Media Law (Journalism 367/567)
The University of Montana School of Journalism

PRIOR RESTRAINT

Under what circumstances may government restrain speech before it is spoken, published or broadcast?

CaseFactsSignificance
Near v. Minnesota
(1931)

Anti-Semitic weekly shut down as a "malicious, scandalous and defamatory" periodical under state nuisance law. Supreme Court reverses as unconstitutional prior restraint on publication.
The Saturday Press

Seminal prior restraint case. C.J. Hughes says "no one would question" exceptions for serious threats to national security, obscenity, incitement to violence...Questions
New York Times v. U.S.
(1971)

Lower courts enjoin newspaper stories based on top-secret Pentagon study of U.S. involvement in Vietnam. Supreme Court lets presses roll, 6-3. Nixon transcripts
Daniel Ellsberg remembers

 U.S. government unable to prove that national security interest outweighs heavy presumption against prior restraints; court leaves door open for P.R. in future.Questions
U.S. v. Progressive (1979) District Court stops magazine from publishing "The H-Bomb Secret," based on public information, criticizing secrecy re nuclear materials. Injunction lifted 6 months later after similar material published elsewhere. Showing of "grave, direct, immediate and irreparable harm" may persuade judge to issue P.R. But case also shows difficulty of censoring information.Questions
Snepp v. U.S. (1980) CIA analyst whose book criticized agency in Vietnam sued for breaking secrecy contract which required clearance of any writing for publication. Supreme Court rejects Snepp's P.R. argument, upholds contract. Although no classified information is disclosed, govt. can enforce contract to review writings before publication and can confiscate earnings from uncleared publications. Dissenters note inherent risk that reviewing agency will misuse its authority to delay or modify the publication of a critical work.Questions
Simon & Schuster v. N.Y. State Crime Victims Board (1991) State demands profits from Mafioso's bestselling memoir. Supreme Court strikes down "Son of Sam" law as a content-based restriction and as far too broad to accomplish aim of compensating victims. [See Sam's page ] Any law that imposes a financial burden on speakers/writers because of the content of their communication is presumed to violate First Amendment. But it may be OK if it serves a compelling state interest and is narrowly tailored to achieve that interest. Questions
Lovell v. City of Griffin
(1938) 		City prosecutes Jehovah's Witness for distributing pamphlets without permit. Supreme Court rules that city's blanket licensing scheme without regard to time or place of distribution of publications is an unconstitutional prior restraint.The Supreme Court emphasizes the First Amendment right to speak/publish without fear of censorship, and holds that the state does not have a right to impose broad licensing regulation on speech/publication.Questions
Grosjean v. American Press Company
(1936) 		Louisiana Gov. Huey Long convinces legislature to pass a 2% "tax on lying" on all publications selling more than 20,000 copies a week in the state--which happens to include those most critical of him. Supreme Court strikes down tax as "a deliberate device...to limit the circulation of information to which public is entitled."The Supreme Court establishes the principal that taxes singling out certain news media are an unconstitutional prior restraint on publication. Questions
Minneapolis Star & Tribune v. Comm. Of Revenue
(1988) 		Minnesota's 4% "use tax" exempts the first $100,000 of ink and paper consumed, leaving the 11 biggest publishers liable for tax. Supreme Court holds tax unconstitutional.Tax was unconstitutional prior restraint in its implementation if not in its intent, as it singled out newspapers for "differential treatment." Questions
Leathers v. Medlock
(1991) 		Arkansas' 4% general tax on cable TV and satellite services exempted print media. Supreme Court upholds this tax.Tax held constitutional as it applied across the board to over 100 cable and satellite systems and was a general tax that applied to sales of all property and services. Justice Marshall dissents, arguing that such selective taxation presents the potential for censorship.Questions
Hazelwood School District v. Kuhlmeier
(1988) 		School principal censors school newspaper articles on pregnancy and divorce. Supreme Court holds that school-sponsored publications are not a public forum and may be censored to protect younger students from inappropriate material. Student journalists do not have First Amendment rights as extensive as those of adults. Here's a good diagram that explains the Hazelwood standard. Questions
U.S. v. O'Brien
(1968)		O'Brien was convicted of burning draft card during Vietnam War. Supreme Court overruled 'symbolic speech' argument and upheld law prohibiting destruction of a draft card.

Supreme Court holds that government has the right to impose minimal 'time, place and manner' restrictions on free speech as long as they are 1) content-neutral, (2) further a substantial govt. interest, (3) the incidental restriction on speech is narrowly drawn and 4) the governmental interest is unrelated to suppression of free expression.Questions

Expressive conduct flowchart




QUESTIONS:




Near v. MinnesotaWhy is the "no prior restraint" concept so strong in First Amendment law? Is national security the paramount interest to be protected? What other interests or concerns might justify a prior restraint against publication?

New York Times v. U.S. How big a victory did the press win in this case? If Congress criminalized the publication of top-secret defense information, would that be a prior restraint?

U.S. v. Progressive If all the information in the Progressive's article was public information, how could a court enjoin its publication? Under what circumstances should a news media organization attempt to verify sensitive information with a government agency? Was the U.S. government over-reacting in this case, or did the magazine "ask for it" by attempting to publish an article with such a provocative title?

Snepp v. U.S. Do you think government employees hired in sensitive positions and required to sign secrecy contracts should have to give up significant free expression rights for the rest of their lives? Do you agree or disagree with the dissenters who worried that a reviewing agency might misuse its authority and delay or modify the publication of a critical work?

Simon & Schuster v. N.Y. State Crime Victims Board Is there a compelling societal interest in learning more about how perpetrators of violent crime think? Is there a way to compensate victims without restricting the ability of criminals to write about their crimes?

Lovell v. Griffin Under what circumstances could the distribution of literature be regulated by the government? In his opinion, Chief Justice Charles Evans Hughes said, "The press comprehends every sort of publication which affords a vehicle of information and opinion." How do you think he would regard the internet?

Tax cases How does Justice O'Connor in Leathers v. Medlock distinguish this case from prior cases? Do you think this is a valid distinction?

Hazelwood School District v. Kuhlmeier To what extent do you think the majority in this case was influenced by concerns about school district liability for libelous school publications? How could those concerns be alleviated and still give students full First Amendment rights? Is this decision "dated"?

O'Brien v. U.S. The majority held that the law under which O'Brien was convicted "is a narrow and precisely drawn provision which specifically protects the Government's substantial interest in an efficient and easily administered system for raising armies" and that O'Brien was convicted only for the wilful frustration of that governmental interest. Why was the court so easily willing to overlook the communicative nature of his gesture? How do you distinguish this case from the flag-burning case?