Communications-Law-Baker-Fall01 - COMMUNICATIONS LAW...

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COMMUNICATIONS LAW INTRODUCTION 1. st Amendment a. Why might the press and speech clause have different bases? i. Press has an institutional role in govt. to check abuses 1. Stewart argues that this reason speaks to protection for individual speech and freedom of the press equally 2. Baker disagrees, arguing that the checking function speaks to the provision for the press alone b/c arguments for protecting the individual stem from a liberty perspective a. Distinction shouldn’t be based on content (individual liberty argument), but rather on the fact that the press acts as a separate branch of govt. that can be protected in its institutional integrity reporters’ privilege, protecting right to info ii. Arguments against different interpretations of the clauses: 1. Speech Clause alone may be viewed as a protection of the liberty to express ideas and beliefs, while the Press Clause focuses on the liberty to disseminate expression broadly. (Burger, pg.91). a. But there is no fundamental difference b/w expression and dissemination; press clause only received more attention b/ c it was the subject of restraints b. Baker believes this historical argument against different interpretation is unpersuasive 2. If one reads the 1 st Amendment as a method of preventing govt. intervention w/flow of info, this interpretation would explain both protection clauses a. This is the dominant view taken by the courts clauses not treated differently b. This view can’t explain everything: i. Why an individual, but not a reporter can be forced to reveal her source in court ii. Why a kid isn’t required to salute the flag in school (infringement on individual liberty), but a cable co. is required to carry local broadcast channels in the name of protecting consumers’ right to receive info Overtly Content Based Regulation 2. Prior Restraints a. Generally conceived of as prior administrative approval schemes i. Near v. Minnesota (pg.30): Ct. held that MN law authorizing abatement, as a public nuisance, of a “malicious, scandalous and defamatory newspaper, or other periodical” constituted a prior restraint in violation of 1 st Amendment. According to Holmes, the chief purpose of the 1 st
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Amendment guaranty is to prevent prior restraints, and the statute couldn’t be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published w/good motives and justifiable means. b. Unlike subsequent punishments, injunctions against speech are prior restraints i. Cts. have been adamant on this point Subsequent punishment doesn’t prevent speech in the absolute manner that injunctions do 1. “The fact that the liberty of the press may be abused by miscreant purveyors of scandal” can be appropriately remedied w/subsequent punishments, consistent with constitutional privilege. ( Near , 33) ii. Judges are more likely to think that speech is more deserving of protection
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This note was uploaded on 04/04/2008 for the course LAW ALL taught by Professor Multiple during the Fall '06 term at NYU.

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Communications-Law-Baker-Fall01 - COMMUNICATIONS LAW...

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