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Courts Outperformed Congress and Administration in Protecting Media's First Amendment Rights, Annual Media Institute Survey Finds

FOR RELEASE: March 8, 1999

Contact: Richard T. Kaplar
The Media Institute


March 8, 1999

The courts performed significantly better than either Congress or the Administration in protecting the First Amendment rights of the media in 1998, according to an annual survey released today by The Media Institute.

The First Amendment and the Media - 1999 examines government actions on 33 separate issues that affected media speakers and freedom of the press in 1998. Subtitled "An Assessment of Free Speech and a Free Press by The Media Institute and its First Amendment Advisory Council," the report rates the overall performance of the three branches of federal government plus state and local government as follows:

State &
D+ D+ B- D-

A number of court decisions on cyberspace issues helped account for the Judicial Branch high marks: blocking enforcement of the so-called "Communications Decency Act II"; finding the "dirty pixels" law unconstitutional; overturning state Internet restrictions; and striking the Internet filtering policy of the Loudoun County, Va., library system.

The Executive Branch received only a D+ for actions that included the FCC's adoption of new public interest obligations for DBS providers; its rejection of a petition to scrap the personal attack and editorializing rules; and its contemplation of even stricter limits on media ownership.

Congress rated a D+ for attempts to restrict on-line speech, notably for passage of the Child Online Protection Act (COPA or "CDA II"), which was immediately challenged in court.

State and local governments, meanwhile, rated poor grades for myriad attempts to impose restrictions on outdoor advertising; for California's novel "paparazzi law" to restrict photographers; and for the "veggie libel laws" on the books in over a dozen states.

Last year, by comparison, the grades were similar: Executive D+; Legislative D+; and Judicial C. (State and local actions were not graded separately.)

"Perhaps the most disturbing news of this year" 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.

Kaplar noted one general conclusion based on three years of data: "The performance of the political branches of government has been consistently dismal. The courts have been the sole bright spot -- and occasionally brilliant, as in 1997's Communications Decency Act ruling and in the decisions of a number of lower courts during the past year," he said.

The report examines 33 government actions in four major categories: (1) on-line issues; (2) broadcasting and cable television; (3) commercial speech; and (4) libel law / punitive damages / tort actions. The report's 33 chapters were written by 12 communications and constitutional authorities, most of whom are members of The Media Institute's First Amendment Advisory Council.

Copies of The First Amendment and the Media - 1999 are available for review by working journalists, or may be purchased for $14.95 each (plus $2 shipping) from the Publications Department, The Media Institute, Suite 301, 1000 Potomac St., N.W., Washington, D.C. 20007. Orders may be phoned to 202-298-7512 or faxed to 202-337-7092.

The Media Institute is a nonprofit research organization in Washington, D.C., specializing in communications policy and First Amendment issues. The Institute advocates freedom of speech, a competitive communications industry, and excellence in journalism.