Communications Law. COMM 407, CSU Fullerton
MODERN PRIOR RESTRAINTS
CHAPTER 3
Prior Restraint
Near v. Minnesota (1931)
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Prior Restraint (censorship): Prohibition
of speech before the fact
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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
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New York Times Co v United States (1971)
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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.
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Prior Restraint and National Security:
The Pentagon Papers Case
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Question
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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
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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)
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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
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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”
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“Fighting words”
Flag / cross burning
Offensive/profane speech
FIGHTING WORDS
Chaplinsky v. New Hampshire (1942)
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Facts: Chaplinsky called a city marshal a "Goddamned 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?
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All forms of expressions:
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The actual spoken/written communication
Symbolic speech / Expressive conduct to convey
a message
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Hate Speech
R.A.V. v. City of St. Paul 1992
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Displays containing abusive invective, no matter
how vicious or severe, are permissible as long as
they don’t provoke violence etc.
Flag burning
Flag burning
Texas v. Johnson (1989)
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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 burning
Texas v. Johnson (1989)
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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 burning
United States v. Eichman 1990.
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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)
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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)
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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).
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Prior Restraint:
other methods of censorship
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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
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More likely than Prior Restraint, but still very
unusual.
Will be covered in greater detail in later chapters
Compelled Speech
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Media Access
Compelled Financial Support (e.g., union dues)
Attribution Requirements