The Freedom of Expression, First Amendment - Essay Example

? First Amendment and number) submitted) First Amendment The freedom of expression is a constitutional right as provided by the First Amendment of the US Constitution. The extent of this right has, however, been open to discussion for a long period of time, owing to questions of violations or abuse of this provision. Freedom of expression not only encompasses the rights to freedom of speech and freedom of the press, but also the right to assemble as well as to appeal to the government in case of complaints. The First Amendment, which was implemented in 1791, stated that the congress would not create any law respecting formation of religion, or barring the open exercise thereof; or shortening the openness of speech, or of the press; or the moral of the citizens peaceably to collect, and to request the Government for a redress of complaints. There have been a number of issues posing questions as to the effectiveness and extent of the provisions in the First Amendment. One of such is the Citizens United case popularly referred to as the ‘Citizens United v. Federal Election Commission’, in which the US Supreme Court, following a 5-4 decision, ruled that corporations and unions have similar political speech rights as individuals under the First Amendment. Being a conservative non-profit organization, Citizens United claims its commitment to restoring the control of the United States government to the citizens, as well as to emphasize American principles of limited government, autonomy of enterprise, strong families, and state sovereignty and security. Citizens United produced a documentary named Hillary-with respect to the then Senator Hillary Clinton, which was the main issue of the court case. The Federal Election Campaign Act of 1971, which controls the financing of political campaigns, was amended by the Bipartisan Campaign Reform Act of 2002 (BCRA). Following the amendment, this federal law prevents corporations and unions from spending their general treasury funds towards independent expenditures for a speech referred to as an ‘electioneering communication’, in other words a speech that concerns elections or one that portrays endorsement or disapproval of a candidate in the elections. As defined in the constitution, an electioneering communication ideally refers to any broadcast, cable, or satellite communication that refers to an openly identified candidate for Federal office and is created in 30 days of a major election or 60 days of a common election, (2 U.S.C. § 441b), and that is publicly distributed (11 CFR § 100.29(a)(2)). The documentary-Hillary was released at a time when Hillary Clinton was running for the Democratic presidential nomination, and as such, it conveyed opinions on Hillary’s suitability for the presidency. Not only did Citizens United avail the documentary in theatres and on DVDs, but also planned to make it accessible through video-on-demand. Further, Citizens United went ahead to produce television advertisements to endorse the movie and planned to run them on broadcast and cable television. However, the advertisements and the video-on-demand distribution had to be paid for, and as such, Citizens United opted to spend its general treasury funds. Consequently, Citizens United’s production and initiative was reflective of a violation of § 441b of the constitution. Realizing the looming threat of facing possible civil and criminal charges, Citizens United rushed in to seek an injunction in federal district court, against the Federal Elections Commission (FEC), posing various arguments. First, Citizens United presented an argument claiming that § 441b is unconstitutional with regard to the movie Hillary; a motion that the District Court denied and instead granted summary judgment to the FEC. In addition, it argued that, as applied to the movie Hillary and the ads endorsing it, BCRA's disclaimer and disclosure requirements (BCRA §§201 and 311) are also unconstitutional. According to BCRA § 311, electioneering communications that are televised and financed by anyone except a candidate for office must contain a clear, comprehensible disclaimer showed on the TV screen for not less than four seconds. The disclaimer must identify the individual or organization responsible for the advertisement, that individual or organization's address or website, and a statement noting that the advertisement “is not certified by any candidate or candidate's board” (§ 441d (a) (3)). Once more, the District Court passed a ruling aligned with Citizens United and allowed summary judgment to the Federal Elections Commission, thereby prompting Citizens United to take their appeal to the United States Supreme Court. The Citizens United v. Federal Election Commission case at the Supreme Court presented fresh analysis and considerations, two of which referred back to previous cases of the same nature. These were namely “Austin v. Michigan Chamber of Commerce, 494, U.S. 652 (1990)” and “McConnell v. Federal Election Commission, 540 U.S. 93, 203–209 (2003).” The former held that political speech may be barred based on the speaker's corporate character, while the latter upheld a facial challenge to limits on electioneering communications. A ‘facial challenge’ necessitates the Court to evaluate the law and establish its unconstitutionality as written. The Court decided to strike down both § 441b's ban on corporate independent expenditures as well as the portion of ‘McConnell’ that upheld BCRA § 203's extension of § 441b's restrictions on independent corporate expenditures (CITIZENS UNITED, APPELLANT v. FEDERAL, 2010). It further apprehended that the government may not restrain political discourse on grounds of the speaker's corporate individuality. No ample governmental importance justifies boundaries on the political speech of nonprofit or for-profit companies. Based on an “as applied” challenge, the Court's review of whether the law is constitutional is narrowed to the set of facts in the case presented. Therefore, the Court expanded the perception of the case from Citizens United's initial narrower arguments which dwelt only on the movie, to re-evaluate both the legality of its earlier choice in ‘Austin’ and ‘McConnell’ as well as the facial validity of § 441b (CITIZENS UNITED v. FEDERAL ELECTION, 2009). With regard to the facial challenge, the Court challenged the government to demonstrate that the law provided a forceful interest and was only just modified to meet that particular interest. The Court then noted that putting a ban on independent expenditures translates to a ban on speech. Further on, the Court realized that before the case of Austin v. Michigan Chamber of Commerce, the First Amendment was basically applicable to corporations and the protection was extended to cover free speech. With regard to ‘Austin’ again, the Court took the position that anti-distortion was a compelling government concern that justified a bar on self-governing election expenditures by firms and unions. As such, the Court passed a ruling that large collections of wealth, amassed with the aid of the corporate form, may eventually present adverse or damaging consequences, hence justifying a ban on corporate independent expenditures. On the other hand, The Citizens United Court argued that differential care of media companies and other firms cannot be settled with the First Amendment and there is no back up for the opinion that the Amendment's initial meaning would allow suppressing media firms' free speech (Bureau of National Affairs, 2010) The Court also found that ‘Austin’ undermines the “open marketplace” of thoughts that are secluded by the First Amendment (Easton, 2012). Due to this way of thinking, the Court was not convinced by the government's arguments on both anticorruption and shareholder protection. The Supreme Court attended to the government's argument on anticorruption and ruled that independent expenditures do not cause an increase to corruption or the form of corruption. The Court proceeded to reject the government's argument that shareholders should be protected from being wanted to fund company speech. Finally, the Court ruled that BCRA's disclaimer and disclosure requirements are constitutionally valid as applied to both the movie Hillary and its advertisements. Referring to ‘Buckley and McConnell’, the Court noted that in as much as disclaimers and disclosure requirements may weigh down the ability to speak, they do not, however, put a maximum limit on campaign-related activities or prevent anyone from speaking (O'Brien, 2007). The Court, however, recognized that these could be disputed if a petitioner could explain a reasonable probability that disclosing contributors' names would expose them to harassment, intimidation, or reprisal. The major question presented by the case between Citizens United and the Federal Election Commission is whether the ruling by the Supreme Court was really appropriate and justified. Bearing in mind that the Supreme Court reversed the provisions in the Bipartisan Campaign Reform Act of 2002, the ruling has been termed controversial and has invited reactions from many fronts. Owing to the ruling against this law that prevents corporations and unions from spending on political advertisements made independently of candidate campaigns, there have been both consenting and dissenting opinions. Supporting the Supreme Court’s decision is a number of thoughts. For instance, according to the court’s reasoning, influence over and access to elected officials does not necessarily imply that such officials are dishonest and the appearance of authority or access will not make the electorate give up on democracy. Also, as the court reasoned out, the ban is over inclusive since it includes corporations that only have a single shareholder. In addition, regarding a shareholder protection interest, if shareholders of a media corporation conflicted with its political position, then the government would have the authority to control the political speech of such media corporation. A fair share of dissenting opinions are, however, presented in concerning the ruling as well. A number of Justices namely Justice Stevens, Justice Breyer, Justice Ginsburg, and Justice Sotomayor concurred with the Court's ruling to uphold provisions BCRA's disclosure, but disapproved the final holding of the majority opinion. The dissent presented by these Justices stated that the Supreme Court's ruling warns to undermine the honesty of elected institutions across the United States. The dissent further stated that the Court's holding that BCRA §203 was facially unconstitutional was ruling based on a question that had not been presented ahead of it by the plaintiffs, and so maintained that the majority altered the case to offer themselves a chance to alter the law (Pilon, 2007). True to Steven’s dissent, the Supreme Court's decision on Citizens United v. Federal Election Commission case clearly undermines the common sense of the American people, who have acknowledged a need to prevent corporations from negatively impacting on self-government. The impact of this ruling extends to shaking the strengths of laws in other states. According to findings by the Center for Competitive Politics, an organization that tracks First Amendment issues, there have been varied state responses so far with some states such as Pennsylvania and Ohio still caught up in the dilemma of how to proceed after reviewing the case. Montana has, however, stood its ground on holding the ban until it faces a successful dispute in court. A number of states have witnessed the introduction of bills that revoke the ban on independent expenditure; call for stockholder approval preceding an independent expenditure; or set up corporate disclosure requirements for independent expenditures. Ideally, this controversial ruling thwarts long term endeavors to protect democracy from corporate influence as well as pose chances of corruption. Freedom of speech is probably the most important aspect of freedom of expression. Under the right to freedom of speech, as provided for by the constitution, everyone is permitted to express him or herself freely without any form of interference from the government. In case the government attempts to control or restrict content of a speech, the United States Supreme Court requires that it presents significant explanation justifying the reason for doing so. However, there is an exception to this provision which presents itself in case a speech is deemed to breach peace potentially or cause violence instead. In such circumstances, the government has a right to disallow that speech. Closely related to the right to freedom of speech is the right to freedom of press. Press encompasses all forms of news media such as TV, radio, newspapers and magazines, and the internet. As provided for by the First Amendment of the US constitution, the right to freedom of press permits a person to direct him or herself through publication and dissemination. In other words, freedom of press implies that the news media are not censored by the government, and that the government has no privilege to try to regulate or restrict publications by the press. The United States acknowledges freedom of the press as a very significant element of democratic governance. The media, being the fourth estate of governance, offers balances and checks on the other arms of the government. The press holds the government accountable through disseminating information that promotes exchange of ideas, conducting investigative coverage, encouraging dynamic debates, and providing a platform for voicing different opinions on matters of national interest, especially on behalf of members of society who are marginalized. However, in as much as the press is applauded for its good work in the US, there are also questions of whether the freedom bestowed upon it is abused or taken too far beyond the recommended provisions. This is where the concern of press bias comes into play especially in relation to politics and presidential elections. A number of politicians, notably presidential candidates, have forged complaints claiming media bias in favor of their opponents. Case in point is during the last presidential campaigns in the United States, when Mitt Romney was quoted lamenting that he faces “an uphill battle” against the press during the general election. Mitt Romney and his running mate Paul D. Ryan openly disputed unfavorable polls, and according to them, the mainstream media had a liberally inclined hand in their drop as showed by polling figures (Toobin, 2012). Speaking to Fox News Sunday, Mr. Ryan said that certainly there is media bias. In addition he thought that many people in the mainstream media were left of center and, therefore, they wanted a very left-of-center president versus a conservative president like Mitt Romney (Zeleny & Rutenberg, 2012). It is, however, unrealistic to claim that the mainstream media is an instrument of spreading liberal values. This is because, for instance, The Wall Street Journal, despite being a supporter of conservative values on its editorial pages, is still the leading newspaper in America by circulation. Even though, it’s worth noting that The Wall Street Journal has published some very hard-hitting coverage of Mitt Romney, it has barely been suspected of bias news coverage. Mr. Romney later admitted to the existence of a free press. While speaking to CBS, Mr. Romney said that he thought the USA had a system of free press. People are able to give their own perspective based upon their own beliefs. He also added that some people who were more in his camp. Even though people bear no common agreement regarding how the press covers the presidential candidates, almost every latest survey of public opinion reflects a downward trend in the confidence of the press. In a survey conducted by the Pew Research Center concerning the drop, 77% of those sampled stated that the media leans towards one side compared with 53% who said so in the year 1985. Having focused special attention to perception of the press related issues for a number of years, the Pew Research Center released a new survey of public opinion regarding the coverage of presidential campaigns. According to this survey conducted in September 20 – 23, 2012 involving 1005 adults, 45% of Republicans thought that the media had been too harsh on Mitt Romney. This closely relates to the results obtained in October 2008 when 44% of the Republicans said the same thing about McCain’s coverage during the campaigns. Comparatively, 26% of Democrats thought that the press was too tough on Barack Obama, even though this figure is an increase from 9% back in 2008. On the other hand, 60% of Republicans responded that the news coverage was too easy on Obama while only 29% of the Democrats stated that the news media had been fair and too easy in covering Mitt Romney. Generally, the Republicans have always been more critical of the news media as compared to the Democrats. Tim Groseclose, a Political Science and Economics professor at the University of California, also presented a very significant case which can be said to be conservative. Using a three-pronged test to quantify the “slant quotient” of news stories covered by various media sources, Groseclose compared the ratings with a statistical analysis of the voting records of different national politicians. According to his 2011 book, “Left Turn: How Liberal Bias Distorts the American Mind,” a majority of media organizations aligned with the views of liberal politicians. David D’Alessio, a Communications Sciences professor at the University of Connecticut, presents a different perspective to the table. According to a ‘meta-analysis’ of bias studies, left-leaning reporting is balanced by reporting more favorable to conservatives. In his published work, “Media Bias in Presidential Election Coverage 1948-2008: Evaluation via Formal Measurement,” D’Alessio (2012) says that news reporting tends to point toward the middle, “because that’s where the people are, and that’s where the money is… There’s nuance there, but when you add it all and subtract it down, you end up with nothing.” In other words, according to him, the net effect is zero. The main question, however, still remains whether the press really uses its freedom to be biased or whether the truth has been overshadowed by public’s perception. There could be a few possibilities pointing towards the increase in public’s opinion on press bias. First, the media environment has largely changed especially with the advent of the internet that has given rise to partisan news sites and conservative organizations. As such, there is more press and equally partisan press sources and outlets, making it easy to come across biased news, and consequently referring the blame to the entire media fraternity. Secondly, in the public’s perspective, both news reporting and opinion subjects are the same thing. The difference between the two clears the air of misunderstandings since news reporting sets issues straight while opinion subjects are meant for discussions and persuasion. Also, people naturally trust their news sources of preference and believe that they are objective and impartial, while considering others as biased. According to Pew’s research, people think the other person’s media only spread lies while one’s own are an epitome of accuracy. Majority of people amounting to 66 % generalized news organizations as “often inaccurate.” But when asked the same question concerning their preferred news organization, the figure slashed down to 30%. In essence, habitual users are inclined to believe in their relative subjects of interest. Another important contributor to the increased public perception of media bias has been caused by the increased number of watchdog groups that exist to criticize the media of the claimed bias. With all these numerous organizations scrutinizing the press, an illusion is created in the minds of people that the press certainly has constant integrity problems. Though a number of Republicans perceive bias in press coverage, the growing domination of conservative authorities makes it harder to come up with a partisan plot. The freedom of the press, therefore, has not become bias, but instead is surrounded by misconceptions and public perceptions that claim otherwise. The press is only held responsible for abusing their freedom if they doctor information to either favor or demean one’s reputation. If the press covers a politician in a compromising situation, and proceeds to publish such, then it is not a question of being biased. The freedom of speech which allows people to express themselves freely also applies to the press who can air opinions without necessarily crossing the line. Ideally, the right to freedom of press has not become biased or abused by the media especially with regard to presidential elections. References Bureau of National Affairs. (2010). Daily Labor Report. Arlington: Bureau of National Affairs. Citizens United V. Federal Election, 08-205 (United states district court for the district of columbia March 24, 2009). Citizens United, Appellant V. Federal, 08-205 (Supreme Court Of The United States January 21, 2010). D'Alessio, D. (2012). Media Bias in Presidential Election Coverage, 1948-2008: Evaluation Via Formal Measurement. Lanham: Lexington Books. Easton, E. (2012). Snyder V. Phelps and the Unfortunate Death of Intentional Infliction of emotional Distress as a Speech-Based Tort. (H. Cobun, Ed.) Journal of Media Law and Ethics , Vol. 3, 1-53. Jones, S. (2013, March 21). Paul Ryan’s Budget Helps Drag His Approval Rating Down to 35%. Retrieved April 19, 2013, from Politicausa: http://www.politicususa.com/republicans-advance-paul-ryans-budget-plunges-35-favorability.html O'Brien, D. M. (2007). Supreme Court Watch 2007: Highlights of the 2004-2006 Terms and Preview of the 2007 Term. New York: W. W. Norton. Pilon, R. (2007). Cato Supreme Court Review. Washington, D.C.: Cato Institute. Toobin, J. (2012). The Oath: The Obama White House and The Supreme Court. New York: Knopf Doubleday Publishing Group. Zeleny, J., & Rutenberg, J. (2012, August 11). Romney Chooses Ryan, Pushing Fiscal Issues to the Forefront. Retrieved April 19, 2013, from The New York Times: http://www.nytimes.com/2012/08/12/us/politics/mitt-romney-names-paul-ryan-as-his-running-mate.html?pagewanted=all&_r=0 Read More