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I.
Prior
Restraint – stopping a message BEFORE it is communicated v ex post facto
punishment
A.
Near v
Minnesota (1931) Saturday Press published anti-Semitic
and corruption charges against police officials.
1.
MN Supreme Court
prohibited further publication of SP under MN law
2.
SCOTUS overturned prior
restraint as violation of constitution except in rare situations.
3.
proper course of action says SCOTUS, is use defamation law
after the fact.
a.
MN law is not aimed at redress of defamation
b.
The case involves public figures
c.
Prior restraint is not punishment but suppression
d.
Acceptable prior restraint could include:
national security, public decency, incitement to violence.
B.
Lovell v
Griffith (1938) A Jehovah Witness convicted of distributing
religious leaflets on the street without a permit. SCOTUS overturns the conviction
1.
The law is
overbroad, as it restricts all literature (not just as in A.3.d. above)
2.
The law is
invalid
on its face for prior restraint by the license requirement
3.
In Schneider v State (1938) preventing litter is not
sufficient government interest for prior restraint. Post facto punishment for
littering is better.
C.
Mills v
Alabama (1966) - A state can't prohibit Election Day
editorials on grounds of “no ability to reply.”
D.
Bantam Books v
Sullivan – a state commission cannot “pressure” publishers to drop “objectionable”
books from distribution, esp. in the absence of judicial standards.
E.
Pittsburg Press v
Pittsburg Commission on Human Relations (1973). The city can prohibit sex
specific job ads because such ads are in furtherance of an illegal act (not prior
restraint) and because it involves commercial speech, which is not as important to 1A
concerns.
F.
Cox Broadcasting v Cohn (1975) - The law can't restrict
publishing names of crime victims whose names are in public records.
G.
Film (Mutual Film v Ohio (1915) - Film is business not
speech, press or “organs of public opinions.”)
1.
Burstyn v Wilson, (1952) reversed Mutual Film and gave film 1A
protection
2.
Freedman v
Maryland (1965) made censorship boards show:
a.
Burden of proof
rests on censors to show that that the restricted film should be unprotected
b.
Decision time
must be quick
c. Judicial review
must be allowed
H.
Issues of Decency
1.
Public nuisance
statutes can't be used to close bookstores but licensing might be OK if
procedural fairness and speed are guaranteed.
2.
RICO (Racketeering
Influenced and Corrupt Organizations) statute for seizing bookstore assets was
added to law in 1984 to include obscenity.
a. Assets can’t be
seized prior to a court finding of obscenity
b. But in Alexander
v U.S. (1993) by 5-4 vote, the USSC permitted
seizure and destruction of all
store inventory including material found NOT obscene.
II.
National Security
1.
Pentagon papers
- NYT v US (1971) SCOTUS said the federal government
didn't meet burden of proof in the face of Free Speech as the preferred freedom
(meaning the burden of proof shifts to the government). But for 15 days the NYT
was restrained.
2.
The
Progressive v US (1979) A preliminary injunction
is issued under Near (the judge “balanced the potential harms) but similar
articles in other papers are published based on general information and
government drops case.
3.
US v Marchetti (1972) A Federal court
prohibited publication of classified information because author had signed a
secrecy contract. The Court viewed it as
a contract issue. SCOTUS denied an appeal.
This was extended in Snepp v US (1980) to permit permanent injunctions
on authors and allowed the government to keep profits from Snepp’s
book ,even though no classified information was published (due to his
contractual obligation to allow government review).
III. Duty to
Obey
A.
One can disobey
statutes "Invalid on their Face" like licensing for literature
distribution of any kind (i.e. laws which restrain protected speech.)
B.
One must go to
court first to overturn "valid laws administered in an unconstitutional
way." (e.g.
discriminatory administration).
C.
One must obey court
orders until they are overturned.
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