WUSC Talks Media Law and the First Amendment

As part of WUSC’s Free Speech initiative, News Director Nick Vogt and myself interviewed Jay Bender on 90.5 Minutes of the News. Bender is the Reid H. Montgomery Freedom of Information Chair at the School of Journalism and Mass Communication, where he teaches media law. He also teaches media law at the School of Law and is a practicing attorney specializing in first amendment law. He has represented the South Carolina Press Association and the South Carolina Broadcasters Association, as well as various reporters and media outlets. We talked with Professor Bender about free speech. He stressed that the right of free speech is always a struggle. “During times of turmoil, the government puts great pressure on unorthodox speakers and speakers who urge a view contrary to government policy and it’s been that way throughout our history,” Bender said. Most people know free speech in America isn’t absolute. The classic example is not being allowed to yell “fire” in a crowded theater when there’s no fire. According to Bender, “the Supreme Court has seen the first amendment as a right or a protection to be balanced against other interests the government might have.” This balance includes restrictions against obscenities and speech likely to incite violence. Professor Bender brought up something we are acutely aware of at WUSC – the Federal Communications Commissions (FCC) restriction we must obey against airing swearing on the airwaves. This limits the music we can play and the on-air commentary we can offer, but it’s one of those restrictions the government has deemed in the public interest. Many people believe individuals abuse their rights, such as the Westboro Baptist church or the KKK. Bender agrees “free speech could certainly be abused in a private context…but the government cannot be offended by speech, particularly where it’s commentary on the operations of government and criticism of government officials.” He pushed back against the recent push to limit criticism of religion or try to limit “hate speech” against groups. “What is hate speech?” Bender asked. “How do you draw the line between hate speech and protected speech?” Bender tackled the issue of campus protests, comparing the protest at USC after the events in Ferguson with the protests on the campus of Coastal Carolina. He praised the reaction of USCPD, who worked with protesters and criticized campus police at Coastal, who arrested several students for defacing property when they drew chalk outlines on sidewalks. Bender praised USC on free speech, arguing “this university in recent times has been tolerant of speech and I applaud the administration for that. It was not always the case.” He encouraged students to speak out, noting “one of the beauties of being young is you have the opportunity to explore a lot of things and the limits of free speech would be one of those.” Throughout the interview, Bender offered a spirit defense of free speech. “Citizens benefit when problems can be exposed and discussed,” he said. “One of the philosophical justifications of the first amendment is that it is a safety valve. It allows the society that has unhappiness to express itself and discuss possible solutions.” You can hear our full interview with Jay Bender here: https://www.youtube.com/watch?v=La5xuH3uvYY For WUSC News, I’m Ben Turner.