Chapter Three
Objectives
• To understand the concept of prior
restraint.
• To explain the evolution of prior restraint
law in America.
• To cite rules governing prior restraint today.
What is prior restraint?
• Suppressing speech before
it has been published
• A.K.A. censorship!
• Differs from “subsequent
punishment,” which
punishes speech AFTER it
has been disseminated
• Only a few kinds of prior
restraint are permitted now
Early Prior Restraint Definitions
(1) Submitting proposed
publications (2) to government
censors (3) who exercised
considerable discretion
regarding the contents to
be approved for publication,
and it was (4) imposed specifically on
publication (5) in advance of the
publication.
Ways government tries to enact
prior restraint…
1.
2.
3.
4.
5.
6.
7.
Censor news media as threat to national security.
Restrict rights of unpopular groups to demonstrate
or distribute literature in public places.
Forbid “hate speech” on basis of ethnicity, religion,
gender, sexual orientation.
Discriminatory taxation of mass media.
Government censorship of controversial films.
Attempts to regulate stock market newsletters.
Forbid media to print confidential info.
Major prior restraint case
• Near v. Minnesota (1931): THE case that
said that prior restraint is generally
unconstitutional
– Jay Near published
The Saturday Press,
“malicious, scandalous
and defamatory” (and
it was!)
– MN law said that this
publication was “public
nuisance” and shut it down
So what happened?
• NO prior restraint: Supreme Court overturned MN
Supreme Court and allowed Near to keep on
publishing
• Traced development of prior restraint and found
that it should be rare
• Only three occasions where it could be OK:
– Troop movements during wartime
– Obscenity
– “Incitements to acts of violence and the overthrow by
force of orderly government”
The Pentagon Papers
• New York Times v. U.S. (1971):
Daniel Ellsberg got hold of
secret study by Dept. of Defense
that criticized Vietnam war
effort; he gave it to NYT and
Wash. Post
– Nixon administration demanded
papers stop publishing; they
refused, and judge granted
injunction, changed his mind and
vacated, and federal ct. reinstated
Case went quickly to Sup. Ct.
• Court took case during summer break
• Voted 6-3 to set aside prior restraint and allow
papers to publish
• Holding: Government had not proved publication
would endanger national security enough to
justify prior restraint
– “Any system of prior
restraints of expression
comes to this court
bearing a heavy
presumption against its
constitutional validity”
Censorship & national security
• U.S. v. The Progressive (1979): federal
district case, so little precedent
– Progressive to publish article: “The HBomb Secret: How We Got It, Why We’re
Telling It”
– Accurate method of bomb-building
through library research
– Alleged violation of 1954 Atomic
Energy Act
• Judge issued order forbidding
publication
• Appealed, but other publications
carried, so case moot
Overview of current protection
of freedom of expression
• No prior restraints; no seditious libel
• Not protected at all:
–
–
–
–
Defamation
Obscenity/Fighting words
Incitement to imminent lawless behavior
Commercial speech that advertises illegal
goods/services or is misleading
– Child porn
• Semi-protected: Commercial speech that
advertises legal goods/services and is truthful
• Highly protected: Political speech
The “scrutometer”
• Content-based: regulates expression because of its
content (hate speech, fighting words, etc.)
• Content-neutral: regulates any expression,
regardless of its content (time/place/manner
regulations, noise regulations, etc.)
If a law is content-neutral...
• Time/place/manner
regulations are usually OK
• Tests are easier to meet
– Public forums require “least
restrictive means to significant
governmental interest”
– Non-public forums require that
law be “rationally related to
legitimate governmental
interest”
• What is significant vs.
legitimate? The courts decide!
Forms of prior restraint
• Laws enacted to forbid hate speech.
• Laws denying unpopular groups the right to
demonstrate or distribute literature.
• Laws pertaining to discriminatory taxation of
media.
Hate speech: “fighting words”
• Chaplinsky v. New Hampshire (1942):
Introduced Fighting Words Doctrine--“words
likely to cause the average addressee to fight”
– Chaplinsky called official “a damned Fascist” and
got into fight
– “Words by which their
very utterance inflict
injury or tend to incite
an immediate breach of
the peace” are not protected
Hate speech: Revisited
• R.A.V. v. City of St. Paul (1992): St. Paul had hate
speech ordinance that punished actions on basis
of race, color, creed, religion or gender
– R.A.V., a minor, burned cross on black family’s lawn;
convicted
– U.S. Supreme Ct. overturned,
saying ordinance was
content-based—it singled out
race, color, creed, religion or
gender hate speech, so
unconstitutional
Hate speech: Cross burning
• Virginia v. Black (2003): three
men convicted under VA’s 50year-old cross-burning ban
– Court upheld convictions:
intimidation and terror instilled
by cross burning outweighed any
speech value it may have
– “When a cross burning is used to
intimidate, few if any messages
are more powerful”
– Court did say some crossburnings might be protected as
free speech
Hate speech: Penalty enhancement
• Wisconsin v. Mitchell (1993): several AfricanAmerican youths watched “Mississippi Burning”
and then beat up a white youth; convicted
– WI law said hate crimes had increased sentences; law
challenged (CA has one too)
– U.S. Supreme Ct. upheld
conviction and law: “A
physical assault is not by any
stretch of the imagination
conduct protected by the First
Amendment”
Hate speech: more symbolic
• Cohen v. California (1971):
“fuck the draft” case
– Cohen wore leather jacket
with those words on it into
CA courthouse, convicted of
disturbing the peace
– Overturned: Court said
jacket was speech act that
didn’t incite violence
• “One man’s vulgarity is
another’s lyric”
Hate speech: flag desecration
• Texas v. Johnson (1989): Johnson burned flag to
protest Reagan government; convicted under TX
flag desecration statute
– Court overturned conviction: “If there is a bedrock
principle underlying the First Amendment, it is that
the Government may not prohibit the expression of an
idea simply because society finds the idea itself
offensive or disagreeable”
– 48 state flag desecration
statutes and federal statute
all overturned
Abortion speech
• Madsen v. Women’s Health Center (1994): Court
upheld as reasonable time, place and manner
restrictions: (1) 36-foot buffer zone between antiabortion protesters and people seeking access to
clinic; (2) noise restrictions
– Other restrictions failed
as too broad
• Schenck v. Pro-Choice
Network of Western
New York (1997): Court
upheld fixed buffer zones
around clinics but struck down floating buffer
zones as too hard to enforce
Abortion speech
• Planned Parenthood of the Columbia/Willamette
v. American Coalition of Life Activists (9CA
2002), a.k.a. The Nuremberg Files: website that
“planned” for abortion to be illegal and for
providers and supporters to be prosecuted by
gathering info on
them and strongly
suggesting retribution
– Held to be a true
threat and banned
– Considered to be a
“true threat”
Nuremberg Files “status lists”
Pickets and leaflets
• Lovell v. City of Griffin (1938): City ordinance said
approval was needed to circulate pamphlets
– City fined Witness $50 for violation
– Violates First Amendment; discretion left to city
manager who could control content
– City said 1A only applied to newspapers; court said
extends to pamphlet as well
• Schneider v. State of New Jersey (1939): City tried to
stop distribution by charging leafleting person with
littering
– SC said city may punish those who litter but not distributor.
– Also said police can’t issue permits to restrict right to distribute
– Reasonable time/place/manner okay if applied to
Private property literature
distribution
• Hudgens v. NLRB (1976): Shopping center manager
ordered picketers to leave mall
– No Constitutional right to distribute literature at
private shopping center
• Pruneyard v. Robins (1980): Students refused
permission to distribute literature opposing UN resolution
against Zionism; sued and state SC said they have rights;
mall owners sued
– US SC said states can create broader rights than federal
constitution requires
– It’s up to state legislatures and courts to decide if one
can distribute literature in private places
Political speech
• McIntyre v. Ohio Elections Commission (1995):
Court upheld McIntyre’s right to distribute
anonymous political leaflets
– “Anonymity is a shield from the tyranny of the
majority”
• Timmons v. Twin
Cities Area New
Party (1997): Court
upheld MN law
stating that no one
could appear on
ballot as candidate
for more than one party
Restricting Rock
• Ward v. Rock Against Racism (1989) For several
years Rock Against Racism sponsored annual
concerts in Central Park. Would not heed
warnings to lower music so city cut off
electric power and refused them
from ever holding concerts in
Central Park.
-- Sound levels may be limited
and government employees may
be placed in charge of equipment.
Access to parades
• Hurley v. Irish-American Gay, Lesbian and bisexual
Group of Boston (1995):Gay and lesbian groups
nixed from parade.
-- Sponsors have a right to
decide their message and
who participates.
• Boy Scouts of America v. Dale
(2000) Scout leader dismissed
because he was gay.
--Boy Scouts have First Amendment
rights to freedom of association.
Inspiring crimes
• Rice v. Paladin Enterprises (4CA 1997): 4CA held
that family of victims killed by man who had
followed directions in Hit Man could sue book
publisher; content not protected by 1A
• Braun v. Soldier of
Fortune Magazine
(11CA 1992): family
sued Soldier of
Fortune mag for ad
that led to murder for
hire (jury awarded $4.3
mill for wrongful death)
Inspiring crimes
• Grabes v. Warner Brothers (2002):
Jenny Jones guest tells another man he
has a sexual interest in him. Straight man
kills gay man three days later; gay man’s
family sues
– Jury awards family $30 million
– Appellate court says there was no legal
duty
– To anticipate and prevent a murder
three days later and hundreds of miles
away
Publishing rape victims’ names
• Cox Broadcasting v. Cohn (1975): GA TV reporter
got name of rape victim from ct. records and was
sued under invasion of privacy
– Court said 1A and 14A prevent civil or criminal
sanctions for publishing info gotten legally from public
law records
– States may keep names hidden
• Florida Star v. BJF (1989):
reporter copied victim name from
sheriff’s wall; she sued, won $97k
– Court overturned verdict: paper
could not be liable for using info
gained lawfully even if police had been negligent
Conclusion
• It is very difficult to censor the media
before publication. However, the
government can possibly censor media in
extreme situations.
• Laws which are content neutral and
contain time/place/manner restrictions are
generally acceptable.