Constitutional Law II: Speech and Religion Outline

Topics in Free Speech and Religion
Principles and Fact Patterns
Fall 2009

I. Speech
[Historical Introduction Omitted] Prior Restraints
Principles of Prior Restraints
· Even at English common law, prior restraints were prohibited.

· In Patterson v. Colorado, Holmes suggested the 1st Am did nothing except prohibit prior restraints. But Brandenburg negates that idea.

· The prohibition on prior restraints is not absolute. But the prohibition against it is so basic it is very difficult under any circumstances for the gov’t to get one.

· When the government wants to issue an injunction on info, it bears a heavy burden in showing why. Serious National Security information might warrant a prior restraint. (NY Times v. US – Pentagon Papers Case)

· In publication of facts in a trial, alternatives for a fair trial matter:
o If the alternatives are impossible a prior restraint may be appropriate.
o If the alternatives are possible, a prior restraint can’t be justified.

· The application of the Hand standard in Nebraska Press Ass’n casts doubt on the strength of Brandenburg.

· Pretrial discovery is not a public part of trial and can be controlled by the court (Seattle Times Co.)

· Remember: Just because a prior restraint isn’t granted, there can still be punishment for the speech after it’s made. (Both civil and criminal?)
Fact Patterns (Cases) on Prior Restraints
· NY Times v. United States – The Pentagon Papers Case (1971)
o Government sought a temporary restraining order against publication of the Pentagon Papers, which detailed the history of American Involvement in Viet Nam.
o Court said: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity”
o Court held: Prior restraint inadmissible since info already in pubic domain.
o Concurrence (Douglas): 1st Am leaves no room for restraint on press.
o Concurrence (Brennan): would require proof that the publication must inevitably, directly, and immediately cause the equivalent of endangering a transport already at sea.
§ So: Must be an issue of national security AND be at war?
o Concurrence (Stewart): In national defense/int’l affairs, there are no checks on the executive so an informed and free press is more important.
o Concurrence (Black): Absent some showing of national security, prior restraints not allowed.
o Concurrence (White): Would allow prior restraints in certain circumstances IF authorized by congress.
· Atom Bomb case?
· Nebraska Press Ass’n v. Stuart
o Homicide Trial in a small town. State procedure required the trial be in or near that town. Court enjoined reporting of confessions and other things implicating the accused until the jury was impaneled.
o Competing Constitutional Principles:
§ 6th Am Right to a Fair Trial (And private interest of the accused)
§ 1st Am Right of the Free Press
o Held: the pretrial order couldn’t stand, partially because there were other alternatives to provide a fair trial (Change of venue, postponement, extensive voir dire, clear jury instructions).
o Burger’s Maj. Op: applies Hand’s CAPD sliding scale from Dennis in 3 parts
§ Evaluates extent of pretrial news coverage
§ Compare: Whether other measures would be likely to mitigate effects of unrestrained publicity.
§ How effectively a restraining order would prevent the danger
§ Rabban: Applying this standard is odd. Brandenburg was decided before this case and changed the standard. So it casts doubt on the strength of Brandenburg.
o Concurrences:
§ Powell: prior restraint only okay if
· There’s a clear threat to the trial
· The threat is posed by the actual publicity to be restrained
· No less restrictive alternatives available
· Restraint will not be defeated by previous publicity
§ Brennan: prior restraints never appropriate to protect 6th Am fair trial.
· So 1st Am > 6th Am?
· Seattle Times Co. v. Rhinehart
o Dealt with right of civil litigants to disseminate info gained through pretrial discovery.
o Held: pretrial discovery is not a public part of trial and discovery is controlled by the ct.
o But disclosure may be possible if the info is obtained (or obtainable) by other means.
Issues in Prior Restraints
· What would it take for the government to get a prior restraint? What is the “heavy burden” the government bears.
o If, in NYT v. US, there were a showing that it WOULD harm national security, and that those papers (the ones about intercepting the N. Vietnamese code) hadn’t been made available somewhere already (here, they were in a Senate Foreign Relations Committee Report).
§ Rabban: Had that not been published, there would have been a strong argument for a prior restraint in the case, at least in regards to that document.
o In Nebraska Press what if there were no alternatives for venue? In a trial, voir dire is probably always an option. How viable is postponement really though? Doesn’t that violate D’s 6th Am right eventually?

· How strong is Brandenburg today?
Group Libel
Principles of Group Libel
· Group defamation is not included within the 1st Am and can be regulated by legislature (Beauharnais)

· That the libel is of a group rather than an individual does not matter. Still libelous.

· Caveat: if a statute prohibited libel of a political party, it’d be a different story.
Fact Patterns (Cases) on Group Libel
· Beauharnais v. Illinois (Overruled [in part?] by NYT v. Sullivan)
o A statute criminalized speech that denigrated groups based on “race, color, creed, or religion.” Beauharnais was convicted of handing out a pamphlet protesting the abolition of racially restrictive covenants because it w