MEDIA AND THE FIRST AMENDMENT

The U.S. Constitution was written in secrecy. Journalists were neither invited to watch the drafting, nor did the framers talk to the press about their disagreements and decisions. Once it was finished, however, the Constitution was released to the public and almost all newspapers printed it. Newspaper editors also published commentary and opinion about the new document and the form of government it proposed. Early support for the Constitution was strong, and Anti-Federalists (who opposed it) argued that their concerns were not properly covered by the press. The eventual printing of The Federalist Papers, and the lesser-known Anti-Federalist Papers, fueled the argument that the press was vital to American democracy. It was also clear the press had the ability to affect public opinion and therefore public policy.^[1]

The approval of the First Amendment, as a part of the Bill of Rights, demonstrated the framers’ belief that a free and vital press was important enough to protect. It said:

“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.”

This amendment serves as the basis for the political freedoms of the United States, and freedom of the press plays a strong role in keeping democracy healthy. Without it, the press would not be free to alert citizens to government abuses and corruption. In fact, one of New York’s first newspapers, the New York Weekly Journal, began under John Peter Zenger in 1733 with the goal of routing corruption in the colonial government. After the colonial governor, William Cosby, had Zenger arrested and charged with seditious libel in 1835, his lawyers successfully defended his case and Zenger was found not guilty, affirming the importance of a free press in the colonies.

Figure 1. In defending John Peter Zenger against charges of libel against colonial governor William Cosby, Andrew Hamilton argued that a statement is not libelous if it can be proved. (credit: modification of work by the Library of Congress)

The media act as informants and messengers, providing the means for citizens to become informed and serving as a venue for citizens to announce plans to assemble and protest actions by their government. Yet the government must ensure the media are acting in good faith and not abusing their power. Like the other First Amendment liberties, freedom of the press is not absolute. The media have limitations on their freedom to publish and broadcast.

MEDIA AND FCC REGULATIONS

The liberties enjoyed by newspapers are overseen by the U.S. court system, while television and radio broadcasters are monitored by both the courts and a government regulatory commission.

The Radio Act of 1927 was the first attempt by Congress to regulate broadcast materials. The act was written to organize the rapidly expanding number of radio stations and the overuse of frequencies. But politicians feared that broadcast material would be obscene or biased. The Radio Act thus contained language that gave the government control over the quality of programming sent over public airwaves, and the power to ensure that stations maintained the public’s best interest.^[5]

The Communications Act of 1934 replaced the Radio Act and created a more powerful entity to monitor the airwaves—a seven-member Federal Communications Commission (FCC) to oversee both radio and telephone communication. The FCC, which now has only five members, requires radio stations to apply for licenses, granted only if stations follow rules about limiting advertising, providing a public forum for discussion, and serving local and minority communities. With the advent of television, the FCC was given the same authority to license and monitor television stations. The FCC now also enforces ownership limits to avoid monopolies and censors materials deemed inappropriate. It has no jurisdiction over print media, mainly because print media are purchased and not broadcast.

Figure 2. In June 2018, the leadership of the FCC included (from left to right) Jessica Rosenworcel, Michael O’Rielly, Ajit Pai, and Brendan Carr. (credit: Federal Communications Commission)

To maintain a license, stations are required to meet a number of criteria. The equal-time rule, for instance, states that registered candidates running for office must be given equal opportunities for airtime and advertisements at non-cable television and radio stations beginning forty-five days before a primary election and sixty days before a general election. Should WBNS in Columbus, Ohio, agree to sell Senator Marco Rubio thirty seconds of airtime for a presidential campaign commercial, the station must also sell all other candidates in that race thirty seconds of airtime at the same price. This rate cannot be more than the station charges favored commercial advertisers that run ads of the same class and during the same time period.^[6] More importantly, should Fox5 in Atlanta give Bernie Sanders five minutes of free airtime for an infomercial, the station must honor requests from all other candidates in the race for five minutes of free equal air time or a complaint may be filed with the FCC.^[7] In 2015, Donald Trump, when he was running for the Republican presidential nomination, appeared on Saturday Night Live. Other Republican candidates made equal time requests, and NBC agreed to give each candidate twelve minutes and five seconds of air time on a Friday and Saturday night, as well as during a later episode of Saturday Night Live.^[8]

The FCC does waive the equal-time rule if the coverage is purely news. If a newscaster is covering a political rally and is able to secure a short interview with a candidate, equal time does not apply. Likewise, if a news programs creates a short documentary on the problem of immigration reform and chooses to include clips from only one or two candidates, the rule does not apply.^[9] But the rule may include shows that are not news. For this reason, some stations will not show a movie or television program if a candidate appears in it. In 2003, Arnold Schwarzenegger and Gary Coleman, both actors, became candidates in California’s gubernatorial recall election. Television stations did not run Coleman’s sitcom Diff’rent Strokes or Schwarzenegger’s movies, because they would have been subject to the equal time provision. With 135 candidates on the official ballot, stations would have been hard-pressed to offer thirty-minute and two-hour time slots to all.^[10] Even the broadcasting of the president’s State of the Union speech can trigger the equal-time provisions. Opposing parties in Congress now use their time immediately following the State of the Union to offer an official rebuttal to the president’s proposals.^[11]

While the idea behind the equal-time rule is fairness, it may not apply beyond candidates to supporters of that candidate or of a cause. Hence, there potentially may be a loophole in which broadcasters can give free time to just one candidate’s supporters. In the 2012 Wisconsin gubernatorial recall election, Scott Walker’s supporters were allegedly given free air time to raise funds and ask for volunteers while opponent Tom Barrett’s supporters were not.^[12] According to someone involved in the case, the FCC declined to intervene after a complaint was filed on the matter, saying the equal-time rule applied only to the actual candidates, and that the case was an instance of the now-dead fairness doctrine.^[13] The fairness doctrine was instituted in 1949 and required licensed stations to cover controversial issues in a balanced manner by providing listeners with information about all perspectives on any controversial issue. If one candidate, cause, or supporter was given an opportunity to reach the viewers or listeners, the other side was to be given a chance to present its side as well. The fairness doctrine ended in the 1980s, after a succession of court cases led to its repeal by the FCC in 1987, with stations and critics arguing the doctrine limited debate of controversial topics and placed the government in the role of editor.^[14]

The FCC also maintains indecency regulations over television, radio, and other broadcasters, which limit indecent material and keep the public airwaves free of obscene material.^[15] While the Supreme Court has declined to define obscenity, it is identified using a test outlined in Miller v. California (1973).^[16] Under the Miller test, obscenity is something that appeals to deviants, breaks local or state laws, and lacks value.^[17]

The Supreme Court determined that the presence of children in the audience trumped the right of broadcasters to air obscene and profane programming. However, broadcasters can show indecent programming or air profane language between the hours of 10 p.m. and 6 a.m.^[18]

The Supreme Court has also affirmed that the FCC has the authority to regulate content. When a George Carlin skit was aired on the radio with a warning that material might be offensive, the FCC still censored it. The station appealed the decision and lost.^[19] Fines can range from tens of thousands to millions of dollars, and many are levied for sexual jokes on radio talk shows and nudity on television. In 2004, Janet Jackson’s wardrobe malfunction during the Super Bowl’s half-time show cost the CBS network $550,000.

While some FCC violations are witnessed directly by commission members, like Jackson’s exposure at the Super Bowl, the FCC mainly relies on citizens and consumers to file complaints about violations of equal time and indecency rules. Approximately 2 percent of complaints to the FCC are about radio programming and 10 percent about television programming, compared to 71 percent about telephone complaints and 15 percent about Internet complaints.^[20] Yet what constitutes a violation is not always clear for citizens wishing to complain, nor is it clear what will lead to a fine or license revocation. In October 2014, parent advocacy groups and consumers filed complaints and called for the FCC to fine ABC for running a sexually charged opening scene in the drama Scandal immediately after It’s the Great Pumpkin, Charlie Brown—without an ad or the cartoon’s credits to act as a buffer between the very different types of programming.^[21] The FCC did not fine ABC.

The Telecommunications Act of 1996 brought significant changes to the radio and television industries. It dropped the limit on the number of radio stations (forty) and television stations (twelve) a single company could own. It also allowed networks to purchase large numbers of cable stations. In essence, it reduced competition and increased the number of conglomerates. Some critics, such as Common Cause, argue that the act also raised cable prices and made it easier for companies to neglect their public interest obligations.^[22] The act also changed the role of the FCC from regulator to monitor. The Commission oversees the purchase of stations to avoid media monopolies and adjudicates consumer complaints against radio, television, and telephone companies.

An important change in government regulation of the press in the name of the fairness of coverage relates to net neutrality. Net neutrality rules were promulgated in 2015 by the Obama administration. These regulations required internet service providers to give everyone equal access to their services and disallowed biased charging of internet access fees. Early in the Trump Administration, the Federal Communications Commission (FCC) reversed that course by throwing out the policy of net neutrality.^[23]

watch dog or paparazzi?

We expect the media to keep a close eye on the government. But at what point does the media coverage cross from informational to sensational?

In 2012, former secretary of state Hillary Clinton was questioned about her department’s decisions regarding the U.S. consulate in Benghazi, Libya. The consulate had been bombed by militants, leading to the death of an ambassador and a senior service officer. It was clear the United States had some knowledge that there was a threat to the consulate, and officials wondered whether requests to increase security at the consulate had been ignored. Clinton was asked to appear before a House Select Committee to answer questions, and the media began its coverage. While some journalists limited their reporting to Benghazi, others did not. Clinton was hounded about everything from her illness (dubbed the “Benghazi-flu”) to her clothing to her facial expressions to her choice of eyeglasses.^[24] Even her hospital stay was questioned.^[25] Some argued the expanded coverage was due to political attacks on Clinton, who at that time was widely perceived to be the top contender for the Democratic presidential nomination in 2016.^[26] Republican majority leader Kevin McCarthy later implied that the hearings were an attempt to make Clinton look untrustworthy.^[27] Yet Clinton was again brought before the House Select Committee on Benghazi as late as October 2015.

Figure 3. On October 22, 2015, the House Select Committee on Benghazi listened to testimony from former Secretary of State Hillary Clinton for close to eleven hours.

This coverage should lead us to question whether the media gives us the information we need, or the information we want. Were people concerned about an attack on U.S. state officials working abroad, or did they just want to read rumors and attacks on Clinton? Did Republicans use the media’s tendency to pursue a target as a way to hurt Clinton in the polls? If the media gives us what we want, the answer seems to be that we wanted the media to act as both watchdog and paparazzi.

How should the press have acted in this case if it were behaving only as the watchdog of democracy?

The press has had some assistance in performing its muckraking duty. Laws that mandate federal and many state government proceedings and meeting documents be made available to the public are called sunshine laws. Proponents believe that open disagreements allow democracy to flourish and darkness allows corruption to occur. Opponents argue that some documents and policies are sensitive, and that the sunshine laws can inhibit policymaking.

While some documents may be classified due to national or state security, governments are encouraged to limit the over-classification of documents. The primary legal example for sunshine laws is the Freedom of Information Act (FOIA), passed in 1966 and signed by President Lyndon B. Johnson. The act requires the executive branch of the U.S. government to provide information requested by citizens and was intended to increase openness in the executive branch, which had been criticized for hiding information. Citizens wishing to obtain information may request documents from the appropriate agencies, and agencies may charge fees if the collection and copying of the requested documentation requires time and labor.^[28] FOIA also identifies data that does not need to be disclosed, such as human resource and medical records, national defense records, and material provided by confidential sources, to name a few.^[29] Not all presidents have embraced this openness, however. President Ronald Reagan, in 1981, exempted the CIA and FBI from FOIA requests.^[30] Information requests have increased significantly in recent years, with U.S. agencies receiving over 700,000 requests in 2014, many directed to the Departments of State and Defense, thus creating a backlog.^[31]

Few people file requests for information because most assume the media will find and report on important problems. And many people, including the press, assume the government, including the White House, sufficiently answers questions and provides information about government actions and policies. This expectation is not new. During the Civil War, journalists expected to have access to those representing the government, including the military. But William Tecumseh Sherman, a Union general, maintained distance between the press and his military. Following the publication of material Sherman believed to be protected by government censorship, a journalist was arrested and nearly put to death. The event spurred the creation of accreditation for journalists, which meant a journalist must be approved to cover the White House and the military before entering a controlled area. All accredited journalists also need approval by military field commanders before coming near a military zone.^[32]

To cover war up close, more journalists are asking to travel with troops during armed conflict. In 2003, George W. Bush’s administration decided to allow more journalists in the field, hoping the concession would reduce friction between the military and the press. The U.S. Department of Defense placed fifty-eight journalists in a media boot camp to prepare them to be embedded with military regiments in Iraq. Although the increase in embedded journalists resulted in substantial in-depth coverage, many journalists felt their colleagues performed poorly, acting as celebrities rather than reporters.^[33]

The line between journalists’ expectation of openness and the government’s willingness to be open has continued to be a point of contention. Some administrations use the media to increase public support during times of war, as Woodrow Wilson did in World War I. Other presidents limit the media in order to limit dissent. In 1990, during the first Persian Gulf War, journalists received all publication material from the military in a prepackaged and staged manner. Access to Dover, the air force base that receives coffins of U.S. soldiers who die overseas, was closed. Journalists accused George H. W. Bush’s administration of limiting access and forcing them to produce bad pieces. The White House believed it controlled the message.^[34] The ban was later lifted.

In his 2008 presidential run, Barack Obama promised to run a transparent White House.^[35] Yet once in office, he found that transparency makes it difficult to get work done, and so he limited access and questions. In his first year in office, George W. Bush, who was criticized by Obama as having a closed government, gave 147 question-and-answer sessions with journalists, while Obama gave only 46. Even Helen Thomas, a long-time liberal White House press correspondent, said the Obama administration tried to control both information and journalists.^[36]

Figure 4. President Barack Obama and White House correspondent Helen Thomas set aside their differences over transparency to enjoy cupcakes in honor of their shared birthday on August 4, 2009.

Because White House limitations on the press are not unusual, many journalists rely on confidential sources. In 1972, under the cloak of anonymity, the associate director of the Federal Bureau of Investigation, Mark Felt, became a news source for Bob Woodward and Carl Bernstein, political reporters at the Washington Post. Felt provided information about a number of potential stories and was Woodward’s main source for information about President Richard Nixon’s involvement in a series of illegal activities, including the break-in at Democratic Party headquarters in Washington’s Watergate office complex. The information eventually led to Nixon’s resignation and the indictment of sixty-nine people in his administration. Felt was nicknamed “Deep Throat,” and the journalists kept his identity secret until 2005.^[37]

The practice of granting anonymity to sources is sometimes referred to as reporter’s privilege. Fueled by the First Amendment’s protection of the press, journalists have long offered to keep sources confidential to protect them from government prosecution. To illustrate, as part of the investigation into the outing of Valerie Plame as a CIA officer, New York Times reporter Judith Miller was jailed for refusing to reveal “Scooter” Libby, Vice President Dick Cheney’s chief of staff, as her confidential government source.^[38] Reporter’s privilege has increased the number of instances in which whistleblowers and government employees have given journalists tips or documents to prompt investigation into questionable government practices. Edward Snowden’s 2013 leak to the press regarding the U.S. government’s massive internal surveillance and tapping program was one such case.

In 1972, however, the Supreme Court determined that journalists are not exempt from subpoenas and that courts could force testimony to name a confidential source. Journalists who conceal a source and thereby protect him or her from being properly tried for a crime may spend time in jail for contempt of court. In the case of Branzburg v. Hayes (1972), three journalists were placed in contempt of court for refusing to divulge sources.^[39] The journalists appealed to the Supreme Court. In a 5–4 decision, the justices determined that freedom of the press did not extend to the confidentiality of sources. A concurring opinion did state that the case should be seen as a limited ruling, however. If the government needed to know a source due to a criminal trial, it could pursue the name of that source.^[40]

More recently, the Supreme Court refused to hear an appeal from New York Times journalist James Risen, who was subpoenaed and ordered to name a confidential source who had provided details about a U.S. government mission designed to harm Iran’s nuclear arms program. Risen was finally released from the subpoena, but the battle took seven years and the government eventually collected enough other evidence to make his testimony less crucial to the case.^[41] Overall, the transparency of the government is affected more by the executive currently holding office than by the First Amendment.