Chapter 4 Notes: Prior Restraint

• U.S v. Providence Journal (1988)

- 1st Cir. U.S. Court of Appeals - We can disobey if the order is "transparently invalid" and an immediate appeal is not granted.

Rules established from Pentagon Papers

- Court assumes from the start that prior restraint is unconstitutional - Government bears burden to prove otherwise (burden of proof) - In national security cases, government needs to prove publication will provide "direct, immediate and irreparable harm" to nation or its people

• Three instances in which prior restraints are allowed (3 exceptions to the general rule of Near)

- Publications that would jeopardize national security in wartime - Obscene publications - Publications that threaten to incite violence and/or the violent overthrow of the government

Nebraska Press Association

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Tory v. Cochran

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• U.S. v. Dickinson (1972)

-5th Cir. U.S. Court of Appeals -We must obey or be found in contempt of court

two major categories of restrictions on freedom of press

Prior restraints Subsequent punishments

other means of providing fair trials

Sequester the jury Change the venue Continue the case Require a new trial Carefully question potential jurors Admonish jurors to ignore media reports Gag trial participants (protective orders)

three main types of prior restraint

Taxes Licenses Injunctions or court orders

Rule on disobeying court orders in 4th circuit

The 4th Circuit has not ruled on this question, so we don't know.

decrypting

attempts by unintended receivers to uncover the right "key" to break the code

Emerson's arguments against prior restraint

breadth, timing and delay, propensity toward an adverse decision, matters of procedure, public appraisal and criticism, dynamics of prior restraint, certainty over risk, effectiveness

prior restraint

censorship which occurs in advance of publication. Involved 1.) submitting all proposed publications 2.) to government censors 3.) who exercised considerable discretion regarding the content to be approved for publication, and it was 4.) imposed specifically on publication 5.) in advance of the publication

Cryptography

coding messages so that only the intended receiver can decipher them

Temporary restraining orders (TROs)

common as a means of maintaining the status quo while a court gathers evidence and reaches a decision.

True information

generally, if you didn't break the law to get the information, and the information is true, you can go ahead and print it.

risk aversion

in imposing prior restraint, government is attempting to avert the consequences of speech that has yet to be uttered.

Areopagitica

introduced by John Milton

Holmes

said the risk is not in speech being published, but in it not being published

to overcome the presumption of unconstitutionality

the government must prove that 1-the danger is serious, 2-that it is imminent, 3-that the speech is the cause of the danger, 4-that stopping the speech will stop the danger, 4-that no alternatives to prior restraint will work, 5-that the terms of the prior restraint are neither vague nor overbroad.

prior restraint and speechq

the historical system of prior restraint di dnot apply to speech at all, because licensing was a reaction to the introduction of hte printing press, although speech in the form of parades or plays, for example, could conceivably be subjeced to licensing or a permit system.

origin of a test

the speech must cause alleged damage, the danger must be immediate, and it must be grave.

framer's intent

whether or not the framers intended to include prior restraint in the first amendment of the constitution

Near v. Minnesota

• Facts: An injunction issued by Minnesota state court enjoined the paper from further publication because it published "malicious, scandalous and defamatory" reports about local public officials • Issue: Was this an unconstitutional prior restraint under 1st and 14th Amendments? • Ruling: Yes • Rule established: Prior restraints on the press are almost always unconstitutional under the First Amendment. Dissenters: this case went way too fast (June 13-30). Newspapers had info. for several months. Ellsberg: charged with conspiracy, theft and violation of 1917 Espionage Act. Charges dismissed due to govt. misconduct.

Pentagon Papers (1971)

• Facts: Two cases combined at SCOTUS; arose from the publication of stolen govt. documents called "The History of the U.S. Decision-Making Process on Vietnam Policy." Leaked to Wash. Post and NYT by whistleblower Daniel Ellsberg. Govt. seeks injunction to stop publication. • Issue: Did the injunction violate the 1 st Amendment? (Did it fit an exception to the Near rule?) • Ruling: Yes (No)

Nebraska Press Assn. v. Stuart (1976)

• Sets out rules for prior restraints on media coverage of judicial proceedings. • Involved a "gag order" (aka "a protective order") on media coverage of a pretrial hearing in a murder case. -conflicts with 6th amendment -Illustrates the free press/fair trial conflict. It's the conflict between the 1st and 6th Amendments. -Sixth Amendment"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . ." -Facts: defendant charged with murder of an entire family in a small Nebraska town. A pretrial hearing on the case was open to the press, but the judge ordered press not to report any information from the hearing. -Issue: Did this prior restraint violate the 1st and 14th -Amendments? -Ruling: Yes -Rationale: For a judge to justify a gag order, he or she must find there is a clear and present danger that the defendant will be deprived of a fair trial. To do that the judge must consider: 1. The extent and nature of the news coverage 2. Whether other measures could be used to protect the defendant's right to a fair trial 3. Whether a gag order would be effective