MODERN PRIOR RESTRAINTSCHAPTER 3

Communications Law. COMM 407, CSU Fullerton

Prior RestraintNear v. Minnesota (1931)

Prior Restraint (censorship): Prohibition of speech before the fact

The Case of Near v. Minnesota: Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity

Prior Restraint and National Security:The Pentagon Papers Case

New York Times Co v United States (1971) Facts of the Case The Nixon Administration attempted to prevent the New

York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam.

The President argued that prior restraint was necessary to protect national security.

Prior Restraint and National Security:The Pentagon Papers Case

Question

Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?

Prior Restraint and National Security:The Pentagon Papers Case

Conclusion: 6-3 for The New York Times Yes. The government did not overcome the "heavy

presumption against" prior restraint of the press. The vague word "security" should not be used "to abrogate

the fundamental law embodied in the First Amendment." Since publication would not cause an inevitable, direct,

and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Prior Restraint and National Security: The H-Bomb or The Progressive Case

United States of America v. Progressive, Inc., Federal District Court, Wisconsin (1979)

A lawsuit brought against The Progressive magazine by the United States Department of Energy.

A temporary injunction was granted against The Progressive to prevent the publication of an article that was claimed to reveal the “secret" of the hydrogen bomb.

The Progressive appealed but the case became moot when other magazines published similar articles. The government dropped the case.

The Progressive published the article in Nov 79

Censoring Government Employees Contracts versus Free Speech

Problematic Books (e.g., prohibition of publishing books based on classified information obtained while employed by the government)

Honoraria (e.g., The Ethics in Government Act prohibiting government employees earning honoraria while working for gov.)

Speech Acts Whistleblowers

False Speech

“Hate Speech”

“Fighting words” Flag / cross burning Offensive/profane speech

FIGHTING WORDSChaplinsky v. New Hampshire (1942) Facts: Chaplinsky called a city marshal a "God-

damned racketeer" and "a damned fascist" in a public place. He was convicted under a state law for violating a breach of the peace.

Question: Does the statute violate his freedom of speech rights?

Conclusion: No. Some forms of expression--among them obscenity and fighting words--do not convey ideas and thus are not subject to First Amendment protection.

A note on forms of speech: What is Speech?

All forms of expressions:

The actual spoken/written communication Symbolic speech / Expressive conduct to convey

a message

Hate Speech

R.A.V. v. City of St. Paul 1992

Displays containing abusive invective, no matter how vicious or severe, are permissible as long as they don’t provoke violence etc.

Flag burning

Flag burningTexas v. Johnson (1989)

During the protests against the Republican National Convention in Dallas in 1984 Gregory Johnson set on fire a national flag.

He was convicted under Texas criminal statute making: it is a criminal offense to… desecrate… a state or national flag.”

He was sentenced to one year in prison and a fine of $2,000.

Flag burningTexas v. Johnson (1989)

The Supreme Court was divided 5-4 in the decision but ruled for Johnson.

It ruled that the desecration was “expressive conduct.” Thus, Texas statute prohibited expressing ideas, not desecration and thus was not permissible.

Flag burningUnited States v. Eichman 1990.

The Federal Flag Protection Act adopted in response to Texas v. Johnson is unconstitutional under the first Amendment.

Offensive/profane speech:Cohen v. California (1971)

Facts:A 19-year-old man expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "FUCK THE DRAFT. STOP THE WAR"

He was convicted under a California statute that prohibits "maliciously and willfully disturbing the peace and quiet of any neighborhood or person [by] offensive conduct."

Offensive/profane speech: Cohen v. California (1971)

Question Presented: Did California's statute violate freedom of expression rights?

Conclusion: Yes. The expletive, while provocative, was not directed toward anyone; The Court recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).

What about burning draft cards?

United States v. O’Brien 1968

Not protected by the First Amendment:

A sufficiently important governmental interest in regulating the nonspeech element (the card assists in administrative procedures).

Prior Restraint: other methods of censorship

Time, Place, and Manner Restriction: Literature Distribution, Protests, Picketing, Newsracks

Licensing (excessive requirements/unequal) Informal Coercion (warnings) Financial burdens (e.g., tax on certain

publications, extra fees, limiting payments, etc.)

Punishment After the Fact

More likely than Prior Restraint, but still very unusual.

Will be covered in greater detail in later chapters

Compelled Speech

Media Access Compelled Financial Support (e.g., union dues) Attribution Requirements