Free Speech Year in Review: 2012
By Roy Gutterman, December 31, 2012
There was a lot of free speech going on this past year and some of it was even protected. The multi-billion dollar election was the first presidential election to test the Citizens United case and there was plenty of money spent on campaigns and their advertisements. That, the Supreme Court has said, is protected by the First Amendment.
Although much of this year’s Supreme Court media coverage focused on the health care litigation, the Court issued two cases with First Amendment implications, though one case, the second FCC v. Fox case testing broadcast indecency standards was decided on Fifth Amendment grounds, not the First Amendment. This left certain questions about the FCC’s regulation of broadcasting standards with indecency, particularly spontaneous fleeting expletives, unanswered.
On the firmer side of the law, however, the Court invalidated the Stolen Valor Act in the U.S. v. Alvarez case, lifting criminal sanctions for a California man who falsely claimed to have earned a host of military honors, including being awarded the Congressional Medal of Honor.
Justice Anthony Kennedy, addressing government power, wrote for the Supreme Court, “The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”
In 2012, we saw renewed controversy involving military secrets and Wikileaks. While Wikileak’s founder Julian Assange was holed up in the Ecuadorian embassy in London, evading extradition to Sweden, the soldier accused of turning over military secrets to the website, Pvt. Bradley Manning, finally went to trial.
Though Assange’s liability for civil or criminal sanctions may not be cognizable, the government is exercising efforts to go after sources, or the leakers, like the accused Manning. In another leak case, a former CIA agent, John Kiriakou, pleaded guilty to leaking information to reporters and will spend up to two years in jail.
There was also some high-profile civil litigation aimed at the press in 2012, including: Tom Cruise’s defamation lawsuit against a supermarket tabloid because a front page headline and inside article implied he was not a good father, and one of the country’s biggest beef producers sued ABC for $1 billion, for broadcasting the term “pink slime.”
Outside the courthouse, though, perhaps one of the biggest free speech controversies involved a film of suspicious origins, but offensive content. The film, “The Innocence of Muslims,” spread around the world via Youtube, at one point was attributed as the cause of violence in Libya and Egypt.
This film tested the world’s tolerance for offensive material. The riots and the world’s outcry prompted President Obama to make a major pronouncement on American free speech values. At a press conference at the United Nations in October, President Obama said: “Our constitution protects the right to practice free speech. Here in the Untied States, countless publications provoke offense.”
Tabloid journalists also pressed tolerance for independent press issues in France and Great Britain with nude photographs of the new princess Kate Middleton, while the New York Post both tested and offended many by publishing the front page photo of a man about to be run over by a subway train. The photo with a cavalier headline, “Doomed,” raised questions about ethics as well as the law.
Around the same time, an Australian radio prank phone call to a hospital where the new princess was being treated, sparked further outrage after a hospital employee who transferred the phone call to another hospital telephone number killed herself. The radio hosts lost their job and there were cries for legal sanctions for the call, which was simply a joke.
Meanwhile, the Committee to Protect Journalists reported more sobering facts when it comes to free speech and free press issues: 70 journalists were killed worldwide in 2012 while more than 200 were imprisoned.
From serious journalism to lies to offensive films to jokes, 2012 raised a wide array of free speech and free press issues. We’ll see what happens in 2013.
Roy S. Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.