Near v. Minnesota, 1931 Newspaper banned by an injunction pursuant to the Minnesota “Gag Law.” U.S. Supreme Court declared the law an unconstitutional prior restraint. First time the Court said the primary purpose of the First Amendment was to outlaw prior restraints. 1 Near v. Minnesota Prohibition on prior restraints not absolute. Doesn’t include: Obstruction of military recruitment; sailing dates of transports; number and location of troops Obscenity Incitement to violence and overthrow of government Fighting words 2 Pentagon Papers case, 1971 NY Times & Washington Post enjoined from publishing contents of the classified Pentagon Papers. U.S. Supreme Court, 6-3, ruled the restraining orders were unconstitutional prior restraints. 3 Key points of Pentagon Papers majority • Prior restraints are presumed unconstitutional. • The government bears the burden of overcoming that presumption. • Here the government did not prove that publication would result in direct, immediate and irreparable harm. Instead, government argued publication “could” or “might” prejudice national interests. • No statute prohibited publication of the type of material involved in Pentagon Papers. 4 Key point of the PP minority • “Unseemly haste.” “Frenzied train of events.” “Frenetic pace and character.” 5 Time, place and manner regulations To be constitutional, a time, place and manner regulation of expression must be: 1. content neutral, that is, not discriminate on the basis of content. This includes not allowing the administrator of the regulation to have unfettered discretion in the granting and denying of licenses. 6 Time, place & manner regs, cont’d 2. be designed to serve a substantial government interest, such as traffic safety, aesthetics, public health/safety. 3. be narrowly tailored to serve that interest, that is, be no more restrictive than necessary to achieve its goal. 4. leave open alternative channels of communication. (This is a form of intermediate scrutiny.) 7 Taxation cases Grosjean v. American Press Co., 1936: A tax on newspapers that is both punitive and discriminatory violates the First Amendment, acts as a prior restraint on publication. 8 Taxation cases Minneapolis Star & Tribune v. Minn. Commissioner of Revenue, 1983 A discriminatory, but not punitive, tax on newspapers violated the First Amendment. The use tax discriminated in two ways: 1) It was imposed on only newspapers, not other users of paper and ink 2) It was imposed only on the largest papers in the state. 9 Taxation cases Leathers v. Medlock, 1991 For the first time, the Supreme Court upheld a tax imposed on some forms of media but not others. The sales tax on cable and satellite services is not discriminatory because it does not distinguish on the basis of content, is applied evenly to all cable and satellite systems, and is the same tax that applies to tangible property and other services. 10