Deciding Communication Law: Key Cases in Context

Article excerpt

* Ross, Susan Dente (2004). Deciding Communication Law: Key Cases in Context. Mahwah, NJ: Lawrence Earlbaum. pp. 592.

In media law and free speech cases the Supreme Court has built a foundation of core bedrock principles explaining the scope and meaning of the First Amendment. Protecting the watchdog role of the press and the function of newsgathering and dissemination of information to further a marketplace of ideas is a key principle and recurring theme in Supreme Court decisions. Guidelines for balancing competing rights such as privacy, fair trial, and national security have been established in major decisions.

Students who read the opinion, therefore, gain greater insight into the evolution of the First Amendment, the historical context, and climate of opinion that gave rise to these issues and the Supreme Court's recognition of the important role the press plays in a democratic society. Some examples of rulings in major cases will be used to illustrate how the theories of the First Amendment have evolved.

Deciding Communication Law: Key Cases in Context is another addition to the genre of textbooks that include actual copies of Supreme Court decisions. It offers a sprinkling of the full text of a few Supreme Court decisions, but many major cases are only briefly mentioned. Author Susan Dente Ross explains that she "seeks to survey the terrain, highlight the landmarks and suggest useful signposts to guide the individual navigation of the law."

The media terrain is rocky as obstacles to newsgathering continually arise. Periods of societal unrest or clashes between government and the public's right to know present opportunities for the Court to clarify the parameters of the First Amendment and define the boundaries of protection for newsgathering.

The unrest of wartime and concerns about national security lead to censorship that threatens both the newsgathering process and the exercise of free speech. The Supreme Court majority was willing to accept the government's argument that danger to national security required suppression of teaching Socialist and Communist philosophy and criticism of government policies from World War I through World War II.

But in these early free speech cases, dissents of Holmes and Brandeis began to push the Court toward a more liberal view of the First Amendment. Holmes first articulated the marketplace of ideas concept in Abrams v. U.S. in 1919.

This principle became a rationale to protect the newsgathering process to further the right of the public to receive information. "It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail," the Court said in the landmark Red Lion case in 1969 rejecting monopoly of the airwaves. "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."

The turbulence of the sixties gave rise to more clearly defined First Amendment values in a series of rulings. At stake in the landmark New York Times v. Sullivan decision (1967), the Supreme Court recognized, was the ability of the press to cover the civil rights movement with numerous libel lawsuits pending across the country. The Court used this opportunity to clarify the purpose of the First Amendment.

Justice Brennan said "we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials...." Justice Black stated that "freedom to discuss public affairs and public officials is unquestionably, as the Court today holds, the kind of speech the First Amendment was designed to keep within the area of free discussion."

In order to allow the press the freedom to criticize public officials, the Court rewrote libel law. …