First Amendment Report Card p. 11

By: Debra Gersh Hernandez FIRST AMENDMENT ADVOCATES might want to take a moment to thank the Founders for establishing a governmental system of checks and balances.
The reason for this is a report card from the Media Institute that gave the legislative and executive branches barely passing grades for protecting the First Amendment in 1996, while the judicial branch scored much higher, brought down only by a few exceptions in the lower courts.
Developed by the Washington, D.C.-based Media Institute's First Amendment Advisory Council, the First Amendment and the Media 1997 report gave Congress a D for its overall First Amendment support, the administration a D-plus, and the judiciary a B-minus.
"In short, 1996 witnessed the emergence of significant new threats to the First Amendment," wrote Media Institute vice president Richard T. Kaplar in the report's introduction.
"The year was marked by two especially onerous developments: the ascendancy of children's welfare as a governmental interest surpassing freedom of speech; and the establishment of a regulatory beachhead in cyberspace," Kaplar noted, adding, "Both trends promise long-term, and negative, consequences for the First Amendment."
The council identified 27 specific topics of First Amendment issues from 1996, and then classified them further into four separate categories (online issues; broadcasting and cable television; commercial speech; libel law/punitive damages/prior restraint).
Among other things, the report cited Congress and the administration for their support of the Communications Decency Act, tobacco advertising restrictions, and rules regarding broadcasting to children.
The courts were lauded for decisions such as those protecting commercial speech, such as 44 Liquormart, and upholding free speech rights on the Internet by striking down the Communications Decency Act.
A number of common themes emerged from the 27 topics (each of which is discussed in-depth in the report) including:
u "The executive and legislative branches were least concerned with the First Amendment."
u "In 1996, with some notable exceptions, the First Amendment treatment of different media continued to be Balkanized. The print medium has traditionally enjoyed the strongest level of free-speech protection . . . . Broadcasters and cable operators, who have historically enjoyed less constitutional protection, were hard hit."
u "Government regulators showed great enthusiasm for extending their grasp to cyberspace . . . one of the most disturbing trends of 1996."
u "The well-being of children is now a more important value than freedom of speech . . . . The fundamental principle of freedom of speech has become just another value to be balanced against the policy goals of the hour, and traded off when necessary."
In each of the four subject areas, the Media Institute First Amendment Advisory Council graded the three branches of government as follows (only the judicial branch is graded in the libel law/punitive damages/prior restraint category because action there occurred in court):
Executive branch: online issues, C-minus; Broadcasting and cable television, D; Commercial speech, D.
Legislative branch: online issues, D; Broadcasting and cable television, D-plus; Commercial speech, D-plus.
Judicial branch: Online issues, B; Broadcasting and cable television, C-plus; Commercial speech, B; Libel law/punitive damages/prior restraint, B.

February 1, 1997 n Editor & Publisher #