Let’s take a closer look at:
-Obscenity
-Prior Restraint
-The Media
-Symbolic Speech
-Commercial Speech
PRIOR RESTRAINT
 The
Constitution allows government to
punish some utterances after they are
made (treason, libel, etc . . .). But, with
almost no exceptions, government cannot
place any prior restraint on spoken or
written words, except in the most
extreme situations, government cannot
curb ideas before they are expressed.
NEAR V. MINNESOTA (1931)
The Supreme Court struck down a State law that
prohibited the publication of any “malicious,
scandalous, and defamatory” periodical.
 Acting under that law, a local court had issued an
order forbidding the publication of the Saturday
Press. That Minneapolis paper had printed several
articles charging public corruption and attacking
“grafters” and “Jewish gangsters”.
 The Court held that the guarantee of a free press
does not allow a prior restraint on publication, except
in such extreme cases as wartime, or when a
publication is obscene or incites violence.

New York Times v US (1971)
Pentagon Papers was a classified, stolen
government report charting the escalation of the
US in Vietnam
 The New York Times got a copy and was going to
publish it – the Nixon administration said it
would endanger troops in the war
 The court said it could still be published

SCHOOL NEWSPAPERS
 The
Court has also said that public school
officials have a broad power to censor school
newspapers and plays, as well as other
“school-sponsored expressive activities”.
 In Hazelwood School District v. Kuhlmeier
(1988), it held that educators can exercise
“editorial control over the style and content
of student speech in school-sponsored
expressive activities so long as their actions
are reasonably related the legitimate
pedagogical concerns”.
Pedagogical: Educational, Academic, instructive
Libel/Slander
The media can be sued for libel (written) and
slander (spoken) if they publish material that 1)
is false, 2) harms someone’s reputation, and
 3) Public figure – actual malice


Private figure – willful negligence
COMMERCIAL SPEECH
‘Commercial speech’ is speech for business
purposes; the term refers most often to advertising.
 Until the mid-1970s, it was though that the 1st
Amendment did not protect such speech.
 In Bigelow v. Virginia (1975), the Supreme Court
held that a State law was unconstitutional which
prohibits the newspaper advertising of abortion
services.
 NOTE: Not all commercial speech is protected,
however. Thus, government can and does prohibit
false and misleading advertisements, and the
advertising of illegal goods and services.

Broadcast Radio and Television
Both radio and television broadcasting are subject to
extensive federal regulation. Most of this regulation
is based on the often-amended Federal
Communications Act of 1934, which is administered
by the Federal Communications Commission.
 Regulation is allowed because there is limited space
over broadcast waves. Other areas (I.E., Cable) are
not censored.
 In Red Lion Broadcasting Co. v. FCC (1969), the
Supreme Court acknowledged “of all forms of
communication, it is broadcasting that has received
the most limited 1st Amendment protection”.
 Not included: newspapers, magazines, cable,
Internet

Obscenity
The court has held that obscenity is not protected
by the First Amendment.
 But what is obscene??

MILLER V. CALIFORNIA (1973)
The leading obscenity case in the Supreme Court,
established a three part obscenity test.
 Miller, after conducting a mass mailing campaign to
advertise the sale of "adult" material, was convicted of
violating a California statute prohibiting the distribution of
obscene material.

A book, film, recording, or other piece of material is legally obscene if…
“the average person applying
contemporary [local]
community standards” finds
that the work, taken as a
whole, “appeals to the
prurient interest”—that is,
tends to excite lust;
“the work depicts or
describes, in a patently
offensive way” a form of
sexual conduct specifically
dept with in an anti-obscenity
law;
“the work, taken as a whole,
lacks serious literary, artistic,
political, or scientific value”.
INTERNET

United States v. American Library Association (2003) –
Publicly funded libraries must block their computers from
pornographic content and websites if they recieve federal
money.

Reno v ACLU (1996) – It is unconstitutional to block minors
access to “Obscene and Indecent” materials because it
impedes adult access to that material
CONFIDENTIALITY
 Many
reporters and news
organizations argue that they must
have the right to refuse to testify, the
right to protect their sources. They
argue that, without this right, they
cannot insure confidentiality, and
therefore many sources will not reveal
information needed to keep the public
informed.
 Many State and federal courts have
generally rejected the news media’s
argument.
REPORTERS WANTING TO NOT TESTIFY!
States

36 state legislatures
have granted
reporters immunity
from having to name
sources from state law
enforcement
Judith Miller
Refused to reveal her
source in an
investigation of who
divulged the name of
a CIA agent
 She was jailed for 3
months for contempt
of court until her
source told her it was
OK to name him.
