First Amendment rights and protections

First Amendment and Television

The subject of television and censorship has long been an issue of heated debates across the country.

The First Amendment to the United States Constitution states:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (U.S. pp).

On June 8, 1789 James Madison introduced his version of the speech and press clauses in the House of Representatives, stating, "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable" (Freedom pp). The special committee rewrote the language somewhat, adding other provisions from Madison's draft, making it read, "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed" (Freedom pp). This is the form that went to the Senate, which rewrote it to read: "That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances" (Freedom pp). Subsequently, the religion clauses and these clauses were combined by the Senate and the final language was agreed upon in conference (Freedom pp).

The '"simple, acknowledged principles" embodied in the First Amendment have often been the issue of controversy both in the courts and out (Freedom pp). Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone:

"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity"

(Freedom pp).

In the 1973 CBS vs. Democratic National Committee, 412 U.S. 94, the United States Supreme Court held that a broadcast licensee could refuse to carry a paid editorial advertisement (Freedom pp). Joined by Justices Stewart and Rehnquist, Chief Justice Burger reasoned that a licensee's refusal to accept such an ad did not constitute "government action' for the purposes of the First Amendment, stating, "The First Amendment does not reach acts of private parties in every instance where the Congress or the [Federal Communications] Commission has merely permitted or failed to prohibit such acts." Id. At 119" (Freedom pp).

The Federal Communications Commission (FCC), established by the Communications Act of 1934, is an independent United States government agency, directly responsible to Congress, and is charged with regulating interstate and international communications by radio, television, wire, satellite and cable (Federal pp). The Media Bureau department of the FCC develops, recommends and administers "the policy and licensing programs relating to electronic media, including cable television, broadcast television, and radio in the United States and its territories" (Federal pp).

Many broadcasters argue that the First Amendment should apply to television in just the same way it applies to the print media, however, because broadcasters are licensed to use a scarce public property, the Supreme Court, even the most conservative of Supreme Courts, has consistently ruled that with regard to the public airwaves it is the First Amendment rights of the viewers, not the broadcasters, which is paramount (Television pp).

On June 30, 1995, the U.S. Court of Appeals for the District of Columbia Circuit held that it is legally permissible (in some jurisdictions) for television stations to air adult programming after 10 p.m. (Corn-Revere Pp).

The ruling was the result of Action for Children's Television's desire to create a safe period of broadcast time, before 10 p.m., in which children could watch television without parents fearing that they could be watching something inappropriate (Corn-Revere Pp). In Action for Children's Television v. FCC (ACT IV), the United States Supreme Court voted 7- 4 to uphold the FCC's "safe harbor" channeling approach to broadcast indecency, requiring "indecent" programs to be aired only between the hours of 10 p.m. And 6 a.m. (Corn-Revere Pp). The decision has been widely reported as banning "indecent" speech during most parts of the broadcast day, which it does, yet it also makes clear that indecent material may be transmitted at the appointed hour, and it defines this category of speech quite broadly (Corn-Revere Pp).

Proposals to televise the actual executions of death row inmates have attracted national attention since the 1970's and the dramatic increase in the number of executions in America in the 1990's has only increased the calls for televising the ultimate criminal penalty (Corrigan Pp). Some who ardently support capital punishment favor the idea of televised executions for their deterrent effect, arguing that one of the major rationales for capital punishment is lost because the deed is done with only a few witnesses present (Corrigan Pp). And then there are those who oppose the death penalty but favor televised executions as a way to demonstrate the cruel and unusual punishment of the practice (Corrigan Pp).