Freedom of the Press I (Prior Restraint) Lecture 22 Chapter 6 Freedom of the Press I (Prior Restraint)

This Lecture Freedom of the Press Chapter 6 Pages 293-309 Prior Restraint Near v. Minnesota (1931) New York Times v. United States (1971) Hazelwood School District v. Kuhlmeier (1988)

What is Freedom of the Press? The wording Congress shall make no law… abridging the freedom of the press This was designed to help preserve democracy Doesn’t allow for political leaders to control the press And allows for them to be criticized Are all types of press equal? The founders could not have conceived of television or internet Print media seems to get more protection

Near v. Minnesota (1931) Background Near was the owner of the Saturday Press His newspaper was designed to expose corruption, but also had anti-Semitic and racist attitudes Very to that degree A judge issued on this basis a restraining order to prevent sale of printed and future editions This TRO was based on a Minnesota law preventing a malicious, scandalous and defamatory newspaper, magazine or periodical The ACLU and later the Chicago Tribune help Near to challenge the law

Near v. Minnesota- II Arguments For Near For Minnesota This is a prior restraint Punishment can only come after publication Prevention of publication can only be for material that preaches violent overthrow of the government or breach of law For Minnesota The right to freedom of the press does not extend to obscene, scandalous or defamatory The law is narrowly tailored against these things This is part of the state’s ability to regulate public health, safety, morals True material will not be affected by the law

Near v. Minnesota- III Hughes, C.J. for a 5-4 Court Incorporates Freedom of the Press to the states They find the purpose of the law was suppression of speech This ends up being censorship by the state There can be subsequent punishments after publication The greater evil is that a story would not be published Only in rare cases would a prior restraint be constitutionally valid Troop movements during war Incitement to violence Advocating the violent overthrow of the government

New York Times v. United States (1971) Background The “Pentagon Papers” case The New York Times and Washington Post started publishing parts of a batch of documents copied by Daniel Ellsberg, a former Defense Dept. employee It made the government look really bad The government filed a motion after several publications to bar more publications They argued that part of it was top secret The newspapers win at the district court level, but the 2nd Circuit reversed The case was expedited and decided four days after the oral arguments

New York Times v. United States- II Arguments For the New York Times There is a very heavy burden to justify a prior restraint To meet the national security exception, the government has to prove an unavoidable disastrous outcome For the United States The material in question poses an irreparable and grave danger to national security The Court should defer to the executive in foreign affairs Government need only show a likelihood of harm to get a prior restraint

New York Times v. United States- III A 6-3 per curiam opinion 2nd Circuit reversed Other than some slight reactions, that is the extent of the order The government did not meet the heavy burden of showing a justification for the restraint The papers can be published All nine justices write opinions either concurring or dissenting This is very rare

New York Times v. United States- IV Black, J. joined by Douglas, J. concurring He notes this is rather unprecedented for the federal government to ask this Hits the dissenters Purpose of the First Amendment by the founders The government does not have the power to censor the press It can expose issues with the government on behalf of the people Not based on an act of Congress either  no inherent power He also finds the word “security” broad and vague Black was a critic of this war (and previous ones)

New York Times v. United States- V Douglas, J. joined by Black, J. concurring The language of the First Amendment leaves no room for any governmental restraint on the press Purpose of the First Amendment He finds secrecy fundamentally undemocratic Favors open and robust debate Douglas had often advocated for the Court to rule on the constitutionality of the war

New York Times v. United States- VI Brennan, J. concurring Publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces He also notes that no war had been declared Only very narrow circumstances when prior restraint can be allowed

New York Times v. United States- VII Marshall, J. concurring His major focus is separation of powers

New York Times v. United States- VIII Stewart, J. joined by White, J. concurring Talks about an informed public Acknowledges that there may be some of these documents that may need secrecy But sees no immediately, direct or irreparable damage here

New York Times v. United States- IX White, J. joined by Stewart, J. concurring Not all circumstances prevent prior restraints Some of the publications may have damaging effects However, the government has not met its burden The real issue is how Ellsberg got these documents

New York Times v. United States- X Burger, C.J. dissenting Criticizes the haste of the decisions Would have liked the cases to have worked their way more deliberately

New York Times v. United States- XI Harlan, J. dissenting, joined by Burger, C.J. and Blackmun, J. Also criticizes the speed of these cases The Court did not answer many important questions Also sees this in the purview of the President’s powers under foreign policy Did not give the President sufficient deference Would send the case back to the district Court Harlan and Black would be dead in less than three months of this case

New York Times v. United States- X Blackmun, J. dissenting Sees the war exception in Near v. Minnesota controlling Not a First Amendment absolutist

Hazelwood School District v. Kuhlmeier (1988) Background Case involving a student newspaper in St. Louis County, Missouri Editors wanted to publish articles on divorce and teenage pregnancy The principal decided to cut out two pages He said it was to protect privacy of students and parents The editor and other students sued the school for prior restraint The District Court ruled for the principal, but the 8th Circuit reversed Applying Tinker, they found that since the publication would not interfere with the school operations, discipline or the right of others it would be allowed in this public forum

Hazelwood School District v. Kuhlmeier- II Arguments For the School District The school newspaper is not a public forum, but an educational one It is subject to supervision and control Student rights are more limited than outside the school Should be held to a reasonableness standard For the newspaper students The limited public forum is entitled to all the same rights as others The is a free press for youth issue There was no violation of people’s privacy to censor

Hazelwood School District v. Kuhlmeier- III White, J. for a 5-3 Court The school setting does not make all First Amendment rights coextensive to the rights of adults in other settings Student speech not protected when it is counter to “basic educational mission” Schools are different from traditional public forums School officials can regulate the contents of the newspaper in “any reasonable manner” Key is reasonableness relation to educational concerns Tinker is different because this is part of the school curriculum Schools may want to disassociate themselves from certain speech or messages The principal’s actions were here reasonable

Hazelwood School District v. Kuhlmeier- IV Brennan, J. joined by Marshall and Blackmun, JJ. Dissenting Kennedy was not eligible to rule on this case He thinks that they did not properly follow Tinker “The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today” “Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from (a school principal) to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our constitution guarantees.” He broke a promise to students too, and the First Amendment

Next Lecture More on Freedom of the Press Pages 309-320 Government Control of Content News Gathering Branzburg v. Hayes (1972)