The Limits of Prior Restraint
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This document summarizes the key Supreme Court cases that have established and refined the limits of prior restraint on press freedom in the United States. It discusses seminal cases like Near v. Minnesota in 1931, which established that prior restraint is unconstitutional but left room for unprotected categories of speech to be punished after publication. Later cases like Brandenburg v. Ohio in 1969 refined the "clear and present danger" standard to only allow prohibiting incitement that is likely to produce imminent unlawful action. The document also discusses historical examples like censorship and bans during the Civil War and World War I, which informed the Supreme Court's approach of allowing more restrictions on press freedom during wartime.
![Weymouth Kirkland“[E]very legitimate newspaper in the country regularly and customarily publishes defamation, as it has a right to in criticizing government agencies”Akin to saying that seditious libel is the purpose of a free press](https://image.slidesharecdn.com/nearv-minnesotalopf11-110928081208-phpapp02/85/The-Limits-of-Prior-Restraint-15-320.jpg)
The Limits of Prior Restraint
- 1. The limits of prior restraintHow far can the press go?
- 2. Sedition Act of 1798Alexander Hamilton (left) is accused of corruption by James Thomson CallenderCallender is imprisoned and finedCallender later turns on Jefferson, his benefactor
- 3. The end of seditious libelSedition Act helps lead to Adams’ defeat in 1800Jefferson (left) lets Sedition Act lapseStill, press is less free during wartime
- 4. Abraham LincolnSuspended habeas corpus to crack down on protestersOhio publisher Clement Laird Vallandigham banished behind Confederate linesCensorship in effect
- 5. Schenckv. United States (1919)Schenck charged with violating Espionage ActHolmes (right) establishes a new standard: “clear and present danger”Wartime is different
- 6. Gitlowv. New York (1925)14th Amendment extends First Amendment to the statesHolmes now takes a more expansive view of free speech“Every idea is an incitement”
- 7. Whitney v. California (1927)Brandeis (left) refines “clear and present danger”A “serious” and “imminent” threat — an “emergency”Brandeis sided with majority on technicality
- 8. Brandenburg v. Ohio (1969)Speech can be prohibited if “directed at inciting or producing imminent lawless action” and —Is “likely to incite or produce such action”Brandeis standard
- 9. Near v. Minnesota (1931)Classic case defining the limits of prior restraintHistory of case told by Fred Friendly in Minnesota Rag
- 10. The Saturday PressBegun by Jay Near and Howard GuilfordClaimed Minneapolis was controlled by Jewish gangstersShut down after nine issues under state’s Public Nuisance Law
- 11. Near loses at state levelArgues that Public Nuisance Law violates the First, Fifth, and Sixth AmendmentsMinnesota Supreme Court: “There is no constitutional right to publish a fact merely because it is true.”
- 12. Unlikely alliesRoger BaldwinCol. Robt. McCormick
- 13. Bad cases make bad lawHarry Chandler, head of American Newspaper Publishers Association, was reluctant to get involvedThe Saturday Press was unsavoryChandler feared a defeat would set back the cause of press freedom
- 14. Charles Evans HughesChief Justice replaced Justice Sanford, author of Gitlow decisionReaffirmed that the 14th Amendment incorporated the First Amendment
- 15. Weymouth Kirkland“[E]very legitimate newspaper in the country regularly and customarily publishes defamation, as it has a right to in criticizing government agencies”Akin to saying that seditious libel is the purpose of a free press
- 16. Justice Brandeis“Of course there was defamation; you cannot disclose evil without naming the doers of evil”“A newspaper cannot always wait until it gets the judgment of a court”Isn’t this why we have a First Amendment?
- 17. Near wins, 5-4Near fails to re-establish himself as a newspaperman, dies in 1936Howard Guilford is assassinated by gangsters in 1934Nevertheless, they contribute to the idea of no prior restraint
- 18. Key points of NearExceptions to the rule of no prior restraintNational securityObstruction of draftDisclosing movement of ships or troopsObscenityFighting words (incitement)
- 19. Key points of NearExceptions to the rule of no prior restraintUnprotected speech may be punished after the factWilliam Blackstone“Criminal” speechLibel — certainly an issue with The Saturday Press
- 20. Key points of NearExceptions to the rule of no prior restraintUnprotected speech may be punished after the factMinnesota’s Public Nuisance Law tantamount to prior restraint
- 21. The Pentagon PapersDaniel Ellsberg provided them to the New York Times and the Washington PostFederal appeals courts ruled against the Times and for the PostSupreme Court takes the case
- 22. New York Times Co.v. United States (1971)Supreme Court issues nine separate decisionsGovernment could prosecute after publicationNixon tried, but was derailed by Watergate