Media Law & Ethics RU COMS 400 Fall 2016 T-Th 12:30 – 1:15 Russell 033 Prof. Bill Kovarik, PhDwkovarik@radford.edu / Ph: 831 6033Office hours: before and after classOffice location: 2126 CHBS

Class web site: revolutionsincommunication.com/law Also see: www.billkovarik.com History

Section 2.2

This talk is aboutFreedom in the colonies Zenger & seditious libel 1735 Virginia 1776 US Constitution 1788 & bill of

rights Alien & Sedition Acts

◦And Virginia & Kentucky resolutions State vs federal prior restraint Civil War & 14th amendment

This talk is about 2 Free speech 1900s WWI & sedition laws

◦Schenck v US – clear & present danger ◦Whitney v California – notable dissent

Near v. Minnesota 1931 ◦In contrast with Trinity Church v FRC

1933Brandenburg v Ohio, 1969

◦“Imminent action” not clear & present danger

How censorship worked / 1600s Pre-publication licensingRegistration of all printing

materials with the names of author, printer and publisher in the Register at Stationers’ Hall

Search, seizure and destruction of any books offensive to the government

Arrest, imprisonment and (in many cases) execution of any offensive writers, printers and publishers.

Licensing Act 1643 Inspires John Milton’s

Areopagetica Executions continue through

1692 Opposed by John Locke Ends with Statute of Anne 1710

◦No more prior restraint ◦Also begins copyright system

Freedom in the colonies Jamestown – critics punished 1640 – New Va gov Wm Berkeley

◦Immediately expels Puritans ◦Harsh and repressive government

Bacon’s rebellion 1676 ◦Declaration of July 30 – taxes, injustice ◦United white “indentured” and black slaves ◦Burned Jamestown Sept 19 ◦Nathaniel Bacon dies in Oct, ending

rebellion

Colonial experience Maryland Act of Toleration 1649

◦Toleration for all forms of Christianity ◦Maryland as a Catholic colony

John Locke letter on toleration 1689 ◦That any man should think fit to cause another man … to expire in torment … would, I confess, seem very strange to me ... But nobody, surely, will ever believe that [this] can proceed from charity, love, or goodwill.

John Peter Zenger trial 1735 New York Weekly Journal printer Arrested for seditious libel of

governor Truth was not a defense - in fact,

truth made it all the worse Trial 1735 - Jury nullified

The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying... It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny…”

– Andrew Hamilton, Zenger’s attorney

Virginia Declaration of Rights 1776 Written by George Mason Freedom of religion, speech, due process 1: “All men are by nature equally free

and independent, and have certain inherent rights …”

12: “ That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.”

Influences French Declaration of Rights of Man – 1789

US Declaration of Independence

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” -- Jefferson

Va Religious Freedom Act 1786

“Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments … tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of (* text not inserted * ) the Holy author of our religion…”

Va Religious Freedom Act (2) * Where the preamble declares, that

coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting ‘Jesus Christ,’ so that it would read ‘A departure from the plan of Jesus Christ, the holy author of our religion;’ the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination. — Thomas Jefferson

US Constitutional convention Philadelphia 1788

Bill of Rights (10 amendments)

Created during convention 1787-88

Compromise with anti-Federalists

Ratified Dec 15, 1791 Not in force at state level First Amendment as written by

George Mason was originally three items: ◦Religion; Speech & press; Assembly

French Revolution 1789

Alien & Sedition Acts 1798 Prohibited writing, printing,

uttering “any false, scandalous and malicious writing … against the government of the United States, or president of the United States, with intent to defame said government (or Congress, or President) … to bring them into contempt or disrepute, or to excite against them the hatred of the good people of the United States.”

Reaction to A & S Acts Virginia & Kentucky Resolutions Jefferson and Madison Argued that A & S Acts

Unconstitutional Argued that states were

sovereign States could “nullify” federal laws Legal justification for Civil War

rebellion

Slave codes Already grossly repressive from

time of Bacon’s rebellion Following1822 Denmark Vesey

rebellion in Charleston, SC and the 1831 Nat Turner rebellion in Virginia amendments to codes forbid possession or distribution of abolitionist literature. This applied to all people, slave and free.

One year in jail for a pamphlet

Censorship by mob Elijah Lovejoy –

killed in Alton Ill. In 1835

Ida B Wells – fled Mississippi in 1892 after publishing the truth about lynching incident

Newspapers burned down, presses ruined

Sedition Act 1918 Leads to 2,000 arrests, 1,000 convictions Charles T Schenck -- pamphlets denouncing

the draft as involuntary servitude.Schenck v US, 1919 – SC upholds conviction,

“clear and present danger” Abrams v US, 1919 (related case): Justice

Holmes’ dissent: “Congress certainly cannot forbid all effort to change the mind of the country … nobody can suppose that … a silly leaflet by an unknown man, would present any immediate danger …”

Whitney v California, 1927 “Those who won our independence by

revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty…. No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.” ◦-- Justice Louis Brandeis

Corporate censorship 20th century

Sedition Project (Montana) “Imagine going down to your local brewpub or

coffee shop. You meet some friends. The talk turns to the war. You criticize the President and his wealthy supporters. Next thing you know, a couple of husky fellows at the next table grab you, hustle you out the door and down to the local police station. You are arrested on a charge of sedition. Within months you are indicted, tried and convicted. The judge sentences you to 5-10 years in prison — and off you go!” — During the “Red Scare” of the post WWI era through the 1930s, arrests for sedition were common.

Near v Minnesota 1931 J.M. Near’s anti-

Semitic, bombastic newspaper banned by state

Minn. SC upholds law

US SC strikes down law

“The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with Constitutional privilege.”

New “imminent action” standard

Brandenburg v Ohio 1969 Racist at a Ku Klux Klan rally

advocated “revengence” against blacks and Jews.

Brandenburg’s conviction under Ohio law was reversed

New standard of imminent action set Supreme Court drew on dissenting

opinions of Holmes and Brandies in Abrams and Whitney

Other prior restraint cases NYT v US, 1971, Pentagon

Papers case Texas v Johnson, 1989, Flag

burning Holder v Humanitarian Law

Project, 2010◦USA Patriot Act case

Snyder v Phelps, 2011 ◦Westboro Baptist Church case