McGahan v
Gulfport
- Step 1 -- The law is probably
not overbroad since it seems fairly specifically directed at prohibiting
only material of a sexual nature such as to be obscene (under
Gulfport law). It is probably vague
(under Connally v. General Construction 1926) because of the undefined
term "erotic setting." (This decision could go either
way with an appropriate explanation.)
- Step 2 -- Under Chaplinsky v
N.H. 1942, this is the heart of
the matter. Is the picture obscene? (The appropriate category under Chaplinsky guidelines
is #1) The evaluation of this case (go down on the chart)
involves testing whether or not the picture can be restricted as
"worthless speech?"
- Step 3 -- Using the precedent
case of Miller v California - test
1: a shower scene does not seem erotic enough to be classified
as "appealing to the prurient interest." test 2:
Under Jenkins v Georgia 1974, mere nudity is not enough to be considered
"patently offensive and, thus, obscene. test 3:
Using the SLAPS test and the fact that the photographer is an award
winner, this work likely has redeeming artistic value. Thus, the
work is not obscene and deserves 1st amendment protection. [ FYI. Under level one
there does not appear to be any danger (bad tendency is no longer the
law) and no precedents which support a compelling state interest to
balance McGahan's speech against some other state interest. Free speech is the preferred freedom.
]
Resulting
decision
- Due to vagueness the law
is unconstitutional (This could go either way with an appropriate explanation)
- The work is not obscene under
Miller -- so (either way) McGahan's conviction is overturned.
Trudison v CIA
- Step 1 -- The contact language
Trudison signed is not
vague. It seems quite clear as to what the "rules" are.
While the language is broad in that it restricts any material
concerning U.S. Government Activities, since it is in a contract
Trudison voluntarily signed, that question should probably have been
raised long ago. In any case, because it restricts discussion of
activities but not opinions on policy the court would not overturn the
injunction based on over breadth. (This decision could go the other
way if you present a good justification.)
- Step 2 -- The book in
question is certainly "worthwhile speech" since it deals with matters of
clear public concern in the administration of government activities and
there is no indication of lewd, obscene, defamatory or fighting words
being at issue (as required under Chaplinsky).
- Step 3 -- The appropriate
level one test is #2 - Balancing. Is there sufficient government
interest in national security to justify prohibiting the book?
Under Snepp v United States 1980 the USSC affirmed that secrecy
agreements signed by government employees are binding and First
Amendment protections cannot save expression that is restricted under a
valid contract. In essence, the court in Snepp confirmed the lower court
decision in United States v Marchetti 1972 that treated such conflicts
as matters of contract dispute NOT free expression.
Resulting decision
- The injunction
prohibiting publication is sustained.
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