Communications Law. COMM 407, CSU Fullerton
MODERN PRIOR RESTRAINTS
CHAPTER 3
Prior Restraint
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Prior Restraint (censorship): Prohibition
of speech before the fact
Prior Restraint
Near v. Minnesota (1931)
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Facts of the Case
Jay Near published a newspaper, in which he
attacked local officials.
Minnesota officials obtained an injunction to
prevent Near from publishing his newspaper under
a state law that provided that any person "engaged
in the business" of publishing a "malicious,
scandalous and defamatory" periodical was guilty
of a nuisance
Prior Restraint
Near v. Minnesota (1931)
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Question
Does the Minnesota "gag law" violate the free
press provision of the First Amendment?
Prior Restraint
Near v. Minnesota (1931)
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Conclusion
Decision: 5 to 4 votes for Near
The protection against previous restraints is at the
heart of the First Amendment.
The Court held that the statutory scheme
constituted a prior restraint and hence was invalid
under the First Amendment.
Prior Restraint
Near v. Minnesota (1931)
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“Any system of prior restraints of expression
comes to this Court bearing a heavy presumption
against its constitutional validity”
The Court established as a constitutional principle
that, with some narrow exceptions, the
government could not censor or otherwise
prohibit a publication in advance, even though
the communication might be punishable after
publication in a criminal or other proceeding.
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)
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U.S. v. Marchetti (1972, U.S. Court of Appeals):
censorship allowed but only for classified
information
Snepp v. U.S. (1980): Snepp violated his
employment contract with the CIA]
Censoring Government Employees
Honoraria
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U.S. v. National Treasury Employees Union (1955)
Facts of the Case
The Ethics in Government Act of 1978 (amended 1989),
prohibits members of Congress, federal officers, and other
government employees from accepting an honorarium for
making an appearance, speech, or writing an article.
The National Treasury Employees Union filed suit
challenging the honorarium ban as an unconstitutional
abridgement of its freedom of speech.
U.S. v. National Treasury Employees Union (1955)
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Question
Does the honoraria ban abridge freedom of speech as
protected by the First Amendment?
Conclusion
Yes. In a 6 to 3 decision, the Court declared that a flat ban
violated free-speech rights.
Concerns about impropriety do not apply if there is no link
between a government employee's job and "the subject
matter of the expression or the character of the payor."
Censoring Government Employees
Contracts versus Free Speech
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Speech Acts
Whistleblowers
False Speech: Stolen Valor Act
U.S. v. Alvarez (2012)
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Facts of the Case
Xavier Alvarez claimed to be a retired Marine and a
recipient of the Congressional Medal of Honor.
In fact, he had not received the Congressional Medal of
Honor, nor any other military medal or decoration.
The Stolen Valor Act of 2005 makes it a crime to falsely
claim receipt of military decorations or medals.
Mr. Alvarez was charged with falsely representing that he
had been awarded the Congressional Medal of Honor
False Speech: Stolen Valor Act
U.S. v. Alvarez (2012)
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Question
Does the Stolen Valor Act, violate the Free Speech Clause
of the First Amendment?
Decision:
Yes. Content-based restrictions on speech are subject to
strict scrutiny and are almost always invalid, except in
rare and extreme circumstances.
Congress drafted the Stolen Valor Act too broadly,
attempting to limit speech that could cause no harm.
Criminal punishment for such speech is improper.
“Hate Speech”
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“Fighting words”
Flag / cross burning
Offensive/profane speech
“Hate speech” on college campus
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The UC regents are meeting this week, and much interest
is focused on a discussion scheduled for Thursday about
proposed "principles against intolerance."
The statement would condemn bias, violence and hate
speech based on race, ethnicity, religion, citizenship, sex or
sexual orientation while also attempting to protect free
speech on campuses.
Read in L.A. Times
“Hate speech” on college campus
Listen on NPR
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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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.
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.
Also: Virginia v. Black (2003)
 While a State, consistent with the First Amendment, may
ban cross burning carried out with the intent to intimidate,
the provision in the Virginia statute treating any cross
burning as prima facie evidence of intent to intimidate
renders the statute unconstitutional in its current form
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.)
Standards of judicial review
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Minimum Scrutiny
Rational Standard / Legitimate Interest: requires the law to
be reasonably related to a legitimate state interest.
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Intermediate Scrutiny
Important governmental interest: requires the law to be
substantially related to an important government interest
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Strict Scrutiny
Compelling governmental interest: the law must be
narrowly tailored to address a compelling state interest.
Strict scrutiny
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a form of judicial review that courts use to
determine the constitutionality of certain laws.
To pass strict scrutiny, the legislature must have
passed the law to further a "compelling
governmental interest," and must have narrowly
tailored the law to achieve that interest.
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