Ch. 3: Prior Restraint

Planned Parenthood v. American Coalition of Life Activists (2002)

1. 9th Circuit Case 2. Used "FACE Act" to uphold a large monetary judgement against anti-abortion activists 3. Website called abortion doctors "baby butchers" & published the doctor's names, license plate numbers, home addresses, &names of their wives and children 4. Also included "wanted posters" depicting 3 of the doctors having been killed 5. Ruled language constituted "true threats" --> a reasonable person would have thought that there is a true threat

Flag Protection Act (1989)

1. Federal law made it illegal to burn the flag 2. Declared unconstitutional in US v. Eichman (1990)

Frisky v. Schultz (1988)

1. Milwaukee suburb banned demonstrators near the homes of doctors who performed abortions 2. Court ruled that you an march on a public street, but you can't demonstrate in front of an individual's home

Schenck v. Pro-Choice Network (1997)

1. Overruled a NY judge's order requiring protestors to stay 15 ft away from clinic patrons & workers 2. Court ruled that the 15 ft buffer burdened speech more than is necessary to protect the free flow of traffic & public safety 3. Restrictions were content neutral--so valid unless they imposed a greater burden on 1st Amendment Freedoms than was necessary to serve a significant government interest

Freedom of Access to Clinic Entrances Act (1994)

1. Prohibits protesters from blocking access to abortion clinics or intimidating patients or employees 2. Life imprisonment is possible for repeated violations 3. Has been upheld by Federal Courts

Ward v. Rock Against Racism (1989)

1. Rock Against Racism sponsored annual concerts in Central Park 2. Court said that sound levels may be limited & government employees may be placed in charge of equipment

Snyder v. Phelps (2011)

1. Supreme Court ruled by 8-1 vote that the Westboro Baptist Church's funeral picketing activities were protected under the 1st Amendment 2. Snyder's son was a Marine killed in line of duty in Iraq & members of the church picketed his funeral in Maryland 3. Picketers complied with regulations & Snyder did not see the protest until after the funeral when it was shown on local TV 4. Court ruled that the protest was not intended to be a private assault on the Snyder family as signs of WBC related to matters of public, rather than private interest 5. Justice Alito disagreed in dissent

US v. Marchetti (1972, Court of Appeals decision) & Snepp v. US (1980)

1. both involved former CIA agents who wrote books critical of the CIA 2. CIA forced all employees to sign contracts stating that books about the CIA needed to be submitted to the agency for review, prior to their publication 3. Supreme Court ruled in Snepp on contract grounds, stating that Snepp had breached his contract by failing to submit his book to the CIA

How government has tried to enact prior restraint:

1. censor news media on basis of alleged threat to national security 2. restricting the rights of unpopular groups to demonstrate or distribute literature in public places 3. forbidding "hate speech" on the basis of ethnicity, religion, gender, or sexual orientation 4. discriminatory taxation of the media 5. government censorship of controversial films 6. attempts to regulate stock market newsletters 7. forbidding media from printing confidential information

McCullen v. Coakley (2014)

1. struck down Massachusetts buffer zone that made it a crime for anyone to stand on a public road or sidewalk within 35 ft of any abortion clinic 2. all 9 justices argued that the law was unconstitutional, but had several different rationales

Boyscouts of America v. Dale (2000)

Boyscouts may exclude homosexuals as troupe leaders *a private organization has the right to set its own moral code & espouse a viewpoint

Minneapolis Star & Tribune v. Minnesota Commissioner of Revenue (1983)

Can't single out newspapers for taxes unless the tax is applied across the board

Madisen v. Women's Health Center (1994)

Court upheld a Florida court ruling ordering demonstrators to stay at least 36 ft from entrances to abortion clinics --Court upheld as a reasonable time, place, & manner restriction

US v. Kokinda (1990)

Court upheld a prohibition on soliciting at post offices

Texas v. Johnson (1989)

Flag burning is protected speech

Heffron v. International Society for Krishna Consciousness (1981)

Hare Krishna adherents must use a booth at the Minnesota State Fair if they want to distribute literature

Board of Airport Commissioners v. Jews for Jesus (1987)

LAX can't totally ban literature distribution -->they can impose reasonable restrictions based on time, place & manner

Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston (1995)

Parade sponsors have the right to decide their message & who participates in their parade

Subsequent Punishment

Punishes speech after it has been disseminated

Wilson v. CIA 2nd Circuit

Recently, former CIA agent Valarie Plame sued the CIA, and lost, after they refused to allow her to publish basic facts about her CIA employment in her memoir

Randall v. Orange County Counsel of the Boyscouts (1998, CA Supreme Court)

Scouts may exclude members if they don't profess a belief in God

Prior Restraint

Suppressing speech before it has been published *only allowed now in a few limited situations

Texas v. Bullock (1989)

Tax exemption for religious publications is unconstitutional

Lee v. International Society of Krishna Consciousness (1992)

There is no 1st Amednment right to solicit donations, although handing out literature must be permitted in appropriate places

Rumsfield v. Forum for Academic & Institutional Rights (2006)

Upheld the Solomon Amendment, which requires collages & universities to allow military recruiting if they are to receive federal funds

Chaplinsky v. New Hampshire (1942)

aka "fighting words" case •Court upheld the conviction of a man who used words likely to produce an immediate violent response --Chaplinsky called someone a "damned fascist" and got into a fight (this was during the height of Nazism) "words by which their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected

Amalgamated Food v. Logan Valley Plaza (1968)

•Court extended the rule of Marsh to union picketers picketing in front of a shopping center. A merchant at the shopping center was involved in the labor dispute

Hudgens v. National Labor Relations Board (1976)

•Court overturned the decision in Logan Valley •Case involved warehouse employees picketing a shoe store in a mall •The Court held that there is no longer a Constitutional right to distribute literature or picket at private shopping centers, even if there is a labor dispute with a merchant doing business there ---content of material or message should be irrelevant *Federal Rule

Virginia v. Black (2003)

•Court slightly changed rule set in R.A.V •Stated that cross-burning is protected speech, but not when done as an attempt to intimidate rather than an expression of symbolic speech •Court threw out the conviction of Black, a KKK leader who led a rally in an open field where a cross was burned •Court upheld the convictions of 2 individuals who burned a cross on an African American neighbor's lawn *Clarence Thomas was the lone dissenter to the ruling, arguing that cross-burning should never be legal

Hill v. Colorado

•Court upheld an 8 ft floating buffer zone ---Court thought that this was more reasonable than the 15 ft buffer zone they disallowed in Schenck ---called 8 ft buffer zone a "conversational distance"

NY Times v. US (1971) [aka Pentagon Papers Case]

•Federal government was trying to prevent the NY Times & Washington post from publishing a secret defense department study of American policy during the Vietnam War ---The Pentagon Papers revealed questionable decisions by 4 Presidents that led the US into the Vietnam War •Court ruled: 6-3 in favor of allowing the Pentagon Papers to be published •Holding: government did not prove that publication would endanger national security enough to justify prior restraint

Prune yard Shopping Center v. Robbins (1980)

•High School students were denied permission to hand out fliers at a San Jose shopping center opposing a UN Resolution against "zionism" •CA Supreme Court said that the state Constitution was broader than the federal constitution and that there was a state right to distribute literature even if no federal right existed •US Supreme Court upheld the CA Supreme Court's decision on state's rights grounds •Case largely leaves it up to the states whether they want to allow literature distribution in private places *CA Constitution: different; allowed to; there is a right

Watchtower Bible Tract Society v. Village of Stratton (2002)

•Local ordinance that made it a misdemeanor for "door to door" canvassers to promote "any cause" without first obtaining a permit from the mayor's office •Supreme Court overturned by 8-1 vote that a permit requirement for political and religious advocates violates the First Amendment •Now settled Constitutional Law that government may not arbitrarily grant solicitation permits to those advocating popular ideas while denying permits to advocates of unpopular ideas *May be okay to have a licensing system for commerical activities

Marsh v. Alabama (1946)

•Private town that was owned by Gulf-Shipbuilding had a law preventing the distribution of literature without permission •Court overturned the law & said that although the town was privately owned, the town was still effectively public (open to the public & adjacent to a 4-lane highway)

R.A.V. v. St. Paul (1992)

•St. Paul had a hate speech ordinance that banned the burning of the cross, displays of swatstikas, or expressing of racial or religious hatred •White youth burned a homemade cross in the front yard of an African American family's home Court ruled: upheld that one may not be punished for speech that is offensive or emotionally painful to those in the targeted group --> hate speech can't be banned on the basis of its own content *although the youth could still be prosecuted for other crimes, such as trespassing or arson

Grosjean v. American Press (1936)

•can't impose discriminatory taxes •Here Louisiana imposed taxes on the 13 largest newspapers in the state

Near v. Minnesota (1931)

•landmark opinion on prior restraint because the Court set a precedent that prior restraint is generally unconstitutional •involved a Minnesota state law that allowed government officials to treat a "malicious, scandalous, & defamatory" newspaper as a public nuisance ---a county attorney used the law to try to shut down a weekly newspaper that had published articles criticizing public officials ---Court struck down the law stating that a newspaper can be censored prior to publication under very exceptional circumstances ex) direct threats to national security ex) violent overthrow of government

Colleges & Hate Speech

•many colleges passed rules in the 80's forbidding remarks deemed hostile to people of any racial or ethnic group --'93 survey of public universities found that 108 schools had codes forbidding "advocacy of offensive or outrageous viewpoints" which by now have mostly been struck down as unconstitutional •Critics argued they enforced "politically correct" speech codes •more than 50 states adopted laws criminalizing "hate speech" in various forms---most of which are now unvalid