be able to speak freely about the character and actions of those in public service. At the same time, because careers and reputations are ruined easily by rumors and innuendoes, journalists ought to be required to “speak” responsibly. The Supreme Court addressed this issue in New York Times v. Sullivan, in which it ruled that public officials, as opposed to private individuals, when suing for libel, must show that a publication acted with “actual malice,” which means not that the paper had an evil intent but that it acted with “knowledge that [what it printed] was false or with reckless disregard for whether it was false or not.”53 Shortly thereafter, the Court extended the ruling to include public figures other than officials, including entertainment or sports celebrities, as well as people whose actions put them in a public position—such as a candidate running for office, or an author promoting her book.
libel the written defamation of character
Profiles in Citizenship Bill Maher
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Bill Maher is a big fan of the First Amendment. That’s because he says what few of us dare to say, what most of us dare not even think. The gasp of laughter that follows the comedian’s one-liners is not just shocked amusement; it’s shocked recognition that, uncomfortable, unflattering, and unpalatable as his observations are, they’re often right on target. Maher has made a career out of mocking the emperor’s anatomy, while most of us are still oohing and aahing over the splendor of his new clothes. Usually the First Amendment saves his bacon.
And sometimes it doesn’t. On September 17, 2001, he went on his ABC comedy show, Politically Incorrect, and said, about the suicide bombing of the World Trade Center: “We have been the cowards, lobbing cruise missiles from miles away. That’s cowardly. Staying in the airplane when it hits the building—say what you want about it, it’s not cowardly.” Advertisers balked, and Maher’s show was canceled.
He’s back now, with a cable show called Real Time with Bill Maher, where he continues to speak his mind. Still, there are limits. He says: “I can’t get up there every week and just rail about the environment and global warming and whatever is going on that I think is most important. But I push it as far as I can.”
On patriotism
“Well, it means being loyal to your country above other countries. And I am . . . . [But] it has to be put in context and also it has to be put side by side with a greater humanity . . . . Americans who say, ‘This is the greatest country in the world,’ without having any clue what goes on in any other countries, are just pulling it out of nowhere. There are many things that I’m proud of in this country. I’m proud of how my parents and other people stopped fascism and communism. I’m certainly proud of what we started in 1776. It was a new dawn of freedom and liberty in the world. But I’m not proud of slavery. I’m not proud of the genocide of the Indians. I’m not proud of much of what goes on today. So I still believe in the promise of America, but most of America looks at itself through rose-colored glasses. And that’s not healthy.”
On keeping the republic
“Take it upon [yourself] to learn the basics . . . . [K]ids need . . . to learn history. Because kids say to me all the time when I say something from history: ‘How should I know about that? I wasn’t born.’ Oh, really? So nothing happened before you were born? . . . Kids need to learn history so they can put themselves in the proper place, which is of great insignificance . . . . The problem with kids today is not too little self-esteem, it’s too much. And history, I think, learning a big picture, is very important in that.”
Source: Bill Maher spoke with Christine Barbour and Gerald C. Wright on May 9, 2005.
The Court’s rulings attempt to give the press some leeway in its actions. Without Sullivan, investigative journalism would never have been able to uncover the role of the United States in Vietnam, for instance, or the Watergate cover-up. Freedom of the press, and thus the public’s interest in keeping a critical eye on government, are clearly the winners here. The Court’s view is that when individuals put themselves in the public domain, the public’s interest in the truth outweighs the protection of their privacy.
The Right To A Fair Trial
Freedom of the press also confronts head-on another Bill of Rights guarantee, the right to a fair trial. Media coverage of a crime can make it very difficult to find an “impartial jury,” as required by the Sixth Amendment. On the other side of this conflict, however, is the “public’s right to know.” The Sixth Amendment promises a “speedy and public trial,” and many journalists interpret this provision to mean that the proceedings ought to be open. On the whole the Court has ruled in favor of media access to most stages of legal proceedings and courts have been extremely reluctant to uphold gag orders, which would impose prior restraint on the press during those proceedings.54
Censorship on the Internet
Lawmakers do not always know how to deal with new outlets for expression as they become available. Modern technology has presented the judiciary with a host of free speech issues the founders never anticipated. The latest to make it to the courts is the question of censorship on the Internet. Some web sites contain explicit sexual material, obscene language, and other content that many people find objectionable. Because children often find their way onto the Internet on their own, parents and groups of other concerned citizens have clamored for regulation of this medium. Congress obliged in 1996 with the Communications Decency Act, which made it illegal to knowingly send or display indecent material over the Internet. In 1997 the Supreme Court ruled that such provisions constituted a violation of free speech, and that communication over the Internet, which it called a modern “town crier,” is subject to the same protections as nonelectronic expression.55 When Congress tried again with a more narrowly tailored bill, the Child Online Protection Act, the Court struck it down, too.56
The Court has not always ruled on the side of a completely unregulated Internet. While not restricting the creation of content, the Supreme Court in 2003 upheld the Children’s Internet Protection Act, which required public libraries that received federal funds to use filtering software to block material that is deemed harmful to minors, such as pornography.57 However, these filters can create some problems. Many companies and institutions use them to screen offensive incoming email, but such filters often have unwanted consequences, blocking even legitimate messages and publications.58 The Internet can also have the effect of freeing people from censorship, however. As many people who have worked on their high school newspapers know, the Court has ruled that student publications are subject to censorship by school officials if the restrictions serve an educational purpose. The Internet, however, offers students an alternative medium of publication that the courts say is not subject to censorship.59
The increasing use of the Internet not just as a source of information but also as a mechanism for people to download books, music, movies, and other forms of entertainment has set up another clash of rights. This conflict is between authors and creators of content, who claim a copyright to their works, and the public, who want to access those works, frequently without paying
