Category: 1st amendment

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AP Phone Records and the 1st Amendment

DOJ_APThe Department of Justice (DOJ) recently subpoenaed the telephone records of approximately 100 reporters working for the Associated Press (AP) in an effort to find out who, within the current administration, leaked national security information to the AP. In case you haven’t noticed, this is a big deal for journalists everywhere. Journalists take very seriously their role in serving as a check and balance to the power of government…and for government to curtail journalists’ power is a very serious matter. On the other hand, when national security is at stake, it makes sense that government be able to restrict the flow of information that could jeopardize the safety of those who protect us from those who want to do us harm.

Even without considering the political implications this is complicated and this little blog post cannot begin to get to the bottom of the story. However, it is an important issue that you should pay attention to assuming you want to be an informed citizen and an informed consumer of news. Remember, the AP is an important institution that serves our democratic ideal by helping us, the voters, understand the issues at hand. If the AP and similar non-partisan news institutions are not permitted to do their job, we all suffer and we become vulnerable to political tyrants who will stop at nothing to advance their agendas.

Gary Pruitt, speaking for the AP, claims that the actions taken by the current administration and the DOJ are unconstitutional and will result in harm to journalism as sources and whistle-blowers are already beginning to withhold information for fear of governmental reprisal. This intimidation of journalists by the DOJ on behalf of the current administration should be cause for concern for those who believe in the power of the press to reign in the abuse of political power. Remember, the press is supposed to be a watch dog on the prowl to protect the citizenry; not the lap dog of those in power.

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Violence and Media

Correlation does not prove causation. That is research-speak that calls into question the claim that watching violent movies or playing violent video games makes the player a more violent person. But despite the difficulty of finding causal links, the events at Newtown and other  scenes of gun violence will likely increase  funding for research that attempts to uncover connections between violent media consumption and violent behavior.

Here’s a video clip that frames the issue…

[youtube=http://youtu.be/IdY7ehahp2M]

Even though most gun deaths are suicides and gang-related shootings, it is the mass shootings, such as the ones in Aurora and Newtown, that focus the public’s attention on violent video games and movies.

However, despite concerns about the media’s contribution to gun violence, most of the response from politicians has focused on certain types of guns and large-capacity magazines…much to the chagrin of 2nd Amendment absolutists. There are several reasons that may explain this. The first is because the media-violence link is still not conclusive in the minds of many researchers. And the other reason is something called the 1st Amendment and Freedom of Speech. Attempts to limit speech (content of TV, movies and video games) results in some pretty difficult legal challenges. Even before you consider the competing interests of the 1st and 2nd Amendments this is a difficult issue.

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Zero Dark Thirty Under Attack

zero-dark-thirty1The Hollywood film Zero Dark Thirty, about the hunt for and killing of Osama bin Laden, is being criticized by some in the Hollywood film community because of its portrayal of “enhanced interrogation”, a euphemism for torture. According to Hollywood veterans, and liberal activists, Ed Asner and Martin Sheen (you may know him as the father of Charlie Sheen), Zero Dark Thirty is not worthy of accolades and honors because it suggests that torture played a role in the elimination of bin Laden.

First a little background. The film is directed by Kathryn Bigelow who also directed The Hurt Locker, winner of six Academy Awards. Controversy arose early on when the film’s producers and writers were accused of receiving access to classified documents. Opponents of President Obama suspected that the film would be released just before the 2012 elections, with the goal of boosting the President’s reelection efforts. However, the film was not finished in time for the elections and went into wide release this past weekend to critical acclaim. The film has received five Academy Award nominations, including Best Picture, and five Golden Globe nominations resulting in a Best Actress win for Jessica Chastain. It also topped the weekend box office taking in approximately $24 million.

In defense of the film’s portrayal of torture, Sony pictures issued a statement saying, “To not include that part of history would have been irresponsible and inaccurate.” However, this movie is a fictional account based on real events…not a documentary. I’m not sure that responsibility and accuracy were as essential as Sony would like us to believe.

In criticizing the film, one Hollywood insider said, “You can’t separate artistry from morality.” While that statement is open to debate, it is interesting to note that moral objections to content found in Hollywood movies has been a battle waged since the turn of the previous century. For most of that time Hollywood’s collective response has been, “we’re artists…don’t impose your values on our creation.” “If you don’t like it, don’t watch it.” And the always-predictable argument, “It’s only a movie…people can distinguish between reality and what they see on the screen.” Now that Hollywood activists don’t care for the tone of the objectionable content the shoe appears to be on the other foot. They’ll need to tread lightly, lest they appear overly hypocritical as they press their case for moral superiority.

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Someone’s about to die

Two photos, taken within a few days of one another in NYC, of men about to die.

In the period of a week these two photos were taken and published in newspapers and online. In each photo you can see the final moment before a life is snuffed out. In the first photo the victim is about to be hit by a New York subway train. In the second, the victim is about to be shot point-blank by the man approaching from behind. The first image was taken by R. Umar Abbasi, a freelance photographer for The New York Post. The second was a still from a surveillance camera.

The ethics of shooting, publishing, and captioning photos such as these are complex and difficult. You can find plenty of blogs and essays that attempt to dissect the issues involved (here’s one and here’s another) and they make many excellent points. It can be argued that I’m just as guilty by posting the pix on my blog and using the power of these very compelling images to draw you into a conversation about their appropriateness.

I hope that you will be prepared, if and when the day comes, to make the difficult choices that may be facing you. Do you take the picture? And if the picture is taken, do you print it? Which picture do you print? Which caption do you run? When does the public’s right to know trump the family’s right to privacy?

The best that we can hope for is that our choices come from ethical foundations that understands and appreciates the complicated, and often conflicting, values at play.

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The Future of Modern Warfare?

No, I’m not talking about the release of Call of Duty: Black Ops II this week, and the $500 million that players dropped on the first day. Rather, I’m talking about real conflict with real casualties, and tweets like this…

Some numbers from the last 3 days: 492 rockets fired from #Gaza hit #Israel + 245 Iron Dome interceptions = 737 rockets fired at us. @IDFSpokesperson

And this photo tweeted two days ago…

And this video posted to Youtube…

[youtube=http://www.youtube.com/watch?v=P6U2ZQ0EhN4]
If you watch the IDF YouTube channel you’ll also find a video that alleges to show Palestinian children taunting Israeli soldiers attempting to provoke a response for the cameras.

In a world where public support is necessary for democratic societies to engage in armed conflict, propaganda is a necessary and essential part of the campaign. According to an editorial in the Washington Post,

The @IDFSpokesperson Twitter account, encouraging followers to show support for the strikes, tweeted Wednesday: “More than 12,000 rockets hit Israel in the past 12 years. RT if you think #Israel has the right to defend itself.” More than 5,500 people have retweeted it.

The social media campaign being waged by the Israeli Defense Force is part PR campaign, part political posturing, part warning intended to minimize civilian casualties, and part intimidation, e.g. “We recommend that no Hamas operatives, whether low level or senior leaders, show their faces above ground in the days ahead.”

Hamas, the pro-Palestinian group responsible for the rocket attacks on Israel, has responded with their own campaign, including the twitter hashtag #GazaUnderAttack. Civilians, especially children, killed by Israeli retaliatory strikes are put on display for the TV cameras as mourners wail in the street.

The Middle East, post Arab Spring, is still a fractious place where opposing forces battle on a daily basis. While some of the conflict is physical, much of it takes place in the media where the battle is fought for the hearts and minds of both regional and global witnesses. And more and more of it is happening in near-real-time.

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An Out’rage’ous Newsweek Cover?

Newsweek magazine was once a leader in the news weekly genre. But that was a long time ago and Newsweek is now struggling to attract readers. One technique they’ve employed is the sensational cover photo and headline. According to an article in the Huffington Post, “The conservative Daily Telegraph called it a ” sickening piece of shock journalism that cheapens a once great magazine” and compared it to the anti-Muslim film that sparked the protests.”

This YouTube video captures some of the outrage directed at Newsweek and other journalists.

[youtube=http://www.youtube.com/watch?v=6PaOfycgyCg]

 

In response to criticism about their cover, Newsweek invited the public to chime in with their own take on the events recently unfolding in Islamic nations around the globe. They invited people to post to Twitter using the hashtag #muslimrage which was quickly hijacked by Muslims and non-Muslims alike. You can find a collections of some of the tweets, and images of Muslim Rage at Gawker.

This mocking response to a serious issue demonstrates the challenges facing media companies who give up control to their readers/viewers/users. Listen to this NPR story about the Twitter backlash.

Yesterday’s LA Times points to a recent article in Foreign Policy magazine in which the author suggested,

that the increased democratization brought by the 2011 Arab uprisings and social media platforms like Facebook and Twitter helped break down the barriers between cultures and tamp down the cycles of outrage compared to the previous protests over Danish cartoons in 2006 that left hundreds dead.

It may be too soon to tell if democracy and social media will have a lasting positive effect on relationships that have taken centuries to grow apart.

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Arab Spring Gives Way to the Arab Fall

On the anniversary of 9/11, rioting in Cairo and the murder of Libyan ambassador John Christopher Stevens, and several others, at the US consulate in Benghazi is a stark reminder that we still don’t understand the complex nature of middle-eastern politics and Islamic extremism. In the words of Secretary of State Hillary Clinton, “how could this happen in a country we helped liberate and in a city we helped to save from destruction.” It is becoming increasingly clear that the overthrow of former Libyan dictator Muammar Gaddafi brought new freedom, but also instability, to the region.

There are several connections to mass media in this story. First, much has been made of the role of social media in bringing democracy to Northern Africa and the Middle East. Second, news reports say that a YouTube video criticizing Mohammed was the initial spark that ignited the riots. The two-hour YouTube video, produced and written by Sam Bacile, a California real estate developer, was made for $5 million. A 13-minute trailer/excerpt can be seen here. According to reports, the film portrays the prophet Mohammed as, “a fraud, a pedophile and a womanizer.” Muslims do not allow the portrayal of Mohammed in any form, but are particularly intolerant of depictions that are perceived as an insult. Afghanistan blocked YouTube today in an attempt to prevent access to the controversial video.

While freedom of speech and freedom of expression are highly valued in American culture, much of the world does not share our appreciation for speech that sometimes offends segments of the audience. In this country individuals can safely criticize government entities and religious institutions without fear of reprisal. But that is not the case in many countries and cultures dominated by totalitarian rulers or oppressive religious factions.

While Americans hold their noses and “tolerate” protests by Fred Phelps and his Westboro Baptist “Church”, the response has not been so generous in other contexts. Take, for example, the case of Theo van Gogh. Van Gogh was a Dutch filmmaker who made Submission, a movie that many Muslims found offensive. After the movie was shown on Dutch public television, Van Gogh was killed by a “Muslim extremist.” The killer shot Van Gogh eight time, stabbed him, and attempted to decapitate him. When a Danish newspaper published caricatures of the prophet in 2005, it sparked riots in many Muslim countries.

Because we are in an election season, the news also took a political twist. According to a report by the BBC,

Mitt Romney, Mr Obama’s Republican challenger in the forthcoming presidential election, criticized the US administration’s response to the attacks in Benghazi and Cairo, saying it had appeared to “sympathize with those who waged the attacks”.

Religious freedom, freedom of speech, and tolerance for opposing views are values not to be taken lightly. And when they appear to be in conflict with each other, the stakes are even higher.

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Bleeping and Blurring on Network TV

Regulating indecency on broadcast TV is a tricky business. First of all, the American public does not agree on what is or isn’t indecent. Differences of geography, background, religiosity, and age account for much of the variance…but even then it is difficult to find commonality on what is or isn’t appropriate for prime time TV when children may be in the audience. Another complicating factor is that the networks are competing with basic and premium cable/satellite TV programming which is not subject to the same regulatory scrutiny as over-the-air TV networks. To further confuse the issue, the increase in IPTV and smart TVs that stream video content over the internet makes the distinction of broadcast TV’s more restrictive content policies appear less and less relevant.

Despite–or perhaps because of–the confusion, the controversy is not going away. A study by the media watchdog group Parents Television Council revealed a significant increase in the number of instances of pixelated “full-frontal nudity” on network TV. According the PTC, there was one instance in the 2010-2011 season and 64 in the most recent season. Use of pixelation allows the networks to avoid prosecution by the FCC while implying nudity for comedic or dramatic effect.

According to a quote in the LA Times, PTC President Tim Winter said,

pixilated flesh is “unfortunate, unnecessary and offensive to the family audience” and that it happened more often in 7 to 9 p.m. shows, when kids could be watching, than in those airing after 10 p.m. Nor did the shows’ ratings always warn parents of sensitive content.

Because of the sensitive nature of these issues and the difficulty of making the right decision during the initial filming or taping, occasionally special effects are used in post production to modify the frames that might cross the line. According the same article in the LA Times,

John Gross, a veteran visual effects supervisor at L.A.-based Eden FX, said he and other effects executives are often asked to add pixels or shadow parts of actors’ bodies so network shows will pass muster with censors. They also draw clothes back on so that programs can be sold to international markets more modest than the U.S.

The FCC’s polities on indecent language are also under scrutiny. Currently the courts are wrestling with the proper interpretation of regulatory policies that prohibit “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Radio stations carrying the Howard Stern Show racked up about $2.5 million in FCC fines before Stern moved from broadcast radio to Sirius XM satellite radio, which is exempt from FCC indecency policies. After several awards show incidents, it is now common policy on live radio and TV to have a short delay which allows a censor to hit a switch to mute the sound or picture in the event of an unscripted moment of vulgarity or profanity.

This practice has become so commonplace that Jimmy Kimmel has a reoccurring segment called “This Week in Unnecessary Censorship” in which he “bleeps and blurs” video clips to give the appearance of vulgarity and indecency when in fact nothing of the sort had taken place. But viewers are easily persuaded to fill in the gaps by imagining the worst. The same phenomenon is happening with the pixelation of full-frontal nudity. Even though the actors are wearing flesh-colored undergarments, the pixelated image encourages the viewer to assume or imagine that the actor is indeed nude in the scene.

So here’s the question: where does offense over indecency happen? Is it in the word or image presented,  in the mind of the audience member, or, somewhere in between?

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Jailhouse Rock: Pussy Riot Found Guilty

In case you haven’t heard, members of the punk rock band Pussy Riot have been sentenced to two years in prison for, “hooliganism driven by religious hatred.” The trial and sentencing of the three Russian women has attracted attention and outrage from around the world. Amnesty International and other supporters of free speech and human rights have declared them “prisoners of conscience.” According to USA Today,

The three were arrested in March after a guerrilla performance in Moscow’s main cathedral, high-kicking and dancing while singing a “punk prayer” pleading the Virgin Mary to save Russia from Vladimir Putin.

Several celebrities have spoken out in support of Pussy Riot. Garry Kasparov, former world chess champion, as well as Paul McCartney and Madonna have expressed support for the rights of the performers. Russia does not have the same level of protection for speech that we appreciate.  Thanks to the 1st Amendment to the US Constitution, US citizens have much more freedom to speak our minds than do most other citizens of the world.

But we also want to be careful that free speech rights do not infringe on the rights of others. Hate speech is one of those sensitive areas where, even in America, free speech sometimes has to take a back seat. But who gets to decide that a specific act of speech crosses the line into hate speech and, in so doing, forfeits the rights of the speaker to protection under the law? That’s a question that many are asking in light of this sentence.

Update Aug 20: In an unusual twist, Madonna is being sued for over $10M by concert goers who “were offended by her support for gay rights during a recent concert in St. Petersburg.” See more here.

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Broadcast v Cable Indecency

What is indecent when it comes to television programming, and does it matter whether it is delivered over-the-air or via cable or satellite or computer? Those are just some of the questions facing TV network executives today. In an 8-0 decision, the Supreme Court last week said that ABC and FOX will not have to pay fines imposed by the FCC after episodes of fleeting indecency. The ABC TV network had been fined for airing an episode of NYPD Blue that contained seven seconds of a woman’s backside while FOX had been fined for airing awards shows in which speakers used expletives in their unscripted remarks. According to the Court, the FCC policies were too vague and therefore violated the broadcasters’ rights to due process according to the Fifth Amendment.

However, despite the unanimous ruling (Justice Sonia Sotomayor recused herself), the Court left in place the FCC’s right to regulate the airwaves. This right was established by the 1978 decision FCC vs. Pacifica. The now famous case was in response to a radio station airing George Carlin’s monologue about dirty words. According to the ruling the government has a right to regulate indecent speech–which would otherwise be protected by the First Amendment–at times when children are likely to be present in the audience. This has resulted in a policy that makes the hours between 10pm and 6am a “safe harbor” for indecent (but not obscene) speech since children are not expected to be viewing TV or listening to the radio during these hours.

The real confusion for many people is that broadcast TV is indiscernible from cable TV, and neither look much different from TV programming streaming on their computer or tablet. However the FCC, and its regulatory process, only applies to over-the-air broadcast TV. When NBC TV network is only two clicks away on the remote control from ESPN, History Channel, or MTV, the fact that NBC is prohibited from showing indecent content from 6am till 10pm while the others are free to do so seems, well, odd. Historically the distinction between public airwaves and private cable networks made sense, but today is appears to be unfair or inconsistent.

According to Edward Wyatt, writing in the NY Times,

All of which leaves broadcasters with little real grasp of what is allowed and what is not. Similarly, the public has no idea what to expect; the next time Cher appears on a live awards show, should adult viewers cover the ears of their 8-year-olds, or can they depend on the broadcasters to censor indecent content?

 The National Association of Broadcasters, the trade group that represents the broadcasting industry, has asked for relaxed governmental regulation and a move towards self-regulation…a model that is used, for example, by the motion picture industry.
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