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First Amendment History
Seditious libel (England)
Laws used to punish those who
criticized the gov’t. or the Crown
Licensing laws
Printers get approval from
gov’t. or church
Bonds
Deposit given to gov’t. by
printers
Lose deposit if publish
derogatory material
Freedom of Press in America
John Peter Zenger
NY newspaper owner
Published stinging attacks on
Cosby (Colonial Governor)
Jailed under an 18th century
British sedition law
Acquitted
No one should be jailed for
publishing truthful and fair criticism of the government
First Amendment Theories
Absolutist theory
No law-no exceptions
Ad hoc balancing theory (rare)
Human rights conflict
Balance those rights on a
case-by-case basis
Really a strategy, which means we
will never know what FA really means
First Amendment Theories
Preferred position balancing
theory
Freedom of expression is given a
preferred (special) position
Presume that gov’t action
that limits free speech and free press to protect other interests is usually
unconstitutional
Used by courts than any other
theory
First Amendment Theories
Meiklejohnian theory
Freedom of expression is a means
to an end (i.e., successful self-government)
Expression that relates to
self-governing should be absolutely protected
Other speech should be balanced
with other rights and values
First Amendment Theories
Access theory
Everyone should have the right to
express his/her views via mass media
Ruled against in Miami Herald
v. Tornillo (1974)
Theory support in Red Lion
Broadcasting v. FCC (1969)
Prior Restraint
Near v. Minnesota (1931)
Publishers of Saturday Press
(Near/Gordon) attacked city gov’t corruption
Charged with being a public
nuisance under MN law
MN Supreme Court said law was
constitutional
U.S. Supreme Court reversed
decision-law is UNCONSTITUIONAL
Near v. Minnesota
Chief Justice Charles Hughes
Law not designed to redress
wrongs to individuals attacked by the newspaper
Said object of law was not
punishment but censorship; therefore, statute constituted prior restraint, which is a
violation of the FA
Hughes’ dicta (remarks
beyond the case) suggested some instances of prior restraint (e.g., obscenity, wartime)
Austin v. Keefe (1971)
Keefe (real estate broker) tried
to stop community action group from distributing pamphlets about him
Keefe got an injunction to stop
distribution
Organization for a Better Austin
appealed to U.S. Supreme Court
Ruled the injunction violates FA
rights
Ruling reinforced Near v.
Minnesota decision
Pentagon Papers
NY Times and Washington Post
publishing series of articles on Vietnam
Gov’t upset
"secrets" are getting out and get an injunction
Case ends up before Supreme Court
Gov’t argued publication
violated espionage laws, threatened national security, and caused irreparable harm
Pentagon Papers
Newspapers argued that
"secret" documents are a sham and said injunction violated the FA
Court (6-3) said in per curiam
decision that gov’t did not prove its case; injunction lifted
Not a strong case for FA freedom
because court did not say that in all similar cases injunction would violate FA
Progressive Magazine Case
Progressive Magazine tried to
publish an article about how to build an atomic bomb
Gov’t feared for national
security
Injunction imposed and U.S.
District Court ruled gov’t met burden of proof for prior restraint
Case significant because it gave
support to prior restraint (even though from lower ct.)
© B.L. Yates 2001
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