Threats to the Surveillance Function of the Press

When I hear the word surveillance, I’m quick to criticize and assume it indicates Big Brother is watching like in George Orwell’s 1984. However, the surveillance function of the press empowers citizens with information to ensure a fair democratic society. The function is essential for democracy because it helps the media share news that most citizens do not have access to and can benefit from. It is a right that allows journalists to tell us what is happening in our country.

For example, the surveillance function has allowed reporters to investigate Russia’s election meddling, the Watergate scandal and Clinton e-mail controversy. The surveillance function allows the press to inform the public not only on matters of politics, but also of safety. The media was able to give citizens living along the coast of the Atlantic Ocean time to prepare for the recent hurricanes. The National Oceanic and Atmospheric Administration discovered two months beforehand that there would be 14 to 19 hurricanes, and the media helped distribute the message (Coghlan, 2017).

One of the greatest threats to the surveillance function of the press is skepticism. In a time of fake news and alternative facts, people do not look to the media as a reliable source. According to a Gallup poll, only about 30 percent of Americans trust any source to bring objective and accurate news (2016). Journalists can no longer claim to be the watchdogs they once were; now many insert their opinions and spin the truth. President Trump generalizes the media by indicating they are all evil truth-twisters. In fact, Trump has repeatedly called journalists “an enemy of the American people” (Mullin, 2017).

This skepticism makes another threat to the surveillance function. Many journalists are under a microscope of stricter scrutiny, growing more and more susceptible to litigation. Melania Trump recently won a lawsuit against a journalist’s false accusations (Gonzalez, 2017). Some thought the $2 million compensatory and punitive damages were excessive and should have been protected under neutral reportage, which protects journalists for publishing accurate defamatory information by a responsible party.

The surveillance function allows the media to be the eyes and ears of society. The First Amendment protects the rights of a free press, but the limitations and challenges are growing every day.

References
Mullin, B. (2017, February 22). Journalists react to being called ‘the enemy of the American people’. Retrieved September 24, 2017, from https://www.poynter.org/news/journalists-react-being-called-enemy-american-people

Coghlan, A. (2017, September 20). Hurricane Maria confirms dire warnings for 2017 hurricane season. Retrieved September 24, 2017, from https://www.newscientist.com/article/2148116-hurricane-maria-confirms-dire-warnings-for-2017-hurricane-season/

Gallup, I. (2016, September 14). Americans’ Trust in Mass Media Sinks to New Low. Retrieved September 24, 2017, from http://news.gallup.com/poll/195542/americans-trust-mass-media-sinks-new-low.aspx

Gonzalez, G. (2017, May 1). Media Risks Rise As Public Trust Fades. Retrieved September 24, 2017, from http://www.businessinsurance.com/article/20170501/NEWS06/912313178/News-provider-risks-rise-as-public-trust-fades-critics-increase-scrutiny-Trump

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Marketplace of Ideas is Crucial for the Media

Freedom of expression is valid. “Good ideas” and “bad ideas” are objective, and everyone should be able to have both. Supreme Court Justice Oliver Holmes used the idea first in a landmark case in 1919, calling it “the best test of truth” (Collins, 2010).

A marketplace of ideas contributes positively to democracy and is crucial in the media. Without the media, the public loses surveillance and an important watchdog. Government repression and censorship usage is limited to clear and present danger and should not threaten the media (Ingber, 1984).

Last November President Trump tweeted, “Nobody should be allowed to burn the American flag…” He went on to say they should lose citizenship or be thrown in jail.

trump-tweet.jpg

Trump likely expected his tweet to be a spine-chilling patriotic message that would get his electorate base fired up; however, it is government suppression and limiting one’s freedom of expression. If someone decides to have a flag-burning bonfire, they will likely be subject to public humiliation.

The flag stands for the First Amendment and freedom of expression. By suppressing one’s freedom to burn the flag, it is setting fire to everything the flag stands for.

Christians should consider evangelism when weighing the pros and cons. Freedom of expression is a blessing to Christians because we don’t have to look over our shoulder for sharing the good news.

According to an article by Josie Timms, freedom of expression is one of the most significant human rights and is used as a catalyst for change (2017). It has provided America with numerous improvements: women’s suffrage, civil rights, the labor movement. The marketplace of ideas concept is brilliant, and if anyone disagrees, they have a right to present society with a better social remedy.

References:
Collins, R. (2010, May 13). Holmes’ Idea Marketplace – Its Origins & Legacy. Retrieved September 26, 2017, from http://www.firstamendmentcenter.org/holmes%E2%80%99-idea-marketplace-%E2%80%93-its-origins-legacy/

Ingber, S. (1984). The Marketplace of Ideas: A Legitimizing Myth. Duke Law Journal, 1984(1), 17.

Timms, J. (2017, May 04). Why is free speech important? Retrieved September 22, 2017, from https://www.indexoncensorship.org/2016/04/free-speech-important/

Media Convergence In A Participatory Culture

A participatory culture is impactful for communicators of all ages. It gives opportunities for innovative expression of ideas, art, beliefs, culture and more. Society can interact in the marketplace of ideas more than ever before. Young people are expressing themselves in the culture with various social media channels, developing a language and humor of their own with memes, gifs, hashtags and idiosyncratic jokes. As the media has moved away from its one-way distribution channel to a participative structure, three major changes have occurred: globalization, interculturalism and collaboration.

Communication technology and the participatory culture add new possibilities for cyberdemocracy on a global scale. Despite language and culture barriers, globalization and international communication is easier than ever before. We can use media to exchange ideas more freely in a mutually beneficial way. To succeed in global communication, one must understand aspects of the culture, which inspires listening, interacting and learning. A digital divide between those that have access to technology and those that do not is inhibiting the participatory culture and globalization of technology (2017). Many are working to overcome the divide so more cultures can add to a richer, more diverse participatory culture.

Coupled with globalization is interculturalism, which challenges the human desire to gravitate toward people most like ourselves. It helps people become more confident in interactions with different ethnic groups by teaching them to consider the ways they relate rather than being threatened by what differences may arise between them (Cantle, 2016). The media gives diverse cultures a stronger voice. Communication breeds understanding, and understanding builds compassion and relationships. Interculturalism takes multiculturalism a step farther, as multiculturalism is simply living in an area with mixed ethnic groups and cultures; interculturalism seeks to create a society that does not force, but encourages people from a different background to intermingle, knowing even people so different from us have something valuable to offer (Schriefer & Schriefer, 2016). Participatory culture and media convergence lay the foundation for an intercultural society.

As the media moves away from one-way distribution of communication, collaboration becomes a stronger resource. More journalists are relying heavily on their audiences to create and curate the content (Lavrusik, 2009). There are some ideas that are bigger than a single person. So many talented people are able to use the media to connect with the right people and achieve their goals, whether political, personal or business.

Media convergence and the growing participatory culture are also affecting the Christian mission. Globalization gives us an opportunity to reach more people with the gospel, although many think it is a proliferation of non-Christian ideas (Thomas, 2015). Similarly, interculturalism helps us understand the cultures to which we ought to interact with, pray for, sympathize with, share good news and exemplify the love of Christ. Interculturalism helps us relate to people who are different so we can engage in a mutually beneficial dialogue. Christians should always collaborate in their church home among brothers and sisters in Christ, building knowledge, sharing ideas and taking care of one another. They should also collaborate with caution in our postmodern culture, not to lead to distortion of Scripture or an obligation of toleration to false claims of truth. The possibilities of the participatory culture are immeasurable.

Sources: About Interculturalism, Cantle, T. (2016); Digital Divide (2017, September 11); 7 Ways News Media are Becoming More Collaborative, Lavrusik, V. (2009, December 29); What’s the difference between multicultural, intercultural, and cross-cultural communication? Schriefer, P., & Schriefer, A. P. (2016, April 20); A Christian Perspective on Globalisation – Banner of Truth, Thomas, G. (2015, August 18)

OJ should not be in jail…for that

OJ Simpson should not be in jail for his 2008 crimes. In 1994 he was acquitted of the murders of Nicole Simpson and Ron Goldman. In 2008 he was convicted of burglary, kidnapping, conspiracy and possession of a deadly weapon. OJ claimed he had sports memorabilia and other things stolen, including family photos, and he held the thieves hostage in a Las Vegas hotel. He was sentenced 33 years in a Nevada prison.

Contrast that with his accomplice, Clarence “CJ” Stewart, who was with OJ through it all. His conviction of 27 years was reversed. How do you keep one person in jail and let the other walk free for the same charges?

OJ did not receive the 33-year sentence for this alleged robbery. He received it as punishment for getting away with murder. Based on double jeopardy, the decision in this robbery case should not be judged by his criminal history.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states:

“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

This includes protection against retrial after acquittal or conviction. The court must also consider collateral estoppel, which says once the court has decided an issue of fact or law necessary to its judgment, that decision precludes relitigation of the issue. The rationale is that it will prevent legal harassment and abuse of judicial resources.

A criminal jury decided OJ did not kill two people. A civil court ruled he did, and he received $33 million in punitive and compensatory damages, which he cannot be forced to pay. It’s the law. No one ever said it made sense. Because humans made the law there will always be flaws, and our criminal justice system is wrought with injustices.

If we’re going by the book, OJ should walk free tomorrow. I think Judge Glass had his mind made up going into the courtroom in 2008. His decision was biased and unconstitutional. Perhaps this is one of those rare cases where a subjective opinion is justified. Sometimes you have to say, “Screw the book, lock up the Juice!” I have faith that our judges, police officers and other civic leaders generally have our best interest in mind.

OJ should not be in jail for burglary, conspiracy or kidnapping. He should be in jail for the brutal murders of Nicole Simpson and Ron Goldman.

The Evolution of First Amendment Tests

“Clear and present danger” – the ambiguous test adopted in landmark case Schenck v. Unites States by Justice Holmes. It determines under which circumstances First Amendment limits apply.

The country was deeply divided in 1919 when the U.S. entered into the Great War. The war, opposed by radical leftists and German sympathizers, was a time when the First Amendment was brought into question.

In Schenck, the Court chose not to protect the First Amendment rights of men who distributed anti-draft leaflets to young men, promoting resistance to the war. Based on the idea that their actions could impede the war effort, the Court upheld the conviction calling it a clear and present danger.

This clear and present danger test adopted in Schenck meant Congress had a right to prevent speech used in circumstances, such as wartime, that create a clear and present danger to bring about basic evils. However, weeks later in a similar case, Justice Holmes dissented in Abrams v. U.S. on the means that the defendants didn’t have the necessary means and specific intent to “cripple the U.S. in the prosecution of the war.”

Six years later, in Gitlow v. New York, the Court upheld conviction based on the rationale of the bad tendency test, saying a state may forbid speech or publication if it might result in dangerous action even if the danger isn’t clear or present. The majority stated:

“A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace.”

Dissenters believed the criteria established in Schenk should apply to the case, meaning the clear and present danger test should be used rather than the bad tendency test. Holmes argued that the writings present no danger to violently overthrow the government.

Brandeis and Holmes in 1927 promoted the clear and present danger test in Whitney v. California, but encouraged even more freedoms this time. They adjusted the language from “present danger” to “imminent danger” to support greater protections for speech.
The clear and present danger test was adopted and used by the majority in 1940, but rejected in 1950 in Dennis v. U.S. when they adopted the “balancing test.” This variation of clear and present danger meant that in each case, the Court could decipher whether the “gravity of evil, discounted by its improbability, justified such invasion of speech as is necessary to avoid danger.” This led the court to consider many different factors in each case, deciding whether it is appropriate to take privileges when compared to the likelihood of success. This balancing test was used for two decades.

Today, the courts use a variation of the clear and present danger test that is narrower, with less freedom for the courts to interpret, as is their preference. The courts do not like ambiguity, and have applied a standard established in Brandenburg, which holds, “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.”

SOURCES: Wikipedia: “Clear and Present Danger,” “Schenck v. U.S.,” “Abrams v. U.S.”

Objectivity in the 24-hour News Era

Both biases and objectivity have their place in the news. Everyone sees the world through a different lens, and I might even say objective journalism is unattainable in our 24-hour news cycle; however, objective information testing and evaluation is not.

Objectivity, like any skill, must be practiced and can be improved. To borrow a phrase from Dr. Philip Patterson,

“It would be ideal for both sides to either be equally happy or equally outraged at the finished product.”

While it is not realistic to think our 24-hour news era can make every player content, most of the time it should be the goal that everything is reported accurately and impartially.

Biases are not always a bad thing. They could bring passion in investigative journalism. Alternatively, some news stations thrive on the credulity of their audiences. Most people don’t watch the news objectively. Even if facts are presented objectively, it’s human nature to put a subjective meaning to it.

The news industry is becoming more of an entertainment industry, leaning one way or the other as a successful business model. Arguing is entertainment, and entertainment is money.

We make objectivity much harder than it has to be. Third party evaluation is important in journalism, and any sensible national news station should have a third party check system. Developing a consistent and reliable way for testing cultural and personal biases and keeping them out of the way is one way to achieve balance.

 

Freedom Measured by Vulnerability

What happens when constitutional freedom and safety conflict?

Benjamin Gitlow was a member of the Socialist party and a business manager for The Revolutionary Age newspaper in 1925. He, alongside three others, were charged under New York’s Criminal Anarchy Law of 1902 for publishing “Left Wing Manifesto” in the newspaper he worked for. The writings called for establishing socialism through strikes and class action.

His trial followed the Red Scare of 1919 and 1920. This was a time when many leftists – anarchists, Bolshevik Revolution sympathizers, labor activists, communists, or socialists – were convicted under the Espionage and Sedition Acts. The country and the Court were caught up in an anti-German hysteria. Whenever society feels vulnerable to such emotion, freedom suffers. Former Chief Justice William Rehnquist stated,

“[SCOTUS] has often interpreted the law differently in wartime than in peacetime.”

I believe the manifesto plainly advocated and called to action the accomplishment of the Communist Revolution through riots and force. I agree with the following court decision to uphold conviction at this time when the threat of anarchy was so present. I think freedoms should be preserved, but I also believe in being responsible in exercising those freedoms.

Petitioner’s defense was that the writing was a historical analysis rather than advocacy of capitalism collapsing. He argued that the state’s criminal anarchy law violated his freedom of expression protected under the First Amendment.

By proposing appeal, Gitlow asked SCOTUS to reverse precedents under the Fourteenth Amendment’s due process clause that requires protection of liberty guaranteed by the Bill of Rights. The Court had to decide if it wanted to review a challenge to a state law on the means that it contradicted the federal constitution.

SCOTUS took the case to consider the question: Is the New York Criminal Anarchy Law that punishes advocacy to violently overthrow the government a violation of free speech under the First Amendment?

The New York court ruled that anyone who advocated the doctrine of violent overthrow violated the law. On a 7-2 decision for New York, the majority upheld conviction, ruling that free speech does not shield Gitlow from the state law. Based on the rationale of the “dangerous tendency test,” a state may forbid speech or publication if it might result in dangerous action even if the danger isn’t clear or present. The majority stated:

“A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace.”

Gitlow lost his own appeal but struck a win by causing SCOTUS to rewrite rules concerning free expression at the state level, requiring states to respect freedom of speech, religion, and press. This is the first time the Court ruled that the Fourteenth Amendment’s due process clause holds state and federal governments at the same standard of regulating free speech, known as the incorporation doctrine. This precedent made two landmark cases possible: Near v. Minnesota and New York Times v. Sullivan.

Gitlow nearly reversed the precedent set by Baltimore v. Barron, which held that the Bill of Rights only applied to the federal government. This began a trend toward nearly every constitutional provision applying to both federal and state government.

Recently in McDonald v. City of Chicago, SCOTUS found the Second Amendment to be a fundamental right of all law-abiding citizens over 21 and that it is “fully applicable” in every state. Justice Oliver Holmes argued that the writings present no danger to violently overthrow the government.

Sources: Media Law by Overbeck; Wikipedia: “Gitlow v. New York” and “Schenk v. New York” Gitlow v. New York ((1925) 268 U.S. 652 found at oyez.org; All the Laws but One: Civil Liberties in Wartime by Former Chief Justice William Rehnquist