Annual Media Institute report card on respect for First Amendment rights gives state, local officials ‘D-minus’ and federal offi

Monday, March 8, 1999

WASHINGTON — Federal, state and local governments got low grades in respect for the First Amendment in legislative and executive decision-making, with the judicial branch emerging as the lone bright light, The Media Institute said today in its annual “report card.”

In the third review of decisions by lawmakers, other elected and appointed officials and the courts, the Media Institute said Congress, the White House and other federal governmental agencies earned a “D-plus” for actions in 1998 in four areas of review: online issues, broadcast and cable television, commercial speech and libel law/punitive damages/tort actions.

But the federal government did far better than state and local governments, which were separated out for their own rankings for the first time ever in this year’s report. State and local governments barely escaped a failing grade, earning a “D-minus” in the ratings in the report released at a news conference today.

Only the courts got a report card that would have kept them out of trouble if they had brought those grades home to a watchful parent. The Media Institute said the courts earned a “B-” for their First Amendment actions in 1998.

“Perhaps the most disturbing news of this year’s report is the miserable performance of state and local officials, who often seem utterly heedless of First Amendment principles,” said Richard T. Kaplar, vice president of the Media Institute and editor of the report.

On the other hand, Kaplar said, the courts have been the “sole bright spot” for the First Amendment on a consistent basis, perhaps because of their freedom from political pressures and trends.

“Typically, the political branches of government do not fare all that well; the judicial branch fares better,” said Robert Corn-Revere, chairman of the Media Institute’s First Amendment Advisory Council. “A good political decision can be a terrible decision in terms of constitutional impact and First Amendment law.”

Corn-Revere also examined the key developments in the four issue areas for the most and least promising developments in each group and released those findings as well. They are:

  • Online: Rated the worst development in this very active area was the passage by Congress of the Child Online Protection Act (COPA), aimed at keeping pornography off the Internet. Corn-Revere said the law, which has been blocked from taking effect by a court injunction issued on Feb. 1, is in fact another attempt at the same content controls Congress tried in the Communications Decency Act, which was struck down by the Supreme Court in 1997. The most promising development for online speech, Corn-Revere said, was the federal court ruling striking down the attempts by officials in Loudoun County, Va., to control Internet access on computers in public libraries through the use of filters.
  • Broadcasting and Cable Television: The least promising development was the Federal Communications Commission’s failure to repeal regulations regarding personal attacks and political editorials by broadcast outlets. Corn-Revere said the 18-year-old rules are “probably unconstitutional” and “go to the heart of unequal treatment of broadcasting” versus other media in terms of First Amendment issues. The “best” development was the decision by a federal appeals court in Wilmington, Del., striking down a section of law that required that sexually explicit cable channels be fully scrambled by a cable operator or else the channels could not operate between 6 a.m. and 10 p.m.
  • Libel Law/Punitive Damages/Tort Actions: The least promising development was a Louisiana appellate court’s decision that the producers of the film “Natural Born Killers” could be sued by the victims of a convenience store shooting on grounds that the gunmen were influenced by the movie. Corn-Revere said this was a continuation of a trend, first witnessed in the case of the “Hit Man’s Manual,” to “blame the publishers for the actions of others” to whom they have no connection. The most promising development was the repudiation of the so-called “veggie libel” laws that subject someone to a lawsuit for making remarks that disparage agricultural products. The main case in this regard was Oprah Winfrey’s victory over Texas cattlemen who sued the popular television personality after she made some anti-beef remarks.
  • Commercial Speech: The least promising development, Corn-Revere said, was the tobacco settlement with states that included “the voluntary restrictions on advertising” on billboards and the use of the character “Joe Camel” in the advertisements. Corn-Revere said this raised a “significant issue of what happens when an industry bargains away First Amendment rights” in out-of-court settlements or consent decrees. The most promising developments were a series of appellate court rulings on commercial speech, he said.

Pressed on why restrictions on the tobacco company’s use of character designed to appeal to children in the marketing of a dangerous product posed First Amendment concerns, Corn-Revere said the group disagreed with negotiated settlements that make certain practices “immune to challenge” on First Amendment standards.

“To simply assume away First Amendment considerations because you don’t like a product … is dangerous,” Corn-Revere said. He said the “worst development” ranking was based on objections to “the process by which you have all the states coming together and saying let’s agree on how First Amendment rights are going to be limited.”