Chapter Introduction

13

Legal Controls and Freedom of Expression

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The Origins of Free Expression and a Free Press

The First Amendment beyond the Printed Page: Film and Broadcasting

The First Amendment, Broadcasting, and the Internet

The First Amendment in a Democratic Society

Politicians and their constituents can talk, but money speaks much louder. Some aspects of the current U.S. political system amount to a legal pay-to-play system in which the wealthiest can wield indirect influence over elections (manipulating issues by buying lots of advertising) and more direct influence over legislation (manipulating politicians who desperately want money to pay for campaign advertising).1 Although unpopular with a majority of Americans, this influence through campaign contributions has been defended on First Amendment grounds. Here is what the First Amendment (adopted in 1791) says about money as speech in political campaigns:

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.

In other words, it says nothing explicitly about money. Yet money now counts as speech, protected by the First Amendment. So how did we end up here?

Ironically, it started with Congress’s intention to control the amount of money in elections. In 1974, Congress amended federal election law to further limit campaign contributions. Two years later, in Buckley v. Valeo (1976), the U.S. Supreme Court suggested for the first time that political contributions count as speech. The court argued that restrictions on campaign money “necessarily reduce[d] the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”2

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Over the ensuing years, Congress has tried to again rein in campaign finance with new laws, but federal courts, beholden by the idea that money equals speech, have always struck them down. This brings us to the current state of our national elections. For the 2012 election, the two main political parties and their supporters spent an estimated $6 billion on campaign advertising, more than doubling the previous record. The main explanation for this new record was the unlimited amount that corporations and rich individuals could now spend, thanks to another decision by the Supreme Court: Citizens United v. Federal Election Commission (2010). The 5–4 decision said that it was a violation of First Amendment free-speech rights for the federal government to limit corporate or union spending for TV and radio advertising, usually done through organized “Super PACs” (political action committees) that are most often sponsored by corporate interests or super-rich donors.

Although not the only important factor, a candidate with access to lots of money for things like campaign ads has a clear advantage. But as Harvard Law School professor Lawrence Lessig explains, the threat to democracy and freedom of speech isn’t just about the messages audiences hear during election time. Lessig argues that it’s also about whom politicians listen to after an election: “Politicians are dependent upon ‘the funders’—spending anywhere from 30 percent to 70 percent of their time raising money from these funders,” he writes. “But ‘the funders’ are not ‘the People’: .26 percent of Americans give more than $200 in a congressional campaign; .05 percent give the max to any congressional candidate; .01 percent—the 1 percent of the 1 percent—give more than $10,000 in an election cycle; and .0000063 percent have given close to 80 percent of the super PAC money spent in this election so far. That’s 196 Americans.”3 Given the Citizens United ruling, what can be done to give all citizens a voice in the campaign finance system and make them “patrons” of the political process?

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SUCH DEBATES OVER WHAT CONSTITUTES “FREE SPEECH” or “free expression” are intricately tied together with questions of politics and economics. In addition to the growing involvement of money in politics, money is central to another set of laws affecting free speech: copyright law. For example, arguments about what constitutes copyright violation revolve around who should be allowed to make money from the creation, distribution, and ownership of media content—and who should shoulder the expense of enforcing copyright law. Meanwhile, debates about the particular messages in a piece of media content raise questions about legality, which we turn to politicians and lawmakers to answer. For instance, do teenagers have a right to use social media to bully a person because of his or her sexual orientation? Do military secrets published on the Internet prevent the government from protecting the citizenry?

Such arguments also raise questions regarding the variation in regulatory standards that has evolved across different mass media. For example, print media have the least regulation, as the First Amendment clearly protects freedom of the press. Broadcast has the strictest regulation, as lawmakers have defined the airwaves as a shared public resource. And regulation regarding the Internet is contested, as the technology (and the different ways in which people and organizations use it) is still relatively new.

In this chapter, we examine these themes more closely by: