The limits of prior restraint

How far can the press go?

Sedition Act of 1798

• Alexander Hamilton (left) is accused of corruption by James Thomson Callender

• Callender is imprisoned and fined

• Callender later turns on Jefferson, his benefactor

The end of seditious libel

• Sedition Act helps lead to Adams’ defeat in 1800

• Jefferson (left) lets Sedition Act lapse

• Still, press is less free during wartime

Abraham Lincoln

• Suspended habeas corpus to crack down on protesters

• Ohio publisher Clement Laird Vallandigham banished behind Confederate lines

• Censorship in effect

Schenck v. United States (1919)

• Schenck charged with violating Espionage Act

• Holmes (right) establishes a new standard: “clear and present danger”

• Wartime is different

Gitlow v. New York (1925)

• 14th Amendment extends First Amendment to the states

• Holmes now takes a more expansive view of free speech

• “Every idea is an incitement”

Whitney v. California (1927)

• Brandeis (left) refines “clear and present danger”

• A “serious” and “imminent” threat — an “emergency”

• Brandeis sided with majority on technicality

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

Near v. Minnesota (1931)

• Classic case defining the limits of prior restraint

• History of case told by Fred Friendly in Minnesota Rag

The Saturday Press

• Begun by Jay Near and Howard Guilford

• Claimed Minneapolis was controlled by Jewish gangsters

• Shut down after nine issues under state’s Public Nuisance Law

Near loses at state level

• Argues that Public Nuisance Law violates the First, Fifth, and Sixth Amendments

• Minnesota Supreme Court: “There is no constitutional right to publish a fact merely because it is true.”

Unlikely allies

Roger Baldwin Col. Robt. McCormick

Bad cases make bad law

• Harry Chandler, head of American Newspaper Publishers Association, was reluctant to get involved

• The Saturday Press was unsavory• Chandler feared a defeat would set back

the cause of press freedom

Charles Evans Hughes

• Chief Justice replaced Justice Sanford, author of Gitlow decision

• Reaffirmed that the 14th Amendment incorporated the First Amendment

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

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?

Near wins, 5-4

• Near fails to re-establish himself as a newspaperman, dies in 1936

• Howard Guilford is assassinated by gangsters in 1934

• Nevertheless, they contribute to the idea of no prior restraint

Key points of Near

• Exceptions to the rule of no prior restraint– National security

• Obstruction of draft• Disclosing movement of ships or troops

– Obscenity– Fighting words (incitement)

Key points of Near

• Exceptions to the rule of no prior restraint• Unprotected speech may be punished after

the fact– William Blackstone– “Criminal” speech– Libel — certainly an issue with The Saturday

Press

Key points of Near

• Exceptions to the rule of no prior restraint• Unprotected speech may be punished after

the fact• Minnesota’s Public Nuisance Law

tantamount to prior restraint

The Pentagon Papers

• Daniel Ellsberg provided them to the New York Times and the Washington Post

• Federal appeals courts ruled against the Times and for the Post

• Supreme Court takes the case

New York Times Co.v. United States (1971)

• Supreme Court issues nine separate decisions

• Government could prosecute after publication

• Nixon tried, but was derailed by Watergate