Prior Restraints

Question 1

What is a Prior Restraint?

Answer 1

1. They are administrative systems, judicial orders, or other governmental mechanisms that suppress/stop speech BEFORE it takes place.
2. People need approval first before conveying a message

Question 2

Judicial Order

Answer 2

*They can be an injunction (Government requiring a person to do or cease from doing a specific action)

*Nebraska v. Stuart:
(a) Supreme Court unanimously ruled that a trial court judge did not have the authority to place gag orders on the press/ social media reporting about a crime before jury impanelment, finding it a form of prior restraint.

(b)They applied the clear and present danger test and found that there was a danger that pre-trial publicity could impinge upon D’s right to a fair trial.

(c) However, there was no evidence in the record to demonstrate that other less restrictive options on the press would not have protected his rights. Meaning that even pre-trial publicity does not lead to an unfair trial.

Question 3

Other Governmental Mechanism

Answer 3

(License or Permit schemes that require the government to issue them before speech)

Question 4

3 Steps for a government to require a license or a permit:

Answer 4

1. There must be an important reason;
   - Ex. Need a permit to hold a parade so you don’t have 2 parades at once or interfere with traffic.
2. There must be clear standards leaving almost no discretion to the licensing authority; AND
   - The Supreme Court does not like leaving things to a person with alot of discretion.
3. There must be procedural Safeguards.
   - Ex. Judicial review of a denial decision, decision-based on a full and fair hearing, requirement for prompt determination.

Question 5

License/ Permit Procedural Safeguards Cases:

Answer 5

1. Lovell v. Griffen Case:
   - The Court declared unconstitutional a city’s ordinance that prohibited the distribution of leaflets, literature, or advertising without the written permission of the city manager.
   The liberty of the press is not only confined to newspapers and periodicals.
2. Lakewood v. Plain Dealer Case:
   - The city prohibited the private placement of any structure on public property and so the city denied the Newspaper from placing its dispensing machines on sidewalks.
   Unconstitutional because it gave unlimited discretion to the mayor and so when a licensing statute gives alot of discretion to a government official in terms of permitting or denying expressive activity., one who is subject to the law may challenge it facially without having applied/denied a license.
3. PBS v. Dallas:
   (a)The court declared unconstitutional a city ordinance that required licensing of “sexually oriented businesses” because of the absence of procedural safeguards and the law failed to require prompt determination of license requests or to provide for judicial review of license denials.

Question 6

Collateral Bar Rule:

Answer 6

1. This rule prevents a person who disobeys a judicially ordered prior restraint from raising arguments about its invalidity as a defense in a proceeding.
   (a) UNLESS a law is unconstitutional on its face.

Question 7

Collateral Bar Rule Cases

Answer 7

1. Poulos v. New Hampshire:

(a)The court applied the collateral bar rule and affirmed an individual’s conviction for conducting a religious service in a public park without the required license. The defendant could not challenge that denial because he proceeded without a license.
(b)The law was valid on its face and thus must be complied with a failure to follow it

2. Shuttlesworth v. City of Birmingham:

(a)The court did not apply the collateral bar rule because the permit law was facially unconstitutional meaning, it was not valid on its face since it gave too much discretion to government officials.

Question 8

Court Orders to Protect National Security:

Answer 8

1. Typically only permitted if publication would “result in direct, immediate and irreparable damage to out the nation or its people”.
2. There is a “heavy presumption against prior restraint” meaning that the court is very likely to find cases of government censorship unconstitutional and they have a heavy burden of showing that a prior restraint is justified.

Question 9

Court Orders to Protect Fair Trials

Answer 9

1. Strong presumption against gag orders on the press

(a) Courts are mixed about whether lawyers should also get a gag order.

1. Only allowed in the rarest circumstances because there are other reasonable alternatives such as:

(a) Postponing a trial
(b)Change of venue
(c)Questioning prospective jurors
(d) Clear jury instructions.