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Supreme Court Rulings on Prior Restraint and

Timothy Ricks

MACO 370

December 1, 2017 !2

When hearing a prior restraint case, the Supreme Court is often challenged with balancing the rights of private individuals or public officials against the public’s right to be informed by the media and against freedom of the press. Through the application of the United

States , the Supreme Court has made decisions pertaining to priror restraint and has often decided in favor of free press in cases such as Nebraska Press Association v. Stuart. In order to understand Supreme Court rulings on prior restraint, one must first understand what prior restraint is. Hashmall (2009) said, “In First Amendment law, a prior restraint is government action that prohibits speech or other expression before it can take place.” Although there are certain instances where the goverment is allowed to prohibit speech, priror restraint is considered unconstitutional in most cases.

One of the major cases dealing with prior restraint is Nebraska Press Association v.

Stuart. “On the evening of October 18, 1975, local police found the six members of the Henry

Kellie family murdered in their home in Sutherland, Neb., a town of about 850 people. Police released the description of a suspect, Erwin Charles Simants, to the reporters who had hastened to the scene of the crime” (Nebraska Press Association v. Stuart, 1976). According to Nebraska

Press Association v. Stuart (1976), Judge Stuart and the county court feared that if the media was allowed to report the details of the case and of Simants’ confession, they would not be able to find an inpartial jury or guarantee a fair trial.

Judge Stuart decided that members of the press should be restrained from publishing information about the case, but press members appealed to the Nebraska Supreme Court because they believed that the order violated their First Amendment right to freedom of the press.

According to the Legal Information Institute (2009), “The First Amendment guarantees freedoms !3 concerning religion, expression, assembly, and the right to petition. … It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely.” The Nebraska Supreme Court approved the order with only a few changes made.

Eventually, the media members appealed to the U.S. Supreme Court (Nebraska Press

Association v. Stuart, 1976).

The U.S. Supreme Court unanimously decided in this landmark case in favor of Nebraska

Press Association. According to Emerson (1955), “Prior restraint is thus distinguished from subsequent punishment, which is a penalty imposed after the communication has been made as a punishment for having made it. Again speaking generally, a system of prior restraint would prevent communication from occurring at all; a system of subsequent punishment allows the communication but imposes a penalty after the event” (p. 648). When Judge Stuart chose to restrain reporters from publishing information about the case, he could no longer guarantee what the outcome of publication would be. The Supreme Court found that “pretrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial” (Nebraska Press

Association v. Stuart, 1976). Although publication could possibly hinder the defendant’s right to a fair trial, the possibility alone was not enough to warrant a prior restraint order. Judge Stuart would need to be able to prove that publication would actually hinder a fair trial.

Also, Judge Stuart did not first perform the other methods available for ensuring a fair trial. According to the Constitutional Rights Foundation (2000), “When asked by the defense, judges will sometimes delay trials in order to lessen the heat of publicity on jurors.” Other methods listed by the Constitutional Rights Foundation include a change of venue, voir dire, no- comment rules, and sequestering. Because there were other methods available for ensuring a fair !4 trial and because the prior restraint order violated First Amendment rights, the U.S. Supreme

Court ruled in favor of Nebraska Press Association.

Near v. Minnesota is another example of a case where the Supreme Court voted in favor of free press. Jay Near wrote a publication in which he claimed that local officials were working with gangsters. The officials in Minnesota obtained an injunction to prevent Near from publishing his newspaper. The injunction was made possible by a law which stated that anyone who publishes “a malicious, scandalous and defamatory newspaper, magazine or other periodical, -is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided” (Near v. Minnesota, 1931). In a 5-4 decision in favor of Near, the Supreme

Court decided that the injunction was a form of prior restraint and was unconstitutional.

Near should have been free to write his newspaper. If the information was proven to be libelous, Near would then have to face consequences for his actions, but censoring his writing through prior restraint was against the First Amendment in this case. “Prior restraints have arisen

— and been struck down — in several contexts. Special taxes on newspaper paper and ink have been held to be unconstitutional, pre-dissemination burdens on speech. Ordinances banning news racks have met the same fate. Many other permit and licensing requirements also have been invalidated for unduly inhibiting speech” (Lee, 2002). The government is not allowed to use any of these methods to censor content that places officials in a negative light.

However, there are a few situations that can be exceptions in which the government would be allowed to use prior restraint. “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of !5 decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government” (Near v. Minnesota, 1931). In these cases, the government would be allowed to use prior restraint because the speech would infringe upon the safety of the American people.

Hosty v. Carter is an example of a case in which the Supreme Court did not issue an opinion about free press and prior restraint issues. The Innovator, a student newspaper, wrote about the administration at Governors State University. “After articles bearing Margaret Hosty's by-line attacked the integrity of Roger K. Oden, Dean of the College of Arts and Sciences, the

University's administration began to take intense interest in the paper” (Hosty v. Carter, 2005).

The Dean of Student Affairs, Patricia Carter, called the printers of the university paper and told them not to print anymore copies unless she approved them in advance. The printers did not want to risk the possibility of not getting paid, and the editors of the paper refused to agree to the prior review.

Because this action was considered prior restraint and because they believed it violated their First Amendment rights, the student journalist filed suit in federal district court. The district court ruled in the students’ favor, but Carter appealed the decision of the district court twice.

When the case was heard en banc, the previous ruling was reversed in a 7-4 decision for Carter.

The Supreme Court was then asked to hear the case, but the Court summarily denied.

According to Reporters Committee for Freedom of the Press, “Prior restraints are viewed by the

U.S. Supreme Court as ‘the most serious and the least tolerable infringement on First

Amendment rights.’” Because of this, it seems like the Supreme Court would want to hear this case instead of summarily denying it. !6

The Supreme Court may have been avoiding the issue of the rights of college students in matters of expression. The Court had previously ruled in the case of Hazelwood that prior restraint is permitted in school sponsered speech at the highschool level. However, the Court said, “A number of lower federal courts have similarly recognized that educators' decisions with regard to the content of school-sponsored newspapers, dramatic productions, and other expressive activities are entitled to substantial deference. We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level” (Hosty v. Carter, 2005). The Supreme Court still has not ruled on a case to this day to determine if Hazelwood can be applied at the university level.

Grosjean v. American Press Co. was another case dealing with freedom of the press issues that made it to the Supreme Court. Huey Long was the governor of Louisiana, and he noticed that larger newspapers were more critical of him but the smaller newspapers were not.

He decided to create a new tax that would target the larger newspapers specificly. The tax said,

“That every person, firm, association or corporation, domestic or foreign, engaged in the business of selling, or making any charge for, advertising or for advertisements, whether printed or published, or to be printed or published, in any newspaper, magazine, periodical or publication whatever having a circulation of more than 20,000 copies per week, or displayed and exhibited, or to be displayed and exhibited, by means of moving pictures, in the State of Louisiana, shall, in addition to all other taxes and licenses levied and assessed in this State, pay a license tax for the privilege of engaging in such business in this State of two per cent. (2%) of the gross receipts of such business” (Grosjean v. American Press Co., 1936). !7

This was considered a discriminatory tax which is “a tax on particular companies or products, for example, products from foreign countries, that is intended to make it easier for other companies to compete” (Cambridge Dictionary). Thirteen newspapers brought the suit to court and were the only papers in Louisiana who printed more than 20,000 copies weekly. In a unanimous decision for American Press Co., the Supreme Court decided that the tax was unconstitutional. The Court said, “Having reached the conclusion that the act imposing the tax in question is unconstitutional under the due process of law clause because it abridges the freedom of the press, we deem it unnecessary to consider the further ground assigned, that it also constitutes a denial of the equal protection of the laws” (Grosjean v. American Press Co., 1936).

In New York Times Co. v. (1971), and The Washington

Post newpapers published the which was a study of the United States’ military actions in Vietnam. President demanded that the newpapers suspend any publication of the Pentagon Papers and claimed that the information needed to remain secret for security reasons. A decision was made together on this case and on United States v. Washington

Post Co. by the Supreme Court.

The Court said, “The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic” (New York Times Co. v. United States, 1971). President

Nixon’s claim that publishing such information would be a danger to could not be proven. Justice Hugo Black said, “The press was to serve the governed, not the !8 governors” (New York Times Co. v. United States, 1971). President Nixon had forced the press to only publish what he wanted instead of what the public had a right to know.

Furthermore, in a 6-3 decision, the Supreme Court found that Nixon’s orders violated the

First Amendment. The Court said, “In no event may mere conclusions be sufficient: for if the

Executive Branch seeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And therefore, every restraint issued in this case, whatever its form, has violated the First Amendment” (New York Times Co. v. United

States, 1971). In this case and in many others, the Supreme Court ruled in favor of free press and found that the government’s use of prior restraint to silence the media is unconstitutional.

Whenever the Supreme Court has heard a case dealing with prior restraint, the Court has often referenced the First Amendment. The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the , or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The time when congress is most likely to make a law abridging the freedom of the press is when the press disagrees with what congress is doing. However, according to Orwell (1946), “Freedom of the press, if it means anything at all, means the freedom to criticize and oppose.” In a country were freedom of the press is not allowed or is greatly limited, the government can do what it pleases without much fear of the public finding out. However, the press must be allowed to speak freely about any topic that arises in order to keep government officials in check.

Mikhail Bulgakov remarked on the importance of freedom of the press when he said, “To struggle against , whatever its nature, and whatever the power under which it exists, is !9 my duty as a writer, as are calls for freedom of the press. I am a passionate supporter of that freedom, and I consider that if any writer were to imagine that he could prove he didn't need that freedom, then he would be like a fish affirming in public that it didn't need water” (Bulgakov,

1992). As long as the Supreme Court continues to uphold the First Amendment and support freedom of the press in future prior restraint cases that may arise, the freedom of American society will continue to be protected. There are very few situations regarding national security, the safety of the American people, or rights of private individuals that warrant prior restraint being used to censor the press. In most cases, prior restraint places too much trust in the government, but when the press is free to communicate, the public is empowered with the information needed to form opinions and take action when necessary. !10

Bibliography

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Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) !11

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U.S. Const. amend I.