First Amendment Principles That Apply Generally Flashcards
value of mktplace of ideas
o the corrective for “evil counsels” is more speech, not government suppression
o forum for debate and discussion
o citizens come together free from government interference to discuss diverse ideas and opinions
o ideally, truth emerges from the clash of opposing viewpoints in the competition of the market
values served by uninhibited speech
o individual self-fulfillment/self-realization/self-determination
o advancement of knowledge/discovering “truth”
o participation in decisionmaking
o maintaining an adaptable and sustainable community
o democratic self-governance
o checking abuse of governmental power
governing rule for prior restraints (how to distinguish from subsequent punishment)
o governing rule: judicial or legislative attempts to stifle speech before it occurs are presumptively unconstitutional (Near v. MN)
can take the form of a licensing scheme or an injunction
**to distinguish between prior restraint and subsequent punishment, be sure to look beyond the form of the statute to its operation and effect
• ex) in Near, the govt could shut a newspaper down if it published scandalous material – it looked like a subsequent punishment, but in effect, it was a prior restraint acting as a restriction, rather than a punishment
5 exceptions to prior restraint rule
national security (extremely narrow exception)
• must prove direct, immediate, and irreparable harm to the nation (easier in times of war/terror)
• ex) The Progressive Case (divulging H-Bomb info)
obscenity
breach of the peace (i.e. incitement of imminent lawless action)
copyright (injunctions expressly authorized by Sec 502 of Copyright Act – detailing available remedies)
trade secrets (preventing a prior employee from divulging confidential company info)
PF case for prelim injunction
- (1) a combination of probable success on the merits and the possibility of irreparable injury, OR
- (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party
- (9th Circuit also requires that you consider public interest)
rule and exception (along with considerations) for preventing the press from reporting courtroom events
rule: there is no law preventing the press from reporting courtroom events (Sheppard v Maxwell) • exception: where there is a reasonable likelihood that coverage will prevent a fair trial, the court should consider the following options: o change venue o continue the case o transfer the case o sequester the jury o order a new trial o tailor the jury instructions
rule and considerations for prior restraints and gag orders
rule: to determine if a prior restraint/gag order used to ensure a fair trial is constitutional, you must determine whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger
• i.e. must show clear and present danger that ∆ won’t get a fair trial
• key considerations:
o nature and extent of pretrial coverage,
o whether other measures would be likely to mitigate the effects of pretrial news coverage (ex – change of venue, postponement, juror screening, jury instructions, etc.),
o how effective the PRO would be, and
o the terms of the PRO (must not be vague/overbroad)
PF case to justify a gag order
gag order: a form of PR (so presumptively invalid) prohibiting participants in judicial proceedings from speaking to the public/press about those proceedings
• rule: the party asserting the validity of the gag order must establish:
o a clear threat to trial fairness,
o such threat is posed by the actual publicity to be restricted,
o no less restrictive alternatives are available, AND
o the record must show that the trial court considered all of these factors, backed by evidentiary findings
rule for applying contempt
o rule: the contempt power can be used to punish comments made outside the courtroom only if they present a clear and present danger of obstruction of justice
even misstatements of facts alone do not justify contempt if the above test isn’t met
key is that contempt shouldn’t be used as a way of protecting judicial egos
collateral bar rule
o collateral bar rule: one charged with contempt for disobeying an injunction cannot defend on the ground that the injunction was subsequently found to be unconstitutional
i.e. you can’t disobey a court order and then after a later trial finding that the order was actually unconstitutional say “see, its totally fine that I disobeyed it, it was an improper order” – you still disobeyed the order and are subject to penalty
daily mail principle
o Daily Mail principle: if a media outlet lawfully obtains truthful info about a matter of public significance, then state officials may not constitutionally punish publication of the info absent a need to further a state interest of the highest order
applies no matter how they obtained the info, so long as it is lawful (threshold inquiry)
• courts are typically lax in analyzing whether this threshold is met – i.e. it’s still good if you got the info from someone else who got it illegally
general rule for regulating access to print media
rule (for print media): compelling newspaper editors to publish that which reason tells them should not be published is unconstitutional, even if the media would face no additional costs to comply and would not be forced to forgo other publication (Tornillo)
• reasoning:
o chills speech
o exercises a penalty on expression
o editorial freedom of judgement
• rule was made in response to “right of reply” statutes
• **note: press responsibility is not mandated by the Constitution and cannot be legislated
regulation by financial disincentive
rule: a statute is presumptively inconsistent with the 1st Am if it imposes a financial burden on speakers because of the content of their speech (strict scrutiny)
• ex) taking away Henry Hill’s profits from Goodfellas (need a compelling govt’l interest)
when is taxation as regulation constitutionally suspect
When Taxation is Constitutionally Suspect
• rule: differential taxation of 1st Am speakers is constitutionally suspect when it threatens to suppress the expression of particular ideas/viewpoints (Grosjean)
• rule: a tax is also suspect if it targets a small group of speakers for fear of censorship of ideas (Minneapolis Star)
• rule: a tax is suspect if it discriminates on the basis of the content of taxpayer speech (Leathers)
• **differential taxation of speakers, even members of the press, does not implicate the 1st Am unless the tax is directed at, or presents the danger of, suppressing particular ideas – so consider:
o improper legislative intent
o suspect structure
o content based
miller test for obscene materials
modern test (Miller v CA):
• (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
o i.e. “obscenity” changes over time with our community standards
• (b) whether the work depicts/describes, in a patently offensive way as assessed by contemporary community standards, sexual conduct specifically defined by the applicable state law, AND
• (c) whether the work, taken as a whole, lacks serious literary, artistic, or scientific value (RPP standard, NOT community standard)
o i.e. we aren’t looking for one Shakespeare soliloquy hidden within
o the court may step in on behalf of the jury and determine this element
