First Amendment Protection of Technological Innovations

Printer-friendly page

1915  Mutual Film Corporation v. Industrial Commission of Ohio. Supreme Court determined that motion pictures do not constitute part of the "press" in the State of Ohio and are therefore not entitled to First Amendment protection from censorship. This case arose in response to the passing of a statute, creating a Board of Censors that had to approve all motion pictures prior to their exhibition.
		1918 The National Association of the Motion Picture Industry voted for self-censorship, adopting a code of standards which specified subjects and situations whose depiction was unacceptable in motion pictures.
1952  Joseph Burstyn, Inc. v. Wilson. In a landmark decision, the Supreme Court bestowed First Amendment protection upon motion pictures. The Italian film The Miracle, attacked by the Catholic Church, was banned in New York City and New York State. The bans were challenged, and the case went to the Supreme Court, which ruled specifically that: 1) Motion pictures are included within the free speech and press guarantees of the First Amendment; 2) the New York Education Law prohibiting the exhibition of any film without a license was void as a prior restraint on protected expression; and 3) a movie cannot be banned on the charge of sacrilege. The ban on The Miracle was lifted.
		1953 Superior Films v. Department of Education of Ohio. Relying on the Burstyn decision, the Supreme Court once again rejected the use of review boards to censor films.
1959  Kingsley International Pictures v. Regents of the University of the State of New York. In the Lady Chatterly's Lover case, the Supreme Court ruled unconstitutional a section of the New York censorship law which prevented the exhibition of a movie simply because it advocated an idea. The Court noted that: "The First Amendment's basic guarantee is of freedom to advocate ideas."
		1968 1968 Interstate Circuit v. Dallas. The Supreme Court determined that a municipal censorship ordinance was too vague to enforce. In response to this ruling by the Court and concerned that state legislators would impose a variety of heavy-handed classification systems, the Motion Picture Association of America adopted its own classifications for movies. The ratings system adopted at the time was the precursor of the system currently used in the motion picture industry.

Broadcasting
(Includes Radio and Television)

1927  Although radio was the popular medium of the day, it did not enjoy the First Amendment protection from censorship that the press did. The Radio Act of 1927 created the Federal Radio Commission, later named the Federal Communications Commission (FCC). This agency was the responsible for assigning licenses to radio stations and routinely exercised its authority to revoke licenses as a means of censoring radio programming. The Act also banned the use of any "obscene, indecent or profane language" on the radio.
		1943 National Broadcasting Company v. United States. Citing the unique technical limitations of the airwaves and the unique social characteristics of the medium, the Supreme Court upheld the constitutionality of federal regulation of broadcasting. The Court stated that radio was unique because of its "spectrum scarcity" and that this necessitated government regulation of spectrum use.
1969  Red Lion Broadcasting Company v. Federal Communications Commission. The Court upheld the "fairness doctrine," the FCC requirement that radio and television broadcasters cover each side of public issues on their stations. The Court also concluded that where frequencies were limited, it could not extend an "unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish …".
		1978 Federal Communications Commission v. Pacifica Foundation. The Supreme Court held that the broadcast on a New York radio station of a twelve-minute monologue by George Carlin, entitled "Filthy Words," was indecent. This was due, the Court reasoned , to the deliberate and repetitive use of words referring to excretory or sexual activities during an afternoon broadcast which could be heard by children. The ruling which applied only to seven particular words, provided little guidance for defining indecency in general.

Television

1988  Action for Children's Television v. FCC. A U.S. appeals court found that, although the FCC's definition of indecency was not overbroad, the restriction of such programming to the hours from midnight to 6 a.m. was unreasonable; it returned the case to the FCC for reconsideration of these hours. Eventually the court approved the FCC's indecent broadcasting ban from 6 a.m. to 10 p.m. on indecent broadcasting. The Supreme Court refused to review that ruling.
		1989 President Bush signed the Television Violence Act, which gave TV networks, cable operators and independent stations three years of immunity from antitrust regulations to allow them to establish guidelines for TV violence.
1996  Congress passed the Telecommunications Act. This required not only that all TV sets contain a computer chip (V-chip) which allowed parents to block objectionable programming, but also required the development of a ratings system for television programs to guide parents in the use of the chip. On December 18, 1996, a six-category rating system for television was adopted and the ratings began to appear in the upper left-hand corner of the screen on January 1, 1997. These age-based ratings were divided into six categories. The first four were "TV-G," recommended for general audiences; "TV-PG," parental guidance suggested; "TV-14," parents of children under fourteen strongly cautioned; and "TV-M," mature audiences only. The other two ratings were only to be applied to children's shows and were: "TV-Y," suitable for all children, and "TV-Y7," recommended for children seven and older. Since October 1, 1997, ABC, CBS, Fox and most cable networks began using new detailed ratings alongside the older, age-based ratings. These ratings were as follows: intense violence-V; intense sexual situations- S; strong coarse language -L; or intensely suggestive dialogue-D.

Cable Television

1994  Turner Broadcasting System v. Federal Communications Commission. In a unanimous landmark decision, the Supreme Court said that cable television was entitled to virtually the same constitutional guarantees of free speech as newspapers and magazines.
		1995 Denver Area Educational Telecommunications Consortium Inc. v. FCC. The Supreme Court voted: 1) to strike down the portion of the law allowing cable companies to refuse to air indecent material--defined as sexually explicit or "patently offensive" — on "public access" channels required by local governments; 2) to strike down the section of the law requiring subscribers to leased access channels (paid for by independent programmers) to submit a written request before "indecent" programs could be received; and 3) to uphold sections of the law that allowed cable operators to refuse "indecent" programming on the leased access channels.
1997  Playboy Entertainment Group v. United States and Spice Entertainment Companies v. Reno. The Supreme Court denied an injunction that implemented a law requiring cable operators to scramble the signals of sexually explicit programs so that children couldn't see them.

Internet

1996  Senator Exon's bill (Communications Decency Act) passed the Senate. This bill regulated electronic communications and imposed criminal liability on anyone who made available any "comment, request, suggestion, proposal, image or other communication" found to be "obscene, lewd, lascivious, filthy or indecent." This applied even to private messages between adults. The House later amended the bill, but it still included a provision making it a crime to use offensive terms about "sexual or excretory activities or organs" in computer communications with anyone under the age of 18.
		1996 Telecommunications Act of 1996 — Congress passed this act which included the Communications Decency Act (CDA) and imposed heavy criminal sanctions for Internet indecency.
1996  ACLU v. Reno. This suit challenged the Internet indecency provisions on constitutional grounds. The U.S. Court of Appeals for Eastern Pennsylvania named a 3-judge panel to rule on this challenge, and they declared that the Internet restrictions in the CDA violated the constitutional guarantee of free speech. The Internet was granted First Amendment protections which are equal to, perhaps stronger than, those afforded to printed material.
		1997 Reno v. ACLU. The Supreme Court struck down the CDA saying that it was a violation of the freedom of speech protected by the First Amendment. The Court was concerned that the CDA, by denying minors access to indecent speech, suppressed a large amount of information which adults had a constitutional right to receive.

Sources

Relevant case law
Foerstel, Herbert N. Free Expression and Censorship in America. Westport, Conn.: Greenwood Press, 1997
Foerstel, Herbert N. Banned in the Media. Westport, Conn.: Greenwood Press, 1998