FROM THE CHAIR
A lawyer for a major entertainment company commented to me recently that he feels like
the media is under siege. In the wake of devastating events—the death of Princess
Diana, the murder of a loved one, or horrific acts of violence against students in
Littleton, Colorado, and elsewhere around the country, to name a few—the struggle to
comprehend how and why the tragedies happened inevitably has lead to a search for someone
or something to blame. In this search for easy answers and easier solutions, it has become
more and more popular to blame the media for virtually every societal ill, and to propose
regulation of movies, television, or other media as the cure-all.
It is disturbing to contemplate where this sentiment may lead us, and to see how the
public’s negative view of the media already is playing out in legislatures and
courtrooms across the country. And there are all-too-real examples of what may happen when
the quest for simple solutions to complicated societal issues causes people to lose sight
of fundamental constitutional protections for free speech and press: enactment of statutes
like California’s anti-paparazzi legislation (which is the subject of one of the
articles in this issue), cries for federal regulation of the motion picture industry, and
recent results in lawsuits against the media—including a court decision permitting a
suit to proceed against Oliver Stone and others for crimes purportedly inspired by the
film "Natural Born Killers," and a $25 million jury verdict against a television
talk show for purportedly "causing" the death of a guest who indisputably was
murdered by another guest. Unfortunately, it seems as if the more amorphous values of
protecting newsgathering and free expression sometimes gets lost in the rush to do
something about a very real human tragedy.
Of course, this is not a new phenomenon; the same reaction that "something must be
done" was seen immediately following an unpopular verdict in a criminal murder trial
involving a famous football star. Then, California state legislators rushed to enact laws
controlling juries, witnesses, and various other aspects of the criminal justice
system—most of which were later found to be unconstitutional or unwise.
This is not to say that the media has no responsibility to constantly monitor and
evaluate its own behavior. The constitutional rights which must protect the media from
legal liability, so that free-flowing and widespread exchange of ideas and expression is
ensured, are consistent with a responsible exercise of those rights. As one of my
journalism professors told my class many years ago, there is a difference between
"can" and "should," and both must be taken into account by responsible
media and entertainment companies.
But members of the media sometimes are their own worst enemies when it comes to public
opinion. Because every self-respecting news organization wants to be seen as
"responsible," it has become fashionable for members of the media to criticize
each other. Unfortunately, this frequently occurs in a one-sided manner that either
belittles or completely disregards the underlying justifications for constitutional
protection of speech or expressive conduct—and ignores the fact that the constitution
is designed and intended to protect speech that is politically unpopular or even downright
offensive. It is hardly reasonable to expect members of the public to understand and
accept the protections guaranteed by the First Amendment if they are constantly being told
that the media is to blame for whatever problems society faces, and that the solution is
either regulation or legal liability.
It will be a challenge for communications lawyers in the next few years to combat the
almost irresistible urge of lawmakers and the public to take short-term decisive action in
response to a specific event that is directly contrary to the fundamental values the First
Amendment protects. At the same time, it is a challenge for communications companies in
the next few years to consider how their own conduct may affect the public’s
perception of the importance of protecting constitutional rights of speech and the press.