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Law & Mass Communications
Rutgers University, Newark School of Law
Rosen, Bruce S.

Law & Mass Communications                         Bruce Rosen                             Fall 2014
The Role of the First Amendment
First Amendment (freedom of speech or the press)
Common Law (from England)
Statutory Law
Initially, the First Amendment was thought to deal only with prior restraint—making laws that ban from publishing certain things. Prior restraint came from England as part of common law.
In Schenck v. US (1919), Justice Holmes came up with the “clear and present danger” test, saying that expression can be punished, a decision he regretted later on. The Sedition laws at the time of WWI didn’t really leave room for free speech. Until 1925, the First Amendment also didn’t apply to the states. In 1931, a statute was invalidated for the first time on First Amendment grounds.
Shield Laws—they protect a news person from being questioned or subpoenaed.
Defamation—Slander (oral), libel (written)
NYT v. Sullivan (1964)—Basic standard for defamation. The burden of proof shifted to the plaintiff to prove that the statements are defamatory. In English common law, the burden of proof was on the defendant. Actual malice=knowing or reckless disregard for the truth of a statement about a public official. This was later extended to public figures.
Fair Report Protection—it lets newspapers report on defamatory things that courts or police departments release.
Political speech is ranked the highest. Defamation gets less protection. Obscenity used to get no protection, it now gets some protection. Fighting words (criticism of wars etc.) and commercial speech are in the same boat.  Child pornography is not speech and gets no protection.
Fair Common Privilege (NJ)—Special rights for the press. However, laws of general application also apply to the press.
Some states tax newspapers while others don’t.
The press keeps the government in check (see list on pg. 10).
Restrictions: 1) Government (prior restraint); 2) Private (defamation)
Courts treat governmental restriction on media posing First Amendment problems different from those raised by private litigators.
Governmental regulation: 1) Content-based (more First Amendment issues & scrutiny); 2) Content-neutral
Prior Restraints on Publication
Patterson v. Colorado (1907)—Interpreted First Amendment as only protecting against prior restraint. The Court receded from this view after WWI.
Near v. Minnesota (1931)—The first case in which the Court invoked the First Amendment to strike down a state restriction on the press. A Minnesota law that “gagged” a periodical from publishing derogatory statements about local public officials was held unconstitutional by the Supreme Court. The freedom of press is essential to the nature of a free state but that freedom may be restricted by the government in certain situations.
Tory v. Cochran (2005)—The validity of a permanent injunction in a defamation case brought by a public figure was not discussed when the public figure died.
Alexander v. US (1993)—Forfeiture of business and seizure of obscene materials is not prior restraint, but a subsequent punishment.
NYT v. US (1971)—Known as the Pentagon Papers case. One of the exceptions to prior restraint is national security, but in this case, the injunctions issued by NY and Washington DC courts were found to be unconstitutional. The government didn’t meet its burden in proving harm. Two justices referred to separation of power issues, meaning it is up to Congress or the Executive branch to take the appropriate measures. There was also no future threat to national security due to the articles.
What you need to get an injunction—irreparable harm (usually not just money damages), reasonable probability of success on the merits, balancing equities, public interest.
US v. Progressive (1979)—Prior restraint on the press upheld for national security. The magazine article would provide information to other nations about making a hydrogen bomb. This information was not published in its entirety before and is not in the public domain.
Prior restraints (injunctions) are imposed in copyright infringement as authorized by 17 USC Section 502. The same for trade secret law, although there have been exceptions.
Nebraska Press Association v. Stuart (1976)—First Amendment vs. Sixth Amendment. While in some circumstances, it may be beneficial to suppress the press when it can be shown that a criminal defendant will endure irreparable prejudice if publication is allowed, a judge who wishes to do so must consider the First Amendment constitutional protections afforded to the press. The courts should look to see if alternative measures can be taken and not simply resort to prior restraint as a method of protecting the right to a fair trial.
Beaufort County Board of Education v. Beaufort County Board of Commissioners (2007)—The trial court issued a gag order, forbidding all parties from communicating with the media. Once the suit was submitted to the jury, the trial court dissolved the gag order. The issue is not moot (see pg. 51) and the gag order was unconstitutional. Gag orders can be considered prior restraints. The defendant has the burden of proving that there is a clear threat to the fairness of the trial, such a threat is posed by the actual publicity to be restrained and no less restrictive alternatives are available (see pg. 52).
Gentile v. State Bar of Nebraska (1991)—States may discipline lawyers for their comments about pending cases upon a showing that the comments pose a substantial likelihood of materially prejudicing the pending proceeding.
Baer v. Wikileaks (2008)—The plaintiff, a bank, sued Wikileaks. The judge issued a temporary restraining order (TRO) forbidding further distribution of the documents and the domain provider agreed to the entry of an injunction requiring it to disable the Wikileaks website. The court dissolved the stipulated permanent injunction between the bank and the domain provider, denied the bank’s motion for a preliminary injunction and declined to extend the TRO. The documents were kept on mirror websites and the trial caused even more publicity, which makes the extension of the TRO ineffective. The court also wasn’t convinced that the permanent injunction was the least restrictive measure.
Collateral Bar—One charged with contempt for disobeying an injunction cannot defend on the ground that the injunction was unconstitutional. There are exceptions, see The Providence Journal case on pg. 59. However, in that case, the court said that the publisher should try to get emergency relief and ignore the injunction only if the court doesn’t grant relief in a timely manner.
Bridges v. CA (1941)—The contempt power could be used to punish comments made outside the courtroom only if they present a clear and present danger of obstructing justice.
Pennekamp v. Florida (1946)—Even misstatements of fact didn’t justify holding a newspaper in contempt if the clear and present danger test wasn’t met.
Wood v. Georgia (1962)—The above principle was extended to criticism of a grand jury investigation. A greater degree of disinterestedness and impartiality is assured by slowing free expression.
Direct Prohibitions
The Court has never upheld a use of the criminal contempt power to suppress media publication. The clear and present danger test evolved in the 1950s and 60s and a new methodology was developed.
WWI “clear and present danger”
1957 Yates “specific concrete action”
Brandenburg “imminent lawless action”
Daily Mail Test (see case below) – Strict scrutiny / compelling interest + narrowly tailored
Mills v. Alabama (1966)—States cannot prohibit election-day editorials in newspapers.

Arkansas' Gross Receipts Act imposes a tax on receipts from the sale of all tangible personal property and specified services, but expressly exempts certain receipts from newspaper and magazine sales. In 1987, Act 188 amended the Gross Receipts Act to impose the tax on cable television. A cable television subscriber, a cable operator, and a cable trade organization sued contending that their expressive rights under the First Amendment and their rights under the Equal Protection Clause of the Fourteenth Amendment were violated. In 1989, Arkansas adopted Act 769, which extended the tax to, among other things, all television services to paying customers.
Believing that the First Amendment does prohibit discriminatory taxation among members of the same medium, and that cable and scrambled satellite television services were “substantially the same,” the Arkansas Supreme Court held that the tax was unconstitutional for the period during which it applied to cable but not satellite broadcast services.
The US Supreme Court held that Arkansas' extension of its generally applicable sales tax to cable television services alone, or to cable and satellite services, while exempting the print media, does not violate the First Amendment. Although cable television, which provides news, information, and entertainment to its subscribers, is engaged in “speech” and is part of the “press” in much of its operation, the fact that it is taxed differently from other media does not by itself raise First Amendment concerns. The Arkansas tax presents none of the First Amendment difficulties that have led this Court to strike down differential taxation of speakers.
Furthermore, there is no indication that Arkansas has targeted cable television in a purposeful attempt to interfere with its First Amendment activities, nor is the tax structured so as to raise suspicion that it was intended to do so. Arkansas has not selected a small group of speakers to bear fully the burden of the tax, since, even if the State Supreme Court's finding that cable and satellite television are the same medium is accepted, Act 188 extended the tax uniformly to the approximately 100 cable systems then operating in the State. Finally, the tax is not content based, since there is nothing in the statute's language that refers to the content of mass media communications, and since the record contains no evidence that the variety of programming cable television offers subscribers differs systematically in its message from that communicated by satellite broadcast programming, newspapers, or magazines.
Nothing about Arkansas' choice to exclude or exempt certain media from its tax has ever suggested an interest in censoring the expressive activities of cable television. Nor does anything in the record indicate that this broad-based, content-neutral tax is likely to stifle the free exchange of ideas.
The question whether Arkansas' temporary tax distinction between cable and satellite services violated the Equal Protection Clause must be addressed by the State Supreme Court on remand.