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Flashcards in Emily's notes: No Law Deck (23):
1

What is assassination and why is it important to censorship?

Assassination – a political murder, a form of expressive conduct

“Assassination is the most severe form of censorship.” – Oscar Wilde

2

What are fighting words?

...

3

What are true threats?

....

4

What is intimidating speech?

....

5

What is advocating the violent overthrow of the government?

...

6

What is obscenity?

....

7

What is time, place, and manner restrictions?

....

8

What is prior restraint?

The halting of expression at its source by the government

9

Prior restraint is....

“the most serious, least tolerable infringement” of First Amendment rights,
and comes into Court…
“bearing a heavy presumption against its constitutional validity.”

10

What is the background behind Near v. Minnesota (1931)?

Prior restraint is unconstitutional (5-4)

The Saturday Press (the Press) published attacks on local officials. The Press claimed that the chief of police had “illicit relations with gangsters.” Minnesota officials obtained an injunction in order to abate the publishing of the Press newspaper under a state law that allowed this course of action. The state law authorized abatement, as a public nuisance, of a “malicious, scandalous and defamatory newspaper, or other periodical. A state court order abated the Press and enjoined the Defendants, publishers of the Press (Defendants), from publishing or circulating such “defamatory and scandalous” periodicals.

11

What is the issue behind Near v. Minnesota?

Whether a statute authorizing such proceedings is consistent with the conception of the liberty of the press as historically conceived and guaranteed?

12

What was the outcome/ opinion of the court for Near v. Minnesota?

No. Judgment of the state court reversed. The fact that the liberty of press may be abused by miscreant purveyors of scandal does not effect the requirement that the press has immunity from previous restraints when it deals with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with the constitutional privilege. Therefore, a statute authorizing such proceedings is not consistent with the conception of the liberty of the press as historically conceived and guaranteed and is thus, unconstitutional. The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. This statute, if upheld, could lead to a complete system of censorship. Thus, the statute is a substantial infringement on the liberty of the press and in violation of the Fourteenth Amendment of the Constitution.

13

What is the background behind NY Times Co. v United States (1971)?

The United States sought to enjoin the New York Times and Washington Post from publishing contents of a confidential study about the Government’s decision making with regards to Vietnam policy. The District Court in the New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the Government had not met the requisite burden justifying such a prior restraint.

14

What is the issue behind NY Times Co. v United States (1971)?

Whether the United States met the heavy burden of showing justification for the enforcement of such a restraint on the New York Times and Washington Post to enjoin them from publishing contents of a classified study?

15

What was the outcome of NY Times Co v. United States?

6-3 judgment meant very little but there was a per curiam after, the newspapers could continue printing because the government did not prove there was a justification for prior restraint

16

What was the background behind Nebraska Press Ass'n v. Stuart (1975)?

Family found murdered, some sexually assaulted – one guy arrested for 3 of the murders, forbid the release of anything that went on during the hearing, anyone would go to the trial but not record and release to the public: press not allowed to publish anything they said

17

What was the issue behind Nebraska Press Ass'n v. Stuart (1975)?

Whether prior restraint could be used.

18

What was the outcome of Nebraska Press Ass'n v. Stuart (1975)?

Chief Justice of the United States Warren E. Burger wrote the opinion of the court. Burger wrote, "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment Rights". The court ruled this was particularly at issue when dealing with "communication of news and commentary on current events". According to the ruling, it was inappropriate to bar media reporting on a criminal case prior to the trial itself, except in matters where a "clear and present danger" existed that would impede the process of a fair trial. The court characterized the press as "the handmaiden of effective judicial administration, especially in the criminal" process.

19

Why is Nebraska Press Ass'n v. Stuart (1975) important?

he case also put forth the opinion that it is the duty of the government to satisfy an extreme explanation in order to satisfy usage of prior restraint against the press.[2] Prior to the 1976 ruling by the Supreme Court, lower courts in the United States had initiated a practice of barring intense levels of reporting on certain issues in criminal matters; media coverage of such rulings referred to them as gag orders.

20

What is the background behind Rosenburger v. Rector and Visitors, UVA (1995)?

A group of students formed a Contracted Independent Organization (CIO) at the University of Virginia, entitled Wide Awake Productions (WAP), which was organized for the purpose of publishing a magazine, which expressed Christian philosophical and religious viewpoints. When the Petitioners, Rosenberger and other members of WAP (Petitioners), submitted for funds from the Student Activities Fund (to which they were entitled, due to their CIO status) for printing costs, they were summarily turned down, because their publication expressed religious viewpoints, which might be construed as the views of the public university. The Petitioners filed suit, alleging that the Respondents, the Rector and Visitors of the University of Virginia’s (Respondent), refusal to allot them a portion of the Student Activities Funds was an abridgment of their First Amendment Rights.
The District Court granted summary judgment for the Respondent, noting that the Establishment Clause of the United States Constitution (Constitution) prohibited it from funding religiously-motivated activities. The Court of Appeals affirmed, and the Supreme Court of the United States (Supreme Court) granted certiorari.

21

What was the issue behind Rosenburger v. Rector and Visitors, UVA (1995)?

The underlying question in this case is whether a school’s refusal to fund a religiously motivated activity, under its Establishment Clause Obligations, can be allowed to abrogate the freedom of the press enjoyed by a student-run magazine

22

What was the outcome of Rosenburger v. Rector and Visitors, UVA (1995)?

Wide Awake magazine, purpose was to provide readers information on the Christian perspective on social events (abortion, capital punishment, etc.) – not to convert people, the purpose was to educate
The government can’t regulate speech on the content* (5-4):

“For the university, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nation’s intellectual life, its college and university campuses.”

23

What is the summary of prior restraint?

- Is a violation of the First Amendment and is the most serious and least tolerable violation
- Any system of prior restraint comes into court presumed to be unconstitutional
- In certain circumstances, prior restraint may be tolerated
- The burden for proving the need for prior restraint is on the government, and is onerous