The Missouri Bar 2012 Constitution Day Program

The Missouri Bar 2012 Constitution Day Program

Free Speech and Political Campaigns

A Joint Project of the Missouri Bar and HEC-TV Live

September 17, 2012

STUDY GUIDE

(Prepared by Millie Aulbur, Director of Citizenship Education, The Missouri Bar)

introduction

The Missouri Bar and HEC-TV are proud to host The Missouri Bar Constitution Day Program for the fifth consecutive year. The 2011 Constitution Day Program on the presidency won a Telly Award. (The Telly Awards was founded in 1979 and is the premier award honoring outstanding local, regional, and cable TV commercials and programs, the finest video and film productions, and online commercials, video and films. Winners represent the best work of the most respected advertising agencies, production companies, television stations, cable operators, and corporate video departments.)

This year we are pleased to announce that the program will be broadcast from Thomas F. Eagleton Federal Courthouse in St. Louis.The program this year is on Free Speech and Political Campaigns. This topic is a somewhat ironic choice for a Constitution Day program because neither free speech nor political parties andpolitical campaigns are mentioned in the original Constitution. However, free speech is one of the guarantees of the First Amendment, which was proposed to the Constitution in 1789 and ratified in 1791. However, there is absolutely no mention of political parties anywhere in the current Constitution. Nevertheless, there are some very interesting constitutional issues associated with political campaigns that our panelists will address during the Constitution Day broadcasts.

The 2012 Constitution Day Program will air twice: 9:00-10:00 a.m. and 1:00-2:00 p.m. Constitution Day participants will have the opportunity to listen to a panel of experts on these topics and to submit their own questions and comments to the panel. The panel members are:

• Diana Bartelli Carlin, Ph.D. Dr. Bartelli is Vice-President of Graduate Education, St. Louis University and the creator DebateWatch.
• Governor Bob Holden. Governor Holden has served as both Missouri State Treasurer and the Governor of Missouri.
• Jack Oliver. Mr. Oliver is a lawyer and is the former Deputy Chairman of the Republican National Committee.

Objectives:

Students will be able to:

1. Identify and explain First Amendment free speech issues that arise during political campaigns.
2. Identify and explain key court cases that have addressed free speech issues and political campaigns.
3. Discuss how contributing money to political campaigns has been equated with the right to free speech.
4. Distinguish the difference between protected speech and unprotected speech such as libel and slander.
5. Discuss the role that political candidates have in making sure their campaign speeches and advertisements reflect a responsible use of free speech.
6. Discuss what role a responsible voter should take in evaluating political speeches and advertisements.

Purpose of the study guide

This study guide is intended as a resource for classroom teachers to prepare students for the Constitution Day broadcasts and to provide follow-up activities. The study guide has background materials, classroom activities, enrichment suggestions and links to outstanding Internet resources.

the making of the constitution and the bill of rights

We recommend several excellent websites for exploring the philosophical and historical foundations and for learning about the Constitution and the Bill of Rights, and for information about the Constitutional Convention of 1787 and the constitutional ratification process:

• The National Archives site at
• The National Constitution Center at
• The Constitutional Sources Project at

Free Speech and Political Campaigns

Historical background on political parties and campaigns

Although political parties are not mentioned in the Constitution, they certainly were on the minds of the Framers of the Constitution and of the Founding Fathers. In Federalist Paper #10 (all of The Federalist Papers may be found on the Internet from several sources), James Madison did not speak of political parties but rather of “factions”.

The role of the Federal Communications Commission in political campaigns

Equal access doctrine

Fairness doctrine

The Fairness Doctrine was a policy of the United States Federal Communications Commission (FCC), introduced in 1949, that required the holders of broadcast licenses to both present controversial issues of public importance and to do so in a manner that was, in the Commission's view, honest, equitable and balanced. The FCC decided to eliminate the Doctrine in 1987, and in August 2011 the FCC formally removed the language that implemented the Doctrine.[1]

The Fairness Doctrine had two basic elements: It required broadcasters to devote some of their airtime to discussing controversial matters of public interest, and to air contrasting views regarding those matters. Stations were given wide latitude as to how to provide contrasting views: It could be done through news segments, public affairs shows, or editorials. The doctrine did not require equal time for opposing views but required that contrasting viewpoints be presented.[2]

The main agenda for the doctrine was to ensure that viewers were exposed to a diversity of viewpoints. In 1969 the United States Supreme Court upheld the FCC's general right to enforce the Fairness Doctrine where channels were limited. But the courts did not rule that the FCC was obliged to do so.[3] The courts reasoned that the scarcity of the broadcast spectrum, which limited the opportunity for access to the airwaves, created a need for the Doctrine. However, the proliferation of cable television, multiple channels within cable, public-access channels, and the Internet have eroded this argument, since there are plenty of places for ordinary individuals to make public comments on controversial issues at low or no cost.

The Fairness Doctrine should not be confused with the Equal Time rule. The Fairness Doctrine deals with discussion of controversial issues, while the Equal Time rule deals only with political candidates.

Red Lion v. FCC

ami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), was a United States Supreme Court case that overturned a Florida state law requiring newspapers to allow equal space in their newspapers to political candidates in the case of a political editorial or endorsement content. The court held that while the statute does not "prevent [newspapers] from saying anything [they] wish" it "exacts a penalty on the basis of the content." Because newspapers are economically finite enterprises, "editors may conclude that the safe course is to avoid controversy," thereby chilling speech. Furthermore, the Court held the exercise of editorial judgment is a protected First Amendment activity. In effect, this ruling reaffirmed the constitutional principle of freedom of the press (detailed in the First Amendment) and prevented state governments from controlling the content of the press. This case illustrates the medium with the most Constitutional protection: newspapers, while Red Lion Broadcasting Co. v. FCC represents the medium with the least protection: broadcast, television, and radio.[citation

The equal-time rule specifies that U.S.radio and television broadcast stations must provide an equivalent opportunity to any opposing political candidates who request it. This means, for example, that if a station gives one free minute to a candidate on the prime time, it must do the same for another candidate.

However, there are four exceptions: if the air-time was in a documentary, bona fide news interview, scheduled newscast or an on-the-spot news event the equal-time rule is not valid. Since 1983, political debates not hosted by the media station are considered news events, thus may include only major-party candidates without having to offer air time to minor-party or independent candidates. Talk shows and other regular news programming from syndicators, such as Entertainment Tonight, are declared exempt from the rule by the FCC on a case-on-case basis.[1]

This rule originated in § 18 of the Radio Act of 1927 [1]. It was later superseded by the Communications Act of 1934, where the Equal Time Rule is codified as § 315(a).

Another provision of § 315(a) prohibits stations from censoring campaign ads. A related provision, in § 315(b), requires that broadcasters offer time to candidates at the same rate as their "most favored advertiser".

The rule was created because the FCC thought the stations could easily manipulate the outcome of the elections.

The Equal Time rule should not be confused with the Fairness Doctrine, which deals with presenting balanced points of view on matters of public importance.

money

Buckley v. Valeo, 424 U.S. 1 (1976), was a case in which the Supreme Court of the United States upheld a federal law which set limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law. The court also ruled candidates can give unlimited amounts of money to their own campaigns.

supreme court

Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), is a United States Supreme Court case in which the Court held that issue ads may not be banned from the months preceding a primary or general election.

discussion questions for students

and suggestions for further study and enrichment

1. How many political parties have nominated a presidential candidate for the 2012 election? Who are the candidates for each party? How many parties have nominated a gubernatorial candidate for Missouri’s 2012 election? Who are they and who are their candidates?

1. What is the Federal Elections Commission? When did it come into existence and why was it created?

1. James Madison defined factions in The Federalist Papers #10: “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Some constitutional scholars argue that political parties and factions are synonyms while other scholars opine that

• Enrichment activity: Look at the arguments of both the Federalists and Anti-Federalists pertaining to the presidency. Divide the class into two sides and conduct a modern day Federalist/Anti-Federalist debate about the presidency.
• Enrichment activity: Have the students research how various Presidents have used their executive powers in both domestic and international matters. (Some excellent examples may be found in particular with: George Washington, Thomas Jefferson, James Madison, James Monroe, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John F. Kennedy, Lyndon Johnson, Richard Nixon, Ronald Reagan and George W. Bush.)
• Further study: After further research, as a class, discuss which President(s) the students think have been the most influential in expanding the role of the President.

Don't swap horses in the middle of the stream

1. How has the evolution of factions into contemporary political parties influenced our governmental processes? Should the Constitution be amended to include the functions of major political parties?

• How might new ways of communicating and transmitting information diminish the importance of political parties?

• Should we make it easier for new political parties to form and to qualify for a place on the ballot—perhaps through greater public funding of campaigns?

alignment with missouri’s social studies standards

Constitution Day Show Me PerformanceCourse level expectations/

ObjectivesKnowledge/Content Process depth of knowledge