Chapter 9: Prior Restraint Flashcards
Near v. Minnesota
Facts: Near was convicted under a Minnesota gag law that prevented articles denouncing public officials
Decision: SCOTUS sides with Near
Significance: SCOTUS establishes that MOST prior restraints are unconstitutional.
Two Caveats: the protection against prior restraint is not absolute and post facto punishment is permissible
Lovell v. Griffin
Facts: Lovell (Jehova’s Witness) is convicted for distributing leaflets without written permission from the city manager of Griffin, GA
Decision: SCOTUS sides with Lovell because the ordinance is unconstitutionally overbroad
Significance: SCOTUS asserts that reasonable time, place, and manner restrictions are permissible
Schneider v. State
Facts: 4 cases in 1
- Los Angeles, Milwaukee, Irvington, and Worscter all have laws preventing the public distribution of handbills.
- The laws are an attempt to reduce litter
Decision: SCOTUS rules that the ordinances are an unconstitutional prior restraint on speech
Significance: Maintaining free speech is more important that preventing litter
Organization for a Better Austin v. Keefe
Facts: A Chicago judge issues a prior restraint against Organization for a Better Austin to prevent them from continuing to distribute flyers that denounce Keefe’s blockbusting
Decision: SCOTUS rules that the prior restraint is unconstitutional
Significance: SCOTUS establishes that there is a “heavy presumption” against the constitutionality of all prior restraints and a “heavy burden” for the government
Mills v. Alabama
Facts: An Alabama law prohibits publishing editorials on Election Day because the candidates have no time to respond
Decision: SCOTUS rules that this is an unconstitutional prior restraint
Significance: example of an unconstitutional prior restraint on the press
Bantam Books v. Sullivan
Facts: Bantam Books challenges the practices of The Rhode Island Commission to Encourage Morality in Youth after they begin to place pressure on bookstores to stop selling indecent materials
Decision: SCOTUS sides with the Bantam because there were no checks on the commission’s power
Significance: SCOTUS ruled that extralegal censorship was not a constitutional loophole
Pittsburgh Press v. Pittsburgh Commission on Human Relations
Facts: Pittsburgh Press is ordered to stop publishing help-wanted ads that are separated into male and female columns on account of a Pittsburgh ordinance that prohibits employment discrimination
Decision: SCOTUS sides with the Commission on Human Relations and asserts that the order IS constitutional
Significance: Shows that SCOTUS is willing to uphold a small number of narrow prior restraints
Cox Broadcasting v. Cohn
Facts: A reporter is convicted under a Georgia law that prevents publishing the name of a rape victim
Decision: SCOTUS sides with Cox
Significance: The prior restrain of information found in public records is unconstitutional
Mutual Film Cooperation v. Industrial Commission of Ohio
Facts: Mutual Film Corporation takes the Ohio film screening board to court, arguing that their actions violate free speech rights
Decision: SCOTUS sides with the screening board
Significance:
(1) films do not constitute a form of protected speech
(2) the prior restraint of movies IS constitutional
Burstyn v. Willson
Facts: A NY film’s license is revoked after the community deems it sacrilegious
Decision: SCOTUS reverses the decision
Significance:
(1) SCOTUS grants films protection under the first amendment
(2) BUT licensing is still allowed
Freedman v. Maryland
Facts: Freedman is fined for screening a movie that had not been approved by the Maryland licensing board
Decision: SCOTUS sides with Freedman because the Maryland licensing scheme has no procedural safeguards
Significance: SCOTUS establishes required procedural safeguards for licensing schemes
(1) the burden of proof rests on the censor
(2) the decision must be made within a specific, brief period
(3) must assure prompt appeals process
Vance v. Universal Amusement
Facts: Universal Amusement challenges the Texas police for using a nuisance abatement law to declare their adult store a public nuisance and shut it down
Decision: SCOTUS sides with Universal Amusement because the practice lacked prompt judicial review
Significance: Public nuisance laws cannot be broadly used to create prior restraints
FW/PBS v. Dallas
Facts: FW/PBS challenges the city of Dallas when it starts requiring adult entertainment establishments to acquire a license before selling products
Decision: SCOTUS rules that the law is unconstitutional because it didn’t ensure a decision in a specific, brief period
Significance: Store licensing cannot be broadly used to create prior restraints
Alexander v. United States
Facts: All of Alexander’s assets are seized under the Racketeering Influencing and Corrupt Organization Act (RICO) after he sold 7 obscene video tapes
Decision: SCOTUS upholds the seizure
Significance: RICO can be used to impose prior restraints
New York Times v. United States
United States v. Washington Post
Facts: Vietnam war documents are leaked to the New York Times and the Washington Post. The government goes to SCOTUS seeking a nationwide ban on publishing the “Pentagon Papers” in the interest of national security
Decision: SCOTUS sides with the press because the government did not meet the “heavy burden” required to justify such a restraint
Significance: SCOTUS establishes that there is a “heavy presumption” against the constitutionality of all prior restraints
United States v. Progressive
Facts: The Progressive writes an article about the H-Bomb recipe and the government asks a federal judge for a prior restrain against the article’s publication
Decision: A federal judge grants the prior restraint on the grounds that protecting the world’s population is more important than protecting free speech. The Progressive appeals but the US drops the case during the process because another paper published a similar article
Significance: Although not SCOTUS, an example of the courts authorizing a prior restraint in the name of national security
United States v. Marchetti
Facts: The CIA goes to court to get a prior restraint against Marchetti, a former agent who wrote a book about his time at the CIA
Decision: SCOTUS grants the request and forces Marchetti to submit his book for review. Marchetti publishes the book with blank spaces that indicate redacted text.
Significance: SCOTUS upholds the CIA’s right to review and prevent the publication of confidential information
Snepp v. United States
Facts: The CIA sues Snepp, a former agent, for publishing a book about his work in Vietnam without submitting it to the CIA for review
Decision: SCOTUS sides with the government and forces Snepp to surrender all proceeds to the government
Significance: Takes away the financial incentive for agents who wish to write an esposé book
Wilson v. CIA
Facts: Wilson is sued by the CIA after she includes redacted information in the afterword of her book, which was written by another person
Decision: A federal court sides with the CIA
Significance: neither a CIA agent nor a third party can publish classified information
Wikileaks
A website that encourages the publication of governmental documents. Many scholars believe the site nullifies prior restraint laws because the government has no authority over the site.
Shuttlesworth v. Birmingham
Facts: Shuttlesworth is arrested for holding a civil rights protest in Birmingham without a permit
Decision: SCOTUS sides with Shuttlesworth because the Birmingham law is clearly unconstitutional
Significance: One may disobey a law that is clearly unconstitutional
Poulos v. New Hampshire
Facts: Based on his religious beliefs, Poulus is denied a permit to hold a religious event in a public park. He holds the event anyway.
Decision: SCOTUS rules in favor of the State.
Significance: If a law is constitutional, but administered in an unconstitutional way, it must still be obeyed. The proper way to handle such a matter is through the courts.
Walker v. Birmingham
Facts: A Birmingham judge issues a prior restraint against a civil rights march. Walker marches anyway and is arrested.
Decision: SCOTUS sides with the government
Significance: If a judge issues an order, it must be followed. Rather than disobeying the order, it should be challenged in court.
