Top Papers in Freedom of Expression
Sponsor: Freedom of Expression Division
Sat, 11/21: 2:00 PM - 3:15 PM
Room: Zoom Room 08
Top four papers in Freedom of Expression including the Robert M. O'Neill Top Paper Award winner.
ChairBillie Murray, Villanova University - Contact Me
RespondentSusan J. Balter-Reitz, Montana State University, Billings - Contact Me
Communication and Law Division
Freedom of Expression Division
The editorial cartoon is a touchstone for matters of free expression in the journalistic tradition. Since their early inception in the politically charged engravings of eighteenth-century pictorial satirist William Hogarth to the present day, editorial cartoons have shown forth as signifiers of comic irreverence and mockery in the face of governmental authority as well as the more generalized cultural politics of the times. This paper argues that it is more important for scholars, commentators, and ordinary citizens alike to take stock of comic zeitgeists than to dwell on the comic exploits of any one editorial cartoon or cartoonist. In so doing, attention is paid to the notion that conflicts in value judgments over the comic license help to inform how and why editorial cartoons can occupy two spaces at once: the disclosure of folly as the foolish conduct of public officials and the stupidity of institutions that make it worthy as an object of ridicule and the denunciation of comicality in journalistic opinion making that goes too far with its co-called right to offend. As much can be seen in the days of famed French printmaker and caricaturist Honoré Daumier who was imprisoned for six months from 1832 until 1833 after portraying Emperor Louis-Philippe in the L Caricature. It can seen, too, in what many commentators today have referred to as "cartoon wars," which have led to everything from high-profile firings of cartoonists (including in the U.S.) through bans and imprisonments of artists in Middle Eastern countries to the 2015 shootings of cartoon artists at the headquarters of French satirical magazine Charlie Hebdo. But what happens when editorial cartoons emerge as flashpoints in conflagrations that double as cultural clashes? Simply, as this paper will argue, the broader comic spirits in certain historical moments enable our discovery of the social, political, and cultural standards of judgment being applied to the carte blanche of journalism and the comic license of those using graphic caricatures to freely editorialize their takes on the world-or not.
Over the past century, since the dawn of radio and up to the present day, federal communications policymakers have confronted a fundamental question: When the government allocates the nation's airwaves, a scarce public good, is the public interest served by licensing an operator who broadcasts only a single viewpoint? Put another way, can the public interest in access to diverse information and opinion be balanced against the rights of broadcasters to freedom of speech under the First Amendment? Nowhere has this dilemma been more contested than in the matter of religious speech over the airwaves. In applying the FCC public interest standard and determining what serves the "public interest, convenience, and necessity," policymakers across the decades have confronted numerous questions: Do single-faith stations provide religious education or propaganda? Do they have an obligation to air opposing viewpoints? Does it serve the public interest when religious broadcasters attack other faiths? Or stir up faith-based political movements? Does on-air fundraising take unfair advantage of listeners and viewers? Some of these questions have ultimately been decided by the Supreme Court. This paper reviews how federal policies toward media access and religious speech have evolved--from revoking the licenses of controversial religious broadcasters, and from subjecting them to the FCC's Fairness Doctrine, to today's unfettered media access for Christian Right speakers. Since passage of the 1996 Telecommunications Act and removal of limits on media ownership, the "electronic church" has consolidated into a handful of vast media conglomerates that are now de facto "denominations" as they also move into streaming media, print publishing, and e-commerce. Thus, religious freedom has been reconceived not merely as access to the public airwaves for religious speech, but as the implicit freedom to own media structures that compete with secular media structures. For the 1 in 4 Americans who identify as evangelicals, Christian Right speech on the airwaves is now centralized and homogenized as never before. Religious speech may not be mainstream media fare, but religious speakers now own mainstream media entities. As such, the interests of today's religious media conglomerates coincide with the interests of the media industries as a whole--to maintain the status quo and keep possession of the sprawling media empires in which they have invested hundreds of millions of dollars.
Typically, the First Amendment is understood to protect speech from restriction only in cases of "state action." Since the 1960s, however, some progressive free speech theorists have also suggested that the democratic goals embedded in the First Amendment require a more robust public right to access private expressive spaces. This paper analyzes how two such cases both recapitulate and re-cast older debates about the First Amendment and private property in novel digital contexts. These are: Prager University v. Google and Manhattan Community Access Corp. v. Halleck. First, I trace how each case grapples with more expansive formulations of the "public function" test that courts have used to determine whether the administrator of a speech forum should be considered a "state actor." This analysis then provides a foundation for exploring a contemporary divergence on the political right with regard to communications policy and free speech jurisprudence. Building on legal scholar Wayne Batchis's (2016) account of the transformation starting in the 1970s from a largely "moralistic" conservative perspective on free speech to a more libertarian perspective (p. 2), I ultimately suggest that we are in the midst of a further transformation in which the emergent populist right has co-opted traditionally liberal arguments about "fairness" in media policy and First Amendment doctrine, but it has done so in a manner that is nonetheless steeped in a longstanding populist suspicion of the corruption of big business.
This paper attempts to resolve the issue by arguing for a balance between the free expression rights and public accommodation through an intermediate level of protected speech by professionals. First, the paper reviews the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. Next, the paper outlines the precedents for religious freedoms and its recent turn toward using free speech doctrine to decide such cases. Finally, the paper uses a similar approach by applying a parallel to Government Speech Doctrine as a legal test for compelled speech in commercial contexts.