Tag Archives: free speech

First Amendment and Bill of Rights Refresher

I’m currently in Media Organization Regulations class. That means I’m going to be writing about where media communications and the law intersect. As I have been doing since I started graduate school, if there is anything I think my blog readers might enjoy or find useful I’ll be publishing some of my assignments here. In our first assignment for this class, we were tasked to write about the First Amendment to the US Constitution. I needed some refresher reading on the First Amendment in order to write this, as I haven’t studied this kind of material in school for a LONG time.

The Bill Of Rights was added to the US Constitution immediately after ratification as a sort of compromise to reassure those who feared that a stronger central government would lead to the infringement of individual liberties. There were those who believed these rights were protected sufficiently in the individual state constitutions and therefore didn’t need to written out, and others who feared that writing them out would imply that the list was exclusive and implying there were no other rights (Thernstrom 177-178).

One thing I and probably others have to keep reminding myself of is that our form of government was founded on the premise that our constitution or government is not giving these rights to us, but is spelling out the rights we already have. That’s a profound difference in attitude than I frequently perceive from some people who are in government, campaigning to be in government, some media institutions and large corporations. What is your opinion on my perception?

“Carolyn Hasenfratz Winkelmann
Geri L. Dreiling, J.D.
MEDC 5350: Media Organization Regulations
25 October 2020

The First Amendment guarantees freedom of religion, assembly, press and speech (Trager et al 9, Silverblatt 30). First Amendment rights to free speech are considered by most historians to have been initially intended to prohibit the restrictions that the American colonists feared would be established under British rule (Trager et al 56-57). Although actual licensing of presses was no longer practiced in the home country, punishment following the publishing or speaking of certain content did appear to be a method that could be used to suppress speech and ideas that those in power considered subversive (Trager et al 56-59). In colonial times up to the present day in the United States, the level of punishment for certain kinds of speech and the level of requirement to promote or allow the diversity of speech or ideas is constantly being tested and litigated (Trager et al 56-61). New technology and forms of media have caused the purpose and philosophy of free speech to be constantly re-evaluated (Trager et al 62-68, Baran and Davis 65).

Other than protecting speakers from unjust punishment, another purpose of the First Amendment was to ensure that the new country would develop in a climate where individuals would hear a diverse selection of ideas and then choose what ideas they found the most beneficial from a free “marketplace” (Silverblatt 129). In the United States, the idea of giving technocratic control of the media to the government was considered but rejected (Baran and Davis 62). With the rise of social media and their use as virtual public forums, corporations are trying now to take on the technocratic control of speech and ideas themselves (Baran and Davis 66). There is precedence in the law that private property used in the manner of a traditional public space can be required in some cases to allow “public gatherings and free expression” (Trager et al 82). What will the courts decide in the future about virtual public space that is owned by a corporation?

There is a distinction between “prior restraint” in which the government must approve the publication of content, and punishment after the fact for harm caused by certain kinds of speech (Trager et al, 57). Even with the First Amendment in place, both kinds of restraint on speech are sometimes allowed, but the necessity for prior restraint is much harder to prove in court (Trager et al, 64-67). Content neutral laws are more likely to withstand scrutiny (Trager et al, 68, 71), as are laws that restrict speech as little as possible in order to achieve what the government’s compelling interest is alleged to be (Trager et al, 71).

Although not intended to, the First Amendment could be seen to help protect individuals from being punished by private organizations and employers in a sense. Some states, cities and territories cite the First Amendment in laws that prohibit discrimination against employees for political speech and activities (Volokh). Usually though it is anti-discrimination laws inspired by the First Amendment that apply to a private employer, not the actual First Amendment (Freedom Of Speech…). Government employees are more directly affected (Freedom Of Speech…).”

I’m going to list here the complete Bill of Rights, according to the Bill of Rights Institute, because I and probably a lot of other people need a refresher (Bill of Rights of…).

1 – “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.”

2- “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

3- “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”

4- “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

5- “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

6- “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

7- “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

8- “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

9- “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

10- “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Now I’m going to quote extensively from our textbook, “The law of journalism and mass communication” (Trager et al 61). Following is a list of “Core Values of Free Speech”, which are often cited in Supreme Court decisions that have to do with free speech issues. For one of our assignments we had to make predictions about what new Supreme Court cases we might expect to see in the near future that have to do with the First Amendment. I was very impressed with this list of values derived from sources ranging in time from 1698-1996. You no doubt have your own ideas about what cases we can expect to see or what you would like to see. Are these the values you want to court to consider?

  • Individual liberty. The freedom of speech is deeply intertwined with fundamental natural rights. In this sense, free speech is an inalienable right.”
  • Self government. The freedom to discuss political candidates and policies and to render judgements is an essential cornerstone of responsible self-governance. The freedom of speech enables “the people” to pursue “democratic self determination”.”
  • Limited government power. Free speech is an “invaluable bulwark against tyranny.” The free speech of “the people” serves as a “check” on authoritarian rule and a limit to the abuse of power of a few.”
  • Attainment of truth. Free speech advances the “marketplace of ideas” to increase knowledge and the discovery of truth. By challenging “certain truth” and “received wisdom”, open public discussion allows a society to expand understanding.”
  • Safety valve. Free speech allows people to express problems and grievances before they escalate into violence. Except during the “worst of times”, free speech is a mechanism for “letting off steam” and helping to balance social stability and change, compromise and conflict, tolerance and hate.”
  • It’s own end. Free speech, like clean air, or beauty, or justice, is an end in and of itself, a valuable good and a cherished right.”

Works Cited

Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.

“Bill of Rights of the United States of America (1791).” Bill of Rights Institute, 2020, billofrightsinstitute.org/founding-documents/bill-of-rights/. Accessed 26 October 2020.

“Freedom Of Speech In The Workplace: The First Amendment Revisited.” Thomson Reuters, 2020, corporate.findlaw.com/law-library/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html. Accessed Day Month 2020.

Silverblatt, Art et al. Media Literacy: Keys to Interpreting Media Messages. Fourth Edition. Praeger, 2014.

Thernstrom, Stephan. A History of the American People: Volume One: To 1877. Harcourt Brace Jovanovich, 1984.

Trager, Robert Susan Dente Ross and Amy Reynolds. The law of journalism and mass communication. Sixth Edition. SAGE Publications, Inc. 2018.

Volokh, Eugene, “Laws Protecting Private Employees’ Speech and Political Activity Against Employer Retaliation: Covering a Wide Range of Speech.” Reason Foundation, 2020, reason.com/2020/07/26/laws-protecting-private-employees-speech-and-political-activity-against-employer-retaliation-covering-a-wide-range-of-speech/. Accessed 25 October 2020.

I’ve started a Pinterest Board for Media and Law references and resources. I will likely cite some of these during this class and read others for background information. Enjoy!
Media Analysis – Communications and the Law

There are some resources I’m not able to link to for whatever reason on Pinterest that I need for my homework. My purpose for putting them in Pinterest is because it’s an easy way to keep my resources in one place. However, for the ones I can’t put there, I’ll start collecting some here so that I know where they are and can get to them fast since I have linked the relevant Pinterest board to this article.

Other First Amendment Related Links

Winston84 – online directory of suppressed content.

Here is a link to the Senate Hearing on Section 230 that we are currently studying in my class.

The Film “Good Night and Good Luck” and Theories of Propaganda

DISCLAIMER: The following is graduate student work. I’m uploading it after grading from the Professor but no corrections were made. I made a couple of minor formatting changes for online viewing, the printed version attempts to conform to MLA style. Comments on any of my blog posts are encouraged at any time and if you have critiques that would help me write better I especially would welcome those.

The Film “Good Night and Good Luck” and Theories of Propaganda

Propaganda is a communication strategy that aims to influence the ideas and behavior of people without the subjects being consciously aware they are being manipulated (Baran and Davis 43). 20th century theorists in the United States differentiated between different types of propaganda. White propaganda was defined as the suppression of some ideas in favor of other ideas favorable to the goals of the propagandist. Black propaganda was the deliberate spread of misinformation (Baran and Davis 43). Gray propaganda was defined as information that made no claims to being either true or false (Baran and Davis 44). White and Black in this context are old-fashioned terms that are not accepted today because they can give offense but at the time these theories were first promoted they were shortcuts for Good, Bad and ambiguous (Baran and Davis 44).

The effectiveness of propaganda had been demonstrated to the satisfaction of many elites and social theorists by the events of WWI and the rise of totalitarian governments in Europe by the 1930s. In the United States there was concern about whether democracy could survive when the world was full of enemies willing to use propaganda as a weapon (Baran and Davis 45-46).

New York Times columnist Walter Lippmann was one of those who advocated for the formation of an intelligence bureau that would disseminate information selected by scientific methods to be distributed to government decision makers and media (Baran and Davis 51). An example of opposition to Lippmann’s view was philosopher John Dewey who believed that education was the best defense against propaganda (Baran and Davis 51). The educational prophylactic approach as a guard against propaganda came to be known as media literacy (Baran and Davis 51).

World War II and the Cold War further encouraged mass society theorists who nurtured ambitions to control information for the public good, although a formal government intelligence agency for that purpose was not formed at that time (Baran and Davis 51). Limited-effects theory advocates conducted studies that gave them confidence that leaders and the public could mitigate the effects of Communist propaganda on average people. Senator Joseph McCarthy did not share that confidence. As an apparent mass society theory believer, in the 1950s he and his allies began a campaign to purge communists from the United States government and media which came to be known as the Red Scare (Baran and Davis 22).

The 2006 film “Good Night and Good Luck” is based on historic events and chronicles the public clash between journalist Edward R. Murrow and Senator McCarthy (Clooney). George Clooney is the director of the film, the co-writer of the script and also stars as Murrow’s producer Fred Friendly. As depicted in the film, Murrow is host of a television news segment on CBS. He and and his team decide to produce a story about an Air Force officer who becomes collateral damage as a result of the Senator McCarthy’s anti-Communist actions. They fear McCarthy and his power to bring ruin to people by accusing them of being a Communist or associating with Communists. Because of their concerns about civil liberties they decide airing the story is worth the risk to themselves (IMDb.com, Inc.). Murrow is depicted as someone who is conscientious about avoiding factual errors, reporting both sides of the story, preserving his reputation as a serious newsman and taking the role of the media in a democracy very seriously (Clooney). Both antagonists try to use their best weapons to take down the other after the fight gets personal toward Murrow and some of his associates (Clooney).

George Clooney stated in an interview that his father was a news anchorman who greatly admired Edward R. Murrow (George Clooney Talks…). In another interview, Clooney told of sitting in on his news director father’s meetings and learning how to do his own news reading (Lear). Clooney looked up to his father for writing his own copy and insisting on sufficient sources for stories (Lear), qualities in common with his film’s depiction of Murrow (Clooney). Clooney admits to being concerned about being labeled a traitor and suffering a career backlash for speaking out against the US invasion of Iraq and the Patriot Act. He made “Good Night and Good Luck” when he did in response to things he was observing in post 9/11 America that reminded him of the McCarthy era and the Red Scare (Lear). Later in the interview Clooney states that he thinks the American people as a whole can understand subtleties in programming and don’t have to have their content simplified as much as the establishment thinks is necessary (Lear).

What attitudes about programming and propaganda does “Good Night and Good Luck” try to promote? The film ends with an excerpt from a famous speech that Edward R. Murrow delivered on Oct. 25, 1958 at the Radio Television News Directors Association convention (On October 15…).

A comparison of the onscreen version of the speech with a transcript of Edward R. Murrow’s speech in real life shows that while the onscreen speech has been severely truncated and rearranged, the main message behind the speech is intact (On October 15…, Clooney). The onscreen Edward R. Murrow (Clooney), the real life Edward R. Murrow (On October 15…) and George Clooney (Lear) himself all appear to support the premise that democracy is best preserved if the people are given a chance to consume news and information without having it selected or filtered by decision makers that know better than they what is good for them to hear. The film becomes a powerful argument for a media theory similar to that of John Dewey who believed that media should not be used to manipulate but to facilitate the free exchange of ideas (Baran and Davis 52).

Did director and writer Clooney make his film in a way that shows that he really believes in Murrow’s preferred approach? Some critics did examine whether the film attempted to manipulate the depiction of historic events in “Good Night and Good Luck”. Phillip Lopate includes in his review some mild criticism for film-making flourishes that increase Murrow’s heroic stature (Lopate 32). Reviewer Terry Teachout criticized the film for leaving out information showing that while many accusations of Communism were in reality false, some were not (Teachout 71). Thomas Doherty points out that several historic incidents were shown out of order and attacks on McCarthy that did not originate with Murrow were omitted from the film to give Murrow more credit for his victory over McCarthy than was actually due (Doherty 55). Clooney is also credited for giving nuance to some of the characters (Doherty 55) and including amounts of information and detail in the film that elevates it in quality from many other comparable products of his industry (Doherty 55, Klawans 48).

Clooney may have intentionally blended a benignly intended message about the role of the mass media as a source of information in a free society while simultaneously attempting to protect the interests of himself and his industry associates from the ill fates suffered by some of their on-screen counterparts (Clooney). If that was his goal, “Good Night and Good Luck” is an example of a skillful use of “White” propaganda (Baran and Davis 43, 56).

Works Cited

Baran, Stanley J. and Dennis K. Davis. Mass Communication Theory: Foundations, Ferment, and Future. Seventh Edition. CENGAGE Learning, 2015.

Clooney, George, director. Good Night, and Good Luck. TVA Films, 2006.

Doherty, Thomas. “Good Night, and Good Luck.” Cineaste, vol. 31, no. 1, Winter 2005, pp. 53–56. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=fah&AN=19418527&site=ehost-live. Accessed 7 September 2019.

“George Clooney Talks About Edward R. Murrow in Good Night, and Good Luck.” Watchr Media, 2005, movieweb.com/george-clooney-talks-about-edward-r-murrow-in-good-night-and-good-luck/. Accessed 6 September 2019.

IMDb.com, Inc., 2019, www.imdb.com/title/tt0433383/plotsummary?ref_=tt_ql_stry_2. Accessed 6 September 2019.

Klawans, Stuart. “Lessons of Darkness.” Nation, vol. 281, no. 13, Oct. 2005, pp. 48–52. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aph&AN=18506171&site=ehost-live. Accessed 7 September 2019.

Lear, Norman. “George Clooney.” Interview Magazine, 2012, www.interviewmagazine.com/film/george-clooney. Accessed 6 September 2019.

Lopate, Phillip. “The Medium and Its Conscience.” Film Comment, vol. 41, no. 3, Sept. 2005, pp. 30–37. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aft&AN=504082227&site=ehost-live. Accessed 7 September 2019.

“On October 15, 1958, veteran broadcaster Edward R. Murrow delivered his famous “wires and lights in a box” speech before attendees of the RTDNA (then RTNDA) convention.” Radio Television Digital News Association, 2019, www.rtdna.org/content/edward_r_murrow_s_1958_wires_lights_in_a_box_speech. Accessed 6 September 2019.

Teachout, Terry. “Journalism, Hollywood-Style.” Commentary, vol. 120, no. 5, Dec. 2005, pp. 69–72. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=afh&AN=18962558&site=ehost-live. Accessed 7 September 2019.

Unused interesting links: These are links that I found while researching the above that I did not use in my paper. They might be interesting reading for anyone who read my above paper and is interested in the topic(s).

“A Report on Senator Joseph R. McCarthy” – Transcript of the March 9, 1954 See it Now broadcast

Joseph R. McCarthy – Prosecution of E.R. Murrow on CBS’ “See It Now” – transcript and video of McCarthy’s response

Edward R. Murrow – Response to Senator Joe McCarthy on CBS’ See It Now – Transcript and video of Murrow responding to McCarthy on April 13, 1954.

Poll: 73 Percent of Republican Students Have Hidden Their Politics over Fears about Grades

Edward R. Movie. Good Night, and Good Luck and bad history.

George Clooney Biography

George Clooney (and his dad) vs. George W. Bush

George Clooney: Neocon

Hollywood and the Iraq War

“Good Night, And Good Luck”: PE Interviews George Clooney And Grant Heslov

Washington’s Hollow Men

‘Agent of influence’

Popular And Elite Culture

Elite Culture

Pity the Postmodern Cultural Elite