Essential Principles of Communications Law

By Donald E. Lively | Go to book overview

tally. In pertinent part, the First Amendment as inscribed provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." As qualified by accumulated expoundment and gloss, the guarantee for modern and practical purposes would read:

No branch of government, federal, state, or local, shall legislate or act in a way that abridges freedom of speech or of the press except (1) when expression categorically excluded from the First Amendment is implicated; (2) when expression presents a direct, imminent, and probable danger of inciting unlawful conduct; (3) to protect reputational interest, provided claims by public officials and public figures are subject at least to an actual malice standard; (4) to safeguard privacy interests under specified circumstances; and (5) to effectuate legitimate and substantial governmental interests pursuant to narrowly drawn regulation of commercial expression. Nothing in this guarantee should be construed as exempting otherwise protected expression from reasonable time, place, and manner restriction. Protection also may be dependent upon or vary according to the context of expression, especially insofar as government's special interest in protecting children is implicated and unique characteristics of a particular medium require special attention.

An accurate understanding of the law of the First Amendment requires recognition that the meaning of the guarantee transcends a single clause or sentence. Broad statements of principle tend to be susceptible to exception and displacement depending upon circumstances. First Amendment maxims disclaiming "paternalistic approach[es] . . . which restrict what people may hear" or asserting "right conclusions are more likely to be gathered from a multitude of tongues, than through any kind of authoritative selection" are notable as much for their circumU+0AD stantial inoperativeness as their lofty ring. Problematical cases and results notwithstanding, the persistence and vitality of debate over the First Amendment's meaning constitute evidence of the guarantee's vitality, pertinence, and significance.


REFERENCES

CASES

Abrams v. United States, 250 U.S. 616 ( 1919).

Brandenburg v. Ohio, 395 U.S. 444 ( 1969).

Chaplinsky v. New Hampshire, 315 U.S. 568 ( 1942).

Cohen v. California, 403 U.S. 15 ( 1971).

Cox v. Louisiana, 379 U.S. 559 ( 1965).

Debs v. United States, 249 U.S. 211 ( 1919).

Dennis v. United States, 341 U.S. 494 ( 1951).

Gitlow v. New York, 268 U.S. 652 ( 1925).

Marbury v. Madison, 5 U.S. (1 Cranch) 137 ( 1803).

-20-

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Essential Principles of Communications Law
Table of contents

Table of contents

  • Title Page iii
  • TO PAM AND RICO v
  • Contents vii
  • Preface xiii
  • Part One THE NATURE AND LAW OF MEDIA 1
  • Chapter 1 The Origins and Nature of the First Amendment 3
  • References 20
  • Chapter 2 Freedom of the Press: Basic Operational Terms and Conditions 23
  • References 52
  • Chapter 3 Freedom of the Press and Competing Considerations 55
  • References 113
  • Chapter 4 Economic Regulation of the Media Industry 117
  • References 128
  • Part Two STRUCTURAL REGULATION OF THE MEDIA 131
  • Chapter 5 The Newspaper Industry 133
  • References 142
  • Chapter 6 The Broadcasting Industry 143
  • References 178
  • Chapter 7 The Cable Industry 181
  • References 199
  • Chapter 8 The Common Carrier Industry 201
  • References 213
  • Part Three CONTENT REGULATION OF THE MEDIA 215
  • Chapter 9 The Print Media 219
  • References 224
  • Chapter 10 Broadcasting 225
  • References 280
  • Chapter 11 Cable 285
  • References 296
  • Chapter 12 Common Carriers 299
  • References 303
  • Appendix A New Technologies 305
  • References 307
  • Appendix B Communications Act of 1934 309
  • Appendix C Glossary 343
  • Table of Cases 349
  • Index 357
  • About the Author 361
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