Chapter Three

Objectives

• To understand the concept of prior restraint.

• To explain the evolution of prior restraint law in America.

• To cite rules governing prior restraint today.

What is prior restraint?

• Suppressing speech before it has been published

• A.K.A. censorship!• Differs from “subsequent

punishment,” which punishes speech AFTER it has been disseminated

• Only a few kinds of prior restraint are permitted now

Early Prior Restraint Definitions

(1) Submitting proposed

publications (2) to government

censors (3) who exercised

considerable discretion

regarding the contents to

be approved for publication,

and it was (4) imposed specifically on

publication (5) in advance of the

publication.

Ways government tries to enact prior restraint…1. Censor news media as threat to national security.

2. Restrict rights of unpopular groups to demonstrate or distribute literature in public places.

3. Forbid “hate speech” on basis of ethnicity, religion, gender, sexual orientation.

4. Discriminatory taxation of mass media.

5. Government censorship of controversial films.

6. Attempts to regulate stock market newsletters.

7. Forbid media to print confidential info.

Major prior restraint case

• Near v. Minnesota (1931): THE case that said that prior restraint is generally unconstitutional– Jay Near published

The Saturday Press,“malicious, scandalousand defamatory” (andit was!)

– MN law said that thispublication was “publicnuisance” and shut it down

So what happened?• NO prior restraint: Supreme Court overturned MN

Supreme Court and allowed Near to keep on publishing

• Traced development of prior restraint and found that it should be rare

• Only three occasions where it could be OK:– Troop movements during wartime

– Obscenity

– “Incitements to acts of violence and the overthrow by force of orderly government”

The Pentagon Papers

• New York Times v. U.S. (1971): Daniel Ellsberg got hold of secret study by Dept. of Defense that criticized Vietnam war effort; he gave it to NYT and Wash. Post– Nixon administration demanded

papers stop publishing; they refused, and judge granted injunction, changed his mind and vacated, and federal ct. reinstated

Case went quickly to Sup. Ct.• Court took case during summer break• Voted 6-3 to set aside prior restraint and allow

papers to publish• Holding: Government had not proved publication

would endanger national security enough to justify prior restraint– “Any system of prior

restraints of expressioncomes to this courtbearing a heavypresumption against itsconstitutional validity”

Censorship & national security• U.S. v. The Progressive (1979): federal

district case, so little precedent– Progressive to publish article: “The H-

Bomb Secret: How We Got It, Why We’re Telling It”

– Accurate method of bomb-building through library research

– Alleged violation of 1954 AtomicEnergy Act

• Judge issued order forbidding publication

• Appealed, but other publications carried, so case moot

Overview of current protection of freedom of expression• No prior restraints; no seditious libel• Not protected at all:

– Defamation– Obscenity/Fighting words– Incitement to imminent lawless behavior– Commercial speech that advertises illegal goods/services or is

misleading– Child porn

• Semi-protected: Commercial speech that advertises legal goods/services and is truthful

• Highly protected: Political speech

The “scrutometer”• Content-based: regulates expression because of its

content (hate speech, fighting words, etc.)• Content-neutral: regulates any expression,

regardless of its content (time/place/manner regulations, noise regulations, etc.)

If a law is content-neutral...• Time/place/manner regulations

are usually OK• Tests are easier to meet

– Public forums require “least restrictive means to significant governmental interest”

– Non-public forums require that law be “rationally related to legitimate governmental interest”

• What is significant vs. legitimate? The courts decide!

Forms of prior restraint

• Laws enacted to forbid hate speech.

• Laws denying unpopular groups the right to demonstrate or distribute literature.

• Laws pertaining to discriminatory taxation of media.

Hate speech: “fighting words”

• Chaplinsky v. New Hampshire (1942): Introduced Fighting Words Doctrine--“words likely to cause the average addressee to fight”– Chaplinsky called official “a damned Fascist” and

got into fight– “Words by which their

very utterance inflictinjury or tend to incitean immediate breach ofthe peace” are not protected

Hate speech: Revisited• R.A.V. v. City of St. Paul (1992): St. Paul had hate

speech ordinance that punished actions on basis of race, color, creed, religion or gender– R.A.V., a minor, burned cross on black family’s lawn;

convicted

– U.S. Supreme Ct. overturned,saying ordinance wascontent-based—it singled outrace, color, creed, religion orgender hate speech, sounconstitutional

Hate speech: Cross burning• Virginia v. Black (2003): three men

convicted under VA’s 50-year-old cross-burning ban– Court upheld convictions:

intimidation and terror instilled by cross burning outweighed any speech value it may have

– “When a cross burning is used to intimidate, few if any messages are more powerful”

– Court did say some cross-burnings might be protected as free speech

Hate speech: Penalty enhancement• Wisconsin v. Mitchell (1993): several African-

American youths watched “Mississippi Burning” and then beat up a white youth; convicted– WI law said hate crimes had increased sentences; law

challenged (CA has one too)– U.S. Supreme Ct. upheld

conviction and law: “Aphysical assault is not by anystretch of the imaginationconduct protected by the FirstAmendment”

Hate speech: more symbolic• Cohen v. California (1971):

“fuck the draft” case– Cohen wore leather jacket

with those words on it into CA courthouse, convicted of disturbing the peace

– Overturned: Court said jacket was speech act that didn’t incite violence

• “One man’s vulgarity is another’s lyric”

Hate speech: flag desecration• Texas v. Johnson (1989): Johnson burned flag to

protest Reagan government; convicted under TX flag desecration statute– Court overturned conviction: “If there is a bedrock

principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”

– 48 state flag desecrationstatutes and federal statuteall overturned

Abortion speech• Madsen v. Women’s Health Center (1994): Court upheld

as reasonable time, place and manner restrictions: (1) 36-foot buffer zone between anti-abortion protesters and people seeking access to clinic; (2) noise restrictions– Other restrictions failed

as too broad

• Schenck v. Pro-ChoiceNetwork of WesternNew York (1997): Courtupheld fixed buffer zonesaround clinics but struck down floating buffer zones as too hard to enforce

Abortion speech• Planned Parenthood of the Columbia/Willamette v.

American Coalition of Life Activists (9CA 2002), a.k.a. The Nuremberg Files: website that “planned” for abortion to be illegal and for providers and supporters to be prosecuted by gathering info onthem and stronglysuggesting retribution– Held to be a true

threat and banned– Considered to be a

“true threat”

Nuremberg Files “status lists”

Pickets and leaflets• Lovell v. City of Griffin (1938): City ordinance said

approval was needed to circulate pamphlets– City fined Witness $50 for violation– Violates First Amendment; discretion left to city

manager who could control content– City said 1A only applied to newspapers; court said

extends to pamphlet as well

• Schneider v. State of New Jersey (1939): City tried to stop distribution by charging leafleting person with littering– SC said city may punish those who litter but not distributor.– Also said police can’t issue permits to restrict right to distribute– Reasonable time/place/manner okay if applied to

Private property literature distribution• Hudgens v. NLRB (1976): Shopping center manager

ordered picketers to leave mall– No Constitutional right to distribute literature at private

shopping center

• Pruneyard v. Robins (1980): Students refused permission to distribute literature opposing UN resolution against Zionism; sued and state SC said they have rights; mall owners sued– US SC said states can create broader rights than federal

constitution requires – It’s up to state legislatures and courts to decide if one can

distribute literature in private places

Political speech• McIntyre v. Ohio Elections Commission (1995): Court

upheld McIntyre’s right to distribute anonymous political leaflets – “Anonymity is a shield from the tyranny of the majority”

• Timmons v. TwinCities Area NewParty (1997): Courtupheld MN lawstating that no onecould appear onballot as candidatefor more than one party

Restricting Rock• Ward v. Rock Against Racism (1989) For several

years Rock Against Racism sponsored annual concerts in Central Park. Would not heed

warnings to lower music so city cut off electric power and refused them from ever holding concerts in Central Park.

-- Sound levels may be limited and government employees may be placed in charge of equipment.

Access to parades• Hurley v. Irish-American Gay, Lesbian and bisexual

Group of Boston (1995):Gay and lesbian groups nixed from parade. -- Sponsors have a right to decide their message and who participates.

• Boy Scouts of America v. Dale (2000) Scout leader dismissed because he was gay. --Boy Scouts have First Amendment rights to freedom of association.

Inspiring crimes• Rice v. Paladin Enterprises (4CA 1997): 4CA held

that family of victims killed by man who had followed directions in Hit Man could sue book publisher; content not protected by 1A

• Braun v. Soldier ofFortune Magazine(11CA 1992): familysued Soldier ofFortune mag for adthat led to murder forhire (jury awarded $4.3mill for wrongful death)

Inspiring crimes

• Grabes v. Warner Brothers (2002): Jenny Jones guest tells another man he has a sexual interest in him. Straight man kills gay man three days later; gay man’s family sues– Jury awards family $30 million– Appellate court says there was no legal

duty– To anticipate and prevent a murder

three days later and hundreds of miles away

Publishing rape victims’ names• Cox Broadcasting v. Cohn (1975): GA TV reporter

got name of rape victim from ct. records and was sued under invasion of privacy– Court said 1A and 14A prevent civil or criminal sanctions

for publishing info gotten legally from public law records– States may keep names hidden

• Florida Star v. BJF (1989):reporter copied victim name fromsheriff’s wall; she sued, won $97k– Court overturned verdict: paper

could not be liable for using info gained lawfully even if police had been negligent

Conclusion

• It is very difficult to censor the media before publication. However, the government can possibly censor media in extreme situations.

• Laws which are content neutral and contain time/place/manner restrictions are generally acceptable.