Prior Restraints

The court found that the judge did not consider whether other measures short of a prior restraint order would protect the defendants rights.

After this test, what did the court find?

-Advertising and other communications proposing commercial transactions between the speaker and the listener are not fully protected by the first amendment. -The U.S Supreme court has said commercial speech may be restrained if it is false, misleading or advertises unlawful activity. Any governmental restraint must advance a substantial public interest and must not be more extensive than necessary to serve that interest.

Commercial Speech

Courts repeatedly have ruled that a corporations mere assertion that publication will put it at a competitive disadvantage is inadequate to overcome the heavy presumption against prior restraints.

Corporate Information and Prior Restraints

No. The prior restraint order is limited to the court's territorial jurisdiction, so it could not effectively restrain national publication.

Could the prior restraint order have restrained national publication?

No. They struck it down. -The court applied a form of "clear and present danger test" to determine whether the prior restraint order was justified. -Examined whether the "gravity of evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."

Did the U.S Supreme court uphold the prior restraint order?

Viewed by the U.S Supreme court as "the most serious and the least tolerable infringement on First Amendment rights." -Prior Restraints are rarely upheld.

How are Prior Restraints viewed?

The court may hold you in contempt. -Even if the order is later found to be unconstitutional, you could be fined or even imprisoned.

If you elect to challenge the order by violating it and publishing the info......

File your objection to the order ASAP and ask permission to appear w/ legal counsel to challenge the ruling.

If you elect to obey the order....

To the extent info is revealed in open court, it cannot be censored. -EX: Jury identity info being part of public record. Order Prohibiting publication or distribution of the names of a juvenile defendant, the victim and their families was an overboard prior restraint of the press in violation of the First Amendment. -Two critical factors influenced the courts decision... 1) Juvenile proceedings were open to the public and the media 2) The identity of the parties was already in the public domain prior to the judges order.

Info in the Public Sphere

He could have... -Changed the location of the trial -Postponed the trial -Intensify screening of prospective jurors -Provide emphatic and clear instructions to jurors about judging the case only on the evidence presented in the courtroom. -Sequestering the jury.

Instead of approving the prior restraint, what could the trial judge have done instead?

Law enforcement officials often tell reporters not to publish certain info about crimes (ex: victim names or witnesses) -Unless these restrictions are authorized by a judge who has found a "clear and present danger" to the administration of justice, officials cannot order reporters not to publish lawfully obtained info. -Decision to publish in such contexts is a matter of ethical considerations, not legal restraints.

Law Enforcement Investigations

-Publication of some info might be restrained to protect National Security but not always. (For ex: The New York Times and Washington Post)

National Security

Courts have recognized that prior restraints may be imposed where the activity restrained presents a clear and present danger or a serious and imminent threat to the administration of justice. -"Clear and present danger test".... *Expression could be punished when... "words are used in such circumstances and are of such a nature as to create a clear and present danger that they bring about the substantive evils that congress has a right to prevent."-Oliver Holmes

National Security and the Clear and Present Danger Test

-The court addressed the constitutionality of an order prohibiting the media from publishing or broadcasting certain info about Simants, who was accused of murdering the Kellie family in a small Nebraska town.

Nebraska Press Association VS. Stuart (landmark case)

Obscenity falls OUTSIDE the protection of the 1st amendment. -Although absolute bans on publication generally have been declared unconstitutional, the SC has permitted government regulation of the sale and distribution of obscene materials. -The court has consistently required that those regulations be narrowly defined to cover materials judged obscene by contemporary community standards. (Look at notes for examples on this )

Obscenity and Indecency

An official government restriction of speech prior to publication.

Prior Restraint

Subject to the same constitutional limitations as restraints on speech in other forums. -Court Orders that prohibit the publication of content are more likely to be upheld if the occur after a final court adjudication that the communication consists of non-protected speech.

Prior Restraints and the Internet

Private individuals occasionally try to convince reporters to refrain from publishing info that might be embarrassing. -These court orders are usually unsuccessful.

Privacy and Prior Restraints

Restrictions on receiving compensation for speech have been viewed by the courts as prior restraints on the speech itself. -The U.S Supreme Court in 1991 struck down the N.Y "Son of Sam" law that required confiscation of any payments to criminals for telling stories about their crimes.

Restrictions on Compensation

Some states have statutes that make it a crime to publish the names of rape victims. -Although the U.S Supreme court has not held that these statutes are unconstitutional as written, it has ruled that states cannot punish journalists for publishing truthful info that they have obtained from public records or official proceedings.

Statutory Restraints

As a result, editorial decisions about publication of info the government deems sensitive are generally left soley to the discretion of news organizations.

What is the result of prior restraints being rarely upheld?

(This imposed a heavy burden on the party seeking to restrain the press). 1)Court examined "the nature and extent of the pre-trial news coverage." 2)Court Considered whether less restrictive measures would have alleviated the effects of pre-trial publicity. 3)Court considered the effectiveness of a restraining order in preventing the threatened danger.

What steps did the court take when applying this test?

Take the order seriously. In these circumstances, three courses of action are open to you.... 1)Obey the order 2)Obey the order while challenging it 3)Violate the order as a means of testing it's constitutionality. Your choice should be made with a lawyers assistance.

What to do if a judge orders you not to publish?

-Try to determine the motivation for it. (Remember in most of these situations you can refuse the request and decide for yourself what info you want to publish.) -If you are threatened w/prosecution under a statute that supposedly makes publication of the info a crime, ask to see the statute or get enough info so that you can obtain a copy of the statute yourself. (If such law exists and covers the info you want to publish, consult an attorney)

What to do if ordered not to publish?

This case pitted the First Amendment rights of a free press against the defendants 6th Amendment right to a fair trial.

What was the issue with the Nebraska Press Association VS. Stuart case

Because it is hard "to predict what info will in fact undermine the impartiality of jurors."

Why is it difficult for Trial Judges to draft effective prior restraint orders?