14 Pages Posted: 13 Jul 2012
Date Written: 2012
This Article provides an overview of the discussion of media censorship in the 2011 symposium issue of the Notre Dame Journal of Law, Ethics, & Public Policy. It introduces the three crucial types of decisions that are made by media or government actors regarding the content of communication flows.
The first type involves the voluntary choices by media organizations of what information they will present to the public. Symposium contributor Robert Sedler believes that this practice is reflected, pursuant to the Supreme Court's First Amendment jurisprudence, in the "good" and "bad" self-censorship that occurs in a wide variety of media. Here, Professor McDonald further examines potential causes for "bad" self-censorship in the media, especially those related to "entertainment"-oriented media reporting for the purpose of increasing advertising revenue.
Another symposium author, Hannibal Travis, focuses on a specific issue of media self-censorship: the government's undue influence over large media conglomerates as a cause of their reluctance to criticize the government's war efforts, which is apparent in traditional media channels, such as television, radio, and newspapers, as well as the Internet. Here, Professor McDonald posits that increased oversight of relationships between big media companies and governmental organizations can help prevent those relationships from becoming "too symbiotic."
The final contributors on this topic, Clay Calvert and Mirelis Torres, explore the ways in which professional journalism ethics and legal standards can and do operate to promote good media decisions during wartime, proposing a multi-factor framework for editors to use in determining whether it is appropriate to publish disturbing war-related images. Professor McDonald further discusses and analyzes that framework here.
The second type relates to decisions concerning self-censorship made by media consumers. Author George Wright argues that "cyberbalkinization," which is when people choose, either consciously or unconsciously, which information to access, impairs and degrades not only public discourse, but also individuals' abilities to think broadly and in a fair-minded way. Here, Professor McDonald relates this to Justice Holmes' suggestion that freedom of speech creates a truth-illuminating marketplace of ideas, which fosters civil and personal virtue.
The third type involves restrictions on communication flows by the government. Author Derigan Silver discusses the intersection between the public's right to attend judicial proceedings and the importance of deferring to executive branch decisions regading the withholding of information for national security reasons. Professor McDonald expands on this idea here by discussing the government's tendency to over-classify information as a means of establishing and maintaining information-based power.
Another symposium participant, Kevin Saunders, explores a different area of government limits on the flow of information: restricting the ability of video game retailers to sell violent video games directly to minors. Professor McDonald expands on this phenomenon from an important First Amendment perspective, explaining how these types of restrictions do not constitute censorship.
The symposium's final author, Terence Lau, explores and advocates the concept of "Zero Net Presence," a new form of statutory remedy requiring the complete elimination of all traces of the name or identity of an injured party from the Internet. Professor McDonald introduces a challenge for Lau's proposal: how to determine when the "ZNP right" could be constitutionally applied without being too vague, too broad, or a prior restraint.
As the symposium authors and Professor McDonald demonstrate, all three of these alleged censorship types present difficult and important legal and public policy questions regarding the shaping of communication flows in our society.
Keywords: First Amendment, Censorship, Media, Communication, Government, Newspaper, Television, Radio, Zero Net Presence, Information, Classified, Video Game, Supreme Court
Suggested Citation: Suggested Citation
McDonald, Barry, Censorship & the Media: A Foreword (2012). Notre Dame Journal of Law, Ethics and Public Policy, Vol. 25, 2011; Pepperdine University Legal Studies Research Paper No. 2012/23. Available at SSRN: https://ssrn.com/abstract=2104289