads, Post Offices, Schools, Hospitals

o Taxes & coining money

o Immigration

o All of these are still hot topics/

Let’s begin with the document that, along with the Declaration of Independence, forms the backbone of the ever-evolving project we call “American Democracy” — the US Constitution. The Original US Constitution was developed in 1788, several years before the first amendment—or any amendments—were adopted. Before the Bill of Rights was added to the US Constitution, the original document mainly laid out the way the fledgling US government would work – and was primarily concerned with establishing:

A) Our tripartite system -- The Executive Branch, Congress and the Courts; B) The states, and how the states would govern the people who lived in them; C) The Military: who would run it, and how it would run; D) Infrastructure: Roads, Post Offices, etc; E) Taxes and coining money, which was a sensitive subject, seeing as how we’d

just gotten rid of Great Britain, who kept returning to the party, like a greedy and occasionally violent uncle, and;

F) Immigration, which as you know remains a hot topic today – who gets to go and who gets to stay.

Not everybody wanted a US Constitution

It took four years and The BIii of Rights to get everyone on boa1-d

You know, not everybody wanted a National Constitution back in the early days of our country. Some folks, in particular, believed the States themselves – which were much fewer in number than they are today – should decide how their constituents would governed, and they believed this so strongly they refused to ratify the necessity of a US Constitution. In the end, the only way all stakeholders were willing to support the US Constitution was under the following condition: if it guaranteed specific inalienable human rights. That’s how The Bill of Rights was born. But it wasn’t born overnight: the process of adding the Bill of Rights to the US Constitution took four years. First there was a big dust-up between James Madison and Thomas Jefferson about the necessity of a Bill of Rights; an argument that Jefferson finally won so convincingly that Madison himself spearheaded the effort to get the Bill of Rights for the US Constitution in writing. This in itself is relevant to our class: Once again, all great ideas first take shape in writing.

THE BILL OF RIGHTS - TEN AME.NDMENTS

1 The freedom of speech

2. The right to l<eep and bear arms, and to maintain a militia

J No "quarteri ' of sold rs

4. No ill search and seizw·e

s. The right to due process (double jeopardy, self~incrimination)

6. The right of the accu to a sp y public tri

1 Right of trial by jury in civil cases

Freedom frorn exce I, cn.Jel and unusual punishrnent

9 Other (Madison's Fear)

o. Powers reserved to the states

For those who have never seen it before, here is The Bill of Rights, all ten amendments, presented in order of appearance. Obviously, every US citizen should be at least nominally familiar with their constitutional rights; it’s what the people who died to liberate our nation wanted to do differently than the corrupt monarchy that came before. As we review this list on a historical level, we must always keep in mind that each of these rights was absolutely what we did not have under British rule:

1. The freedom of speech 2. The right to keep and bear arms, and maintain a militia 3. No “quartering” of soldiers 4. No illegal search and seizure 5. The right to due process (no double jeopardy or self-incrimination) 6. The right of the accused to speedy public trial (no back-door hangings) 7. Right of trial by jury in civil cases 8. Freedom from excessive bail, cruel and unusual punishment 9. Other rights (so The Constitution can’t be abused to deny people’s rights) 10. Powers reserved to the states (to clarify the relationship of federal and state government)

- ALL Joumallsts care about FIRST AMENDMENT

o Freedom of speech = freedom of the press

o Writers of US Constitution could not foresee future developments, so ...

o We're still arguing about how far rights extend o All such questions are raised in the courts o Our Constitutional rights are -and must be- tested

and re-tested for them to remain balanced and up-to date!

For the purpose of this class, a class in writing for media, the amendment we most care about is the First Amendment, the freedom of speech, which also guarantees and supports the mission of a free press. But we also care very much about many of the other amendments, as journalists are subject to illegal searches, trials, bail, and other legal matters on a regular basis. To be sure, nobody has quartered soldiers in people’s houses since the Civil War (and those quarterings were not condoned by the US Constitution), but we are all still arguing about cruel and unusual punishment, the right to bear arms, and the distribution of authority between federal and state governments today. That’s because the people who wrote the US Constitution could never begin to foresee the kinds of developments that occurred since the time they framed to original document, when people owned muskets and criminals were still hung from trees. Because we are still evolving our American democracy, we are still evolving our US Constitution – and we are thus still arguing about how far our inalienable rights extend. Should everyday citizens be allowed to own AK-47s and Glock 9 mm handguns with 32-round clips? That’s a second amendment right that’s very much in question at the present time. Should it be legal to waterboard terrorists and entertain other broaches of the Geneva Convention? This Eighth Amendment issue still hasn’t been settled to everyone’s satisfaction. Is it OK to ferret out the books people check out at the library? How far can insurance companies go to investigate claims? What types of pornography are taking things too far? All of these questions and their resolution in the courts bring us back to the US Constitution, as we test and re-test our rights in ever-changing times.

Amendment I: "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."

Now let’s get back to The First Amendment, our freedom of speech. First, let’s look at the language. Amendment I: “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.” There Is so much here, in this language; questions we still haven’t worked out. Does the freedom to worship unmolested in the manner you choose include and support the rights of fundamentalist Mormons at the Yearning for Zion Ranch in Texas to have multiple wives? How many people can gather in one place and spout their views (and what kind of views can they spout) before it becomes a riot, a hazard, an incitement to civil disobedience and a threat to government authority? This question was put to test in Oregon recently, when a group of armed citizens took over the Malheur Bird Refuge near Burns, protesting government abuses to ranchers. And what can you legitimately sue the government for, if you feel abused by them? Do you have the right to file a lawsuit against them if they seize your land for “eminent domain?” For now, let’s stick to examining this thing we call “the freedom of speech, or of the press.” Although it only amounts to eight words in the entire constitution, scholars are filling books with debate and counter-debate as to what those eight words can mean.

0 How Free Is Freedom of the Press? You can't

o Defame fellow citizens

o Engage in hate speech

o Urge crimes

o Organize seditious acts

o Claim false valor

o You can tell lies to some extent, but

o Cannot maliciously lie about other people to damage their reputation

o If you are not lying, you'll never be guilty of defamation

So how free is this “freedom of the press” anyway? What can you say about other people before you land in court? In general, if you don’t defame fellow citizens, engage in hate speech, or urge crimes and acts of sedition, you can say pretty much what you please. In particular, you are free to criticize the government, government officials, movie stars, and fellow citizens – because everyone ought to have the right to speak their mind in a democracy. And because those same freedoms of speech for the everyday citizen also apply to the freedom of the press, the media and people who write for it are free to say their piece, too. But what you are not free to do is to lie about other people. That particular injunction is as old as the Ten Commandments, and the law against bearing false witness. In other words, if you don’t like someone and think they’re dumb, that’s your opinion, and you are free to say it. But what you are not free to do is manufacture false “facts” about the person pass those lies around town, particularly if the stuff you make up can cause real and serious harm to their character. Intentionally telling salacious lies in order to destroy someone’s reputation is called defamation of character, and that’s what we’ll talk about in the next slide. But you can already take away this one crucial point: if you are not lying, you will never be found guilty of defamation. So the easiest prevention against defamation is always telling the truth. That’s why accuracy and fact-checking are such a big deal in journalism; they protect us if our stories are ever called to the table, and they protect the publications we represent.

DEFAMATION - TWO TYPES

Libel=

publication of

TEXT

MEDI.A.

That said, there are two basic types of defamation. There is Libel: “the publication of a falsity that causes injury to someone’s reputation.” And there is Slander: “defamation by oral utterance.” So if you own a small magazine and you run a series of articles accusing local police agencies of engaging in a communist conspiracy, claiming a local police officer who was convicted of shooting a young man was framed, and claiming his lawyer was an avowed communist, you can end up in court. In fact, that’s exactly what happened in the case of Gertz v. Robert Welch, Inc. in 1974. When the courts looked examined the case, the first thing they asked about the statements made in the publication, the American Opinion (which was run by the anti-communist and white supremacist John Birch Society), was whether or not the statements made in the publication were true – particularly about Gertz, who was called out in the articles as a communist. When the courts found there was no evidence Gertz ever belonged to the communist party, the case was decided and Gertz was, after lengthy legal battles, awarded $400,000 at the final trial. In the meantime, the first amendment was tested and strengthened in trial by fire.

Telling the truth about someone - no matter how damaging - is a protected constitutional right.

What has never been in any doubt is that telling the truth about someone, no matter how damaging or dreadful that truth might be, is a protected constitutional right: it’s a basic matter of safety and security that we are informed of the wrongdoings of those people around us. But it serves nobody any good to run around making up bad stuff about people and claiming that it’s true. That is why it behooves journalists, who are charged with writing the truth about rich and powerful people and disseminating that information to the public, to learn how to protect themselves from allegations of libel.

- DEFAMAnON LAWSUITS: BEsr PROTECTONS

o Always tell the truth o Always do your fact checking o Tape your sources if possible (do not entrap them) o Use only "on the record" remarks o Show a copy of story to your sources ... if you wish

The following protections are your best guarantees against being the target of a defamation lawsuit:

1. Always tell the truth; 2. Always do your fact checking; 3. Tape your sources if possible (but do not entrap them); 4. Use only “on the record” remarks by letting your source know in

advance you intend to quote them, and; 5. Show a copy of the story to your sources, if you like – it isn’t legally

necessary, and most reporters don’t do it – but if your source sees the story in print and legally signs off on it, it might serve as a protection. They can always sue you anyway, just because they feel like it. It’s their right as an American citizen, and our community courts are busy places. Not every case that appears there is a worthy one.

JOURNALISM: BASELINE ETHICS

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So what is the baseline protection against accusations of defamation by written or oral utterance? In journalism, protecting yourself against being accused of libel boils down to two main ingredients:

1. ACCURACY. If all your statements are true, you can’t be guilty of lying – you will just need to have PROOF that what you said was true.

2. ATTRIBUTION. Telling your readers what someone else said is protected speech, to a certain extent — but still care needs to be taken so the writer is not perceived as endorsing or passing off the lies someone else tells as truth. If the police say someone was guilty of theft and we report it, and then it turns out in court the person was innocent, we are protected from a libel suit because we attributed the statement to the police at that time, and were running under the impression it was true. So we attribute often and check the veracity of our source’s statements to the best of our abilities.

"Proclaim the truth and be not silent through fear"

-- St. Catherine of Siena

As we close out this seminar on The Freedom of Speech, let us pause to consider the words of guiding lights along the way.

“Proclaim the truth and do not be silent through fear.” ― St. Catherine of Siena

"If freedom of speech is taken away, then dumb and silent we rnay be led, like sheep to the slaughter." - George Washington

“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” ― George Washington

"Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear." - President Harry S. Truman

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear." — President Harry S. Truman

"Somewhere I read ofthe freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for right!' - Rev. Martin Luther King, Jr.

“Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for right.” – Rev. Martin Luther King, Jr.

ft Summing It Up o The US Constitution

o Bill of Rights

o First Amendment

o Libel and Defamation

o Truth and accuracy= best protections

o Make sure you also view the video on Sullivan vs. NY Times in this week's Learning Materials

Questions on all these topics will appear on the .inal exam!

Thank you for attending this seminar on the first amendment and libel law. In this seminar, we talked about the US Constitution and the Bill of Rights. Next, I focused on the first amendment and how it applies to the freedom of the press. Following that, we discussed the most pressing elements of libel law, and most importantly, how you can protect yourself from accusations of libel, the first of which is accuracy. In addition to this seminar, make sure you view the videos and check out the readings I’ve placed on Canvas in this week’s learning materials, particularly the materials about the Sullivan vs. NY Times case, as questions about these materials will appear on the final exam. Thanks for tuning into this seminar, and we’ll see you down the trail in the next edition of WR201 Writing for Media.