Tag Archive: First Amendment


Run and Tweet That

Twitter is an online social networking site that allows millions of people to pour out their thoughts in 140 characters or less. The globally popular site has recently announced that they will begin implementing a new censorship policy. According to Time Magazine, the company described this new policy as, “the ability to reactively withhold content from users in specific countries-while keeping it available for the rest of the world.” Effectively, Twitter is taking on the role of gatekeeper in making sure that tweets that are deemed against the law in certain countries never reach the computer screen of the public.  China and Thailand have gone on the record and applauded Twitter’s steps to censor their users; however citizens of the United States view an act of censorship of this magnitude as a major hit to their Constitutional right of free speech.

Since Twitter is a private company, they do have every right to choose what will and will not be posted on their website.  However, Twitter has constantly held itself out as a completely open public forum that is used as a platform for a multitude of things.  Politicians have turned to Twitter to campaign, new businesses have used this network to take their company to the next level, and people of all ages have turned to this website to update their friends about their lives.  At this point, the United States has not intervened on what is being posted; however, on the eve of pending bills such as PIPA and SOPA, Americans are taking a deeper look into their rights of free speech on the web.  While the purpose behind PIPA and SOPA is to defend copyrights, a large portion of the populace views these bills as censorship and infringement on their rights.  Website such as Wikipedia, youtube, and Pinterest that allow people to post videos, information, ideas and comments would be in violation of the law and would be forced to remove posts or would be shut down completely.

The line between censorship and free speech on virtual public forums is becoming more and more blurred.  The government is getting more involved and taking a closer look at previously unregulated social networks.   Twitter has been extremely useful in getting information to a large amount of people.  This new policy will effectively prevent some of its users from receiving tweets which are deemed illegal by specific countries.

 

 

Mitt Romney Campaign Ad, Tom Brokaw, and Fair Use

Republican presidential candidate Mitt Romney has generated some controversy in recent days over a campaign attack ad against rival Newt Gingrich. The ad features old footage of Tom Brokaw reporting on the Newt Gingrich ethics scandal in 1997.  In the ad, Brokaw reports that Gingrich was found guilty by the House ethics committee. Brokaw said in a statement that he is “extremely uncomfortable with the extended use of my personal image in this political ad.” He also said, “I do not want my role as a journalist compromised for political gain by any campaign.” NBC lawyers have asked the Romney campaign to remove the ad and any reference to the network in future campaign ads. However, it is likely that the use of the Tom Brokaw footage by the Romney campaign is permissible under the fair use doctrine.  Section 107 of the U.S. Copyright Law allows the reproduction of a particular work if it is considered a “criticism, comment, news reporting, teaching, scholarship, and research.” At the end of the day, it is likely that the Romney campaign will just pull the ad but the genie has already been let out of the bottle. The most significant impact of this controversy is that it has greatly increased circulation and discussion of a negative ad. It thus will probably hurt Gingrich in the polls by reminding voters of his ethical baggage.

First Amendment and CSI

The November 11, 2010  CSI  episode, “Fracked”, which aired on CBS is remniscent of Steven Soderbergh’s 2000 blockbuster Erin Brockovich. Starring Julia Roberts, the film tells the story of real-life Erin Brockovich‘s investigation that uncovered Pacific Gas & Electric Company’s shifty practices in Hinckley, California. Her persistence led to a $333 million settlement for Hinckley residents. Ten years later, PG&E is still dealing with toxic plumes in Hinckley’s groundwater. To read more about it, click here.  

In “Fracked,” the murder of a small town resident alerts the Crime Scene Investigation team of a local gas conglomerate’s questionable practices because of his cancer-ridden body and his close relationship with Rosalind Johnson (Angela Bettis), a journalist. The team brings Johnson in for questioning to attempt to find out more information on the man’s death and his connection to the gas company. Johnson alludes to the deceased’s role in her article about the gas company, but does not provide any relevant information to the murder. Ray Langston (Laurence Fishburne) suspects Johnson knows more than she lets on. He prods to find out  more information about the gas company’s involvement with the deaths of a number of small-town residents. However, she refuses to provide more information and reminds Langston of her rights under the First Amendment. But does the First Amendment protect her from revealing information such as confidential sources that could be relevant to a criminal investigation?

The leading case on the matter is the 1972 case of Branzburg v. Hayes. In this case, the Supreme Court of the United States tackled the issue of whether there existed a “constitutional right of special access to information not available to the public generally.” The Court denied the contention that a reporter had special privilege that immunized him from having to testify as a grand jury witness in a criminal investigation. The split 5-4 decision expressed concern that petitioners were asking the Court to allow a “testimonial privilege that other citizens do not enjoy.”Writing for the majority, Justice White observed that the press has never had a constitutional protection and the press has still “flourished.” The Court is unclear as to whether journalists should have some special treatment because the Court reasoned, “Without some protection for seeking out the news, freedom of the press could be eviscerated.”

This loophole has caused more than thirty states to enact press shield statutes. Nevada, where the fictitious crime scene investigation team is based, provides reporters this protection under N.R.S 49.275 . The statute states that no reporter may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving, or processing information for communication to the public in any legal proceedings, trial or investigation. The legislative history behind the statute was explained in the 2000 case of Diaz v. Eighth Judicial Dist. Court. In that decision, the court stated that the purpose behind the statute was to ensure the free flow of information, especially information concerning the government’s corruption or mismanagement. The legislatute rationalized that the public is more likely to inform reporters of their concerns if they feel that they can do so in confidence.

 An article posted on the website of the international media and marketing solutions company Gannett describes Nevada’s press shield statute as one of the most protective in the nation. The article discusses a recent case in which a journalist’s information regarding a fatal car accident was privileged. However, the article warns that the court’s decision in that case is premised in the state statute and not the First Amendment.

Douglas Lee, an attorney based in Illinois, wrote about the discrepancies in state and federal shield laws in an article for the First Amendment Center. He highlights that these statutes vary in detail, but that generally, the statutes provide that privileged information cannot be obtained unless the party seeking the information can establish that (1) the information is highly material and relevant to the case at issue (2) a compelling need exists for the information and (3) the information cannot be obtained by other means.

The crime scene investigation team can easily satisfy the first two prongs of the test. Firstly, it is clear that the information that Johnson knows is highly material and relevant to the case at issue. The last person the deceased spoke to was Johnson (evidenced by phone records) and his constant meetings with her (evidenced by his agenda) suggest that the pair were discussing a relevant matter. Furthermore, during the course of their investigation the team discovered a second death. Like the first victim, this man spoke to Johnson on the phone before he died and met with Johnson regularly before his death. The second victim was an engineer for the gas conglomerate and had visited the first victim’s property on numerous occasions. It is possible then that these men’s murders were linked and that Johnson could be privy to important information that the men knew that led to their deaths. 

Secondly, in the present case, a compelling need exists for the information. During the course of the team’s investigation, they witness three deaths. If the team does not find out more information about the gas company’s involvement in the murders, it could result in more deaths. Clearly, the health and safety of Nevada’s residents is a compelling need for Johnson’s information. However, in most cases, the state will be able to prove a compelling need for the information.

Thus, the issue then becomes whether the team can obtain the information in another manner. The present case illustrates an instance when the team could obtain the information using other methods. Even though a delay in the process can result in the death of more innnocent individuals, the fact that the information can be obtained in another way affords protection to Johnson’s information. Thus, it is likely that a court would hold that Johnson does not have to disclose her unpublished information to aid in a quicker investigation to prevent further harm. In fact, in the episode, Johnson did not have to disclose the information because the team was able to reach the conclusion through their scientific investigation.  Therefore, if a journalist can prove that the state can find the relevant material using other ways, it is likely that he/she will not have to disclose the information (especially in Nevada, because of their protective press shield laws).

Lee’s article for the First Amendment Center mentions a congressional proposal for a federal shield law that was passed by the House of Representatives in 2009. President Barack Obama has expressed opposition to the bill because of national security concerns. The Senate is considering its own version of the bill. However, the President of the Society of Professional Journalists, Kevin Smith, states that Obama’s opposition will unduly burden the bill. It will be interesting to see how controversy over this federal shield law develops.

Role of Censorship on “The Late Late Show with Craig Ferguson”

Craig Ferguson is the host of CBS’ “The Late Late Show with Craig Ferguson” which airs weeknights at 12:35/11:35p.m (central). Ferguson, born in Glasgow, Scotland, began his career in the entertainment world as a drummer in several Scottish punk bands. After discovering his talent as a comedian, the British Broadcasting Corporation gave Ferguson his own TV show, entitled,  “The Ferguson Theory.” Ferguson moved to the United States and gained fame in America by acting on The Drew Carey Show during 1996-2004. After acting on the Carey show, he began hosting “The Late Late Show” in 2005 as a successor to Craig Kilborn. Ferguson’s monologue style is unique because he uses a free style, off-the-cuff approach. The humor of The Late Late Show comes from his strong Scottish accent combined with the unpredictable and ridiculous delivery of his jokes. During the monologue and interviews with guests, Ferguson will do and say almost anything to get a laugh and is completely unaffected by the fact that some people may be offended by his behavior. The latest episode of The Late Late Show with Craig Ferguson aired on Tuesday, November, 16, 2010, and was full of his typical style of comedy. Throughout the episode, Ferguson made several jokes and used terms that raise the issue of censorship and tolerance of offensive words on television.

There are a number of factors that determine whether words are considered profane compared to words that are acceptable to say on television. Some of these factors include the type of network, genre of the show, and time of day it airs. A combination of these factors will determine whether the Federal Communication Commission regulates the content of the programs or not. The FCC was established by the Communications Act of 1934 and regulates under Title 47 of the Code of Federal Regulations. The type of network factor comes into play here because the FCC’s jurisdiction only applies to broadcast networks, such as CBS, Fox, ABC, and NBC, and does not cover cable or restricted-access networks, like BRAVO or HBO. The FCC’s enforcement process begins by allowing the public to file complaints about potential obscene, indecent, or profane material aired on television. The FCC examines each complaint and if it contains sufficient information to suggest a possible violation, an investigation will begin. After the investigation, the FCC determines whether the material is obscene, indecent or profane, and if so, the Enforcement Bureau issues a Notice of Apparent Liability to the broadcaster. The broadcaster is given an opportunity to respond to the notice by the Commissioner. The Commission reviews the complaint, along with the response, and decides whether to grant or deny it. If the complaint is granted, the Commission may issue sanctions to the broadcaster for violation of its policies.

Material that rises to the level of obscenity is always prohibited on television, regardless of what time and in what context it airs . Indecent and profane material does not rise to the level of being “obscene” and is only prohibited by the FCC during the hours of 6am-10pm. Civil enforcement of these requirements rests with the FCC, and is an important part of the FCC’s overall responsibilities. Indecent or profane material aired on broadcast networks after 10pm are not prohibited under the regulation of the FCC. However, most networks institute self-censorship policies for late-night programs. Broadcasters often choose to censor material without being forced to do so out of fear of losing advertisers or to give deference to the the sensibilities of viewers. Indecent material is prohibited throughout the day and during prime time hours, due largely because of the children that may be subjected to the material. Indecent material and adult content are not prohibited during what is referred to as “Safe Harbor.” Safe harbor, known as “watershed” in countries other than the U.S., is the time period in television  during which “adult content” may be shown. Adult content is an image or language depicting or referring to explicit sexual intercourse, graphic violence, drug use, or the use of strong language. The Supreme Court established this Safe Harbor principle in the 1978 case, FCC v. Pacifica. In the U.S., Safe Harbor time begins at 10:00pm and ends at 6:00am for all time zones. Networks need to be mindful of the time zone aspect of these rules because each of the 4 U.S. time zones enters its Safe Harbor at 10pm in its local time. Thus, network affiliates need to ensure that the same show airing at 10pm in one zone does not fall outside the Safe Harbor in another zone.

Since the Late Late Show with Craig Ferguson airs at such a late hour, it falls under Safe Harbor and indecent material aired during this time is not subject to the rules of the FCC. CBS engages in the self-censorship of Ferguson’s show, which is evidenced by the bleeping out of curse words spoken by Ferguson or his guests. TV shows have been bleeping-out profane words for years, but some shows are beginning to intentionally include swear words and later bleeping them out for comedic effect. Whenever profanity is used on “The Late Late Show,” the person’s mouth is covered up by a country’s flag and is bleeped by a phrase from that particular country. An example of this can be seen from Tuesday’s show when Ferguson uses a swear word and his mouth is covered by a French national flag and is bleeped by the phrase “Oooh-la-la.”

Ferguson makes it obvious during his monologue that CBS is concerned with the language and content of the material of his program. An example of this from Tuesday’s episode is when Ferguson makes references to city of Bangkok and Lake Titicaca. The only reason he mentions these places is for the mere fact that the words sound like “cock” and “titty”, slang terms referring to parts of the body. Ferguson then makes jokes by rhyming words with the terms “testicles” and “vagina” After making these ridiculous jokes, Ferguson looks to the side of the stage and tells the person in charge of censoring what he says on the show, “It’s a real place/thing and you can’t touch me.” Ferguson also frequently says “CBS cares” and “I expect your letters” after he makes comments or jokes that he knows will offend some viewers. Ferguson is aware that he may be offensive to some viewers, but that does not stop him from saying exactly what he wants within the bounds of the self-imposed limits CBS places on his show.

By using common scientific terminology for body parts and referring to actual places, Ferguson avoids the risk of saying anything that can get him in trouble with CBS. Also, the shows use of “bleeping” curse words is just one example of the ways actors or programs can come up with creative ways to include edgy, controversial material without getting in trouble by its network or the FCC. Another way networks do this is by using grawlixes, which are symbols that take the place of the letters of a curse word. An example of this in television can be seen in the title of the CBS show, “$#*! My Dad Says.” Minced oaths are also commonly used as euphemisms to avoid swearing. An example of a minced oath is the term “fugly” which combines the offensive “F” word with the word “ugly.” These methods are all creative ways  broadcasters get indecent material into programs without violating the FCC or its own censorship rules. These methods are sometimes refered to as “veiled expletives.” Series often use veiled expletives because harsher language adds to the believability and reality of a situation, such as in crime dramas and reality shows. Whether the network is strategically placing expletives in material to add to the comedy, drama, or reality of the program, it is a common tool being used in television to stretch the bounds of censorship.

Parody or Publicity

Saturday Night Live‘s 36th season premiered on September 25, 2010.  The cold open depicted a meeting between Christine O’Donnell, the Republican nominee for the Delaware Senate special election, and two members of the Republican National Committee.  Kristen Wiig portrayed O’Donnell and Jason Sudeikis and Bill Hader appeared as the members of the RNC.

The skit’s humor came from the portrayal of O’Donnell participating in activities that would either be controversial or condemned during a campaign.  Skits like this one, which are a staple of Saturday Night Live, make jokes at the expense of celebrities and political personalities.  Such skits are parodies of the person and are  protected under the First Amendment.

Those whose lives are in the public eye and are subjected to media discussion have less privacy because of their status.  Status as a celebrity also provides that person the ability to access the media as the public has an interest in the lives of celebrities.  As a candidate for U.S. Senate, O’Donnell is considered a public official. (see Ocala Star-Banner v. Damron (1971))  O’Donnell also has status similar to that of a celebrity as she has made many appearances on television.

Political commentary, skits and cartoons like those that appear on The Daily Show, Saturday Night Live and in magazines and newspapers are considered satire.  Some of these portrayals may seem to have the intent to show actual malice, however they are not subject to defamation claims.  Such portrayals are parodies and are protected by the First Amendment to the Constitution of the United States.  The framers of the Constitution protected these rights in order to prevent censorship of the media and provide the right for the media to criticize the government.

Saturday Night Live’s long tradition of political satire began in its first season when Chevy Chase portrayed Gerald Ford as a clumsy man.  Since then, each political figure or celebrity has been a potential subject for a parody.  Christine O’Donnell’s status as a political candidate and TV contributor reduces her right of privacy compared to a private individual.  Shows like Saturday Night Live are protected by the First Amendment and therefore do not infringe on the rights of celebrities like Christine O’Donnell.

Obvious Product Placement in Top Chef: Just Desserts

The Bravo Channel is known for its use of product placement in its series “Top Chef” and the first season of “Top Chef: Just Desserts” is no different. Several advertisements are present in each episode of the series, but in the October 27th episode titled “Dessert Wars” there was a particularly obvious example of product placement.

After a long day of preparation for the elimination challenge, the contestants return to their apartment. The scene then cuts to an image of a hand opening the freezer with a half-gallon of Breyer’s ice cream on the shelf. The next clip shows a hand grabbing a Godiva chocolate bar from a candy basket. However, there is no reference to these products and the contestants are never shown eating either product or even discussing it. The advertisements for these 2 products are so awkwardly placed in the episode that it leads to the suspicion that the hands shown are not even the hands of the actual contestants. It is pretty obvious that these 2 clips were added after the filming of the show and are meant to be strategic product advertisements. However, it would be more useful for Breyer’s or Godiva if the episode actually showed the contestants consuming the ice cream or the candy being advertised.

This leads to the issue of product placement in television. The Top Chef series ranks high on Nielsen’s list of most effective product placements. The Nielson Company is a global leader in providing research, ratings, and data for all types of media. In 2008, Nielson spend 2.25 million dollars to acquire IAG Research, a company that measures the effectiveness of advertising and product placement on over 210K episodes and over 250K commercial executions. Nielson IAG conducts thousands of surveys daily to measure viewer’s engagement and the effectiveness of every advertisement, product placement and sponsorship in primetime across all broadcast and major cable networks. These scores represent an audience’s level of awareness for the product placement, whether the exposure created positive or negative feelings toward the brand, and whether it raised interest to purchase that product. With the use of Nielson’s IAG research, an advertising company can target its products directly to its most receptive audience.

For 2009, 3 products advertised on Top Chef made Nielson’s top 10 list for the most effective product placements on brand opinion. The show also ranked #7 in the top 10 programs with product placement activity. The series relies heavily on product placement and brand integration for the challenges and tasks in each episode and several companies utilize a combination of product integration to advertise products during the show. Dawn hand care, Albertsons supermarkets, and Breyer’s are all examples of companies that air commercials, place products in scenes of the show, and have banners on the homepage of the Top Chef: Just Desserts website. Due to the success of this show’s product placement, it is no shock that many companies use the show as a vehicle to advertise.

With the increasing popularity of digital recording devices, many viewers are forwarding through the 30-second commercial spots. Advertising within television episodes is increasing drastically due to this trend. This raises the issue of if and how the government should manage advertisers. The Federal Communications Commission currently regulates sponsored programming under the Communications Act of 1934 and requires broadcasters to disclose to viewers if any content of the broadcast has been made in exchange for money, services, or other valuable consideration. These “sponsorship identification rules” are applied and enforced by the FCC in the context of product placement. Broadcasters typically comply with the FCC’s regulations by making a single disclosure at the end of the program that states the sponsors’ name or product. The Federal Trade Commission is only responsible for the regulation of product placements that include false or misleading objective, material claims about products. Consumer protection activists argue that the government should creates more stringent restrictions to prevent deceptive advertising techniques. However, commercial speech is protected by the First Amendment and more stringent regulations would likely violate broadcasters’ and advertisers’ rights. The government should not regulate at the cost of violating the Constitutional right of free expression, especially if the existing regulations are sufficient to address the potential deceptive nature of product placements. The government’s purpose in regulating product placements is to clearly identify any commercial sponsor to television viewers in order to avoid deception. With such blatant advertising as seen in the most recent episode of the newest Top Chef series, it is hard to imagine a viewer who will not realize such blatant product placements.

Thursday’s 30 Rock episode “When it Rains, it Pours” opens with Liz [Tina Fey] on the receiving end of a construction worker’s cat-call.  Initially, Liz believes the comments are directed at her best friend Jenna [Jane Krakowski].  However, the construction worker quickly corrects this misunderstanding and informs Liz the comments were for her.  After openly speculating on the current medical condition of the construction worker’s genitalia, Liz tells Jenna she has never experienced that kind of attention before.  Jenna responds that Liz has been happy and more confident now that she is with someone and guys can sense it.  Liz and Jenna may have shrugged the encounter off, but for many women such an experience is not received as well.

In the workplace setting Congress has provided a statutory remedy, Title VII of the 1964 Civil Rights Act, to alleviate the hostile and intimidating environment sexual harassment creates.  According to the U.S. Equal Employment Opportunity Commission over the past decade sexual harassment grievance filings have gradually decreased.  Whether this is largely a result of Congress’ intervention or more in response to other factors, such as the changing demographics in the workplace, is a topic for another day.  However, since the encounter did not occur in her workplace Liz’s experience raises the interesting question of what legal remedies to women have for such harassment while in public?

Many States such as New York have passed laws that criminalize certain forms of harassment.  For example, under N.Y. PEN. LAW § 240.26:

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Subdivisions two and three of this section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended.

Harassment in the second degree is a violation.

However, the closest the New York law comes to addressing construction worker cat-calls is through subsection 3.  It would be extremely difficult for the New York Legislature to protect women from this type of harassment through a statute directly addressing the issue.  If harassment through speech was specifically addressed instead of using the broad terms of “conduct” and “acts” in the statute, the New York statute might be deemed unconstitutional.

For example in R.A.V. v. City of St. Paul, the United States Supreme struck down a Minnesota statute that read:

Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

While the Court declared “burning a cross in someone’s front yard is reprehensible,” it nonetheless found it violated the right of freedom of speech under the First Amendment.  Certain categories of speech can be regulated because their content is not protected by the First Amendment, such as obscenity, fighting words, and child pornography.  However, the R.A.V. Court held that while the government may regulate generally the unprotected categories of speech the categories are not “invisible to the Constitution.”  The Court cautioned legislators the unprotected categories may not be made “vehicles for content discrimination unrelated to their distinctively proscribable content.”  Thus, even though the Minnesota Supreme Court limited the construction of the statute to reach signs and displays that amount to Fighting Words the statute was still unconstitutional.  The R.A.V. Court reasoned the statute only applied to fighting words pertaining to “race, color, creed, religion or gender” so fighting words pertaining to homosexuality were permissible.  Since the statute only prohibited speakers from expressing their views on certain disfavored subjects, it violated the First Amendment.

Therefore no matter how lewd and lascivious or reprehensible the construction worker’s comments may be, any legislation that specifically addressed it would have to walk a very fine line.  One misstep and the Legislators could find themselves treading on the First Amendment.  In the absence of specific legislative remedies to rely on some women look to alternative means for relief.  The real question to me seems to be, “would you want someone to treat your sister, wife, or mother this way?”




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