The Limits of Prior Restraint


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A look at how prior restraint has been handled by the U.S. Supreme Court, culminating in the case of Near v. Minnesota

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The Limits of Prior Restraint

  1. 1. The limits of prior restraint<br />How far can the press go?<br />
  2. 2. Sedition Act of 1798<br />Alexander Hamilton (left) is accused of corruption by James Thomson Callender<br />Callender is imprisoned and fined<br />Callender later turns on Jefferson, his benefactor<br />
  3. 3. The end of seditious libel<br />Sedition Act helps lead to Adams’ defeat in 1800<br />Jefferson (left) lets Sedition Act lapse<br />Still, press is less free during wartime<br />
  4. 4. Abraham Lincoln<br />Suspended habeas corpus to crack down on protesters<br />Ohio publisher Clement Laird Vallandigham banished behind Confederate lines<br />Censorship in effect<br />
  5. 5. Schenckv. United States (1919)<br />Schenck charged with violating Espionage Act<br />Holmes (right) establishes a new standard: “clear and present danger”<br />Wartime is different<br />
  6. 6. Gitlowv. New York (1925)<br />14th Amendment extends First Amendment to the states<br />Holmes now takes a more expansive view of free speech<br />“Every idea is an incitement”<br />
  7. 7. Whitney v. California (1927)<br />Brandeis (left) refines “clear and present danger”<br />A “serious” and “imminent” threat — an “emergency”<br />Brandeis sided with majority on technicality<br />
  8. 8. Brandenburg v. Ohio (1969)<br />Speech can be prohibited if “directed at inciting or producing imminent lawless action” and —<br />Is “likely to incite or produce such action”<br />Brandeis standard<br />
  9. 9. Near v. Minnesota (1931)<br />Classic case defining the limits of prior restraint<br />History of case told by Fred Friendly in Minnesota Rag<br />
  10. 10. The Saturday Press<br />Begun by Jay Near and Howard Guilford<br />Claimed Minneapolis was controlled by Jewish gangsters<br />Shut down after nine issues under state’s Public Nuisance Law<br />
  11. 11. Near loses at state level<br />Argues that Public Nuisance Law violates the First, Fifth, and Sixth Amendments<br />Minnesota Supreme Court: “There is no constitutional right to publish a fact merely because it is true.”<br />
  12. 12. Unlikely allies<br />Roger Baldwin<br />Col. Robt. McCormick<br />
  13. 13. Bad cases make bad law<br />Harry Chandler, head of American Newspaper Publishers Association, was reluctant to get involved<br />The Saturday Press was unsavory<br />Chandler feared a defeat would set back the cause of press freedom<br />
  14. 14. Charles Evans Hughes<br />Chief Justice replaced Justice Sanford, author of Gitlow decision<br />Reaffirmed that the 14th Amendment incorporated the First Amendment<br />
  15. 15. Weymouth Kirkland<br />“[E]very legitimate newspaper in the country regularly and customarily publishes defamation, as it has a right to in criticizing government agencies”<br />Akin to saying that seditious libel is the purpose of a free press<br />
  16. 16. Justice Brandeis<br />“Of course there was defamation; you cannot disclose evil without naming the doers of evil”<br />“A newspaper cannot always wait until it gets the judgment of a court”<br />Isn’t this why we have a First Amendment? <br />
  17. 17. Near wins, 5-4<br />Near fails to re-establish himself as a newspaperman, dies in 1936<br />Howard Guilford is assassinated by gangsters in 1934<br />Nevertheless, they contribute to the idea of no prior restraint<br />
  18. 18. Key points of Near<br />Exceptions to the rule of no prior restraint<br />National security<br />Obstruction of draft<br />Disclosing movement of ships or troops<br />Obscenity<br />Fighting words (incitement)<br />
  19. 19. Key points of Near<br />Exceptions to the rule of no prior restraint<br />Unprotected speech may be punished after the fact<br />William Blackstone<br />“Criminal” speech<br />Libel — certainly an issue with The Saturday Press<br />
  20. 20. Key points of Near<br />Exceptions to the rule of no prior restraint<br />Unprotected speech may be punished after the fact<br />Minnesota’s Public Nuisance Law tantamount to prior restraint<br />
  21. 21. The Pentagon Papers<br />Daniel Ellsberg provided them to the New York Times and the Washington Post<br />Federal appeals courts ruled against the Times and for the Post<br />Supreme Court takes the case<br />
  22. 22. New York Times Co.v. United States (1971)<br />Supreme Court issues nine separate decisions<br />Government could prosecute after publication<br />Nixon tried, but was derailed by Watergate<br />