Media Law Prior Restraint

In New York Times Company v. Sullivan (1964), Justice Brennan explained that the First Amendment reflects what?

"a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

Under McGehee v Casey (D.C. Cir. 1983), a mandated prepublication review process is considered constitutional as long as what two requirements are met? Did the government prepublication review of Bolton's book meet those requirements?

"protect a substantial government interest unrelated to the suppression of free speech," and "the restriction [is] narrowly drawn to 'restrict speech no more than is necessary to protect the substantial government interest.'"; yes

What have you studied that encompasses that principle?

Article 22; The first amendment has an almost absolute proscription against the imposition of prior restraints against publication of books and news stories related to public officials, public figures, or matters of public concern. (idk if these are right)

William Blackstone said freedom of the press precluded what?

Banning the publication of books and articles

Why is a prior restraint considered the most serious violation of the First Amendment?

Because it stops the circulation and discussion of ideas at their inception. Important that information enter the marketplace of ideas.

Why was the government's prepublication review reasonable?

Because the CIA can act to protect government interests by imposing reasonable restrictions on the actions of employees that might normally be protected

But why would an injunction now not solve the problem?

Because the information is already out and there is no way of fixing what has happened

How would this principle apply to Bolton?

Bolton is a public figure and his book is a matter of public concern

Bolton might have indeed caused what?

Bolton may indeed have caused the country irreparable harm. But in the Internet age, even a handful of copies in circulation could irrevocably destroy confidentiality.

Understand the facts of the case (Bolton's book), the claims and counter-claims, and the prior restraint issues involved. How does this case compare with the Pentagon Papers and The Progressive cases?

Bolton was a national security advisor under Trump who wanted to publish a book once he left his position. During his time as an advisor, he had signed multiple NDAs with the government involving how to handle classified information. He had to submit his book to be reviewed before it could be published and was told it did not contain classified material. However, the written authorization was not yet given to him and by the time he was told that the book did contain classified information, he had already submitted it to to the publisher. The government wanted to temporarily stop him from publishing it due to "national security concerns."

The DOJ also said publication would violate what?

Bolton's NDA

How was the Trump administration's complaint similar to the Nixon administration's efforts to stop publication of the Pentagon Papers?

Both complaints were extremely vague on how the disclosures could be damaging

The DOJ said the book contained what kind of information that would create what problem if published?

Classified information that would create irreparable harm

Bolton likely published what?

Classified materials

Explain how the U.S. Supreme Court's majority decision in the "Pentagon Papers" case rested on the preferred position balancing theory.

Freedom of the press was given a preferred position over government restrictions and like preferred position balancing, the government had to prove that the restriction was justified.

Bolton's unilateral conduct gave rise to what?

Grave national security concerns

In ruling on the Trump administration's attempt to stop publication of former National Security Adviser John Bolton's book, Judge Lamberth ruled ...

He would not order the nationwide seizure and destruction of a political memoir because with hundreds of thousands of copies already around the globe — many in newsrooms — the damage had already been done.

What did the judge describe as Bolton's bet? Was Bolton correct? Why? In other words, Bolton likely did what?

If he is right and the book does not contain classified information, he keeps the upside mentioned above; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security. He was not correct. He bet on himself and failed.

Justice Hughes said prior restraint by the government might be permissible under what three circumstances?

If someone is trying to injure any other person in his rights, person, property, or reputation; if someone is trying to disturb the public peace, or attempting to subvert the government

How is this case (Near v. Minnesota) important to the doctrine of incorporation and to press freedoms?

It helped show how the doctrine of incorporation can be used to protect press freedoms that are being harmed by state laws. It expands on the scope of press freedoms at the state level.

Which statement regarding freedom of the press is LEAST accurate?

Liberty of the press means freedom from the consequences for publishing improper or illegal material.

By being wrong, what has Bolton risked?

National security, his reputation, being a criminal

But instead he chose to do what?

Opt out of the review process

The DOJ also wanted the court to do what until Bolton completed what?

Place an indefinite hold on publication while Bolton completed the White House prepublication clearance process

Know what got whom into trouble in the Progressive magazine case. What danger did the article pose?

Progressive was trying to publish a magazine article that contained information about hydrogen bombs. It posed information that could nullify the right to free speech and endanger life.

In other words, every person has the right to do what but must face the consequences for publishing what?

Publish what they want but face the consequences for illegal, mischievous or improper content

That liberty means freedom from what but not from what?

Restraints on publishing but not from censure for criminal matter when published

In the "Pentagon Papers" case, the SCOTUS...

Ruled the government had not met its heavy burden of justifying a prior restraint.

But the government didn't establish what?

That an injunction was an appropriate remedy

But the government had not proved what?

That an injunction would prevent irreparable injury

In granting the government's request for an injunction against The Progressive prohibiting publication of the H-bomb article, the federal district judge distinguished The Progressive case from the Pentagon Papers case. Which was NOT a distinguishing factor?

The First Amendment rights for a magazine such as The Progressive are less than those of an important daily newspaper such as The New York Times.

How did Warren distinguish between the "Pentagon Papers" and "The Progressive" cases to justify an injunction against publication?

The Pentagon Papers consisted of historical data and no good reasons were given why it might affect national security

Bolton could have sued the government over what?

The mixed messages he was receiving while complying with the review personnel

The judge said he would not order what?

The nationwide seizure and destruction of a political memoir

Liberty of the press is essential to what?

The nature of a free state

What did U.S. District Court Judge Robert Warren conclude?

The technical information in the article was the equivalent of publishing troops' movements and therefore restraining it was justified due to national security concerns.

Near v. Minn. (1931): Know who did what to get into trouble.

There was a malicious, scandalous and defamatory newspaper called the Saturday Press. They published malicious, scandalous and defamatory articles about local people and publications.

Explain whether the majority said prior restraint in similar situations would always violate the First Amendment.

They are not, they are justified only in extreme cases

In the Pentagon Papers case, Justice Brennan's central point was that government may not use the courts to prevent what absent what?

Truthful information being released absent the most extraordinary circumstances

In Near v. Minnesota (1931), the U.S. Supreme Court ruled that prior restraints by the government were ...

Unconstitutional in this case, but might be permissible in some circumstances, such as to prevent obscenity or to protect national security during wartime.

Where should public officials find their remedies for libel?

Under libel laws providing for redress and punishment

Forms of Prior Restraint?

court orders not to publish, licensing (for those who don't get license), discriminating taxes, military restrictions on press during war

The SCOTUS ruling in Near v. Minnesota (1931) relied upon the doctrine of ____________________ to make freedom of the press fully applicable to the states.

incorporation

Stop from publishing or speaking

prior restraint

What type of government control is least likely to survive a court challenge?

prior restraint

punish afterward for publishing or speaking

punitive

To what had Bolton agreed? It required what? A violation could result in what?

that he would "never divulge classified information to anyone unless: (a) [he has] officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) [he has] been given prior written notice of authorization from the United States Government . . . that such disclosure is permitted."; Confirmation from an authorized official that the information is unclassified before Bolton could disclose it.; Bolton would have to pay the government the money made from that information

For the "Pentagon Papers" case, know what got whom into trouble.

the government's attempt to prohibit the New York Times and the Washington Post from publishing portions of a secret government study on the Vietnam War.