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Media Law
Freedom of Speech II.

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Tests – Supreme court of the U.S.A.
I.Bad tendency doctrine
•Whitney v. California 274 U.S. 357 (1927)
•It is a fundamental principle, long established, that the freedom of speech and of the press which
is secured by the Constitution, does not confer an absolute right to speak or publish, without
responsibility, whatever one may choose, or an unrestricted and unbridled license that gives
immunity for every possible use of language and prevents the punishment of those who abuse this
freedom. […] It does not protect publications or teachings which tend to subvert or imperil the
government or to impede or hinder it in the performance of its governmental duties. Gitlow v. New
York (1925)
II.Clear and present danger doctrine
•I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to
murder, the United States constitutionally may punish speech that produces or is intended to
produce a clear and imminent danger that it will bring about forthwith certain substantive evils
that the United States constitutionally may seek to prevent. The power undoubtedly is   greater in
time of war than in time of peace because war opens dangers that do not exist at other times.
ABRAMS v. U S, Holmes dissenting
III.Imminent lawless action
IV.Preferred position doctrin
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Tests– Supreme court of the U.S.A.
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Fighting Words
nChaplinsky v. New Hampshire 315 U.S. 568 (1941)
nIt is well understood that the right of free speech is not absolute at all times and under all
circumstances. For example, lewd or obscene speech, profane or libelous speech may legitimately be
limited. This also included 'fighting words': [Words] which by their very utterance inflict injury
or tend to incite an immediate breach of the peace.
nR.A.V. v. City of St. Paul 505 U.S. 377 (1992)
nAlthough the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been
limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that
amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies
only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed,
religion or gender." Displays containing abusive invective, no matter how vicious or severe, are
permissible unless they are addressed to one of the specified disfavored topics. Those who wish to
use "fighting words" in connection with other ideas - to express hostility, for example, on the
basis of political affiliation, union membership, or homosexuality - are not covered. The First
Amendment does not permit St. Paul to impose special prohibitions on those speakers who express
views on disfavored subjects.
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Restriction of speech
nassessment of particular categories of speech (negative content regulation), e.g.:
nindecency
nprotection of the state (public order)
nprotection of the state organs (incl. protection of the court proceedings)
nregulation of elections
netc.
nprior restraints (incl. general censorship)
nincidental restrictions

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Obscenity, indecency,… in Europe
nHandyside v. the United Kingdom 7 December 1976:
nIn particular, it is not possible to find in the domestic law of the various Contracting States a
uniform European conception of morals. The view taken by their respective laws of the requirements
of morals varies from time to time and from place to place, especially in our era which is
characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their
direct and continuous contact with the vital forces of their countries, State authorities are in
principle in a better position than the international judge to give an opinion on the exact content
of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to
meet them.
nOpen Door Counselling Ltd. and Dublin Well Woman v. Ireland (1992):
nThis can be a political question.

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Obscenity, indecency,… in Europe and elsewhere
n"A ver" Case (Spain):
npublic morality -- as a shared ethical component of social life -- is liable to take different
forms across different periods and in different countries and is conventionally not immutable from
a social point of view.
nKorea:
nObscenity is a sexually blatant and undisguised expression that distorts human dignity or
humanity. It only appeals to prurient interests and, if taken as a whole, does not possess any
literary, artistic, scientific, or political value.

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Obscenity, indecency,… in the Europe
nObscene Publications Act 1959 (U.K.):
nFor the purposes of this Act an article shall be deemed to be obscene if its effect or (where the
article comprises two or more distinct items) the effect of any one of its items is, if taken as a
whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it.
nCzech Republic:
nIV. ÚS 606/03
nIncidence on person with common feelings
nquestion of art

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Protection of youth and infancy
nCouncil Directive 89/552/EEC (Television without frontiers).
nArticle 22: Member States shall take appropriate measures to ensure that television broadcasts by
broadcasters under their jurisdiction do not include programmes which might seriously impair the
physical, mental or moral development of minors, in particular those that involve pornography or
gratuitous violence. This provision shall extend to other programmes which are likely to impair the
physical, mental or moral development of minors, except where it is ensured, by selecting the time
of the broadcast or by any technical measure, that minors in the area of transmission will not
normally hear or see such broadcasts.
nCase E-8/97:
nThe exception in the second sentence of Article 22, first paragraph does not extend to programmes
'which might seriously impair the physical, mental or moral development of minors` dealt with in
the first sentence of Article 22, first paragraph.

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Obscenity, indecency,… in the U.S.A.
nJACOBELLIS v. OHIO, 378 U.S. 184 (1964):
n… I imply no criticism of the Court, which in those cases was faced with the task of trying to
define what may be indefinable. I have reached the conclusion, which I think is confirmed at least
by negative implication in the Court's decisions since Roth and Alberts, that under the First and
Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core
pornography. I shall not today attempt further to define the kinds of material I understand to be
embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing
so. But I know it when I see it, and the motion picture involved in this case is not that.

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Obscenity, indecency,… in the U.S.A.
nMiller v. California 413 U.S. 15 (1973):
nTaken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not
have serious literary, artistic, political or scientific value.
n(a) whether "the average person, applying contemporary community standards" would find that the
work, taken as a whole, appeals to the prurient interests; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or
scientific value.

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Obscenity, indecency,… in the U.S.A.
nUNITED STATES v. ONE BOOK CALLED "ULYSSES„:
nThe reputation of "Ulysses" in the literary world, however, warranted my taking such time as was
necessary to enable me to satisfy myself as to the intent with which the book was written, for, of
course, in any case where a book is claimed to be obscene it must first be determined, whether the
intent with which it was written was what is called, according to the usual phrase, pornographic,
that is, written for the purpose of exploiting obscenity. If the conclusion is that the book is
pornographic, that is the end of the inquiry and forfeiture must follow. But in "Ulysses," in spite
of its unusual frankness, I do not detect anywhere the leer of the sensualist. I hold, therefore,
that it is not pornographic.

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Reality television – Big brother series
nOne of the key rationales for regulatory intervention refers to the power of broadcasting to
intrude into people’s lives and to influence their lives.
nRegulate such tv series?
nregulate reality television?

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Public order
nRight to criticize the Government.
nCastells v. Spain 23 April 1992:
nIn the case under review Mr Castells did not express his opinion from the senate floor, as he
might have done without fear of sanctions, but chose to do so in a periodical. That does not mean,
however, that he lost his right to criticize the Government.
nThorgeir Thorgeirson v. Iceland 25 June 1992:
nPress as a public watchdog.
nHigh protection of political dabates.

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Public order – the question of war
nGovernment propaganda
ncensorship
ninterest of people
ninterest of government
Fenton_cannonballs_crimea harvest