Transcript Prior restraints

Near v. Minnesota, 1931
Newspaper banned by an injunction
pursuant to the Minnesota “Gag Law.”
U.S. Supreme Court declared the law an
unconstitutional prior restraint.
First time the Court said the primary
purpose of the First Amendment was to
outlaw prior restraints.
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Near v. Minnesota
Prohibition on prior restraints not absolute.
Doesn’t include:
 Obstruction of military recruitment; sailing dates
of transports; number and location of troops
 Obscenity
 Incitement to violence and overthrow of
government
 Fighting words
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Pentagon Papers case, 1971
NY Times & Washington Post enjoined
from publishing contents of the classified
Pentagon Papers.
U.S. Supreme Court, 6-3, ruled the
restraining orders were unconstitutional
prior restraints.
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Key points of Pentagon Papers
majority
• Prior restraints are presumed unconstitutional.
• The government bears the burden of overcoming
that presumption.
• Here the government did not prove that publication
would result in direct, immediate and irreparable
harm. Instead, government argued publication
“could” or “might” prejudice national interests.
• No statute prohibited publication of the type of
material involved in Pentagon Papers.
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Key point of the PP minority
• “Unseemly haste.” “Frenzied train of
events.” “Frenetic pace and
character.”
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Time, place and manner regulations
To be constitutional, a time, place and
manner regulation of expression must
be:
1. content neutral, that is, not discriminate
on the basis of content. This includes not
allowing the administrator of the
regulation to have unfettered discretion
in the granting and denying of licenses.
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Time, place & manner regs, cont’d
2. be designed to serve a substantial government
interest, such as traffic safety, aesthetics, public
health/safety.
3. be narrowly tailored to serve that interest, that
is, be no more restrictive than necessary to
achieve its goal.
4. leave open alternative channels of
communication.
(This is a form of intermediate scrutiny.)
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Taxation cases
Grosjean v. American Press Co., 1936:
A tax on newspapers that is both punitive
and discriminatory violates the First
Amendment, acts as a prior restraint on
publication.
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Taxation cases
 Minneapolis Star & Tribune v. Minn. Commissioner
of Revenue, 1983
 A discriminatory, but not punitive, tax on
newspapers violated the First Amendment. The
use tax discriminated in two ways:
1) It was imposed on only newspapers, not other
users of paper and ink
2) It was imposed only on the largest papers in the
state.
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Taxation cases
Leathers v. Medlock, 1991
For the first time, the Supreme Court upheld a
tax imposed on some forms of media but not
others. The sales tax on cable and satellite
services is not discriminatory because it does
not distinguish on the basis of content, is
applied evenly to all cable and satellite systems,
and is the same tax that applies to tangible
property and other services.
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