Page 357 - Law and the Media

Law and the Media
one specific telephone, used by that person may be monitored. They may also subpoena
the addresses and times of email messages sent by those suspected of terrorism. National
security investigators will be able to obtain a court order in order to place wiretaps on
terrorist suspects if foreign intelligence operations are a ‘significant’ rather than the only
purpose of the investigation.

The surveillance powers for wiretapping telephones and computers provided by the USA
Patriot Act 2001 have ‘sunset clauses’ and will expire in 2005. However, any information
obtained in that period under the provisions of the Act may be used in court proceedings after
2005. The Act also provides that the United States government may be sued for information
that is ‘leaked’ as a result of the increased wiretapping and surveillance powers.

21.6 Reporting restrictions

The First Amendment to the Constitution prohibits Congress from interfering with freedom
of speech or freedom of the press. The free flow of ideas is considered to be an important
function in a democratic society and the rights under the First Amendment are considered to
be ‘fundamental’. As a general rule, the press has no greater freedom to speak than a member
of the public.

However, these freedoms are not absolute. State governments and the federal government
can legislate in respect of them although such legislation is subject to constitutional
challenge in the courts. When considering the lawfulness of such regulation, the courts will
balance the importance of the fundamental rights with the purpose the government is trying
to achieve. The court will only uphold the law if it is ‘necessary to achieve a compelling
government purpose’.

Access to court proceedings
The First Amendment guarantees the public and the press the right to attend criminal trials
and pretrial proceedings. The guarantee probably also applies to civil trials. However, the
right may be outweighed if the trial judge finds that there is a ‘compelling interest’ in holding
the hearing or part of the hearing in private, such as the need to protect children who are
victims of sex offences.

Regulation of broadcasting
The courts will not interfere so readily with legislation by state and federal governments in
respect of radio and television broadcasting. This is because the broadcast media do not have
as many opportunities to bring news and information to the public as the press. The right of
the public to receive information of public concern is more important than the right of the
broadcast media to broadcast what they please.
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