prior restraint chapter 4

A licensing system will qualify as prior restraint unless:

- It is imposed upon government employees (CIA) - A condition of accepting a government subsidy - Involves high school or elementary press

Prior Restraint: To overcome the presumption, the government must:

- Prove that there is a serious danger - That danger is imminent - That the speech is the cause of the danger - That no alternatives to prior restraint will work - The terms of the prior restraint are neither vague or overbroad *ALL must be met in order to overcome the burden.

Near v Minnesota (1931)

- Saturday Press published attacks on local officials. The Press claimed that the chief of police had "illicit relations with gangsters." Minnesota officials obtained an injunction in order to decrease the publishing of the Press newspaper under a state law that allowed this course of action. A state court order decrease the Press and enjoined the Defendants, publishers of the Press (Defendants), from publishing or circulating such "defamatory and scandalous" periodicals.

A regulation is presumed unconstitutional once it is defined as:

- prior restraint: * The government bears a heavy burden to overcome that presumption

Prior Restraint implies:

-that we should trust the government over individuals. - that speech is too risky to democracy. -that individuals should have no autonomy from the state.

5 elements of prior restraint

1. A government prohibition 2. Of a specific publication 3. Based on its content 4. After the exercise of discretion 5. In advance of publication

Nebraska Press Test (3)

1. There must be intense and pervasive publicity about the case 2. No other alternative measure might mitigate the effects of the pretrial publicity 3. The restrictive order will in fact effectively prevent prejudicial publicity from reaching potential jurors

Nebraska Press Association

Facts. On October 18, 1975, the police found that 6 members of the Kellie family had been murdered. The crime attracted widespread media coverage and both the prosecutor and defense attorney sought an order restraining coverage of the murders, to deter the potential prejudicial affect on a future jury. The Nebraska Supreme Court modified the restraining order and then affirmed it as modified. The Petitioner sought review of the SCOTUS

New York Times Co. v. United States [The Pentagon Papers Case] (1971)

Facts: The United States sought to enjoin the New York Times and Washington Post from publishing contents of a confidential study about the Government's decision making with regards to Vietnam policy. The District Court in the New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the Government had not met the requisite burden justifying such a prior restraint.

Tory v Cochran 2005

Johnny Cochran withdrew as Tory's lawyer in a civil rights suit nearly twenty years earlier. Tory began picketing Cochran's office in the 90s, carrying signs that accused him of being a thief and of accepting bribes. A trial judge ruled that Tory had made false and defamatory statements about Cochran and issued an injunction ordering Tory to never again display a sign or speak about Cochran. *SCOTUS ruled that the injunction limiting the demonstrations of Ulysses Tory "amounts to an overly broad prior restraint upon speech".

what is prior restraint

Judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful. *In US law, the First Amendment severely limits the ability of the government to do this. -Publications may require a license to publish from the government.

New York Times Co. v U.S. issue: Whether the United States met the heavy burden of showing justification for the enforcement of such a restraint on the New York Times and Washington Post to enjoin them from publishing contents of a classified study?

No. Judgments of the lower courts affirmed. The order of the Court of Appeals for the Second Circuit is reversed and remanded with directions to enter a judgment affirming the District Court. The stays entered June 25, 1971, by the Court are vacated. The mandates shall issue forthwith. *Any system of prior restraints on expression comes to the Supreme Court bearing a heavy presumption against its invalidity. The Government "thus creates a heavy burden of showing justification for the enforcement of such a restraint.

Prior Restraint versus Subsequent punishment

Prior Restraint does not equal Subsequent Punishment!! -The SCOTUS believes prior restraint to be the most unpleasant of all infringements of free speech. - Subsequent punishment takes away something after it has already been published. Prior restraint stops the speech completely

Nebraska Press Association issue: whether the press can be suppressed, in the interest of an ongoing criminal investigation?

SCOTUS reversed, holding that the lower courts needed to determine whether alternative measures (in comparison to suppression of the press) were feasible considering the circumstances of the case. The Supreme Court found that there was no determination as to whether alternative measures would have protected the potential defendant and thus the restraining order was invalid as it was unnecessarily burdensome. *The freedom of the press extends to criminal as well as civil matters. In this case, it was not appropriate to suppress the dissemination without a showing of irreparable injury to the criminal defendant.

(Schneider v State 1939)

The government cannot use city ordinances against littering as a way of blocking the public from passing our flyers critical of the government. - Police officer are not allowed to act as censors. -Individual autonomy in speech is necessary for a free society. The government does not get to decide.

Near vs. Minnesota issue: Whether a statute authorizing such proceedings is consistent with the conception of the liberty of the press as historically conceived and guaranteed?

no it's unconstitutional. This statute, if upheld, could lead to a complete system of censorship. Thus, the statute is a substantial infringement on the liberty of the press and in violation of the Fourteenth Amendment. * Rule: The freedom of press is essential to the nature of a free state but that freedom may be restricted by the government in certain situations. *The government is notoriously sensitive to criticism and the 1st Amendment puts a nearly unconquerable burden on prior restraint cases.