Tag Archives: US Constitution

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 Federalist Papers and Public Relations

Here is what I wrote for one of my assignments for my Strategic Communications class. I’m posting it here because I needed a history refresher to write this and some of you out there might enjoy one too. The question put to us was, “Alexander Hamilton, James Madison, and John Jay engineered “history’s finest public relations job” to gain national acceptance of the U.S. Constitution. Based on your reading of Chapter 4, describe the organized effort they undertook to urge ratification of the Constitution. How did their approach differ from those of the nation’s first publicity agencies, and now in contemporary times?”

Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers to make the case to ratify a new constitution featuring a stronger, more centralized Federal government to replace the Articles of Confederation (Thernstrom 174-177). Federalists had appropriated the title “Federalist” and labeled their opponents “Antifederalists” because it sounded better than to call themselves “Nationalists” even though Nationalist was a more accurate term (Thernstrom 175). The climate in which Hamilton, Madison and Jay wrote these articles was one in which 88 out of 100 newspapers in the colonies were Federalist-owned and did not print opposing views (Thernstrom 176). Hamilton sponsored a paper called the Gazette of the United States in order to insure the promotion of his ideas (Bitter 22). Even though he did not necessarily agree with which form Federalism should take, fellow Federalist Madison also used his influence to install a poet sympathetic with his own views as editor of a rival newspaper called The National Gazette (Bitter 22). Even with much press influence in place the Federalists came very close to failing to win ratification as the fear of replacing one type of tyranny with another was well-entrenched, especially among more rural populations (Thernstrom 175-176).

At the time the Federalist Papers were written, newspapers were generally published for specific audiences and not for a mass audience. The majority of Americans were not literate then so what newspapers there were mostly served specific interests (Bitter 21). The Federalist Papers were similar to the era’s papers in that they represented the interests of a group that was very influential but not what we think of today as “the masses” (Bitter 21). Only people who were very involved in politics were much concerned about which form the new government should take (Thernstrom 178).

John Jay, although he only wrote 5 out of 85 Federalist Papers, wrote some of the most influential. He was able to write persuasively by drawing on his personal experience as Foreign Secretary of the national government (Ferguson 223-224). After expressing some of his frustrations, Jay switched to more rational language that was also in contrast to the more fiery tones of Hamilton who wrote “Federalist No. 1” (Ferguson 225). Jay expressed his arguments in language that was beautiful on it’s own merit while conscious of trying to convince the reader of the rightness of his cause by insisting that the more aesthetically pleasing idea is the right idea (Ferguson 227-235).

When more organized public relations firms came into being in the early 1900s, they were responding to the needs of organizations seeking to counter the new phenomenon of mass media. More of the population was literate at this time and newspapers aimed at a mass audience were engaged in a lot of muckraking to advocate for and appeal to a more popular audience (Bitter 21).

The public relations profession further matured as the 20th century progressed, with specialization, increased recognition and milestones obtained by women and minorities. The pace of change accelerated at times of national crisis (Broom and Sha 91-101). Right before the 20th century ended, the internet started to see wide adoption and changed the way we all consume and produce information. Almost everyone now has some kind of a “press” in their possession, so we don’t have to sponsor a newspaper to get our opinions “printed”. However the amount of influence we can bring to bear and the way we use language are still important in determining how effective we are at communicating and persuading so most of the strategies that the Federalist Papers writers used are still relevant in my opinion.

Works Cited

Bitter, John. “Which Came First – Journalism or Public Relations.” Public Relations Quarterly, Fall 1987, pp. 21-22. Accessed 20 August 2020.

Broom, Glen M. and Bey-Ling Sha. Effective Public Relations. Pearson, 2013.

Ferguson, Robert A. “The Forgotten Publius: John Jay and the Aesthetics of Ratification.” Early American Literature, vol. 34, 1999, pp. 223–240. Accessed 20 August 2020.

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

Me at the National Constitution Center in 2009
Me at the National Constitution Center in 2009 hanging out with Ben and Alex.

Here is a follow up comment from me.

A lot of what I remember about the Enlightenment era has more to do with Art History than History class, since I took more art history being an art major. I’m going to get out my art history books and refresh my memory on that time period. I didn’t have much time to review this material at the time but I did go on a business trip to Philadelphia in 2009 and I traveled a day early so I could see Independence Hall and some other things. Walking the area around it, I took a lot of pictures of the classical style architecture and statuary of the day and tried to imagine what it was like back then.

Here is my Facebook album of pics from the time. It’s set to Public for viewing.

https://www.facebook.com/media/set/?set=a.1134477966396&type=3