Prior Restraint

"Cannibal Cop"

- Gilberto Valle was convicted in 2013 of conspiracy to kidnap and murder based on his online fantasies to kill and eat women - July 2014, conviction was thrown out by U.S. DC - it tests the limits of both offensive speech protected under 1st amend. and what some might consider to be "thought crimes"

Near v. Minnesota (cont'd)

- J.M. Near published The Saturday Press in Minneapolis - He attacked local gov't, police, and other powerful ppl; hated Jews - charged with violating that law; he argued that it was a violation of the first amendment

Result 2

- SC agreed with MH; censorship included both the prevention of publication as well as forced publication - content is left up to editor not gov't

What happened?

- The FRC revoked KGEF's license saying that they failed to serve the public interest - Shuler argued that taking him off air was prior restraint which made it impossible for him to publish unless he satisfied the FRC

How does Miami Herald compare to Equal Opportunities

- basically it doesn't apply to print so that's why it was not used in MH case - you could say that broadcast is more influential because you are visually connecting with an individual--more powerful

Fighting words doctrine

- fighting words may be censored but only if they result in criminal behavior, not bc they offend

"Son of Sam" laws?

- states passed laws preventing convicted criminals from publishing and profiting from stories about their crimes - SC said the laws were unconstitutionally overbroad: too much speech was banned

Hit Man the book

- used by James Perry who was hired in 1993 to kill three ppl- the book said how to commit murder and get away with it - so victim's families sued Palladin Press for aid in the murder - Appeals found that Hit Man was not protected by the first amendment so Palladin Press settled out of court

Result

- went to Federal Court of Appeals - they said that the gov't had the legal authority to control who had access to a limited resource (broadcast)

What is prior restraint?

- when a government body prevents the publication of something; gov't determines whether something is published; Are there instances where the gov't may restrain publication?

MH argument

- you can't control content; FL "right to reply" law was a violation of the first amendment because it forced publication

Is Hate Speech Protected?

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Recent examples.....

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compare both

1. Near won case; extended speech and press 2. Shuler lost; gov't has control in broadcast but not as much in print; no prior restraint in print

What are the four instances that SC said gov't could engage in prior restraint

1. Obscenity 2. Incitement to violence 3. Incitement to overthrow gov't (sedition) 4. Time of war

Near v. Minnesota

1931; Minnesota law that made it illegal to publish "malicious, scandalous, and defamatory" material - if you were guilty of this law you had submit your material to a gov't agent before it could be published

Trinity Methodist v. FRC (Federal Radio Commission)

1932; Trinity Methodist church in L.A. had a radio station (KGEF) that was run by a minister "Fighting Bob" Shuler; he disliked everyone especially lawyers, the judicial system, and catholics - He said "pimps" and "prostitutes" on air - used radio to attack ppl

Miami Herald v. Tornillo

1974; FL law said newspapers had to grant political candidates the right to reply to criticism - Pat Tornillo was running for state legislature and was criticized by the Miami Herald - he said he had a right to reply and they refused

R.A.V. v. St. Paul

1992; St. Paul had an ordinance making it illegal to post anything on public or private property that "arouses anger, alarm, or resentment in others on the basis of race, color, religion or gender"

When was the SC's first definitive statement regarding the constitutionality of prior restraint

Near v. Minnesota

more deets

R.A.V. was a juvenile at the time and put a burning cross in the yard of an African American family and was convicted of violating ordinance

Result 3

SC struck down ordinance bc it restricted specific viewpoints on specific topics

Result

Went to the SC in 1931; they said that the law was unconstitutional since it censored Near's speech - determined the newspapers could not be restrained prior to publication, gov'ts can't prevent publication

What is the Equal Opportunities Rule/Section 315

applies to broadcasters only - any broadcast radio/ TV station that allowed a political candidate on the air is required by federal law to provide equal time to the opposing candidate

Was more or less speech protected in Near v. Minnesota

more; no gov't consent