PRIOR RESTRAINTS
Near v. Minnesota
Newspaper publishes a series of articles about how police are lax in trying to capture a gangster and MN statute authorizes an injunction on public nuisance, malicious, scandalous or defamatory publications. Paper is perpetually enjoined from publishing any law enforcement story.
Prior restraints on publication are impermissible unless they relate to issues of:
National Security
Obscenity
Overthrow of government
State secrets
Pentagon Papers
NY times receives a copy of classified info regarding Vietnam war when the controversy was at its peak and began publishing articles about the report.
SPLIT SC: Dissolved injunction but no precedent because each judge wrote a separate opinion and it concerned movements of troops already passed.
Progressive
Newspaper wants to publish the history of the H-Bomb and a basic how to guide
Enjoined.
Distinguish NY Tomes Case:
Specific congressional statute
Not only historical stuff
Specific congressional statute
The court said nuclear proliferation was equivalent to annihilation and said that the right to life outweighed the free press
The Near exception: Grave, direct and irreparable harm.
COLLATERAL BAR
Recognized in some states:
A media organization charged with contempt for dis0beying an injunction cannot defend on the ground that the injunction was unconstitutional.
EXCEPT:
Where it is transparently invalid
NOTE:
Private interests are not enough to allow a prior restraint
Example:
Ignoring an injunction to publish stuff about mobster is w/in the transparently valid exception
BALANCING APPROACH
Landmark v. Virginia
In violation of a criminal statute a Virginia newspaper publishes information about the report of a secret commission, investigating judges.
The statute is unconstitutional because the interests of the public outweighed the need for privacy of a public figure.
There should be no punishment here
The interest in divulging is so high that it is the core of the first amendment
Ste had a strong interest in knowing the reputation of its public figure
Smith v. Daily Mail
It is a criminal offense for a newspaper to publish the names of juveniles in connection w/juvenile proceedings w/out written court order. Newspaper investigates on its own and finds out the name of a killer at a school. Other media can publish this.
Whatever a newspaper legally obtains by investigation may be made public and any statute to the contrary is usually unconstitutional.
EXAMPLES:
Landmark
Cox
OK Publishing
When judge opens court room to public for trial of 11 yr. old he cannot thereafter say it is barred from publication.Rape victim’s name can be publishedCore of 1st amendment
Content Based
Content Neutra;
Strict Scrutiny
Furthers important government interest
Narrowly Tailored
Does not impair free speech.
Comcast v. Broward County
Exactly like Turner but it deals with an Internet ISP instead of a broadcast station
Broward County passes ordinance saying that cable operators must give ISP’s access to their super speed broad band.
There is no monopoly like in the case of broadcast, 90% of people still use dial up.
Imposing an equal access requirement that cable must give access to ISP’s is subject to strict scrutiny.
CONTENT NEUTRAL REGULATION
TAXATION OF THE PRESS
Leathers v. Medlock
In Arkansas there is a sales tax on all 100 cable and satellite providers and not on newspaper or magazines
A sales tax on the press is violative of the first amendment in only certain situations:
Grosjean
Minn. Star
a. Press alone means it is differential taxation
b. Affected 14/388 newspapers so it is unconstitutional
Ark. Writer’s
c. Content based
d. Only a few of the newspapers pay the tax
Only religious, trade and professional magazines exempt from tax The first $100G in supplies is tax exempt for newspapersWhere a tax is on 13/137 newspapers it is narrow and a form or censorship
The tax is valid because
PROF:
Special use in MN v. General in this case
Look at
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Is it narrow or generalIs it content basedWho is it onWhy
Nelson v. McClatchy
Reporter transferred to a non reporter position with the same pay for violating the newspaper’s policy of not reporting favorably on gay’s
A newspaper is a private entity who may put forward certain views and if Tornillo says that they don’t have to publish certain views then they do not have to here.
NOTE ALSO:
Passaic
These cases show the battle of No special NP protection v. Gov’t can’t regulate
Hausch
Female editor sues for sex discrimination in denial of a promotion under Title VII. Tornillo should not govern Title VII cases because title VII is not concerned w/content. A newspaper cannot be required to to publish a reporter’s workas a remedy for unlawful application
DISTRIBUTION
City of Lakewood v. Plain Dealer Publishing
Absolute discretion
Unconstitutional
Gold Coast v. Coral Gables
Coral Gables regulates the placing model and size of newsracks on its public sidewalks for health safety etc and style of neighborhood
A municipality may regulate the placement of newsracks on streets and sidewalks provided the restrictions are valid time place manner.
A facial challenge exists to constitutionality where as here there is a minute chance it is based on content especially in public forum
Not content based but content neutral here because all newspapers affected equally
Handed out in Class to deny a distribution permit for newsstand is absolute.
All cable operators taxed so it was general
Not content based
Taxing one different from the other is only invalid when the potential for existing particular ideas or narrow groups exists.
Content Based in public
Content Neutral in private
Necessary to serve a compelling state interest and narrowly drawn
Not substantially broader (Narrowly tailored) than necc to serve a significant govt interest and provide ample alternative channels of communication
Safety and aesthetics are significant interests
The narrow tailoring was not challenged
Alternative news rack types are available
Allowing equivalent newsracks is not unbridled discretion
Also passes the Central Hudson test
Lee v. Hari Krishna
Airports are not public fora like sidewalks and parks and restriction in these places need only be reasonable.
ALSO:
Ban on pornography to federal prison inmates is constitutional
Ban on distribution of sexually explicit material on a military base is okay.
Content Neutral in Broadcast and cable
Turner I
The same must carry provisions:
They are not content based but content neutral and so are not subject to strict scrutiny
Since content neutral valid if:
a. Significant Government interest
b. Narrowly Tailored
, which is okay because it does not mean that it, has to be the narrowest.
, which exists because Congress thought diversity, was important enough to legislate on.
NOTE:
It does not sweep too broadly since it gives cable operators the opportunity to have some choice in structuring.
Turner II
The same case with the evidence, applying the two layer test:
The substantial government interest was economic health of the broadcast stations because they would die off if the cable didn’t carry them
a. Not merely speculative. There was s
properly sealed.
Daily Mail
If someone else besides the newspaper did the illegal conduct and the newspaper publishes the newspaper is not to blame.
CATEGORICAL APPROACH
Some teenagers burn a cross in the yard of a black family in violation of a Minnesota “hate crime” ordinance and lower court said the amendment was overbroad and content based.
Where an ordinance regulates words or acts that a person knows only, “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender it regulates fighting words which are not protected.
AND
An ordinance such as this is narrowly tailored because it is narrowly tailored to serve the compelling govt. interest against bias motivated threats to public safety and order.
PROF:
Words designed only to injure or cause a breach of the peace
Based on Chaplisky where Jehovah Witness says all other religions are BS and told police officer he was a fascist.
THE LITERAL APPROACH
Like justice Black
No law means no law
CLEAR AND PRESENT DANGER
When words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to regulate.
Rarely used today.
FRREDOM OF SPEECH AND FREEDOM OF PRESS IN CONFLICT
NEWSPAPERS:
Miami Herald
v. Tornillo
Newspaper editorial publishes its opinions on a certain candidate in election campaign and he demands that the newspaper give him space etc to counteract the views.
A newspaper need not grant equal access to its pages and is governed by only 2 concerns:
To insist on equal access may in effect be telling the newspaper what to publish.
ELECTRONIC MEDIA:
Red Lion
Similar issue to Tornillo but involving the broadcast media and equal time.
Broadcast media must follow equal time statutes because of the GENERAL FAIRNESS DOCTRINE
As opposed to the print media the broadcast spectrum is not absolutlely owned, but is licensed.
License is not a monopoly because broadcast is a scarce medium.
Turner I
Congress thinks that a monopoly is imminent in the cable industry and passes a law that cable providers must carry the local broadcast stations as part of their line up to preserve diversity
Not content based because of diversity, trying to increase content
a. No need for strict scrutiny
There must merely be a significant govt interest and narrowly tailored
ANALYSIS:
In this case cable was found to be a potential monopoly which could destroy the broadcast
NOTE
Just because less intrusive methods existed does not mean it is unconstitutional and this law left the core freedom of choice.
Court says the market dysfunction of cable creates the same effect that the limited spectrum space of the broadcast creates
FOR EXAM:
Know how to draw the content based/content neutral distinction.
Acceptance of sufficient numbers of readers
Journalistic integrity
Only case where injunction permitted.
