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The First Amendment and the Media/Nonmedia Distinction:

I was also pleased by this footnote from the Fourth Circuit's free speech / funeral picketing decision:

Neither the Supreme Court nor this Court has specifically addressed the question of whether the constitutional protections afforded to statements not provably false should apply with equal force to both media and nonmedia defendants. The Second and Eighth Circuits, however, have rejected any media/nonmedia distinction. Like those two circuits, we believe that the First Amendment protects nonmedia speech on matters of public concern that does not contain provably false factual assertions. Any effort to justify a media/nonmedia distinction rests on unstable ground, given the difficulty of defining with precision who belongs to the "media."

Sounds exactly right to me.

Related Posts (on one page):

  1. The Free Press Clause:
  2. The First Amendment and the Media/Nonmedia Distinction:
  3. Free Speech and Funeral Picketing:
martinned (mail) (www):
Doesn't this violate the rule that statutes, and presumably also the Constitution, shouldn't be interpreted in a way that makes parts meaningless? Shouldn't some consequence follow from the fact that the first amendment specifically mentions the press?
9.24.2009 6:45pm
troll_dc2 (mail):
But the First Amendment also protects "speech." Why should speakers have less protection than people who use the press (pressers??
9.24.2009 6:48pm
ShelbyC:

Shouldn't some consequence follow from the fact that the first amendment specifically mentions the press?


The press refers to the device, not the institution. You have the same freedom of the press whether you exercise it as your main business, or just occasionally.
9.24.2009 6:54pm
Specast:
I don't understand even a solid rationale for making a media/nonmedia distinction. It doesn't make any sense.

Two guys distribute an identical written statement to a group of people. One guy's statement is on an otherwise blank piece of paper; the other's is on his weekly newsletter. Why should one guy be subject to liability but not the other?
9.24.2009 6:56pm
martinned (mail) (www):

The press refers to the device, not the institution. You have the same freedom of the press whether you exercise it as your main business, or just occasionally.

It makes sense to interpret "speech" as referring to all communication, but taking "the press" literally doesn't solve my problem: it makes that sentence redundant.
9.24.2009 6:56pm
troll_dc2 (mail):
I believe that Canada's constitution uses "expression" rather than speech. That seems to cover everyone.
9.24.2009 6:59pm
Kazinski:
It's not a matter of distiguishing who is in the media or not, the problem is setting up a class with special rights.

Marinned,
The "consequence" of the press being expressly mentioned in the First Amendment is it gets exactly the same rights as speech:

Congress shall make no law... abridging the freedom of speech, or of the press;


Seems pretty explicit to me, that whatever rights the press has, ordinary speakers have too, and vice versa.
9.24.2009 6:59pm
Kazinski:
I believe that Canada's constitution uses "expression" rather than speech. That seems to cover everyone no one.

No one has any rights under Canada's "Human Rights" tribunals.
9.24.2009 7:03pm
ruuffles (mail) (www):

No one has any rights under Canada's "Human Rights" tribunals.

Really? Arar got a few mil and an apology. Still waiting on the en banc decision.
9.24.2009 7:09pm
Kazinski:
It makes sense to interpret "speech" as referring to all communication, but taking "the press" literally doesn't solve my problem: it makes that sentence redundant.

Its not redundant its merely more detailed. They mentioned the press as well as speech because if they hadn't then officious politicians would be saying that the press had no protection even before the ink was dry.

Even today there are those that say (Pelosi for one) that Radio and TV don't have full first amendment protection because the airwaves belong to the public. Thin skinned politicians on either side of the aisle will carve out any exception they can get away with.
9.24.2009 7:14pm
martinned (mail) (www):
@Ruuflles &Kazinski: My personal favourite is the Supreme Court of Canada's ruling in United States v Cobb. Put simply, the court held that the US prosecutor and the US trial court had interfered with the extradition proceedings in Canada to the point that it was no longer possible to guarantee the defendants' fair trial rights in those proceedings. As a result, those proceedings were suspended, and they got to stay in Canada.
9.24.2009 7:16pm
martinned (mail) (www):

They mentioned the press as well as speech because if they hadn't then officious politicians would be saying that the press had no protection even before the ink was dry.

And that would have been quite obviously wrong.


Even today there are those that say (Pelosi for one) that Radio and TV don't have full first amendment protection because the airwaves belong to the public.

I think you'll find that the guilty party for that one is the Supreme Court, in their George Carlin Seven Words ruling. I agree with you that it is wrong, but it is hardly a mistake made by politicians.
9.24.2009 7:19pm
ShelbyC:

I think you'll find that the guilty party for that one is the Supreme Court, in their George Carlin Seven Words ruling. I agree with you that it is wrong, but it is hardly a mistake made by politicians.


Well, if radio and tv were in there, the BSG folks wouldn't have to say "frac".
9.24.2009 7:23pm
martinned (mail) (www):

Well, if radio and tv were in there, the BSG folks wouldn't have to say "frac".

Preaching to the choir...

Why don't you go join the ACLU? (Assuming you're not a member already?)

P.S. BSG was on SciFi, which is cable, and therefore not covered by Pacifica. The reason why they say frac is either artistic license, or good old libertarian private-sector regulation. (i.e. worries about upsetting advertisers.)
9.24.2009 7:29pm
martinned (mail) (www):
Correction:

BSG was on SciFi, which is cable, and therefore not covered by Pacifica or by any FCC regulation.
9.24.2009 7:30pm
Bob Dole (mail):
@ ShelbyC

The BSG folks are on cable TV, which isn't regulated by the FEC. They could say the F word all the time but chose specifically to say "frack."
9.24.2009 7:35pm
martinned (mail) (www):

The BSG folks are on cable TV, which isn't regulated by the FEC.

Typo?
9.24.2009 7:50pm
ShelbyC:

The BSG folks are on cable TV


Huh. That just shows what a DVR does to ya.
9.24.2009 7:55pm
Harry Eagar (mail):
Which is why there shouldn't be press shield laws.
9.24.2009 8:01pm
martinned (mail) (www):

Which is why there shouldn't be press shield laws.

Huh? The argument so far has been about whether the first amendment requires a distinction between media and nonmedia, not about whether such a distinction might not occiasionally be a good idea.
9.24.2009 8:04pm
Kazinski:
I think you'll find that the guilty party for that one is the Supreme Court, in their George Carlin Seven Words ruling. I agree with you that it is wrong, but it is hardly a mistake made by politicians.

No, the guilty party is not the Supreme Court. The 7 dirty words dealt with indecency not ideas. You may or may not agree about regulating indecency, but what Pelosi and the Democratic caucus want to do is regulate programming based on ideological content, not indecency.

The SC was complicit in upholding the BCRA, which also restricted speech based on content, but they maybe getting ready to reverse themselves.
9.24.2009 8:06pm
ShelbyC:

Huh? The argument so far has been about whether the first amendment requires a distinction between media and nonmedia, not about whether such a distinction might not occiasionally be a good idea.


Many journalists argue that such laws are required by the 1A. I personally believe it's important to make journalists subject to the same laws as everybody else. For example, just about everyone in the media supports the McCain-Feingold law. But if it applied to them, you can be damn sure they'd be against it.
9.24.2009 8:18pm
volokh fears sidewiki (mail):
You forget, though: he who controls the media controls the message.
However, try to control it too much and dissent finds a way.
9.24.2009 8:22pm
ShelbyC:

The BSG folks are on cable TV, which isn't regulated by the FEC. They could say the F word all the time but chose specifically to say "frack."


Huh. Just did some research. Appearantly "frack" was a carryover from the original series (which was not, of course, on cable). Can't say I remember that.
9.24.2009 8:34pm
ShelbyC:

You forget, though: he who controls the media controls the message.
However, try to control it too much and dissent finds a way.


Yes, vfs, very clever :-).
9.24.2009 8:37pm
John Pack Lambert (mail) (www):
martinned,
On cable though people also worry about upsetting customers directly. If the show is too outrageous, people will try to end subscription to that channel, and if it is way too bad they may just cancel their cable subscription.
9.24.2009 10:39pm
one of many:
I'm just glad the court overruled the judge, I shudder to think of a jury deciding whether or not I'm going to hell.
9.24.2009 10:44pm
John Pack Lambert (mail) (www):
Kazinski,
There is another reason why the supreme court is not the source of blame for the seven dirty words. It is that the supreme court did not say that these words MUST be forbidden, this was a decision somewhere between congress and the FCC regulators, the Supreme Court only allowed these rules to continue. It is politicians who originate government prohibitions, the supreme court only serves to allow them to continue or end them.
The one slight exception to this may be in the supreme court making the Religious Freedom Restoration Act not apply to the states, but even there the onerous historic district rules were not writen by the court, but by some local board and were upheld by the court on the grounds that congresses interest in enforcing the 14th admendment was not compelling enough just because they thought it was being violated, even though the case at hand clearly showed that the 1st admendment rights of freedom of religion as applied to the states by the 14th admendment were not being respected by the states.
True, that may seem a little off topic, but my main point is rules always originate in the legislative or executive branch of government, and if no one in either of these branches was trying to over regulate things, our rights would be safe. There is an exception as relates to torts and family court cases, which might actually relate to things like liabel suits, but as far as I know no one has ever successfully brought a suit in which they allege a tort occured because of generally unliked content (as opposed to speific mention to them) in the media.
9.24.2009 10:48pm
martinned (mail) (www):

There is another reason why the supreme court is not the source of blame for the seven dirty words.

The question was where the idea originated that TV and Radio might be regulated more than other media.
9.24.2009 11:16pm
Loren Heal (mail) (www):
I'm sorry if this is redundant, but the distinction between "speech" and "press", if such a distinction was ever proper, is now one without a difference.

Likewise, the lines of distinction between Twitter troll, blog commenter, blogger, journalist, newspaper publisher, and TV anchor are equally hard to find, and irrelevant to the government's authority to regulate their content.

I speak of how things ought to be, not necessarily as they are in the law.
9.24.2009 11:23pm
Loren Heal (mail) (www):
In 1791, there was a difference, on the surface, between speech and press. Consider the consequences of leaving out one or the other from the Amendment. The First Amendment makes it clear that it protects the general principle of free expression, not its representation in particular medium. The redundancy is only from our modern perspective, but the difference doesn't apply any more.

I can speak into a microphone, record that speech, and put it on a blog. I can provide a transcript, or not. I can reduce that transcript to paper and place it on a physical bulletin board in a public place. Few would doubt the great latitude I have for content if I post a public bill.

It seems illogical for there to be less latitude of content (freedom of speech/press) if I leave the speech as an audio recording than if I take any further step in making it more accessible.

And the question of whether I'm engaged in the trade of journalism, or merely a hobbyist, is a red herring easily cast aside. There is no way to distinguish between a hobbyist, a barely successful startup, a thriving conglomerate, and a business on the verge of bankruptcy -- at least not in the amount of latitude the law should give them for the content of their message.
9.24.2009 11:33pm
Harry Eagar (mail):
'For example, just about everyone in the media supports the McCain-Feingold law.'

Correct, but not quite everyone. Not me.

(I don't support the ban on protests near abortion clinics, either, because I take the part about assembly seriously, too.)
9.24.2009 11:53pm
geokstr (mail):

ruuffles:

No one has any rights under Canada's "Human Rights" tribunals.

Really? Arar got a few mil and an apology. Still waiting on the en banc decision.

And precisely what does Arar have to do with rights under Canada's "Human Rights" tribunals?

The whole "Arar" affair rests on only his own claims of being tortured in Syria, when no one, not even his friends or the representatives of the Canadian government who visited him when he was still being held, ever saw any evidence of wounds, even less than a week after he said he was beaten with heavy electrical cord in areas that would definitely show heavy bruising if it had really happened. The whole multi-mil settlement smacks of a political correct decision. He can't or won't say where he was during the time period the US says he was in the Middle East, and no one has ever explained why Syria would torture someone on their own team when he would happily tell them everything willingly.

And you obviously know absolutely nothing about Canadian so-called Human Rights commission kangaroo courts, where there are no evidentiary rules, you are guilty until proven innocent, the process is made up as they go along, the complainant has no costs whatsoever while the defendant must pay for all his legal costs, and pretty much every other protection we take for granted here is non-existent. Only Christians and conservatives have ever been charged, while every slight or offense reported by a Muslim is pursued. There are so many other issues that we would find unbelievable down here that are commonplace there, including an CHRC employee, Richard Warman, being the principle complainant in nearly all the cases and getting settlements in all of them despite not being harmed or even offended by the defendant.

I followed this entire battle against these commission for the last three years, through the trials of Ezra Levant and Mark Steyn and Maclean's. Of course, I realize that you consider impoverishing conservatives and Christians via lawfare and by any other means necessary to be totally acceptable.
9.25.2009 1:32am

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