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

2. 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)

3. 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

4. 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

5. 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

6. 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The greater evil is that a story would not be published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

7. 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

8. 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

9. 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

10. 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)

11. 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

12. 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

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

14. 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

15. 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

16. 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

17. 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

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

19. 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

20. 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

21. 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

22. 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

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