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Prior Restraint

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Alica Danesh Jesrai

on 19 July 2014

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Transcript of Prior Restraint

Prior Restraint

Espionage Act 1917
…cannot interfere with the recruiting efforts of the military
...cannot spy on military posts, ships, troops etc.
Sedition Act 1918
Cannot willfully cause or attempt to cause or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the U.S.
Cannot willfully utter, print, write or publish any disloyal, profane, or abusive language about the form of government of the U.S. or the Constitution
of the U.S. or the military or naval forces of the U.S. or the flag of the U.S. or the Uniform of the Army or Navy of the U.S.
20 years in prison and/or $10,000 fine
About 900 Americans were arrested and put in prison
Eugene V Debs was sentenced to 10 years for a speech in Canton, Ohio June 16, 1918 attacking the Espionage Act.
Charles Schenck, general secretary of the Socialist Party arrested after producing and distributing 15,000 pamphlets urging young men not to register for the draft
Draft a violation of the 13th Amendment Rights.
Schenck’s attorney appealed the conviction on the basis that the
Espionage and Sedition Acts violated his client’s First Amendment rights
and thus the laws were unconstitutional
Supreme Court says...
In the 1919 Supreme Court case Schenck v U.S. Justice Oliver Wendell Holmes writing for the majority said:
“We admit that in many places and in ordinary times (Schenck) in saying all that was said in the circular would have been within his constitutional rights."
Supreme Court contd.
BUT, the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.
Supreme Court contd.
….The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a
clear and present danger
that they will bring about the substantive evils the Congress has a right to prevent.
Supreme Court contd.
It is a question of proximity and degree.
When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right
Near vs. Minnesota
U.S. Supreme Court 1931
1925 Minnesota State Legislature passed a law that allowed government authorities to
halt publication of any obscene, lewd and lascivious or malicious, scandalous, and defamatory newspaper, magazine or other periodical as a public nuisance.
The Saturday Press
Jay Near and Howard Guilford used their newspaper to accuse government officials of ignoring widespread racketeering, bootlegging, and illegal gambling.
The newspaper was accused of being sensational and anti-Semitic in its hard hitting articles.
County Attorney
Filed a criminal complaint against the paper.
A judge found Near and Guilford in violation of the state statute and ordered them to stop publication
Minnesota Supreme Court upheld a lower court conviction.
U.S. Supreme Court
Reversed the state court holding that the state law was overly restrictive of citizens First Amendment rights.
However, the Justices did use to the wording of the case to reiterate the fact they felt the First Amendment was not absolute and there still may be circumstances justifying a government prior restraint
Pentagon Papers 1971
Executive branch of the government commissioned the Rand Corporation to conduct a study on how the U.S. got involved in Vietnam.
“History of the U.S. Decision Making Process on Vietnam Policy”
Daniel Ellsberg
leaks finding of the study to the New York Times
Julian Assange,
Wiki Leaks
Edward Snowden
NY Times Co. vs. U.S. (403 U.S.713) June 26, 1971
The Supreme Court held in a 6-3 decision that the injunctions against publication of the Pentagon Papers were unconstitutional prior restraints and that the
government had NOT met the heavy burden of proof required for prior restraint
Supreme Court
Government gets a restraining order to stop publication
Court reviews the issue and concluded that rather than be condemned for their reporting, the
newspapers should be commended for their courage in reporting the information that was of such importance to the American people
Progressive Magazine, 1979
Howard Morland
researched and wrote a story on how easy it was to get information on
how to build a hydrogen bomb
Case was dropped before it reached the Supreme Court
Tinker vs. Des Moines Independent Community School District U.S.

Students don’t shed their Constitutional rights at the schoolhouse door
Arms bands “closely akin to ‘pure speech’ and protected by First Amend.
John and Mary Beth Tinker 15 and 13,Christopher Echardt 16
Principals failed to show that the forbidden conduct would SUBSTANTIALLY interfere with appropriate school discipline
Hazelwood vs. Kuhlmeier
U.S. Supreme Court 1987
Principal Robert E. Reynolds deleted two pages from the May 13, 1983 issue of the Hazelwood East High School newspaper.
Didn’t like a story on teen pregnancy and another on divorce.
In his review, he felt the article did not adequately disguise the identities of girls who had been pregnant or the anonymity of a parent who was getting divorced.
He also did not like references in the first story to sexual activity and birth control.
5-3 ruling, the Supreme Court gave school administrators broad latitude to suppress controversial stories. (Majority opinion by Justice White, Justice Stephens not voting)
Hazelwood contd.

A school need not tolerate student speech that is inconsistent with its ‘basic educational mission
” said Justice Byron White writing for the majority.
School officials may impose reasonable restrictions on the speech of students, teachers, and other member of the school community.
"Bong Hits for Jesus"
Morse v Frederick
– U.S. Supreme Court, 2007
Joseph Frederick, student at Juneau-Douglas H.S. Alaska was suspended 10 days for displaying his banner across the street from the school as the Olympic Torch Relay was passing by.
Principal, Deborah Morse crumpled the banner
Supreme Court said...
In reversing the ninth U.S. Court of Appeals, the S.C. said
the banner had no First Amendment protection. (advocacy of drug use was the deciding issue.)
In ruling they emphasized that the decision would not allow any restriction on political or social advocacy by students but that the principal should not be held accountable for monetary damages for a decision she had to make on the spur of the moment. 5-4 decision.
Schenck vs. U.S. 1919
Charles Schenck
, general secretary of Socialist party distributed thousands of flyers to American servicemen recently drafted to fight in World War I.
Schenck's flyers asserted that the draft amounted to "involuntary servitude" proscribed by the Constitution's
Thirteenth Amendment (outlawing slavery)
and that the war itself was motivated by capitalist greed, and
urged draftees to petition for REPEAL OF THE DRAFT.
Schenck was charged by the U.S. government with violating the recently enacted
Espionage Act
Prior restraint
(also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government, on expression before the expression actually takes place.
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