Freedom of Speech and the 1st Amendment
Dennis AuBuchon
February 28, 2009
The language of the first amendment says "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."
Freedom of speech is one of the important rights of many we have in this country and our founding fathers were intelligent enough to know that this right needed to be protected. This is why this amendment was created. We have a right to our own opinion on issues and the right to express them. One thing freedom of speech does not permit with justification is libel and slander. To distinguish between these two words the definition of them are provided below from www.dictionary.com.
Libel – definition by written or printed words, pictures, or in any form other than spoken words or gestures.
Slander – defamation by oral utterance rather than by writing, pictures, etc.
As identified above the difference between slander and libel is the manner in which it is presented. Free speech as identified under the 1st Amendment is important to the fabric and function of our society. I commend the efforts of those who are proposing changes in the law to prevent the use of the Fairness Doctrine as it would be enforced under the Federal Communications Commission (FCC). This effort is through the Broadcasters Freedom Act of 2009. To further discuss the FCC it is important to identify current responsibilities as covered under the law.
To begin with the Federal Communications Commission is an important department with an important function which monitors and establishes rules and/or regulations within its jurisdiction. The function of this commission is not an easy one in today´s economy. The increase in technology offers countless more ways to communicate than when the commission was first established.
The Federal Communications Act of 1934 was amended in 1996 and brought major changes. The intention of this act is to provide for the regulation of interstate and foreign communication by wire, radio, and for other purposes. The general provision under Title 1 section 1 states the following:
"For the purpose of regulating interstate and foreign commerce in communication by
wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the ''Federal Communications Commission,'' which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act"
The FCC is barred by law from trying to prevent the broadcast of any point of view. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a "clear and present danger of serious substantive evil" come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press. The FCC cannot suppress such expressions. According to an FCC opinion on this subject, "the public interest is best served by permitting free expression of views." This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive.
The FCC, however, does have enforcement responsibilities in certain limited instances. For example, the Courts have said that indecent material is protected by the First Amendment to the Constitution and cannot be banned entirely. It may be restricted, however, in order to avoid its broadcast when there is a reasonable risk that children may be in the audience.
Broadcaster responsibilities are identified below:
Individual radio and television station licensees are responsible for selecting all broadcast matter and for determining how their stations can best serve their communities. Broadcast licenses are responsible for choosing both the entertainment programming and the programming concerning local issues, news, public affairs, religion, sports and other subjects to be aired by the station. They also decide how their programs, including call-in shows, will be conducted and whether or not to edit or reschedule programs or material (for example, moving a program to a time slot during which children may not be listening or watching).
The above information was taken from the document found at the link below.
http://www.fcc.gov/cgb/consumerfacts/freespeech.pdf
The commission has a wide range of responsibilities and how they accomplish them is dependent upon the language in current legislation already enacted into law. The commission can only enforce or rule on those instances which the Congress has specifically given authority to do so. I do not envy those who must make decisions about the way we communicate and determine policy for the department.
As you can see above the requirements of both the commission and the broadcasters are covered quite well. Distinct responsibilities are in place for the commission and broadcasters as is appropriate. The desire to have our opinions heard is now fueled by the availability of increased resources such as the Internet. It does not matter whether you are in radio, television or other communication medium the point to be made is that we have responsibilities as individuals. Our free speech is only limited through the necessity of punishing libel and slander.
Today in Congress there are two movements which conflict with each other concerning the Federal Communications Commission (FCC). One wants to amend the responsibilities of the FCC to require that they incorporate the Fairness Doctrine as the way to do business. The other movement is to prevent the Fairness Doctrine or anything like it from a requirement for the FCC. These movements are on the opposite end of the spectrum. The Fairness Doctrine or anything like it will have an impact on the way information we hear is distributed.
One of the key points by those proposing this change in the FCC is that all points of view need to be heard not just one side. This principle I agree with but the manner in which Congress wants to make sure this occurs is where I disagree. The current language in the legislation being proposed and this may change, will require talk radio programs to set aside time for other sides of an issue to be heard. This kind of requirement will hurt as it takes away from normal programming and will affect the very fabric and essence of talk radio. Time taken away from regular programming or reducing the amount of time a program has to dispense their topics from their viewpoint will affect getting their message to the public. There have even been suggestions that this may reduce the current number of radio hosts as to provide available time to hear other sides of an issue. While this may not necessarily be the case the impact of the availability of time for opposing viewpoints must be evaluated.
One point missed or ignored by those proposing this legislation is that this is already available. It is the right of the public to choose the points of view to which they would like to listen. Forcing radio stations to provide time out of their limited resources to present other views may in fact affect the numbers of their listening audience. This may also have an impact on advertisers. Advertisers may look for other options to gain exposure if they would be connected to opinions which they do not support. Support is the key element. The popularity of viewpoints is evidenced by the support they receive through programs on such sources as talk radio. If a viewpoint does not receive the support to maintain specific programs it is not the responsibility of Congress to force changes that are not supported by the American public.
In summary I would like to make one final point. The role of government is to provide for the common good. While there may need to be improvements in some areas under the jurisdiction of Congress actions need to be chosen wisely. I understand the feelings of individuals on both sides concerning the Fairness Doctrine. Currently some of the statements which have been made to justify legislation regarding the Fairness Doctrine philosophy raise some concerns. The impression that I have is that since the authors and sponsors of this legislation are not satisfied with the way the radio industry provides information they want to change it. The question to be asked is every time someone in Congress does not like the way a business operates will new laws be created to change the operational philosophy to meet the opinion of members of Congress. This is a scary thought. While this may not necessarily occur the manner in which this effort is progressing should be cause for concern.
The full scope of the responsibilities as covered in the current communications act as revised in 1996 is too much to absorb or address in this article. Below is a link to the document which details the responsibilities of not only the commission but also broadcasters. It is right that this act provide responsibilities for broadcasters and the commission so it is known upfront what the responsibilities of both parties are in conducting their business and oversight. Oversight is not a bad thing for Congress to have in place but the details of that oversight must not be so cumbersome to amount to micromanaging the way private business operates. Granted there are laws which businesses must follow but many have options in the way they conduct their business. Everyone has an opinion in the way some businesses operate. This is great but if it does not violate any laws it should not be the prerogative of Congress to make changes to those options. Below is a link to the entire Telecommunications act of 1996
http://www.fcc.gov/Reports/1934new.pdf
I urge readers of this article to check out the details of this 333 page act defining the current responsibilities of the Federal Communications Commission (FCC) and ask yourself if changes need to be made. Your senators and representatives must have your feedback for them to know your position on the issue of the Fairness Doctrine and the changes it proposes to the responsibilities of the FCC. There was a vote in the Senate on February 27, 2009 where overwhelmingly and amendment to bar the FCC from using the Fairness Doctrine was approved as part of the legislation to give Washington, D. C. residents congressional representation. This is not the end of the fight however as the legislation must be voted upon by the House of Representatives and differences worked out for final legislation.
It is important for us as individuals to voice our opinion on issues such as free speech and let our elected government officials know how we feel. If you have an opinion on the right of free speech and the Fairness Doctrine please let your senators and representatives know. Every American needs to be involved with their government officials, know what legislation is being processed and their opinion on the important issues of the day. If there is no feedback Congress assumes that the public is comfortable with what actions they are taking. This is not always the case. Let us communicate our feelings about legislation being processed in Congress.
Freedom of speech is one of the important rights of many we have in this country and our founding fathers were intelligent enough to know that this right needed to be protected. This is why this amendment was created. We have a right to our own opinion on issues and the right to express them. One thing freedom of speech does not permit with justification is libel and slander. To distinguish between these two words the definition of them are provided below from www.dictionary.com.
Libel – definition by written or printed words, pictures, or in any form other than spoken words or gestures.
Slander – defamation by oral utterance rather than by writing, pictures, etc.
As identified above the difference between slander and libel is the manner in which it is presented. Free speech as identified under the 1st Amendment is important to the fabric and function of our society. I commend the efforts of those who are proposing changes in the law to prevent the use of the Fairness Doctrine as it would be enforced under the Federal Communications Commission (FCC). This effort is through the Broadcasters Freedom Act of 2009. To further discuss the FCC it is important to identify current responsibilities as covered under the law.
To begin with the Federal Communications Commission is an important department with an important function which monitors and establishes rules and/or regulations within its jurisdiction. The function of this commission is not an easy one in today´s economy. The increase in technology offers countless more ways to communicate than when the commission was first established.
The Federal Communications Act of 1934 was amended in 1996 and brought major changes. The intention of this act is to provide for the regulation of interstate and foreign communication by wire, radio, and for other purposes. The general provision under Title 1 section 1 states the following:
"For the purpose of regulating interstate and foreign commerce in communication by
wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the ''Federal Communications Commission,'' which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act"
The FCC is barred by law from trying to prevent the broadcast of any point of view. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a "clear and present danger of serious substantive evil" come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press. The FCC cannot suppress such expressions. According to an FCC opinion on this subject, "the public interest is best served by permitting free expression of views." This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive.
The FCC, however, does have enforcement responsibilities in certain limited instances. For example, the Courts have said that indecent material is protected by the First Amendment to the Constitution and cannot be banned entirely. It may be restricted, however, in order to avoid its broadcast when there is a reasonable risk that children may be in the audience.
Broadcaster responsibilities are identified below:
Individual radio and television station licensees are responsible for selecting all broadcast matter and for determining how their stations can best serve their communities. Broadcast licenses are responsible for choosing both the entertainment programming and the programming concerning local issues, news, public affairs, religion, sports and other subjects to be aired by the station. They also decide how their programs, including call-in shows, will be conducted and whether or not to edit or reschedule programs or material (for example, moving a program to a time slot during which children may not be listening or watching).
The above information was taken from the document found at the link below.
http://www.fcc.gov/cgb/consumerfacts/freespeech.pdf
The commission has a wide range of responsibilities and how they accomplish them is dependent upon the language in current legislation already enacted into law. The commission can only enforce or rule on those instances which the Congress has specifically given authority to do so. I do not envy those who must make decisions about the way we communicate and determine policy for the department.
As you can see above the requirements of both the commission and the broadcasters are covered quite well. Distinct responsibilities are in place for the commission and broadcasters as is appropriate. The desire to have our opinions heard is now fueled by the availability of increased resources such as the Internet. It does not matter whether you are in radio, television or other communication medium the point to be made is that we have responsibilities as individuals. Our free speech is only limited through the necessity of punishing libel and slander.
Today in Congress there are two movements which conflict with each other concerning the Federal Communications Commission (FCC). One wants to amend the responsibilities of the FCC to require that they incorporate the Fairness Doctrine as the way to do business. The other movement is to prevent the Fairness Doctrine or anything like it from a requirement for the FCC. These movements are on the opposite end of the spectrum. The Fairness Doctrine or anything like it will have an impact on the way information we hear is distributed.
One of the key points by those proposing this change in the FCC is that all points of view need to be heard not just one side. This principle I agree with but the manner in which Congress wants to make sure this occurs is where I disagree. The current language in the legislation being proposed and this may change, will require talk radio programs to set aside time for other sides of an issue to be heard. This kind of requirement will hurt as it takes away from normal programming and will affect the very fabric and essence of talk radio. Time taken away from regular programming or reducing the amount of time a program has to dispense their topics from their viewpoint will affect getting their message to the public. There have even been suggestions that this may reduce the current number of radio hosts as to provide available time to hear other sides of an issue. While this may not necessarily be the case the impact of the availability of time for opposing viewpoints must be evaluated.
One point missed or ignored by those proposing this legislation is that this is already available. It is the right of the public to choose the points of view to which they would like to listen. Forcing radio stations to provide time out of their limited resources to present other views may in fact affect the numbers of their listening audience. This may also have an impact on advertisers. Advertisers may look for other options to gain exposure if they would be connected to opinions which they do not support. Support is the key element. The popularity of viewpoints is evidenced by the support they receive through programs on such sources as talk radio. If a viewpoint does not receive the support to maintain specific programs it is not the responsibility of Congress to force changes that are not supported by the American public.
In summary I would like to make one final point. The role of government is to provide for the common good. While there may need to be improvements in some areas under the jurisdiction of Congress actions need to be chosen wisely. I understand the feelings of individuals on both sides concerning the Fairness Doctrine. Currently some of the statements which have been made to justify legislation regarding the Fairness Doctrine philosophy raise some concerns. The impression that I have is that since the authors and sponsors of this legislation are not satisfied with the way the radio industry provides information they want to change it. The question to be asked is every time someone in Congress does not like the way a business operates will new laws be created to change the operational philosophy to meet the opinion of members of Congress. This is a scary thought. While this may not necessarily occur the manner in which this effort is progressing should be cause for concern.
The full scope of the responsibilities as covered in the current communications act as revised in 1996 is too much to absorb or address in this article. Below is a link to the document which details the responsibilities of not only the commission but also broadcasters. It is right that this act provide responsibilities for broadcasters and the commission so it is known upfront what the responsibilities of both parties are in conducting their business and oversight. Oversight is not a bad thing for Congress to have in place but the details of that oversight must not be so cumbersome to amount to micromanaging the way private business operates. Granted there are laws which businesses must follow but many have options in the way they conduct their business. Everyone has an opinion in the way some businesses operate. This is great but if it does not violate any laws it should not be the prerogative of Congress to make changes to those options. Below is a link to the entire Telecommunications act of 1996
http://www.fcc.gov/Reports/1934new.pdf
I urge readers of this article to check out the details of this 333 page act defining the current responsibilities of the Federal Communications Commission (FCC) and ask yourself if changes need to be made. Your senators and representatives must have your feedback for them to know your position on the issue of the Fairness Doctrine and the changes it proposes to the responsibilities of the FCC. There was a vote in the Senate on February 27, 2009 where overwhelmingly and amendment to bar the FCC from using the Fairness Doctrine was approved as part of the legislation to give Washington, D. C. residents congressional representation. This is not the end of the fight however as the legislation must be voted upon by the House of Representatives and differences worked out for final legislation.
It is important for us as individuals to voice our opinion on issues such as free speech and let our elected government officials know how we feel. If you have an opinion on the right of free speech and the Fairness Doctrine please let your senators and representatives know. Every American needs to be involved with their government officials, know what legislation is being processed and their opinion on the important issues of the day. If there is no feedback Congress assumes that the public is comfortable with what actions they are taking. This is not always the case. Let us communicate our feelings about legislation being processed in Congress.
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