American Constitutionalism in Historical Perspective (packet)

BOP on censor,

immediate judicial review, and

most brief possible prior restraint

C/n satisfy this so no licensing of movies even when its obscene. This prior restraint skepticism also applies to unprotected speech. Worry that state will hystericalize harms.

Near v. Minnesota, 1931: Forbid injunction vs. publication of newspapers thought to be defamatory. Must publish, then prosecute after the fact. Liberty of the press, fear of prior restraints imposing a chilling effect. Restrictions on publications will only be acceptable when:

1. 
   Troop Movements: D/n allow newspapers to publish where troops would be during WWII b/c would tip off Nazis and ruin war strategy. High level of clear and present danger. High probability of loss of life and grave harm.
   
2. 
   Obscenity prosecutions: Freedman, Burstyn and subversive advocacy cases d/n allow it. But when clear standards and speedy judicial hearings allow injunction (Times v. CL, Kingsley)
   
3. 
   Incitement to overthrow the govt
   

Walker v. Birmingham p.1360: MLK’s letter from Birmingham jail showed gap b/w law and morality. C/n defend against contempt charges by asserting unconstitutionality of ordinance or injunction and demonstrate in violation of injunction—collateral bar rule.

NYT v. US [The Pentagon Papers] (p. 1361) court orders the release of the documents about how we got into the Vietnam war after an in camera inspection reveals that all info is retrospective, not about troop movement or nuclear info. Affirms Near, d/n fall w/in exceptions, no extreme clear and present danger. Political embarrassment not sufficient to prevent its publication. More imot for the people to have all available information during a national crisis like Vietnam

1. 
   Black and Douglas: no power of prior restraint.
   

1. 
   Black: Congress shall make the law, he’s an absolutist, and this is the worst possible thing.
   
2. 
   Douglas: Papers have little to do w/ national defense so Congress never applied Espionage Act to it. President’s actions was never was ratified by Congress so executive lacks power here.
   
1. 
   Stewart and White: need express congressional authorization for prior restraint. Info leaked to the Times in violation of criminal law but d/n have anything to do w/ prior restraint. Tribute to investigative journalism, criminal prosecution for stolen goods should occur after the fact. Note 3.
   
2. 
   Marshall: violates sep of power if ct disapproved behavior that Congress h/n addressed thru injunction. Relies on steel seizure case: Truman wanted to get injunction against strike b/c would affect Korean war. This occurred after passage of Taft Hartley Act which w/n allow this type of injunction vs. labor union. Ct ruled that Pres c/n seize steel mills and congressional will was impt. 1^st A cuts this quandary b/w Pres and Congress—no prior restraint is allowed and free speech wins over foreign policy.
   
3. 
   Dissent (Harlan): this is foreign policy and should have deference to political power of executive.
   

5. 
   U.S. v. Progressive, 1979: court allowed prior restraint to prevent magazine from publishing nuclear bomb making instructions. Likened this to troop movements/clear & present danger, though problematic because all of the info was already available in the public domain. Progressive wants to publish b/c newsworthy how easy it is to make this bomb-threatens feeling of safety.
   
   1. 
      Distinguished from Pentagon Papers b/c not only historical data, more likely to affect national security and has statutory basis for the injunction.
      
   2. 
      So sep of powers in favor of injunction: 1954 Atomic Energy Act: p. 1368: can stop this info from being transmitted b/c imposes sanction on anyone who communicates restricted data w/ reason to believe such data will be used to injure US or secure advantage for any foreign nation. Authorizes gov’t to seek injunctive relief vs. data concerning design, manufacture or use of atomic weapons.
      
6. 
   Modern cases further restrict after the fact prosecutions. (Times v. Sullivan, Gertz).
   
7.