Chapter 9: Prior Restraint

Question 1

Near v. Minnesota

Answer 1

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

Question 2

Lovell v. Griffin

Answer 2

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

Question 3

Schneider v. State

Answer 3

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

Question 4

Organization for a Better Austin v. Keefe

Answer 4

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

Question 5

Mills v. Alabama

Answer 5

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

Question 6

Bantam Books v. Sullivan

Answer 6

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

Question 7

Pittsburgh Press v. Pittsburgh Commission on Human Relations

Answer 7

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

Question 8

Cox Broadcasting v. Cohn

Answer 8

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

Question 9

Mutual Film Cooperation v. Industrial Commission of Ohio

Answer 9

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

Question 10

Burstyn v. Willson

Answer 10

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

Question 11

Freedman v. Maryland

Answer 11

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

Question 12

Vance v. Universal Amusement

Answer 12

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

Question 13

FW/PBS v. Dallas

Answer 13

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

Question 14

Alexander v. United States

Answer 14

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

Question 15

New York Times v. United States
United States v. Washington Post

Answer 15

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

Question 16

United States v. Progressive

Answer 16

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

Question 17

United States v. Marchetti

Answer 17

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

Question 18

Snepp v. United States

Answer 18

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

Question 19

Wilson v. CIA

Answer 19

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

Question 20

Wikileaks

Answer 20

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.

Question 21

Shuttlesworth v. Birmingham

Answer 21

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

Question 22

Poulos v. New Hampshire

Answer 22

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.

Question 23

Walker v. Birmingham

Answer 23

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.