The Limits of Prior Restraint


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How far can the press go? From Schenck v. United States, to Near v. Minnesota, to New York Times v. United States.

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The Limits of Prior Restraint

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