Mass Media and the Law

MASS MEDIA AND THE LAW FREEDOM AND RESTRAINT -ne EDITED BY DAVID G. CLARt. AND EARL R. HUTCHISON 4..)LUME IN THE WILEY SERIES ON etneVERNMENT A ND COMMUNICATION, EDITED BY RAY E. 'HEBERT ABOUT THE EDITORS MASS MEDIA DAVID G. CLARK is Associate Pro- AND THE LAW fessor of Journalism at the Univer- Freedom and Restraint sity of Wisconsin. He received the Edited by DAVID G. CLARK and Ph.D. degree in Mass Communica- EARL R. HUTCH SON tions from the University of Wiscon- A volume in the Wiley Series sin. Professor Clark has published a on Government and Communication, number of articles on the news edited by Ray E. Hiebert media and his book The American Newspaper was published in 1969 The First Amendment to the Consti- by the Iowa State University Press. tution reads in part, "Congress shall EARL R. HUTCHISON is Professor make no law... abridging the free- of English at George Peabody Col- dom of speech, or of the press...." lege in Nashville. He received the yet there are numerous legal restric- Ph.D. degree in Journalism and Eng- tions and regulations on the press, lish from the University of Wiscon- radio, television, literature and the sin. Professor Hutchison has film. At the same time, there are worked for a number of newspapers complaints from the media about serving both as reporter and editor "access" to news, credibility gaps, and has had extensive experience official government secrecy, the bar in public relations. He has published association's efforts to restrict news over 20 articles and papers, a book, about criminal trials, and censorship Tropic of Cancer on Trial (Grove of questionable material dealing Press, 1968), and has had two plays with sex or religion. produced. MASS MEDIA AND THE LAW ampli- fies these and other issues, and shows how laws (or the absence of laws) bearing on the mass media, affect our lives. The topics dealt with by the contributors to this volume are of interest not only to students of the mass media, but to everyone. The dual nature of law as a defender of expression, and as a restrainer of expression, is the basic theme of this book. While the articles in this volume do not always prescribe remedies for the increas- ing conflict between law and freedom, they do present sufficient evidence to enable the reader to form his own conclusions about specific problems and ways of dealing with them. , MASS MEDIA AND THE LAW Freedom and Restraint EDITED BY DAVID G. CLARK AND EARL R. HUTCHISON WILEY-INTERSCIENCE, a Division of John Wiley & Sons NEW YORK • LONDON • SYDNEY • TORONTO Copyright C) 1970, by John Wiley & Sons, Inc. All rights reserved. No part of this book may be reproduced by any means, nor transmitted, nor translated into a machine language without the written permission of the publisher. Library of Congress Catalogue Card Number: 76-115653 ISBN 0 471 15851 8 Printed in the United States of America 10 9 8 7 6 5 4 3 2 1 MASS MEDIA AND THE LAW WILEY SERIES ON GOVERNMENT AND COMMUNICATION Edited by Ray Eldon Hiebert The Voice of Government, edited by Ray Eldon Hiebert and Carlton E. Spitzer The Diplomatic Persuaders, editd by John Lee State Department, Press, and Pressure Groups: A Role Analysis, by William O. Chittick Mass Media and the Law: Freedom and Restraint, edited by David G. Clark and Earl R. Hutchison To the Students Series Preface In ademocratic society there is no more important principle than the people's right to know about their government and its obliga- tion to keep the people informed. The role of the press and communication in the governing process has been important since the earliest days of the nation. In the modern mass society of an international power, communication between government and people through a complex and often instantaneous means of transmission has vital implications and consequences. The explosive impact of the mass media on the political and governmental process has brought about changes in politics, public administration, and international relations. The interrelationship between government and communication has many new dimensions that must be explored and under- stood. The "Wiley Series on Government and Communication" was conceived to probe and provide greater understanding of those new dimensions. Some of the books in the series deal with the way in which governments (local, national, and international) communicate with the people, either directly or through the press and mass media. Other books in the series discuss the way in which the people, usually through the press and mass media, obtain information from government. vii Viii SERIES PREFACE Finally, some of the series books treat problems that arise at that intersection of society at which government and people meet through the media. These are problems of the social, economic, legal, and political implications of the communication process when dealing with government, the problems of restric- tion and censorship, of distortion and propaganda, of freedom and national security, and of organization and technology. Certainly the future of democracy may depend to alarge extent on the success with which we understand and meet the problems created by the relationship between government and communication in a new age. RAY ELDON H IEBERT Series Editor Preface With the exception of college professors, reviewers, and a few students, hardly anyone reads a preface. With this in mind, we resolutely make a brief comment. We consider the students of mass communications our col- leagues. We believe we have common goals. And although we are over 30 years old, we hope that these students will not distrust us because of differences in age. This book is dedicated to the students and has been carefully edited with the student of mass communications in mind. We feel strongly that our mass communications system is entering a highly critical stage. If, in the next few years, the restraints in our communications cancel out the freedoms, if secrecy in government proliferates, if the flow of ideas is dammed by media barons, and if the right of access to media is denied to minority groups, then an irreversible trend may be set toward a monolithic, total- itarian state. We also believe that the future of this country rests in the hands of the persons who are now under 30 years of age. Their idealism is the stuff that the United States was founded on. A contagion of their idealism is what America now needs to give it a moral sense of purpose. The whole world is watching them by virtue of our mass communications system. And these students should be watching the whole world. Most important, they should keep a ix X PREFACE careful eye on the spectacles through which they are being observed and through which they, in turn, observe. These students should be aware of the very few people in the mass communications industry who share their ideals; and they should be especially aware of the many people in positions of power in this industry who have lost sight of the true meaning of the Constitu- tion and its amendments. How else, except through clear and keen vision are students to know the United States and the world that they wish to change? How else can they expect to bring about their aims and goals intelligently and efficiently? Only through the smooth and proper functioning of its mass communications system can a democracy such as ours continue as a democratic society. This is what is so disturbing about the present Administration's attempt (though officials and Vice- President Spiro Agnew's attack on the television networks) to curb and intimidate its critics. Such serious problems continually blight the mass communications arena and, consequently, that arena requires a constant vigil. For these reasons we commend the country's mass communications to the students' study. We need, and want, their help. The flavor and excitement of the mass communications arena has been distilled (we hope) in this book. As students, we suffered through texts that ignored many of the major problems plaguing the industry and, instead, concentrated on major court cases and their discussion. However, we believe that students using this book may want to complement it with study of pertinent cases in the law library or in those books composed of major court cases. For their convenience, a list of the most important court cases follows each chapter, along with a selected bibliography for further study. DAVID G.C LARK E.R .H UTCHISON Madison, Wisconsin Nashville, Tennessee lantian, 1970 Acknowledgments To the people who helped to make this book possible, we express our appreciation. To the ones who contributed original articles, we owe a debt that can never be fully paid. Among this group are the distin- guished Chicago attorney Elmer Gertz, Brian K. Williams, and Mrs. Ann Varnum Commons. We are also grateful to those whose articles, although not included in the final version of this book, nevertheless provided stimulating insight and whose omission can only be counted as our loss: Victor Weybright, David Kaser, Richard Doherty, Richard A. Peterson, David Berger, William A. Hachten, Federal Communications Commissioner Kenneth A. Cox, Justice William J. Brennan, Jr., and the late Carl E. Lindstrom. Among those from whose writings we have included selections, we particularly thank Commissioner Nicholas Johnson of the Federal Communications Commission, John Kittross, Judge Edward J. Devitt of the U.S. District Court for Minnesota, Ben W. Holman of the U.S. Department of Justice, and Thomas I. Emerson of Yale University. We are grateful to Don Hyndman, director of public relations for the American Bar Association, and Larson M.

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