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Shades of Gray: First Amendment Rights Not Always Black & White

JOURNALISM LAW (655) DISCUSSION QUESTION: Do you believe that traditional First Amendment protections should also apply to the Internet? Please cite the relevant Supreme Court rulings on this point, and also please give your opinion and thoughts. Please explain your reasoning in detail.

 “First Amendment Protections are not absolute.” This was one of the most intriguing quotes in the textbook, The Law of Journalism and Mass Communication for the Journalism 655 Law class. Based on discussions and readings, especially Chapter 2 on “The First Amendment,” I have started to see that the law, which is black and white, really has more shades of gray than ever imagined when it comes to interpretation and also on a case-by-case basis.

It was interesting to see definitions of Freedom of Speech—and the parameters under which Law of Journalismthe right is protected—and how so many people just throw the term out there, thinking they are protected. From the very birth of the amendments to present day technologies and citing specific cases, the concept of Freedom of Speech is, well, beautiful and to be experienced by every American.

However, that right often comes with limitations and caveats. Freedom of speech covers many platforms, including now, the Internet. I believe First Amendment protections should apply to the Internet, but I also believe that these protections will be evolving as technology evolves. More people are posting to blogs, websites, and all modes of social media, sometimes because they can, and sometimes because they can remain anonymous.

It was interesting to see that sometimes an ISP (Internet service provider) could be brought to court for allowing questionable material to be published on a particular site. Mostly, it is about individuals or publications or companies that post material; they are liable for what they post. When someone decides to publish commentary, stories, photos, or the like on the Internet, they do have freedom of speech, but there are many “unprotected categories” of this right.

For example, the text says, “Political speech enjoys full constitutional protection, while seditious speech, fighting words, obscenity and defamation are unprotected categories.” 

A few other categories that are not protected include: blackmail, extortion, perjury, false advertising, disruptive speech and can cover child pornography, cross burning, and true threats (particularly to national Security), and also to an individual’s security/safety. Freedom of speech cannot cross privacy interests, either. In addition, there are content-neutral laws, also known as time/place/manner laws, which can affect a person’s protection under Freedom of Speech.

One Internet case citing the “true threat” category was about the American Coalition of Life Activists (ACLA), which targeted doctors who performed abortions and placed them on its website (p 115).  Wording on the site “suggested a mafia-type contract be taken out on abortion providers whose “crimes” were compared to the Nazi extermination of Jews during World War II.” 

Four doctors sued the organization, fearing for their lives and inability to continue practicing medicine. They said they were “intentionally intimidated…with a threat of force.” The ACLA was found guilty of “intentionally threatening to harm the doctors.” On appeal, another court upheld that ruling, saying that “true threats arise not from the use of specific words but from the meaning of a message interpreted in context.”

Categorical balancing was a topic brought up in the text that covers, for example, privacy vs. political speech. It explains the extent of harm caused to determine whether the expression falls into punishable category.

For the abortion doctors’ case, the Supreme Court ruling covered the “true threat” category and, therefore, this was a punishable category. It is interesting to see how these cases are brought to court and trial. Sometimes it seems that the outcome can seem like a roll of the dice, so random, but in reality, we have these freedoms—of speech and of the press—and still have to be held accountable as citizens and journalists. The ACLA crossed the line—if one looks at the black and white of the law—and the unprotected categories of Freedom of Speech.  Whether through a website, blog, or social media outlet, what a person says can be seen as a threat or a target for libel, slander and defamation.

As journalists, it might be more of a balancing act. It can come back to ethics and being aware of what the unprotected categories are, but at the same time, we have to have the liberty to publish what we feel is relevant news. It will be interesting to see how protection of our Freedom of the Press and Speech will evolve as more of our work appears on the Internet, and reaches, influences and/or incites the masses.

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For Sake of a Story: When Journalists Cross the Line–Invading Privacy

JOURNALISM LAW DISCUSSION QUESTION: In writing sensitive stories, reporters often face complex questions involving legality, ethics, fairness and privacy. Please discuss how you as a modern communications professional would deal with the following situation, involving former tennis star Arthur Ashe, and the media’s decision to reveal – against his wishes – the news that Ashe had been diagnosed with AIDS. Please discuss both the legal and the ethical aspects of this situation. Among other questions, please say whether the newspaper had the legal right to print this information without Ashe’s consent, and whether this raises any legal issues involving libel, defamation or invasion of privacy.

The questions posed in the Media Ethics Case Study, “Arthur Ashe and the Right to Privacy” by Carol Oukrop at Kansas State University, offered a glimpse of several issues: transparency in journalistic coverage, invasion of privacy, public vs. private individuals, whether or not the story is newsworthy, and whether or not a person who was once a public figure, will always be a public figure—and can be covered as such.

There are many ways the newspaper could get around the legalities of publishing a piece without Arthur Ashe’s permission. Falling back on the First Amendment is, of course, core to that. If you went by the black and white issue of the law, of course, the newspaper had the legal right to publish the piece.

What can save that newspaper from libel and liability issues would depend on a few things: the angle they take, the way content was written, word choice (fact vs. opinion), its intent and whether once a person is a public figure if s/he will always be considered a public figure. It might take into consideration the public’s right to know. What are the parameters of that?

However, what makes a piece news worthy? Why is it news in the first place? After some of the cases we’ve read, there is no telling whether the issue of “legal right to publish” is the actual issue at stake. Getting the news out faster than the next guy, with total disregard for the individual vs. the paper’s exclusive, can influence—and cloud—a publication’s bottom line.

Today, it seems there is a very blurry line when it comes to journalistic standards of excellence, ethical reporting and transparency.

There is a person’s right to privacy. Pushing the envelope often times crosses those ethical lines.

Peter Prichard, editor of USA Today, said, “When the press has kept secrets . . . that conspiracy of silence has not served the public. . . .”? “Journalists serve the public by reporting news, not hiding it…”

What does Ashe’s health have to do with better serving the public? USA Today tried to justify its coverage saying that exposing Ashe could free him and his family “of a great weight.”

It also said Ashe could help the public better understand and defeat AIDS. What gives the paper the right to even suggest such a thing? What if he didn’t want to? What if he wanted to do so within his own time frame? Or after his daughter was a little older? What right did USA Today have to place THAT burden of being an AIDS spokesperson on him?

USA Today was wrong in pushing Ashe against a corner. He had hoped to keep the news private, especially for his child’s sake. An editorial Oukrop cited from The Christian Century (April 22, 1992) called this a “tale of media irresponsibility and corporate greed,” an example of “entertainment posing as information”—and I agree.

The media invades privacy issues, especially when public figures are at the center.  Ashe had, over the years, earned much respect for his professional accomplishments, as well as his involvement in human rights/struggles—and many other agendas that impacted communities. Being an AIDS spokesperson did not have to be thrust upon him, even though he handled the media frenzy and aftermath with grace and dignity.

Oukrop’s last source truly sent chills down my spine. Fred Bruning wrote that, “The wishes of a stricken man cannot substitute for editorial judgment… but the objective is clear. Personal concerns are secondary to the principles of a free press.”

What “principles” formed the basis for USA Today’s decision? When there is such a fine line between ethics and freedom of the press, a media watchdog needs to sniff things out to ensure that the “principles” of the First Amendment are not taken lightly or abused. Otherwise, the action can backfire and a publication can lose its credibility as a viable media outlet. 

 

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