Need Answers To An Open Book Exam For A Communication Law & Ethics Class On Chapters 1-3

Need Answers To An Open Book Exam For A Communication Law & Ethics Class On Chapters 1-3

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Communication Law & Ethics:

Chapters 1-3

is what the test is based on:

Chapter One 1

The American Legal System

America has become a nation of laws, lawyers and lawsuits. Both the number of lawsuits being filed and the number of lawyers have doubled since the 1970s. California has about four times as many lawyers today as it had in 1975. Nationwide, there are more than a million attorneys. For good or ill, more people with grievances are suing somebody.

The media have not escaped this flood of litigation. The nation’s broadcasters, cable and satellite television providers, newspapers, magazines, wire services, Internet services and advertising agencies are constantly fighting legal battles. Today few media executives can do their jobs without consulting lawyers regularly. Moreover, legal problems are not just head- aches for top executives. Working media professionals run afoul of the law regularly, facing lawsuits and even jail sentences.

Million-dollar verdicts against the media are no longer unusual, and the big national media are by no means the only targets. For example, in 1980 one medium-size newspa- per in Idaho was ordered to pay $1.9 million in a libel case—not because the newspaper published a horribly libelous falsehood but merely because the paper refused to say who told a reporter where to find public records about wrongdoing by an insurance company. A higher court eventually set aside that ruling, but by then the paper had spent thousands of dollars on legal expenses to defend itself (Sierra Life v. Magic Valley Newspapers, 6 Media L. Rep. 1769). Likewise, those who do video production work, prepare advertising copy or post material on the Internet may risk lawsuits, and threats of lawsuits, for anything from libel to copyright infringement to invasion of privacy. More than ever before, a knowledge of media law is essential for a successful career in mass communications.

This textbook was written for communications students and media professionals, not for lawyers or law students. We will begin by explaining how the American legal system works.

THE KEY ROLE OF THE COURTS

Mass media law is largely based on court decisions. Even though Congress and the 50 state legislatures have enacted many laws affecting the media, the courts play the decisive role in interpreting those laws. For that matter, the courts also have the final say in interpret- ing the meaning of our most important legal document, the U.S. Constitution. The courts have the power to modify or even overturn laws passed by state legislatures and Congress, particularly when a law conflicts with the Constitution. In so doing, the courts have the power to establish legal precedent, handing down rules that other courts must ordinarily follow in deciding similar cases.

But not all court decisions establish legal precedents, and not all legal precedents are equally important as guidelines for later decisions. The Supreme Court of the United States is the highest court in the country; its rulings are generally binding on all lower courts. On matters of state law the highest court in each of the 50 states (usually called the state supreme court) has the final say—unless one of its rulings somehow violates the U.S. Consti- tution. On federal matters the U.S. Courts of Appeals rank just below the U.S. Supreme Court. All of these courts are appellate courts; cases are appealed to them from trial courts.

Need Answers To An Open Book Exam For A Communication Law & Ethics Class On Chapters 1-3

Trial vs. appellate courts. There is an important difference between trial and appellate courts. While appellate courts make precedent-setting decisions that interpret the meaning of law, trial courts are responsible for deciding factual issues such as the guilt or innocence

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2 The American Legal System

precedent:

a case that other courts rely on when deciding future cases with similar facts or issues.

appellate court:

a court to which a find- ing from a lower court may be appealed.

questions of fact:

resolutions of factual disputes that are decided by a jury.

remand:

to send back to a lower court for evaluation based on new legal rules.

of a person accused of a crime. This fact-finding process does not normally establish legal precedents. The way a judge or jury decides a given murder trial, for instance, sets no precedent at all for the next murder trial. The fact that one alleged murderer may be guilty doesn’t prove the guilt of the next murder suspect.

In civil (i.e., non-criminal) lawsuits, this is also true. A trial court may have to decide whether a newspaper or broadcaster libeled the local mayor by falsely accusing the mayor of wrongdoing. Even if the media did—and if the mayor wins his or her lawsuit—that doesn’t prove the next news story about a mayoral scandal is also libelous. Each person suing for libel—like each person charged with a crime—is entitled to his or her own day in court.

Finding facts. The trial courts usually have the final say about these questions of fact. An appellate court might rule that a trial court misapplied the law to a given factual situation, but the appellate court doesn’t ordinarily reevaluate the facts on its own. Instead, it sends the case back (remands) to the trial court with instructions to reassess the facts under new legal rules written by the appellate court. For instance, an appellate court might decide that a certain piece of evidence was illegally obtained and cannot be used in a murder trial. It will order the trial court to reevaluate the factual issue of guilt or innocence, this time completely disregarding the illegally obtained evidence. The appellate court’s ruling may well affect the outcome of the case, but it is still the job of the trial court to decide the factual question of guilt or innocence, just as it is the job of the appellate court to set down rules on such legal issues as the admissibility of evidence.

This is not to say trial courts never make legal (as opposed to fact-finding) decisions: they do so every time they apply the law to a factual situation. But when a trial court issues an opinion on a legal issue, that opinion usually carries little weight as legal precedent.

Sometimes there is high drama in the trial courtroom, and that may result in extensive media coverage. One trial verdict may even inspire (or discourage) more lawsuits of the same kind. Still, the outcome of a trial rarely has long-term legal significance. On the other hand, a little-noticed appellate court decision may funda- mentally alter the way we live. That is why law textbooks such as this one concentrate on appellate court decisions, especially U.S. Supreme Court decisions.

STRUCTURE OF THE U.S. COURT SYSTEM

Because the courts play such an important role in shaping the law, the structure of the court system itself deserves some explana- tion. Fig. 1 shows how the state and federal courts are organized. In the federal system, there is a nationwide network of trial courts

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Chapter One 3

at the bottom of the structure. Next higher are 12 intermediate appellate courts serving vari- ous regions of the country, with the Supreme Court at the top of the system.

FIG. 1. Organization of the federal courts and a typical state court system.

U.S. District Courts

In the federal system there is at least one trial court called the U.S. District Court in each of the 50 states and the District of Columbia. Some of the more populous states have more than one federal judicial district, and each district has its own trial court or courts. As trial courts, the U.S. District Courts have limited precedent-setting authority. Nevertheless, a U.S. District Court decision occasionally sets an important precedent. The primary duty of these courts, however, is to serve as trial courts of general jurisdiction in the federal system; that is, they handle a variety of federal civil and criminal matters, ranging from civil disputes over copyrights to criminal trials of persons accused of acts of terrorism against the United States.

U.S. Courts of Appeals

At the next level up in the federal court system, there are U.S. Courts of Appeals, often called the circuit courts because the nation is divided into geographic circuits. That term, inci- dentally, originated in an era when all federal judges (including the justices of the Supreme Court) were required to be “circuit riders.” They traveled from town to town, holding court sessions wherever there were federal cases to be heard. Each circuit court today serves a specific region of the country, and most still hear cases in various cities within their regions.

There are 11 regional circuit courts. Fig. 2 shows how the United States is divided into judicial circuits. In addition, a separate circuit court (the U.S. Court of Appeals for the D.C. circuit) exists solely to serve Washington, D.C.; it often hears appeals of decisions by federal agencies, many of them involving high-profile issues. Many “D.C. circuit” judges have been promoted to the Supreme Court. There is also a U.S. Court of Appeals for the Federal Circuit. Unlike the other circuit courts, this one serves no single geographic area. Instead, it has nationwide jurisdiction over certain special kinds of cases, including patent and customs appeals and some claims against the federal government. This court is the product of a merger of the old Court of Claims and the Court of Customs and Patent Appeals. This book will generally refer to these courts by their numbers (e.g., First Circuit, Ninth Circuit).

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United States Supreme Court

State Supreme Court

U.S. Circuit Courts of Appeals

State Courts of Appeals

Federal Regulatory Agencies

U.S. District Courts

State Trial Courts

4 The American Legal System

FIG. 2. Geographic Boundaries of United States Courts of Appeals and United States District Courts.

U.S. Library of Congress, http://www.uscourts. gov/uscourts/images/ CircuitMap.pdf

Some of the circuits have been divided over the years as the population grew. Until 1981, the Fifth Circuit included Alabama, Georgia and Florida, the states that now comprise the Eleventh Circuit. Legislation has been proposed repeatedly to divide the far-flung Ninth Circuit, which serves Alaska, Hawaii and the entire west coast (nine states with a total popu- lation of about 60 million people). Although critics say it is too large and too California- oriented because California’s huge population has resulted in many of the Ninth Circuit’s judges coming from one state, Congress has never agreed upon a plan to divide it. Attorney General Eric Holder told a Senate committee in 2010 that he is open to investigating a “reconfiguring” of the Ninth Circuit due to its geographic size and its workload. The Ninth Circuit has 29 active judges, by far the largest number of any circuit. The second largest circuit is the Fifth, which has 17 active judges. Each court also has senior judges who are offi- cially retired but volunteer to continue hearing cases.

Appeals process. The losing party in most U.S. District Court trials may appeal the deci- sion to the circuit court serving that region of the country. The decisions of the circuit courts produce many important legal precedents; on federal questions the rulings of these courts are second in importance only to U.S. Supreme Court decisions. Although each circuit court has a large number of judges, most cases are heard by panels of three judges. Two of the three constitute a majority and may issue the majority opinion, which sets forth the court’s legal reasoning. Sometimes a case is considered so important or controversial that a larger panel of judges decides the case, usually reconsidering an earlier decision by a three-judge panel. When that happens, it is called deciding a case en banc. Ordinarily, an en banc panel consists of all of the judges serving on a particular circuit court. As the circuit courts grew larger, Congress authorized smaller en banc panels in some instances. The Ninth Circuit used panels of 15 judges to hear cases en banc for a time and now uses panels of 11.

Since these appellate courts decide only matters of law, there are no juries in these courts. Juries serve only in trial courts, and even there juries only decide factual issues (such as the guilt or innocence of a criminal defendant), not legal issues. Appellate cases are decided by judges alone, unassisted by a jury—both in the federal and state court systems.

Circuit splits. One point should be explained about the significance of the legal prec- edents established by the U.S. circuit courts. As long as the decision does not conflict with

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any U.S. Supreme Court ruling, each circuit court is free to arrive at its own conclusions on issues of law, which are then binding on lower courts in that circuit. A circuit court is not required to follow precedents established by other circuit courts around the country, although precedents from other circuits usually carry considerable weight and are often followed.

Occasionally two different circuit courts will rule differently on the same legal issue, called a circuit split. When that happens, the trial courts in each region have no choice but to follow the local circuit court’s ruling. Trial courts located in other circuits may choose to follow either of the two conflicting precedents, or they may follow neither. Since this kind of uncertainty about the law is obviously bad for everyone, the U.S. Supreme Court often inter- venes, establishing a uniform rule of law all over the country.

As well as hearing appeals of federal trial court decisions, the circuit courts also hear appeals from special-purpose courts and federal administrative agencies. For instance, decisions of both the Federal Trade Commission and the Federal Communications Commission may be appealed to the federal circuit courts. Such cases are often heard by the U.S. Court of Appeals for the D.C. circuit, giving that court a major role in communications law.

It bears noting that even though there are many judges serving in federal courts below the Supreme Court, some empty judicial seats go unfilled for months. Sometimes appointments to these seats are politically charged. A snapshot of the current state of vacancies in the federal judiciary, on June 30, 2015, showed a total of 60 judicial vacancies (only nine of these in appellate courts, down from previous years), and 15 pending nominees (two in the appellate courts). This information is tracked by the Administra- tive Office of the U.S. Courts (www.uscourts.gov).

The U.S. Supreme Court

The U.S. Supreme Court is the highest court in the country. Its nine justices are the highest-ranking judges in the nation, and its decisions represent the most influential legal precedents, binding on all lower courts.

Limited caseload. Because of this court’s vast authority, it is common for people involved in a lawsuit to threaten to “fight this all the way to the Supreme Court.” However, very few cases have any real chance to make it that far. The U.S. Supreme Court is, after all, only one court, and it can decide only a limited number of cases each year. The Supreme Court accepts at most a few hundred cases annually for review—out of about 10,000 petitions for a hearing. In the end, the court issues formal signed opinions in no more than about 100 cases each year. In recent years the Court has produced even fewer: often only 80 or 90 per term. Obviously, some screening is required to determine which cases will get that far.

ride circuit:

the historic practice in which judges rode from place to place to hear appeals in person.

en banc:

Latin/French for “in the bench,” a session where all judges on a court participate in the hearing and resolution of a case, rather than just a small panel. Pronounced “on bonk.”

circuit split:

when two or more circuit courts have different rules on the same issue of law; often the Supreme Court will step in to resolve the split.

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Chapter One 5

6 The American Legal System

In doing the screening, the Supreme Court tries to hear those cases that raise the most significant legal issues, those where the lower courts have flagrantly erred, and those where conflicting lower court decisions must be reconciled. However, the fact that the Supreme Court declines to hear a given case does not mean it necessarily agrees with the decision of a lower court. To the contrary, the Supreme Court may disagree with it, but it may choose to leave the decision undisturbed because it has a heavy caseload of more important matters.

The fact that the Supreme Court declines to review a lower court decision establishes no precedent: for the Supreme Court to refuse to hear a case is not the same as the Supreme Court taking up the case and then affirming the lower court’s ruling. When the Supreme Court declines to take a case, the lower court ruling on that case remains in force—but it is still just the decision of a lower court. There are occasions, however, when the Supreme Court accepts a case and then affirms the opinion of a lower court instead of issuing its own opinion, giving the lower court’s opinion the legal weight of a Supreme Court decision.

The nine justices vote to decide which cases they will hear of the many appealed to them. Under the Supreme Court’s rules of procedure, it takes four votes to get a case on the high court’s calendar (commonly called “the rule of four.”)

Getting to the Court. Cases reach the U.S. Supreme Court by several routes. The Consti- tution gives the Supreme Court original jurisdiction over a few types of cases (the first court to hear those cases). Disputes between states and cases involving ambassadors of foreign coun- tries are examples of cases in which the Supreme Court has original jurisdiction. Even these cases may sometimes be heard in lower courts instead—with the blessing of the Supreme Court’s nine overworked justices. In disputes between states, the Court may appoint Special Masters to hear evidence and prepare factual findings prior to oral argument.

Then there are a few cases in which the losing party in the lower courts has an auto- matic right to appeal to the Supreme Court. For example, when a lower federal court or the highest court in a state rules an Act of Congress unconstitutional, the U.S. Supreme Court must hear an appeal if asked to do so by the government. The Supreme Court is required to accept these cases for review.

Finally, there are a vast number of cases that the Supreme Court may or may not choose to review; it is not required to hear these cases, but some raise very important questions.

FIG. 3. The Supreme Court of the United States, 2010.

Steve Petteway, Collection of the Supreme Court of the United States.

Front, L-R: Justice Clarence Thomas, Justice Antonin Scalia, Chief Justice John Roberts, Jr., Justice Anthony Kennedy, Justice Ruth Bader Ginsburg.

Back, L-R: Justice Sonia Sotomayor, Justice Stephen Breyer, Justice Samuel Alito, Justice Elena Kagan.

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In these cases the losing party in a lower court asks the Supreme Court to issue a writ of certiorari (often abbreviated cert). Technically, a writ of certiorari is an order from the Supreme Court to a lower court to send up the records of the case. Certiorari granted means the Court has agreed to hear an appeal, while certiorari denied means the Court has decided not to hear the case. (This book will use the terms “cert granted” or “cert denied.”) For the Court to grant cert, according to the rule of four, four of the nine justices must vote to hear the case.

This certiorari procedure is by far the most common way cases reach the Supreme Court, although many more petitions for cert are denied than granted. Cases may reach the Supreme Court in such appeals from both lower federal courts and from state courts. The Supreme Court often hears cases that originated in a state court, but only when an important federal question, such as the First Amendment’s guarantee of freedom of the press, is involved. Most of the Supreme Court decisions on libel and invasion of priva- cy that will be discussed later reached the high court in this way.

The Supreme Court will consider an appeal of a state case only when the case has gone as far as possible in the state court system. That normally means the state’s highest court must have either ruled on the case or refused to hear it.

The justices. It would be difficult to overstate the impor- tance of the nine justices of the U.S. Supreme Court in shaping American law. That is why bitter battles are so often fought in the U.S. Senate over the confirmation of those nominated to be Supreme Court justices. As Chapter Five explains, in 1992 the Supreme Court upheld the basic principle of Roe v. Wade, the land- mark abortion decision, by a 5-4 vote. Three justices appointed by presidents who opposed abortions (Anthony M. Kennedy and Sandra Day O’Connor, appointed by Ronald Reagan, and David H. Souter, appointed by George H.W. Bush) formed the nucleus of the majority that upheld Roe v. Wade. Had any of them voted as the president who nominated them probably expected, Roe v. Wade would have been overturned. But no one can predict how a jurist will vote once on the high court. Souter, considered a conser- vative when he replaced the liberal William Brennan, has written some surprisingly liberal opinions, including a stirring defense of the free press (see Chapter Eight). In contrast, Clarence Thomas, who replaced Thurgood Marshall (the first African-American ever to serve on the Supreme Court and an avowed liberal), has taken a decidedly more conservative course as a jurist than his predecessor.

With the retirement of Justice Byron White in 1993, a Demo- cratic president had the opportunity to appoint a Supreme Court justice for the first time since the 1960s, and Bill Clinton nomi- nated longtime federal appellate judge Ruth Bader Ginsburg to

original jurisdiction:

the first court with jurisdiction to hear a case; in the case of the Supreme Court, its findings in original jurisdiction cases are final.

writ of certiorari:

the order issued by the Supreme Court when it agrees to hear a case.

rule of four:

four justices must agree to grant certiorari to hear a case before the case is permitted to be argued before the Court.

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Chapter One 7

8 The American Legal System

replace White. A year later, Justice Harry A. Blackmun, who was perhaps best known for writing the Court’s main opinion in Roe v. Wade, also retired. Clinton then made Stephen G. Breyer, another federal appellate judge, his second nominee for the Supreme Court. Both Ginsburg and Breyer were viewed as moderates. Another decade passed before there were other changes in the makeup of the Supreme Court. George W. Bush appointed John G. Roberts Jr. to replace William Rehnquist as chief justice when Rehnquist died in 2005. Bush then named Samuel A. Alito to replace Sandra Day O’Connor, who retired in 2006. Roberts’ record during his first years as chief justice seemed to mark him more as a consensus builder than a doctrinaire conservative, while Alito’s early voting record was more conservative than O’Connor’s. O’Connor had wielded great influence as a centrist.

In 2009, President Barack Obama got his first chance to appoint a justice to the Supreme Court when Justice David Souter announced his retirement after 19 years on the Court. He appointed Judge Sonia Sotomayor, a federal judge from the Second Circuit, who is the first Hispanic justice and the third woman to serve on the Supreme Court. Obama also made history with his appointment of Elena Kagan, dean of Harvard Law School, as solicitor general, the first woman to hold that office. The solicitor general argues for the government of the United States before the Supreme Court. When Justice John Paul Stevens announced his retirement in 2010, after nearly 35 years on the Court, Obama chose Kagan as his second Supreme Court appointment. In June 2011, Donald B. Verrilli, Jr. (a former clerk to Justice Brennan) was approved by the Senate and sworn in to succeed Kagan as solicitor general.

The Chief. The Supreme Court is sometimes closely identified with its chief justice, who may set the tone for the entire Court. For example, the “Warren Court,” named for Earl Warren, who served as chief justice from 1953 to 1969, had an enormous influence on the modern interpretation of the First Amendment. Later in this chapter and in Chapter Four there are references to the Warren Court’s major role in reshaping American libel law. But the Warren Court did far more than that: it also rewrote American obscenity law and greatly expanded the rights of those who are accused of crimes, to cite just two examples. Since the era of the liberal Warren Court ended, more conservative justices have dominated the Court. Under Chief Justice William Rehnquist, the Court began to overturn some of the precedents established by the Warren Court, particularly in such fields as criminal law. And yet, many of the Warren Court’s landmark decisions still stand, a tribute to the influence wielded by Warren and his colleagues. An interesting footnote: although the term “the Warren Court” is synonymous with judicial liberalism, Warren had been a Republican governor of California and he was appointed to the Court by Dwight D. Eisenhower, a Republican president.

The State Courts

Each of the 50 states has its own court system, as already indicated. Larger states such as California, New York, Ohio, Pennsylvania, Texas, Illinois and Michigan have two levels of state appellate courts plus various trial courts, duplicating the federal structure.

In these states, the intermediate appellate courts (usually called simply “courts of appeal”) handle cases that the state supreme court has no time to consider. The state supreme court reviews only the most important cases. Worth special note is the New York system, which is structurally similar to the systems in other populous states, but with opposite nomenclature. In New York, the “supreme court” is a trial court that also has intermediate appellate juris- diction; there are many such courts in the state. New York’s highest court is called the Court of Appeals. Maryland also calls its highest court the Court of Appeals.

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FIG. 4. The four female Justices in the Justices’ Conference Room prior to Elena Kagan’s investiture, Aug. 7, 2010.

Steve Petteway, Collection of the Supreme Court of the United States.

L-R: Justice Sandra Day O’Connor (Ret.), Justice Sonia Sotomayor, Justice Ruth Bader Ginsburg and Justice Elena Kagan.

In smaller states, the trial courts send cases directly to the state supreme court, which may have from three to nine or more justices to hear all appeals in the state. As both the population and the volume of lawsuits increase, more and more states are adding interme- diate appellate courts. The states tend to have a greater variety of trial courts than does the federal government, since the state courts must handle many minor legal matters that are of no concern to the federal courts. A typical state court system includes some kind of local court that handles minor traffic and civil matters and perhaps minor crimes. Such courts are sometimes called municipal courts, county or city courts, justice courts, or the like.

In some states the highest trial courts not only hear the most important trials but also perform some appellate functions, reviewing the verdicts of the lower trial courts.

State and Federal Jurisdiction

It may seem inefficient to have two complete judicial systems operating side by side. Wouldn’t it be simpler and less expensive to consolidate the state and federal courts that operate in each state? Perhaps it would, but one of our strongest traditions is power sharing between the federal government and the states. We’ll have separate state and federal laws— and separate court systems—throughout the foreseeable future.

How then is authority divided between the federal and state courts? State jurisdiction and federal jurisdiction sometimes overlap, but basically the state courts are courts of resid- ual jurisdiction; that is, they have authority over all legal matters that are not specifically placed under federal control. Anything that isn’t a federal question automatically falls within the jurisdiction of the state courts. In addition, the state courts may also rule on some issues that are federal questions (for instance, First Amendment rights).

Federal questions. What makes an issue a federal question? The Constitution declares that certain areas of law are inherently federal questions. For instance, the Constitution specifically authorized Congress to make copyright law a federal question. And Congress, acting under the authority of the Constitution, has declared copyrights and many other matters to be federal questions. Congress has used its constitutional power to regulate inter- state commerce as a basis for federal regulation of broadcasting, for instance. Legal issues

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Chapter One 9

10 The American Legal System

residual jurisdiction:

the Tenth Amendment gives all powers to the states that are not granted to the federal government or prohib- ited to the states by the Constitution.

federal question:

an area in which the federal government has subject juris- diction, including interpretation of the Constitution and acts of Congress and inter- national treaties.

diversity of citizenship/ diversity jurisdiction: when one party to a lawsuit is from one state and the other is from another state; diversity jurisdiction gives the federal courts jurisdiction over such lawsuits.

complete diversity:

no plaintiff in a case can be from the same state as any defendant in the same case.

federal preemption:

when the federal government has sole jurisdiction over a subject area.

concurrent jurisdiction:

when the federal government and the states share jurisdiction.

such as copyrights and broadcast regulation are federal questions because of their subject matter.

In addition, federal courts may intervene in state cases if a state court ruling conflicts with the U.S. Constitution. Much of mass communications law is based on cases of this type. In almost every area of state law discussed in this textbook, the U.S. Supreme Court has intervened at one time or another, interposing federal constitutional requirements on the states. Most often, of course, the constitutional issue is freedom of expression as protected by the First Amendment; the Supreme Court has often overruled state laws and court decisions that violated the First Amendment.

Diversity issues. In addition to these federal questions, there is another reason the federal courts will sometimes agree to hear a case: diversity of citizenship. This principle applies only when a citi- zen of one state sues a citizen of another state. For example, if a New Yorker and a Pennsylvanian are involved in a serious auto acci- dent, each may be able to avoid a lawsuit in the other’s state courts under the diversity principle. If there is a lawsuit, it may well be removed to a federal court instead of being heard in a state court.

The framers of the Constitution felt it would be unfair to force anyone to fight a lawsuit on someone else’s “home turf,” so they ordered the federal courts to provide a neutral forum to hear these disputes involving citizens of two different states. The theory is that a state court might be biased in favor of its own citizens and against outsiders. When a federal court hears a case that would be a state matter if it involved two citizens of the same state, the federal court’s right to hear the case is based on diversity jurisdiction rather than federal question jurisdiction. In diversity lawsuits, the trial may still occur in the home state of one of the litigants, but in a federal rather than a state court.

There are limits on diversity jurisdiction. If there were not, the federal courts might be overwhelmed by minor cases. To avoid that problem, federal courts accept diversity-of-citizenship cases only when the dispute involves more than $75,000. This jurisdictional threshold has been increased repeatedly over the years. Until it was raised from $10,000 to $50,000 in 1988, the federal courts had to handle many relatively minor civil lawsuits—cases that federal judges felt should rightfully be left to the state courts.

Another limitation on diversity jurisdiction is the requirement of complete diversity. That is, all of the parties on one side of a lawsuit must come from a different state than anyone on the other side. That means, for instance, that a suit by a New Yorker against both an individual from Pennsylvania and an insurance company in New York would not usually qualify as a diversity case.

Sometimes there is considerable legal maneuvering when a case does qualify for federal jurisdiction, either because a federal

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question is involved or because there is diversity of citizenship. One side may want the case kept in state court, while the other prefers a federal court. Such a case may be filed in a state court, removed to federal court, and eventually sent back to a state court.

Federal preemption. One more point about federal-state relationships bears explain- ing. Certain legal matters are exclusively federal concerns, either under the Constitution or an act of Congress. In those areas, the federal government is said to have preempted the field. That is, no state law in this area is valid; the federal government has exclusive jurisdiction. Copyright law is one such area.

In certain other areas of law, Congress has enacted some federal laws without preempt- ing the field. The states may also enact laws in these areas, providing that the state laws do not conflict with any federal laws. These are called areas of concurrent jurisdiction. Examples in media law include the regulation of advertising, antitrust law and trademark regulation. A typical dividing line in such an area of law is the one that exists in trademark regula- tion, where the federal Lanham Act protects trademarks of businesses engaged in interstate commerce, while many states have laws to protect the trademarks of local businesses.

In addition to the areas of law preempted by the federal government and areas of concurrent jurisdiction, of course, a large number of legal matters are left to the states— unless a state should violate some federal principle in the exercise of that authority. Libel and invasion of privacy are two areas of media law that are essentially state matters. Recently the U.S. Supreme Court has been refining the concept of federalism by limiting the power of Congress to curtail the traditional authority of the states, a trend that is discussed later.

Judicial Behavior

In recent years, the public has cast a far more suspicious eye on the judiciary than once it did. And judges sometimes don’t help their own causes: consider 2014 reports of a sitting Arkansas judge named Mike Maggio, who reportedly posted on a Louisiana State University fan site under the name “geauxjudge” some very unflattering things about women’s sexuality and independence, as well as gay men and lesbians (for example, claiming that women ought not divorce their philandering husbands if they were “good providers”).

Because in three-quarters of the states, judges are elected rather than appointed, consid- erations about judicial impartiality and electoral processes have arisen.

Recusal. Questions about whether judges should recuse (remove) themselves from cases in which they or their families have financial or social interests have been in the news in the late 2000s. Campaign donations to judicial elections are on the rise, and in 2009 the Supreme Court said that a judge’s failure to recuse himself from a case in which he received significant campaign donations from one litigant violated the due process rights of the other litigant. At issue in Caperton v. A.T. Massey Coal Company Inc. (556 U.S. 868) was the decision of West Virginia Supreme Court of Appeals chief justice Brent Benjamin not to recuse himself in a case in which one of the litigants, Massey Coal, had given him $3 million in campaign donations. Justice Benjamin had refused several times to remove himself from the case, and his court reversed a $50 million award against Massey Coal.

In a 5-4 decision, the Supreme Court said that the due process clause of the Fourteenth Amendment was violated by Justice Benjamin’s participation in this case. Justice Anthony Kennedy wrote, “We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising

Copyright 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

Chapter One 11

12 The American Legal System

funds or directing the judge’s election campaign when the case was pending or imminent.” Kennedy also pointed out that the extreme facts in this case would likely limit any potential of increased recusal demands or interference with judicial elections.

Judicial elections. Judicial elections continue to raise questions beyond recusal. How are judges to raise money for campaigning when many state bar rules forbid direct solicitations by the candidate? In 2015, the Court took on this question of whether the state bar rules that forbid a judge from soliciting contributions passed First Amendment muster. Lanell Williams-Yulee, a candidate for judicial office, posted online and mailed a letter asking for financial contributions for her campaign. She was censured by the Florida Bar under Canon 7C(1) of the bar rules, which states that candidates “shall not personally solicit campaign funds, or solicit attorneys for publicly stated support” but allows committees formed for that purpose to do so. Yulee alleged that this canon violated the First Amendment, but the Supreme Court said no (Williams-Yulee v. Fla. Bar, No. 13-1499).

Writing for the Court, Chief Justice John Roberts said that there is a compelling inter- est for states to ensure that their judges are unbiased and fair. Judges are not politicians, Roberts said, and “[i]n deciding cases, a judge is not to follow the preferences of his support- ers, or provide any special consideration to his campaign donors.” Canon 7C(1), then, is appropriately tailored to protect this important interest.

In dissent, Justice Antonin Scalia said that the canon would need to pass strict scrutiny to be upheld, and it does not. After pointing out what he viewed as the canon’s constitutional infirmities, he added this note about judicial elections in general: “When a society decides that its judges should be elected, it necessarily decides that selection by the people is more important than the oracular sanctity of judges, their immunity from the (shudder!) indig- nity of begging for funds, and their exemption from those shadows of impropriety that fall over the proletarian public officials who must run for office.” So if judges are to be elected, they must run campaigns, and those campaigns cost money. Asking for money is protected speech, and the canon proscribing it was not narrowly tailored. Justices Anthony Kenne- dy and Samuel Alito also dissented, with Kennedy pointing out that the majority opinion gave the Court the ability “to eviscerating strict scrutiny any time [it] encounters speech it dislikes,” and Alito adding that the canon was “as narrowly tailored as a burlap bag.”

Other judicial appointments. Who has say over other elements of judgeships? Often commissions or councils either make recommendations or appointments to state judicial positions (a process called merit selection); sometimes the governor has appointment power. In 2012, the Tenth Circuit declined to grant a group of non-lawyer citizens the power to directly affect this method in Kansas (Dool v. Burke, 497 Fed. Appx. 782). In Kansas, a commission, made up mostly of attorneys, gives recommendations to the governor, who ultimately makes the appointment decision. Non-attorneys filed suit, saying that the 5-4 majority of attorneys on the commission was an equal protection violation. The Tenth Circuit, in a per curiam (unsigned) opinion, said there was no violation. All three judges wrote separate opinions, two concurring and one dissenting; the dissenter, Judge Monroe McKay, said that “Kansas has virtually given the state bar the authority to elect those who choose the justices.”

Contempt by opinion. The Third Circuit was asked in 2013 to answer for the first time the question of whether the First Amendment protected judges from prosecution for criminal contempt stemming from their judicial opinions or recusals. The court said that it did: “the First Amendment protects a sitting judge from being criminally punished for his opinion unless that opinion presents a clear and present danger of prejudicing ongoing

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Chapter One 13

proceedings.” In the case, In re The Honorable Leon A. Kendall (712 F.3d 814), Judge Kendall had been found in criminal contempt by the Virgin Islands Supreme Court for recusing himself from a criminal case. Earlier he had written an opinion criticizing a recent deci- sion of the Virgin Islands Supreme Court and explaining why he had recused himself. That court thought he recused himself because he wanted to avoid complying with a writ of mandamus (an order to perform or not perform a particular act) from the court ordering him not to take a plea bargain from a defendant in the criminal case.

Judicial immunity. The Sixth Circuit had to make tough choices when Gallia County (Ohio) Common Pleas Court Judge David Dean Evans “overreacted to attorney Robert Bright’s criticisms and inappropriately removed Bright from nearly seventy felony cases,” causing him to lose his job (Bright v. Gallia Co., 753 F.3d 639, 2014). Bright had been critical of the judge in his chambers but had not used profanity or made any accusations of unethi- cal behavior. Bright filed suit when he lost his job. The district court found for Bright, but the Sixth Circuit, calling the judge’s behavior “worthy of censure,” found that it fell under absolute judicial immunity. Moreover, “reluctantly,” the court affirmed the district court’s finding that Bright did not have a First Amendment retaliation claim—even though the judges felt the precedent was faulty.

TYPES OF LAW

Although the courts play a major role in shaping the law, the other branches of govern- ment also have the power to make laws in various ways. In fact, the term law refers to several different types of rules and regulations, ranging from the bureaucratic edicts of administra- tive agencies to the unwritten legal principles we call the common law. This section explains how the courts interact with other agencies of government in shaping the various kinds of law that exist side by side in America.

The Constitution

The most important foundation of modern American law is the U.S. Constitution. No law that conflicts with the Constitution is valid. The U.S. Constitution is the basis for our legal system: it sets up the structure of the federal government and defines federal-state relationships. It divides authority among the three branches of the federal government and limits their powers, reserving a great many powers for the states and their subdivisions (such as cities and counties).

The First Amendment to the Constitution is vital to the media. In just 45 words, it sets forth the principles of freedom of the press, freedom of speech and freedom of religion in America. The First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohib- iting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

What do those words mean? The job of interpreting what they mean has fallen to the appellate courts, which have written millions of words in attempting to explain those 45 words. For instance, the First Amendment sounds absolute when it says “Congress shall

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14 The American Legal System

make no law….” However, the courts have repeatedly ruled that those words are not absolute, and that freedom of expression must be balanced against other rights. In practice, the First Amendment should really be read more like this: “Congress shall make almost no laws…” or “Congress shall make as few laws as possible…abridging freedom of speech, or of the press….” The chapters to follow will discuss the many other rights that the courts have had to balance against the First Amendment.

The First Amendment (as well as the other amendments in the Bill of Rights) originally applied only to Congress and to no one else. It was written that way because its authors did not think it was their place to tell the state governments not to deny basic civil liberties; their purpose was to reassure those citizens who feared that the new federal government might deny basic liberties. They felt that many basic liberties were so firmly rooted in the common law that no written declaration was needed to assure that the states would safeguard these liberties. However, it became clear over the years that state and local governments, like the federal government, may violate the rights of their citizens from time to time. Hence, the Supreme Court eventually ruled that the First Amendment’s safeguards should apply to state and local governments as well, a concept called incorporation that will be discussed later.

Constitutional supremacy. The U.S. Constitution plays the central role in American law. No law may be enacted or enforced if it violates the Constitution. The courts—particularly the U.S. Supreme Court—play the central role in interpreting what the Constitution means, often in practical situations that the founders never dreamed of when they wrote the docu- ment more than 200 years ago. Perhaps the Constitution has survived for so long because the courts do adapt it to meet changing needs, and because it can be amended when there is strong support for this step. The Sixteenth Amendment, for example, was approved in 1913, authorizing the federal income tax at a time when the federal government needed to find a way to bring in more revenue. And the Twenty-first Amendment, approved in 1933, abolished prohibition (thus ending an era that began when the Eighteenth Amendment was enacted to ban alcoholic beverages). The normal procedure for amending the Constitution is for each house of Congress to approve a proposed amendment by a two-thirds vote, after which it must be ratified by three-fourths of the states.

State and local constitutions and rules. In addition to the federal Constitution, each state has its own constitution, and that document is the basic legal charter for the state. No state law may conflict with either the state’s own constitution or the federal Constitution. Each state’s courts must interpret the state constitution, overturning laws that conflict with it. Likewise, many cities and counties have home rule charters that establish the fundamental structure and powers of local government. Like the state and federal constitutions (which local governments must also obey), local charters are basic sources of legal authority. On the other hand, many local governments operate under the general laws enacted by state legislatures instead of having their own local charters.

In these circumstances, the courts must decide when a government action—be it an act of Congress or the behavior of the local police department—violates one of these basic government documents. When that happens, it is the job of the courts to halt the violation.

The Common Law

The common law, which began to develop out of English court decisions hundreds of years ago, is our oldest form of law. It is an amorphous collection of legal principles based on thousands of court decisions handed down over the centuries. It is unwritten law in the

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sense that you cannot sit down and read it all in one place as you can with the statutory laws enacted by Congress. Starting nearly 1,000 years ago, English judges began to follow legal precedents from previous cases. Each new decision added a little bit to this accumu- lated body of law. As it grew, the common law came to include rules concerning everything from crimes such as murder and robbery to non-criminal matters such as breach of contract.

When the American government took its present form with the ratification of the Constitution in 1789, the entire English common law as it then existed became the basis for the American common law. Since then, thousands of additional decisions of American courts have expanded and modified the common law in each state.

It should be emphasized that the Supreme Court has ruled that the common law is mainly state law and not federal law. Each state’s courts have developed their own judicial traditions, and those traditions form the basis for that state’s common law, which may vary from the common law of other states.

Sovereign immunity. Several controversial U.S. Supreme Court decisions underscored the continuing power of the common law as a force that even Congress cannot ignore. In Alden v. Maine (527 U.S. 706, 1999) and several other cases, the high court looked back to the status of the common law before the Constitution was rati- fied in 1789 and concluded that a concept called sovereign immu- nity was firmly entrenched in the law then—and was not abrogated by the Constitution. Sovereign immunity exempts the “sovereign” from being sued in the courts. In eighteenth-century England, the sovereign was the king or queen. In the pre-constitutional United States, the individual states had sovereign immunity.

How does sovereign immunity affect modern America? In these decisions, a 5-4 majority of the Supreme Court said the states still enjoy sovereign immunity, and Congress does not have the right to authorize lawsuits against the states either in federal courts or in state courts. The result: the Court held that states are large- ly exempt from various federal laws that purport to allow private parties (such as individuals and corporations) to sue a state. The Court has said the states (but not private parties) are exempt from many patent and copyright infringement lawsuits, for example, and also to some actions brought by federal regulatory agencies. These decisions were widely criticized in the media. They are based on an expansive view of common law concepts that are routinely taught in law school and that still apply today—in the opinion of the Supreme Court majority. However, the states have all voluntarily agreed to limit their own sovereign immunity by enacting laws to allow lawsuits against themselves under various circumstances.

Evolution of the common law. Like federal constitutional law, the common law can grow and change without any formal act of a

statute:

any law that is adopted by a legislature of a federal, state or local governmental body.

sovereign immunity:

the ability of a govern- ment to limit lawsuits against it.

stare decisis:

Latin for “let the law or the decision stand,” the policy of courts to rely on precedents.

distinguishing a case:

declining to follow a precedent based on the precedential case differing from the case being decided.

reversing/overruling a precedent: choosing not to follow precedent even if

the facts of the case being decided are very similar.

Copyright 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

sense that you cannot sit down and read it all in one place as you can with the statutory laws enacted by Congress. Starting nearly 1,000 years ago, English judges began to follow legal precedents from previous cases. Each new decision added a little bit to this accumu- lated body of law. As it grew, the common law came to include rules concerning everything from crimes such as murder and robbery to non-criminal matters such as breach of contract.

When the American government took its present form with the ratification of the Constitution in 1789, the entire English common law as it then existed became the basis for the American common law. Since then, thousands of additional decisions of American courts have expanded and modified the common law in each state.

It should be emphasized that the Supreme Court has ruled that the common law is mainly state law and not federal law. Each state’s courts have developed their own judicial traditions, and those traditions form the basis for that state’s common law, which may vary from the common law of other states.

Sovereign immunity. Several controversial U.S. Supreme Court decisions underscored the continuing power of the common law as a force that even Congress cannot ignore. In Alden v. Maine (527 U.S. 706, 1999) and several other cases, the high court looked back to the status of the common law before the Constitution was rati- fied in 1789 and concluded that a concept called sovereign immu- nity was firmly entrenched in the law then—and was not abrogated by the Constitution. Sovereign immunity exempts the “sovereign” from being sued in the courts. In eighteenth-century England, the sovereign was the king or queen. In the pre-constitutional United States, the individual states had sovereign immunity.

How does sovereign immunity affect modern America? In these decisions, a 5-4 majority of the Supreme Court said the states still enjoy sovereign immunity, and Congress does not have the right to authorize lawsuits against the states either in federal courts or in state courts. The result: the Court held that states are large- ly exempt from various federal laws that purport to allow private parties (such as individuals and corporations) to sue a state. The Court has said the states (but not private parties) are exempt from many patent and copyright infringement lawsuits, for example, and also to some actions brought by federal regulatory agencies. These decisions were widely criticized in the media. They are based on an expansive view of common law concepts that are routinely taught in law school and that still apply today—in the opinion of the Supreme Court majority. However, the states have all voluntarily agreed to limit their own sovereign immunity by enacting laws to allow lawsuits against themselves under various circumstances.

Evolution of the common law. Like federal constitutional law, the common law can grow and change without any formal act of a

statute:

any law that is adopted by a legislature of a federal, state or local governmental body.

sovereign immunity:

the ability of a govern- ment to limit lawsuits against it.

stare decisis:

Latin for “let the law or the decision stand,” the policy of courts to rely on precedents.

distinguishing a case:

declining to follow a precedent based on the precedential case differing from the case being decided.

reversing/overruling a precedent: choosing not to follow precedent even if

the facts of the case being decided are very similar.

Copyright 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

Chapter One 15

16 The American Legal System

Focus on… The whole First Amendment

This book focuses on just two of the five rights enshrined in the First Amendment—the free speech and press clauses. But there are three more rights in that amendment: the religion clause (establishment and exercise), the free association clause, and the freedom to petition clause. It’s sometimes hard to disentangle the clauses from each other.

Here are a few examples: It’s clear how closely freedom to speak (or to refrain from speaking) is tied to the establish- ment clause, which says, in effect, that government can’t create a state religion. Michael Newdow, an atheist, medical FIG. 5. Canterbury Cathedral, Kent, doctor, and attorney most noted for repeated suits against the circa 1910.

federal government for actions including “In God We Trust” Library of Congress. on American currency, faced the Supreme Court in 2004 (and lost), arguing that making school children say the Pledge of Allegiance, including “under God,” was an establishment of religion (Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1). The religion clauses are also in the news with the Patient Protection and Affordable Care Act (“Obamacare”), when the Court said that family-owned companies with religious bents can’t be forced to offer contraceptive services in their health care plans—although the government may step in and provide ways for employees to get them (Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751).

legislative body precisely because it is based on court decisions. When a new situation arises, the appellate courts may establish new legal rights, acting on their own authority. A good example of the way the common law develops a little at a time through court decisions is the emergence of the right of privacy. As Chapter Five explains, there was no legal right of privacy until the twentieth century. But as governments and the media (and eventually, the Internet) became more powerful and pervasive, the need for such a right became appar- ent. The courts in a number of states responded by allowing those whose privacy had been invaded to sue the invader, establishing precedents for other courts to follow.

In addition to privacy law, several other major areas of mass media law had their begin- nings in the common law tradition, among them libel, slander and the earliest copyright protections.

If this all happens through judicial precedent, with the courts expected to follow the example set by earlier decisions, how can the common law correct earlier errors?

The importance of precedent. The common law system has survived for nearly a thousand years precisely because there are mechanisms to allow the law to change as the times change. Courts don’t always follow legal precedent; they have other options.

When a court does adhere to a previous decision, it is said to be observing the rule of stare decisis. That Latin term, roughly translated, means “Let the precedent stand.” However, courts need not always adhere to stare decisis. Instead, a court faced with a new factual situa- tion may decide that an old rule of the common law should not apply to the new facts. The new case may be sufficiently different to justify a different result. When a court declines to follow a precedent on the ground that the new case is different, that is called distinguish- ing the previous case. When an appellate court does that, the common law keeps up with changing times.

Copyright 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

Another option, of course, is for a court to decline to follow precedent altogether, even though the factual circumstances and issues of law may be virtually identical. That is called reversing or overruling a precedent; it is considered appropriate when changing times or changing conditions have made it clear that the precedent is unfair or unworkable.

A good example of the way this process works is the 1954 ruling of the U.S. Supreme Court in the famous school desegregation case, Brown v. Board of Education (347 U.S. 483). Although this case is based on an interpretation of the Constitution and is therefore an example of the development of constitutional law rather than the common law, it provides a good illustration of just how the law develops over the years. When the Court took up the Brown case, there was a precedent, an 1896 Supreme Court decision called Plessy v. Fergu- son (163 U.S. 537). In that earlier case, racial segregation had been ruled constitutionally permissible as long as the facilities provided for different races were “separate but equal.”

But in 1954 the Supreme Court pointed out that more than half a century’s experience under the Plessy rule proved that the “separate but equal” approach didn’t work. The Court noted that segregated facilities were almost always unequal—and ruled that the public schools of America must be desegregated. As a result of that new decision, the precedent from the 1896 case was no longer binding, and a new precedent replaced it. In the end, the Brown case became one of the most important court decisions of the twentieth century.

Statutory Law

The third major type of law in America is the one most people think of when they hear the word law. It is statutory law, a sweeping term that encompasses acts of Congress, laws enacted by state legislatures and even ordinances adopted by city and county governments.

If constitutional and common law are largely unwritten (or at least uncodified) forms of law because they are the result of accumulated court decisions, statutory law is just the opposite. It is law written down in a systematic way. Statutory laws are often organized into codes. A code is a collection of laws on similar subjects, indexed and arranged by subject matter. Much federal law is found in the United States Code. Each title of the U.S. Code deals with a particular subject or group of related subjects. Title 17, for example, deals with copy- right law, discussed in Chapter Six. On the state level, statutory law is similarly organized, although not all states refer to their compilations of statutory laws as codes.

Judicial interpretation of statutes. Although statutory law is created by legislative bodies, the courts have an important place in statutory lawmaking just as they do in other areas of law. That is true because the courts have the power to interpret the meaning of statutory laws and apply them to practical situations. For this reason, law books containing statutory laws are often annotated. This means each section of the statutory law is followed by brief summa- ries of the appellate court decisions interpreting it. Thus, one can quickly learn whether a given statutory law has been upheld or if it has been partially or totally invalidated by the courts. Annotated codes also contain cross-references to other relevant analyses of the statu- tory law, such as attorney general’s opinions or articles in law reviews.

Why would a court invalidate a statutory law? It can happen for several reasons. First, of course, if the statute conflicts with any provision of the appropriate state or federal constitu- tion, it is invalid. In addition, there are sometimes conflicts between two statutory laws enact- ed by the same state legislature or by Congress. When that happens, the differences must be reconciled, and that may mean reinterpreting or even invalidating one of the laws. In addition, courts may void laws that conflict with well-established (but unwritten) common

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Chapter One 17

18 The American Legal System

law principles. For instance, Chapter Eight explains that a number of state legislatures have enacted shield laws to protect journalists’ news sources. But several courts have overruled these shield laws on the ground that they infringe on judicial prerogatives guaranteed by constitutional or common law principles.

There is considerable interplay between the courts and legislative bodies in the devel- opment of statutory law. As already indicated, often a new legal concept is recognized first by the courts, whose decisions will make it a part of the common law. At some point, a legislature may take note of what the courts have been doing and formally codify the law by enacting a statute. The courts may then reinterpret the statute, but the legislature may respond by passing yet another statute intended to override the court decision.

We will see precisely this sort of interplay between a legislative body and the courts in several areas of media law, particularly in such areas as copyright, shield laws and broadcast- ing. For example, the Supreme Court once ruled that most private, at-home videotaping of television shows is legal under the U.S. Copyright Act, explained in Chapter Six. Congress then considered legislation that would have revised the Copyright Act to overturn that deci- sion and outlaw home videotaping. That legislation was rejected because most members of Congress believed public opinion supported the court’s interpretation of the law.

On the other hand, if the Supreme Court had said a constitutional principle (such as the First Amendment) protected the right to make home videotapes of TV shows for personal use, the only way to reverse that ruling would have been by amending the Constitution—or waiting for the Court to reverse its own earlier decision. Congress cannot pass a statutory law to overrule a Supreme Court decision interpreting the meaning of the Constitution. Congress can, of course, propose a constitutional amendment and submit it to the states for ratification. Short of that, the most Congress can do when a statutory law is ruled unconstitutional is to revise it to bring it into compliance with the Constitution.

Administrative Law

Another important kind of law in America is administrative law. Within the vast bureau- cracies operated by the federal government and by the states, there are numerous agencies with the power to adopt and enforce administrative regulations, and these regulations have the force of law. The term “administrative law” may seem contradictory, but these agencies do have law-making powers.

In fact, agencies often have so much authority that it would seem to violate the traditional concept of separation of powers. They may write and enforce rules and try alleged violators, handing out de facto criminal penalties to those convicted. The Federal Communications Commission is a regulatory body with that kind of authority over the electronic media. The Federal Trade Commission exercises similar authority over the advertising industry.

Checks and balances. While these agencies have considerable power, there are impor- tant checks and balances that limit their authority. For example, their decisions may be appealed to the courts, and that gives the appellate courts a veto power over the rules adopt- ed by these agencies. In addition, many of these agencies were created by legislation, and in recent years Congress and the various state legislatures have proven that they can take back some of the authority they handed out, either directly by rewriting the enabling legislation or indirectly by making budget cuts.

Also, while the policy-making boards and commissions of these administrative agencies are rarely elected, the commissioners are usually appointed by the president or the governor

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of a state, who is elected. Their appointments must usually be confirmed by a legislative body. Among the thousands of agencies with administrative rule-making powers, some of the most impor- tant (in addition to the FCC and FTC) are the Interstate Commerce Commission, the Federal Aviation Administration and the Federal Elections Commission on the federal level, and the state regulatory bodies that determine rates charged by public utilities.

Actions in Equity: When Money Won’t Do

One final kind of “law” that should be mentioned here is not really a form of law at all but an alternative to the law: a remedy for legal wrongs called equity.

History. The concept of equity is an old one: it developed in medieval times. Hundreds of years ago in England, it became obvious that courts sometimes caused injustices while acting in the name of justice. There are some circumstances in which faith- fully applying the law simply does not result in a fair decision. For example, the common law has always held that damages (money) would right a wrong, and that the courts should not act until an injury actually occurred—and even then they could only order a payment of money to compensate the injured party. Obviously there are times when letting a court sit back and wait for an injury to occur just isn’t satisfactory. The harm might be so severe that no amount of money would make matters right. In those situations, courts have the power to act in equity: they can issue an injunction to prevent a wrong from occurring.

In English common law, people facing irreparable injuries appealed to the king, since he was above the law and could mete out justice when the courts could or would not. As the volume of such appeals increased, kings appointed special officers to hear appeals from those who could not get justice in the courts of law. These officers came to be known as chancellors and their court as the court of the chancery. This brand of justice, based on the dictates of someone’s conscience, came to be known simply as equity.

Equity today. In America, the same courts that apply the law usually entertain actions in equity, too. Unlike the law, which has elaborate and detailed rules, equity is still a system that seeks to offer fairness based on the dictates of the judge’s conscience. Equity is only available in situations where there is no adequate remedy under the law, and only then if the person seeking equitable relief is being fair to the other parties.

A good example of an occasion when an action in equity would be appropriate is when highway builders are about to excavate and thus destroy an important archeological site. Those seeking to preserve the site cannot wait until after an injury occurs and sue for damages. The artifacts that would be destroyed might be priceless.

burden of proof:

the party who has this burden must present evidence to support his/her claim.

beyond a reasonable doubt: the level of certainty required for a criminal conviction and the highest level of proof; does not mean abso- lute certainty but only a remote possibility of another reasonable explanation.

preponderance of the evidence: the level of certainty required for a civil decision, a lower burden than for crimi- nal cases; means that the facts support one side more than the other.

tort:

a civil wrong creating a right for a victim to sue a perpetrator.

tortfeasor:

person who commits a wrong.

defendant:

the tortfeasor in a civil lawsuit or accused in a criminal lawsuit.

plaintiff:

person who brings a lawsuit.

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Chapter One 19

20 The American Legal System

types of damages:

general: compensation for non-monetary loss.

special: compensation that requires proof of monetary losses.

actual/compensa- tory: can include both general and special damages.

presumed: awarded without any proof.

statutory: damages set by statute.

treble: three times the actual damages.

punitive: damage award, often high, intended to punish a wrongdoer.

There are legal actions that are based on equity rather than law. Probably the most important for our purposes are injunctions, which are court orders requiring people to do something they are supposed to do (or to refrain from doing something that would cause irreparable harm). Chapter Three discusses several attempts by the federal government to prevent the publication of informa- tion that officials felt would cause irreparable harm to national security. When a court orders an editor not to publish something, that is ordinarily an example of an action in equity.

CRIMINAL LAW AND CIVIL LAW

Another major distinction in the law is between criminal and civil law. Although criminal and civil law are not categories compa- rable to statutory law, the common law or administrative law, there are important differences between civil and criminal cases.

Different standards of proof. In a criminal case, someone is accused of committing an act that is considered to be an offense against society as a whole—a crime such as murder, rape or robbery. Therefore, society as a whole (“the people,” if you will) brings charges against this individual, with the taxpayers paying the bill for the people’s lawyer, often called the district attorney (or U.S. attorney in federal cases). If the person accused of the crime (the defendant) is impoverished, the taxpayers will also pay for his or her defense by providing a lawyer from the local (or federal) public defender’s office. Defendants who are more financially secure will hire their own defense lawyers, but the basic point to remember is that the legal dispute is between the defendant and “the people”— society as a whole. Moreover, because the defendant’s life or liberty may be at stake, the prosecution must prove guilt beyond a reasonable doubt. That is a difficult standard of proof.

In a civil case, it is a different matter. Here, one party claims another party injured him/her individually, without necessarily doing something so bad it is considered a crime against society as a whole. It’s just a dispute between two individuals (or two corpora- tions, or two government agencies, etc.). The courts simply provide a neutral forum to hear a private dispute. The burden of proof is correspondingly lower in civil cases: to win, a litigant must usually prove his/her case by the preponderance of the evidence, but not neces- sarily beyond a reasonable doubt, as in criminal cases.

Don’t assume that all legal matters are either criminal or civil matters—some are both. The same series of events may lead to both civil and criminal litigation. For instance, someone who has an auto accident while intoxicated may face criminal prosecution for drunk driving as well as civil lawsuits by the victims for personal injuries and property damage, among other things.

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Chapter One 21

TORTS AND DAMAGES

Two other legal concepts that should be explained here are the concepts of torts and damages. Most civil lawsuits not based on a breach of contract are tort actions. A tort is any civil wrong that creates a right for the victim to sue the perpetrator. Almost any time one party injures another, the resulting lawsuit is a tort action.

Examples of torts. For example, if you are walking across the street and you’re struck by a car driven by a careless driver, you have a right to sue for your personal injuries in a tort action for negligence. Suppose you need surgery as a result of the accident. If the doctor at the hospital should forget to remove a sponge from your body after the emergency surgery, you could sue for the tort of medical malpractice.

On the other hand, if you could prove that the car struck you not because the driver was careless but because a manufacturing defect caused the steering to fail, you could sue the manufacturer for the tort of products liability.

Finally, you could sue for libel if the local newspaper falsely reported that you had just committed a crime and were fleeing from the crime scene when you were hit by the car.

All of these legal actions and dozens of others fall into the broad category called torts. The person who commits the wrong is called the tortfeasor; he or she becomes the defendant in the lawsuit while the victim is the plaintiff.

Several of the important legal actions affecting the media are tort actions. Examples include libel and slander, invasion of privacy and unfair competition. To win a tort lawsuit the plaintiff generally has to show that there was some sort of wrongful act on the part of the tortfeasor, often either negligence or a malicious intent. The plaintiff also has to show that he/she suffered some kind of damages, although courts are sometimes permitted to presume damages when certain kinds of wrongful acts have occurred.

Types of damages. This brings us to the definition of damages, which is a central point in this introduction to media law. In many states, there are three basic kinds of damages: general damages, special damages and punitive damages.

General damages are monetary compensation for losses incurred under circumstances in which the injured party cannot place a specific dollar amount on the loss. In an auto accident where you suffer personal injuries, for instance, you may win general damages to compensate you for your pain and suffering, which are obviously intangible. In a libel suit, the plaintiff seeks general damages for embarrassment or loss of prestige in the community.

Special damages are a little different. Here, the plaintiff must prove out-of-pocket mone- tary losses. In the auto accident we’ve been using as an example, you can show that your doctor and hospital bills came to a certain amount of money. Maybe you can also show that you were unable to work for several months or years, or maybe you needed in-home nurs- ing care or rehabilitation. These are all things for which courts can establish specific dollar values. Special damages are intended to compensate for these kinds of provable losses.

Sometimes other terms are used to describe the various types of damages. Actual damages or compensatory damages means provable losses, including out-of-pocket losses (special damages) and, in some instances, some intangible but none-the-less real losses (i.e., general damages). Presumed damages are damages that a court assumes occurred without any proof. For many years, libel plaintiffs were awarded presumed damages without having to prove the defamation actually caused any injury. In some kinds of lawsuits such as copyright infringement cases, statutory damages may be awarded by a court without proof of a tangible

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22 The American Legal System

or intangible loss. Instead, the damage award is based on legal rules set forth in a statutory law such as the Copyright Act. In some areas of law, treble damages (three times the actual damages) are awarded as a means of discouraging improper behavior. For example, federal antitrust and advertising fraud laws allow treble damages.

In contrast to general and special damages, punitive damages are not based on any tangible or intangible loss. Instead, they are intended as a punishment for a person (or company) that commits a maliciously wrongful act. For the victim, they constitute a windfall profit—and the Internal Revenue Service taxes them as such. For the wrongdoer, they’re a form of non-criminal punishment, imposed by the court to deter such wrongful actions.

Punitive damages are only awarded in those tort actions where the victim can prove there was malice on the part of the tortfeasor. As we’ll see in Chapter Four, the term malice has more than one meaning in law. For the purpose of winning punitive damages in most tort actions, it means ill will or evil intentions toward the victim. In libel cases, it usually has a different meaning, but either way, it is difficult to show malice—unless the tortfeasor actually set out to injure someone deliberately.

In recent years, juries have awarded millions (or billions) of dollars in punitive damages to victims of alleged corporate misconduct who could only prove that they were entitled to modest general and special damage awards. The Supreme Court has responded to this trend by overturning large punitive damage awards as a violation of the corporate defendant’s due process rights. In a 2003 decision, the Court ruled that punitive damages should not ordinar- ily exceed 10 times the general and special damages (State Farm v. Campbell, 538 U.S. 408).

This decision is likely to benefit the media by reducing the tendency of jurors to impose very large punitive damage awards in libel cases. It also brings U.S. law closer to the law in other countries. Even in countries with a common law heritage, such as England, courts generally limit punitive damages to relatively small sums. In many other countries, punitive damages are not allowed at all. The highest courts in Italy and Germany, for example, have refused to enforce judgments of American courts that involved a punitive damage award.

As we’ll see later, keeping track of the various kinds of damages is important in several areas of media law. Sometimes one type of damages is available but not another. It is not unusual for a plaintiff in a libel suit, for example, to be denied a right to sue for anything but special damages because a newspaper has printed a retraction.

THE STORY OF A LAWSUIT

Perhaps the best way to illustrate how the legal system works is to follow a lawsuit through the courts, step by step. We’ll trace a civil case called New York Times v. Sullivan (376 U.S. 254), a libel suit that is usually remembered for the very important legal precedent it estab- lished. Its effect on libel law is discussed in Chapter Four. However, it is also an excellent case to illustrate court procedures, since the case was carried through almost every step that occurs in civil lawsuits.

Anyone who thinks a newspaper story has injured his/her reputation has a right to sue the newspaper for monetary damages. This case involved a lawsuit between an individual named L. B. Sullivan and the company that publishes the New York Times.

The case began after the New York Times published an advertisement from a group of African-American civil rights leaders that described instances of alleged police brutality in the South. Some of the incidents occurred in Montgomery, Alabama. The ad was accurate

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for the most part, but it did contain several errors of fact. It did not name any individual as responsible for the alleged police miscon- duct. Nevertheless, Sullivan, who was one of three elected commis- sioners in Montgomery and the man in charge of police and fire services there, contended that his reputation had been damaged by the ad, so he hired a lawyer and sued the New York Times for libel. He contended that to criticize the police was to criticize the city commissioner who oversees the police department. The result was a lawsuit that went all the way to the U.S. Supreme Court after a variety of intermediate steps.

Initiating the Lawsuit

When Sullivan’s lawyer filed the papers required to initiate the lawsuit (a document called the complaint), the clerk of the trial court assigned the case a number for record-keeping purposes, and the case became known as Sullivan v. New York Times. In our legal system, court cases are identified by the names of the parties to the dispute, with a little “v.” (for versus) between the two names. When there are multiple parties on either side, the case is popular- ly identified by the name of the first person listed on each side. The name of the party bringing the lawsuit (the plaintiff) appears first, followed by the name of the party defending (the defendant). When the defendant loses the case in the trial court and then appeals, the two names are sometimes reversed. Hence, this case later became known as New York Times v. Sullivan.

As the plaintiff, Sullivan was seeking an award of monetary damages. The New York Times, of course, wanted to convince the court it had done nothing to injure Sullivan and that damages should therefore not be awarded.

Sullivan could have chosen to sue the New York Times in the New York state courts or even in the federal courts (based on diversity of citizenship). However, at that point in history many southern- ers bitterly resented northern efforts to promote the civil rights of African-Americans in the South. To many in Alabama, the New York Times symbolized all that they disliked. Thus, Sullivan’s lawyer knew his client would have a much more sympathetic jury in Alabama than in New York. Besides, it would certainly be more convenient for them (but not for the Times) to try the case there.

Serving papers. Having filed the complaint in the Alabama trial court, the next step was to serve the New York Times. That is, a process server had to deliver a copy of the papers announcing the lawsuit to an appropriate representative of the paper. Some states permit the plaintiff to simply mail a copy to the defendant, depending on the nature of the case. Serving the New York Times was a bit of a prob- lem for Sullivan, since the paper didn’t have any offices or regular employees in Alabama. Shortly after Sullivan initiated his lawsuit,

complaint:

the document that initiates a lawsuit.

answer:

the defendant’s response to the complaint; no answer results in default, where the court rules for the other side.

serve:

to deliver a copy of the complaint to the appropriate party.

to quash:

to invalidate or void.

liability:

responsibility for an alleged wrong.

demurrer/motion to dismiss: a pretrial motion that requests that the case be dismissed based on the lack of legal basis to support it.

summary judgment:

a pretrial motion in which the parties agree on the facts and one party is entitled to a judgment as a matter of law.

discovery:

the pretrial process by which the parties share information and evidence, includ- ing depositions and interrogatories.

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24 The American Legal System

a Times reporter visited the state to cover a civil rights demonstration, but Times lawyers in New York advised the reporter to leave the state before Sullivan’s process servers could catch him, and he did so. Sullivan ultimately served the papers on an Alabama resident who was a “stringer” (a part-time correspondent) for the Times. The Times immediately filed a motion in the Alabama courts to quash (invalidate) the service of process. Anxious to gain jurisdic- tion, the Alabama court denied the motion—and then found a technicality in the Times’ legal petition that enabled Alabama courts to hear the case.

Given the sentiments of many Alabama residents toward the New York Times, this would seem to have been an ideal case to be tried in federal court on a diversity of citizenship basis. However, the Alabama courts ruled that the Times had voluntarily consented to Alabama jurisdiction by the manner in which the motion to quash the process service was worded. Although it had a daily circulation of only 390 in the entire state and about 35 in the Mont- gomery area, the New York Times was forced to submit to the jurisdiction of the Alabama state courts due to a legal technicality.

Once the Alabama court established jurisdiction, the paper was obliged to respond. The Times filed a reply (called the answer), denying Sullivan’s claims. If no answer had been filed, the New York Times would have defaulted. That means the court would have been free to award Sullivan whatever he asked for, without the paper having any say in the matter. But the Times did file an answer, denying any liability (responsibility for the alleged wrong).

Pretrial Motions

The Times also initiated a series of legal motions designed to get the case thrown out of court before trial by saying, in effect, “Look, this is nothing but a harassment lawsuit, and we shouldn’t be put to the expense of a full trial.”

Motions to dismiss. Two kinds of pretrial motions can lead to a dismissal of the case before trial. One is called a demurrer (or simply a motion to dismiss) and it contends that there is no legal basis for a lawsuit, even if every fact the plaintiff alleges is true. The other kind is a motion for summary judgment, and it is often based on the defendant’s contention that there is no factual basis for the lawsuit to proceed further even if all the facts that the plaintiff alleges are completely true. A summary judgment motion may also be made when either side contends that there is no real disagreement between the parties about the facts, and that the judge should simply decide the case without further proceedings. The Times filed a series of demurrers to argue that, among other things, the ad in no way referred to Sullivan and thus there was no legal basis for Sullivan to sue. (Someone must be identified and defamed before he/she can sue for libel, as Chapter Four explains.)

Demurrers and motions for summary judgment are particularly important for the media, because the media are often sued by people who may be embittered over unfriendly coverage but who have no valid basis for a lawsuit. The media may be entitled to a dismissal without the expense of a full trial. However, pretrial dismissals deny plaintiffs their day in court. Thus, a court reviewing such a request must give the plaintiff the benefit of every doubt. A pretrial dismissal is improper if there is any reasonable possibility the plaintiff could win at a trial. This point is important because a number of Supreme Court decisions affecting the media have come on appeals of motions to dismiss a case before trial. When a newspaper or television station, for instance, is denied a pretrial dismissal and the U.S. Supreme Court affirms the denial, that does not mean the Court thinks the plaintiff will eventually win the lawsuit. Rather, it merely says that the plaintiff might have some slight chance to win and, in our system of justice, has a right to try.

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Returning to the Sullivan case, the Alabama court denied all of the Times’ motions to dismiss the case before trial, and a trial was eventually scheduled.

Discover y

After the legal maneuvering over motions for summary judg- ment and demurrers, there is another very important pretrial procedure: the process of discovery. It is a process that allows each side to find out a great deal about the strengths and weaknesses of the other side’s case. Subpoenas, or court orders compelling testimony or information, can be part of this process. Each litigant (party to the lawsuit) is permitted to ask the opposition a variety of oral questions (at depositions) and written questions (interrogatories). During depositions, each side is permitted to meet and question hostile witnesses who are under oath (i.e., the witness has taken an oath promising to tell the truth).

As a result of discovery, a defendant might find out how substantial the plaintiff’s losses really were, for instance. A plaintiff who says the wrong thing during a deposition can devastate his or her own case. And each litigant can size up the other’s witnesses to see whether they will be credible in court. Much important infor- mation is revealed during discovery.

Why do courts allow discovery? Allowing discovery encourages many out-of-court settlements of lawsuits that would otherwise clog up the courts. If you find out that your opponent has a good case against you, you’ll be much more likely to make a generous settle- ment offer. Taking a case to trial costs time and money, so it is in everybody’s interest to see cases settled out of court whenever possible. The more each side knows about the other’s case, the more likely they are to reach an agreement on their own.

However, Sullivan and the New York Times were hopelessly far apart; no settlement was possible. Sullivan was suing for half a million dollars, and the Times was contending that this was ridicu- lous. With a circulation of only 35 in Sullivan’s county, and with him never mentioned either by name or title, the Times felt there was simply no way the ad could have done $500,000 worth of damage to the man’s reputation.

The Trial

Sullivan and the New York Times faced off in a courtroom for trial. The first step in the trial was the selection of a jury, a process that raises an interesting point about civil cases.

Juries. Jury rights in civil cases differ somewhat from those in criminal cases. A defendant’s right to a trial by a jury is one of the cornerstones of our criminal justice system, but no such strin- gent constitutional safeguards are involved in civil cases. There is a

appellant:

party that appeals a case to a higher court.

respondent:

party on the other side of an appealed case.

subpoena:

Latin for “under penalty;” an order to an individual to appear before a body at a particular time to give testimony.

majority opinion:

the opinion of the court that gets the most votes and carries the weight of legal precedent.

dissenting opinion:

an opinion written by a judge disagreeing with part or all of the majority or another judge’s opinion.

concurring opinion:

an opinion written by a judge agreeing with part or all of the majority or another judge’s opinion.

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Chapter One 25

26 The American Legal System

growing trend toward reducing the size of civil juries from the traditional panel of 12 to as few as six persons, and to allow verdicts to be rendered by nonunanimous civil juries. Only a few states allow nonunanimous juries or juries of fewer than 12 persons to decide major criminal cases.

In fact, many civil cases are tried without any jury because the losing side could be stuck with a bill for the jury, a risk neither side wishes to take. (By contrast, the defendant never has to pay for asserting his constitutional right to a jury trial in a criminal case.) Moreover, some civil litigants avoid jury trials because they feel they will fare better if a judge decides the facts as well as the law. But on the other hand, there are instances where a civil plaintiff may insist on a jury trial in the hope that the jurors will become emotional and award a big judgment. That happened in the Sullivan case.

Sullivan’s lawyers were not unaware of the hostility many white southerners felt toward both the civil rights movement and the New York Times in the early 1960s when this case was tried. Blacks were still rare on Alabama juries at that point. The lawyers felt—correctly—that their client would do well before a jury.

Process of the trial. Thus, the trial began. Sullivan, as the plaintiff, presented his evidence first, and then the New York Times responded. The plaintiff always goes first, the defendant last. A variety of witnesses testified for each side, with Sullivan’s witnesses saying that they indeed associated him with the actions of the Montgomery police, and that they would think less of him if they believed the charges in the New York Times advertisement. Other witnesses testified about what they claimed were inaccuracies in the ad. In its response, the Times contended that publishing the ad was protected by the First Amendment and that the ad in no way referred to Sullivan. The significance of these arguments will become more clear in Chapter Four, which discusses what one must prove to win a libel suit and what the media can do to defend such a lawsuit.

After all of the evidence was in, the judge instructed the jury on the law. He told the jurors the material was libelous as a matter of law. Thus, their job was to decide only wheth- er the Times was responsible for the publication and whether, in fact, the ad referred to Sullivan. The judge ruled that Sullivan did not need to prove any actual monetary losses due to the ad, since damages could be presumed from any libelous statement under Alabama law.

Eventually the jurors adjourned to a private room and arrived at a verdict: a judgment of half a million dollars (the full amount requested) for Sullivan. They would see to it that the Times would pay for its decision to publish an ad alleging police brutality in Montgomery. After that verdict was rendered, the New York Times took two important procedural steps.

The first was to file a motion for a new trial, citing what it claimed were errors and irregularities in the original trial. That motion was promptly denied in this case, but that doesn’t always happen. If a trial court judge feels the jury improperly weighed the evidence or was not impartial, or if improper evidence was presented at the trial, or if various other procedural errors occurred during the trial, the losing side may be entitled to a new trial. In this case, the motion for a new trial was denied. Then the Times exercised its other option, appealing the verdict to the Alabama Supreme Court.

The Appeals

When a case is appealed, the nomenclature changes a little. The party that appeals the case becomes the appellant, while the other party becomes the respondent. When the losing side at the trial level appeals, the names may be reversed, as we already suggested

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would happen in this case. Hence, the New York Times became the appellant and Sullivan the respondent: the case became known as New York Times v. Sullivan.

The Alabama Supreme Court agreed to hear the New York Times v. Sullivan case. When an appellate court grants an appeal such as this one, several things occur. First, each side submits a brief which is an elaborate argument of the legal issues involved in the case: a brief is not always brief. The appellant’s brief must argue that the trial court erred in applying the law to the facts at hand, while the respondent must defend the trial court’s decision.

Process of the appeal. After the briefs are filed and read by the appellate justices, oral arguments are usually scheduled. At oral arguments the lawyers for each side are given a short period of time to highlight their main points. The justices may ask them questions, sometimes on obscure points, perhaps forcing the lawyers to use up their time allotment without ever getting to their most important arguments. Sometimes the lawyers (and knowl- edgeable spectators such as journalists who regularly cover the court) can guess which side will win from the kind of questions the justices are asking. Appellate court justices some- times reveal their own sympathies by the nature of their questions.

After the oral arguments, the justices informally vote on the case to see how they will rule. Once the positions of the various justices are clear, one justice will be assigned to write the majority opinion—the opinion that will prevail and become a legal precedent. If other justices disagree with this opinion, they may write dissenting opinions in which they argue that the majority is in error. Or a justice may agree with the result reached by the majority but disagree with some of the reasoning. When that happens, the result is a concurring opinion. A justice may also concur with another’s concurring or dissenting opinion. Dissenting and concurring opinions are important, because as times change it is not unusual for a new majority to coalesce around what was once a minority viewpoint. A dissenting opinion may become the foundation for a later majority opinion.

When the appellate opinion is then published—that is, printed in a law book that provides a verbatim record of all published decisions of the particular court—that decision officially becomes a legal precedent, adding a little more to the ever-growing body of law.

Not all appellate opinions are published in law books. Many courts publish only their most important opinions. For many years the unpublished ones had little or no weight as legal precedents. But because appellate court opinions are usually accessible via computer databases today, more and more appellate courts are allowing all of their decisions to be treated as legal precedents, largely eliminating the legal distinction between published and unpublished decisions. In 2006, the Supreme Court approved a proposal from the Judicial Conference of the United States to allow all new decisions of the federal appellate courts to be cited as legal precedents after Jan. 1, 2007. However, state appellate courts in California and a few other states still allow only their officially published decisions to be treated as legal precedents. The California Supreme Court and the highest courts in a few other states still set aside some lower appellate court rulings as legal precedents by simply ordering them decertified for publication. A decertified decision may still appear in law books, but officially it no longer exists as a legal precedent.

There are other occasions when an appellate court decision will lose its significance as a legal precedent. For instance, that occurs when a higher court decides to review the deci- sion and issue its own ruling on the case.

Outcome and appeal to high court. In New York Times v. Sullivan, the Alabama Supreme Court affirmed the judgment of the trial court in full, upholding the half-million-dollar libel

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Chapter One 27

28 The American Legal System

award to Sullivan. In an elaborate legal opinion, the Alabama Supreme Court defended the trial court’s finding that it had jurisdiction over the New York Times. Then the court upheld the trial judge’s controversial jury instructions, in which he told the jurors Sullivan didn’t need to prove any actual losses to win his case. Finally, the state supreme court affirmed all other aspects of the decision, including the large award of damages.

After this setback, the New York Times had one hope left: the chance that the U.S. Supreme Court might agree to hear the case in spite of the fact that civil libel had traditionally been purely a matter of state law. The Times petitioned for a writ of certiorari, contending that this kind of a libel judgment violated the First Amendment because it would inhibit public discussion of controversial issues such as civil rights.

To the amazement of some legal experts, the Supreme Court agreed to hear the case.

The U.S. Supreme Court Ruling

When the New York Times v. Sullivan case reached the U.S. Supreme Court, all of the steps just described happened again. Elaborate briefs were filed by both sides, and oral arguments were heard by the nine Supreme Court justices. Then the justices conferred privately and Justice William J. Brennan was selected to write a majority opinion in what was destined to become the most famous court decision of all time on libel law.

Chapter Four describes the legal reasoning of the Supreme Court in this landmark deci- sion. At this point, we’ll simply say the New York Times won. The decisions of the Alabama courts were reversed and remanded. That means the Supreme Court invalidated the lower court decisions and ordered the Alabama trial court to reconsider the facts of the case under new legal rules set down by the Supreme Court. As a practical matter, sometimes a decision like this one terminates the case. Sullivan’s lawyers knew they could not win a trial conducted under the new legal ground rules. When the U.S. Supreme Court reversed and remanded the Alabama court’s decision, this case was terminated—in fact if not in legal theory.

Other Options

In addition to reversing and/or remanding a lower court ruling, there are several other options open to an appellate court. The decision can be upheld (affirmed) or it can be affirmed in part and reversed in part. Then a new trial may be scheduled later. But what- ever the ultimate outcome of the case at trial, often the most important aspect is the precedent- setting ruling of an appellate court. In the study of media law, you will encounter cases where the discussion centers on a major legal issue—and the final disposition of the lawsuit isn’t discussed at all. After a landmark appellate ruling, it may take many more years to complete all of the various legal maneuvers at the trial court level and conclude a lawsuit—or the matter may be terminated as soon as a high appellate court rules.

Certainly valid criticisms of the American legal system are the time and money it takes to get a case to trial, up through the appellate courts and then back to trial again if neces- sary. If “justice delayed is justice denied,” as critics of the system suggest, the expensive route through the American court system often includes enough detours to deny justice to many.

HOW TO FIND THE LAW

Once you understand the various kinds of law and how the American legal system fits together, it isn’t difficult to learn the law on any given subject. Legal research (i.e., the

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process of finding out what the law is on a subject) involves nothing more than knowing how to use some basic online reference tools or books that every well-stocked law library keeps on its shelves. Most larger county courthouses either have a law library or are located near one since judges need ready access to the laws on which to base their decisions. Also, every accredited law school has an extensive law library. Most of these law libraries are open to the public. You can go in and look up the law for yourself.

More than ever before, it is also possible to use the Internet, or a computer database such as Lexis-Nexis or Westlaw, to do legal research. These computer databases, once so costly that only the best-heeled law firms could afford them, are now accessible online via many university libraries, although the academic version of Lexis-Nexis lacks some features used in legal research. The amount of legal information available on the Internet is enor- mous and growing daily—a trend that is revolutionizing legal research.

Free legal research tools. The Internet itself has become a powerful legal research tool, as state and federal courts, as well as other government agencies, have begun posting the full text of their decisions, regulations and other documents on their websites. For example, there is a wealth of regulatory information about advertising on the Federal Trade Commission’s website (www.ftc.gov) and about the electronic media on the Federal Commu- nications Commission’s website (www.fcc.gov). Popular general online legal resources include Thomas (thomas.loc.gov), the Library of Congress legislative information website; FindLaw (www.findlaw.com), a comprehensive privately maintained website; the Cornell Legal Information Institute site (www.law.cornell.edu), widely regarded as one of the best law sites; and Oyez (www.oyez.org), Chicago-Kent College of Law’s U.S. Supreme Court site that has audio of oral arguments before the Court. The official website of the federal court system (www.uscourts.gov) has the full text of most recent federal court decisions, including those of the Supreme Court (www.supremecourt.gov) and the U.S. Courts of Appeals. Many specialty law firms have websites and electronic newsletters highlighting important cases or legal devel- opments. Google Scholar (scholar.google.com) contains legal documents and patents.

Court Decisions: Citations

Precedent-setting appellate court decisions are not difficult to look up, because there’s a citation system that will tell you where to find each case. Throughout each chapter in this book you’ll find citations to important court decisions in that area of media law. After the names of the two parties in the case, you’ll see the case citation (a series of numbers and letters). We’ve already discussed the landmark libel decision New York Times v. Sullivan. When you look up that case in this or any other law-oriented book, you’ll see this legal cita- tion after the name of the case: 376 U.S. 254. The letters and numbers tell you exactly where to find the full text of the Supreme Court’s ruling in a law book.

The “U.S.” in the middle tells you which court ruled on the case because it stands for United States Reports, a series of books carrying the official text of Supreme Court decisions. Thus, to find the decision in print, you’d ask the law librarian where the “U.S. Supreme Court Reports” are kept. When you find this large collection of identical-looking volumes, the rest is simple. The first number in the citation (376) refers to the volume number of the law book in which the New York Times v. Sullivan case appears. You would look down the row, find the volume labeled “376” on the binding and pull it out.

Now you’re there. The number after the “U.S.” is the page number where the text of the case begins. Turn to page 254 in volume 376 of the United States Reports, and there’s

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Chapter One 29

30 The American Legal System

New York Times v. Sullivan. Before the actual text, there are introductory notes explaining the decision, designed to facilitate a quick review of the case highlights. Some citations end with the year of the decision. For example, New York Times v. Sullivan is cited as 376 U.S. 254, 1964.

When doing online research using Lexis-Nexis or Westlaw, for example, it’s possible to search by the case name, the citation, or both—or to search for key words in the text of the case. Most researchers find that to be much faster than tracking down cases on a law library’s bookshelves. Many case citations have letters in the middle such as “F.2d” or “F.3d.” “F.2d” means Federal Reporter, second series, which is a set of law books containing decisions of the vari- ous U.S. Courts of Appeals. Why second series? The publisher of these books began producing them many years ago, and after a time the original editorial treatment and even the style of the binding seemed old-fashioned. Thus, the publisher modernized the book and started a second series, beginning again with volume number one in the new series. In 1993, the publisher launched a third series, once again starting with volume number one. If you see a citation to “F.3d,” the case is a 1993 or later decision of a U.S. Court of Appeals.

In this textbook you will see a variety of legal citations to court decisions, and in each instance the letters in the middle tell you which court decided the case. Those decisions of the federal district courts published as legal precedents (many are not) appear in the Federal Supplement (abbreviated “F.Supp.”). There is also a second series for the Federal Supplement.

The citation system works much the same way in the state courts. In Chapter Five there’s a reference to a privacy case called Briscoe v. Reader’s Digest, 4 C.3d 529, a decision of the California Supreme Court, and the case appears in the California Supreme Court Reports, third series. To find the case, you would find volume 4 of that series and turn to page 529. Chapter Eight cites a case on reporter’s privilege named Zelenka v. Wisconsin, 266 N.W.2d 279. It’s a decision of the Wisconsin Supreme Court, but the citation refers to the Northwestern Reporter, second series. That series carries important court decisions from a number of midwestern states. It is a part of the National Reporter System, one publishing house’s collection of regional reports that cover all 50 states. Most law libraries have the National Reporter system and other sets of volumes reporting major cases of the state appellate courts around the country. Lexis-Nexis and Westlaw both have the full text of cases from all 50 states.

In many instances, law libraries have more than one set of law books reporting the most important court decisions. This is true in part because there are competing legal publishing houses, each offering a full set of reports of major appellate cases. To illustrate by return- ing once again to New York Times v. Sullivan, here is a more complete set of citations to that case: 376 U.S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964). Don’t be intimidated by all those numbers. You already know what “376 U.S. 254” means. But suppose that volume is unavail- able when you visit the law library. No problem. Just go to the next citation. “S. Ct.” means Supreme Court Reporter, and if you pull down volume 84 and look on page 710, there’s your case. Or you could go to “L.Ed.2d”, which means Lawyer’s Edition, U.S. Supreme Court Reports, second series, and pull down volume 11 and look on page 686. The text of the decisions is exactly the same, but the introductory matter and editorial treatment may vary in these privately published books. Many law libraries keep all three sets of Supreme Court rulings, because the privately published versions are in print long before the official U.S. Reports.

Some very recent cases are shown with citations to a computer database such as Lexis- Nexis. In fact, the growing use of online databases may soon lead to wholesale changes in the legal citation system described here. The page numbering system used in traditional citations has been based on book pages, of course. However, the pagination of a case is quite

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30 The American Legal System

New York Times v. Sullivan. Before the actual text, there are introductory notes explaining the decision, designed to facilitate a quick review of the case highlights. Some citations end with the year of the decision. For example, New York Times v. Sullivan is cited as 376 U.S. 254, 1964.

When doing online research using Lexis-Nexis or Westlaw, for example, it’s possible to search by the case name, the citation, or both—or to search for key words in the text of the case. Most researchers find that to be much faster than tracking down cases on a law library’s bookshelves. Many case citations have letters in the middle such as “F.2d” or “F.3d.” “F.2d” means Federal Reporter, second series, which is a set of law books containing decisions of the vari- ous U.S. Courts of Appeals. Why second series? The publisher of these books began producing them many years ago, and after a time the original editorial treatment and even the style of the binding seemed old-fashioned. Thus, the publisher modernized the book and started a second series, beginning again with volume number one in the new series. In 1993, the publisher launched a third series, once again starting with volume number one. If you see a citation to “F.3d,” the case is a 1993 or later decision of a U.S. Court of Appeals.

In this textbook you will see a variety of legal citations to court decisions, and in each instance the letters in the middle tell you which court decided the case. Those decisions of the federal district courts published as legal precedents (many are not) appear in the Federal Supplement (abbreviated “F.Supp.”). There is also a second series for the Federal Supplement.

The citation system works much the same way in the state courts. In Chapter Five there’s a reference to a privacy case called Briscoe v. Reader’s Digest, 4 C.3d 529, a decision of the California Supreme Court, and the case appears in the California Supreme Court Reports, third series. To find the case, you would find volume 4 of that series and turn to page 529. Chapter Eight cites a case on reporter’s privilege named Zelenka v. Wisconsin, 266 N.W.2d 279. It’s a decision of the Wisconsin Supreme Court, but the citation refers to the Northwestern Reporter, second series. That series carries important court decisions from a number of midwestern states. It is a part of the National Reporter System, one publishing house’s collection of regional reports that cover all 50 states. Most law libraries have the National Reporter system and other sets of volumes reporting major cases of the state appellate courts around the country. Lexis-Nexis and Westlaw both have the full text of cases from all 50 states.

In many instances, law libraries have more than one set of law books reporting the most important court decisions. This is true in part because there are competing legal publishing houses, each offering a full set of reports of major appellate cases. To illustrate by return- ing once again to New York Times v. Sullivan, here is a more complete set of citations to that case: 376 U.S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964). Don’t be intimidated by all those numbers. You already know what “376 U.S. 254” means. But suppose that volume is unavail- able when you visit the law library. No problem. Just go to the next citation. “S. Ct.” means Supreme Court Reporter, and if you pull down volume 84 and look on page 710, there’s your case. Or you could go to “L.Ed.2d”, which means Lawyer’s Edition, U.S. Supreme Court Reports, second series, and pull down volume 11 and look on page 686. The text of the decisions is exactly the same, but the introductory matter and editorial treatment may vary in these privately published books. Many law libraries keep all three sets of Supreme Court rulings, because the privately published versions are in print long before the official U.S. Reports.

Some very recent cases are shown with citations to a computer database such as Lexis- Nexis. In fact, the growing use of online databases may soon lead to wholesale changes in the legal citation system described here. The page numbering system used in traditional citations has been based on book pages, of course. However, the pagination of a case is quite

Copyright 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

different on a computer screen. Colorado, Louisiana and Wisconsin have adopted new cita- tion systems more compatible with computerized research methods. Several other states and the federal government are considering similar changes.

In the mass communications field, another convenient way to look up court decisions is to check the Media Law Reporter. One volume is published each year, and it carries the full text of most precedent-setting court decisions on media law, including Supreme Court deci- sions, lower federal court rulings and state cases. In this book there are several citations to the Media Law Reporter (abbreviated in citations as Media L. Rep.).

When doing legal research online, you have a major advantage: you can search for key words in the opinion (words such as actual malice, to note just one of many examples). In addition, you can quickly find later cases in which a particular case is mentioned.

“Shepardizing” cases. The courts frequently interpret and reinterpret previous decisions. You should make sure the key cases in any given topic are still good law and have not been reversed by a higher court or a later decision of the same court. A good way to do that is to consult a cross-reference index called Shepard’s Citator. Most law libraries have Shepard’s covering state and federal appellate courts, and many online databases let you perform this function with a few clicks. By “Shepardizing” cases before citing them, you can avoid writing 10 pages about a court decision that has been overturned.

Legal Encyclopedias

What happens if you don’t know the names of any court decisions and you want to learn something about the law on a particular topic? One place you might look is a legal encyclo- pedia. These are just like regular encyclopedias—except that they discuss only legal subjects. There are two leading legal encyclopedias in America, produced by different publishing houses: American Jurisprudence, or “Am. Jur.” for short, and Corpus Juris Secundum, or “CJS.”

Legal encyclopedias are not difficult to use. The many legal topics they treat are listed in alphabetical order with brief summaries of the major legal principles in each area. The only trick is knowing where to look for a particular subject, and for that there’s a comprehensive index at the end of each set. If you want to know more about libel law, for instance, you would look up the word “libel.” It’s not always that straightforward, because the name you have in mind may not be the key word under which that subject is indexed; you may have to think of some synonyms. Once you find the right word, the index will lead you directly to a summary of the law, whether it’s bankruptcy or crimes, unfair competition or medical malpractice. Some of these encyclopedias are available online as well. There are also legal encyclopedias that specifically summarize the laws of one state. Most of the populous states have such encyclopedias, such as Florida, California, Texas and New York.

One thing you need to be aware of when you consult a physical legal encyclopedia is the existence of pocket parts. What a legal encyclopedia says in its main text is supplemented by annual updates that are tucked into a pocket at the back of each volume.

Because there have been thousands of important court decisions, and because many have reached inconsistent conclusions, the American Law Institute has commissioned groups of legal scholars to write summaries of the law as it has developed over the years. These are called Restatements of the law, and the courts give them considerable weight. The Restatement of Torts summarizes libel, privacy and other areas of tort law and is an important reference work in these fields. The Restatements carry far more legal weight than legal encyclopedia, although they might seem less user-friendly to those doing their first legal research.

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Chapter One 31

32 The American Legal System

Annotated Codes

Once you have read a survey of your subject in a legal encyclopedia, you might want to learn more about the subject by reading some of the decisions and statutory laws summa- rized in the encyclopedia. We’ve already described the method of finding court decisions by working from the case citations. Looking up the text of a statutory law is often even easier.

Many important state and federal laws are organized by subject matter. To look up a stat- utory law, locate the appropriate book of state or federal statutes: a legal encyclopedia will refer you to statutory laws as well as court decisions that pertain to your subject. If you wanted to read the federal Copyright Act, for instance, you would use its legal citation, which is “17 U.S.C. § 100 et seq.” That means Title 17 of the United States Code, Section 100 and following sections. To find the text of the Copyright Act, you would ask the law librarian where the U.S. Code volumes are kept, and then look up Section 100 in Title 17. The number before the name of a state or federal code is always the title, book or volume number, and the number after the name will lead you to the correct chapter and section.

There are two things to remember in looking up statutory laws. One is that the most complete sets are annotated; they contain brief summaries of court decisions interpreting the statutory laws as well as the text of the laws themselves. It’s important to make sure the law you’re learning has not been overruled by a court decision. And be sure to check the pocket parts if you’re using physical volumes of the law. Second, like encyclopedias, the annotated collections of statutory laws are extensively indexed. If you want to learn what the law of libel is in West Virginia, for instance, you can simply look up libel in the index to the West Virginia Code and turn to the appropriate sections to find statutes and case summaries.

Administrative Regulations

Administrative law is such a vast and amorphous thing that we will not devote much space to it here. However, students with a special interest in broadcasting, for instance, should be aware that the regulations of the Federal Communications Commission are organized to facilitate research. Title 47 of a legal work called The Code of Federal Regulations, or “CFR” for short, contains the FCC’s rules and regulations. Working from the table of contents, you can quickly look up the rules on a particular point of broadcast regulation in CFR. CFR is updated frequently, since administrative agencies constantly change their rules.

There are also privately published summaries of actions taken by major administrative agencies. In the case of the FCC, Pike & Fischer has provided information about the agency’s actions since the 1930s. Major law libraries keep complete sets of specialized legal reference materials such as Pike & Fischer’s Communications Regulation, and these are now available online by subscription. And, of course, regulatory agencies have their own websites that include compilations of their regulations, news releases and reports.

• What federal circuit is my state in? • Where is my closest federal district court? • How is my state judicial system structured? • Where is my closest state trial court? • How are my state’s judges chosen (elected, appointed)? • What does my state constitution say about free speech and

press rights? • How do criminal and civil procedures work in my state?

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WhAT ShOULD I knOW ABOUT MY STATE?

Chapter Two 33

2

The Legacy of Freedom

Americans are sometimes accused of taking freedom for granted. It is easy to talk about the First Amendment almost as if it were a universal law of nature, a principle that always existed and always will.

That, of course, is not the case. The kind of freedom of expression that is permitted today in the United States and a few dozen other democracies is unique in world history. Our freedoms were won through centuries of struggle, and they could easily be lost. Even today, fewer than half of the world’s people live in countries that fully recognize such basic freedoms as freedom of speech, freedom of the press and freedom of religion. Government leaders in many countries consider “national security” (or their own personal security in office) more important than their people’s freedoms. Many leaders see the media only as tools of propaganda or national development—weapons to be used against their rivals, both foreign and domestic. But as the 2011 use of Facebook and Twitter to create governmental and societal change by Egyptian protesters vividly demonstrated, the “mass media” are less easy to control in the age of the Internet than in the age of newspapers. Moreover, as infor- mation can easily be manipulated in digital format, what challenges will sites like WikiLeaks offer to those who wish to keep certain information secret?

And what about suing to challenge national security laws? The Supreme Court in 2013 said that journalists and others had no standing to challenge 2008 amendments to the Foreign Intelligence Surveillance Act (FISA) in Clapper v. Amnesty Int’l USA (133 S. Ct. 1138). Amnesty International argued that it would be subject to additional surveillance under the amendments, and the Court rejected that claim, with Justice Samuel Alito writing for the majority that “respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable” to the amendments.” The Court didn’t address the amendments’ constitutionality, but because the decision was split along liberal/conservative grounds, some think it unlikely that the Court will ever do so. The dissent, led by Justice Stephen Breyer, noted that the claim of surveil- lance was not speculative; in fact, “it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.” In fact, Breyer said he was convinced that “that there is a very high likelihood that Government, acting under the authority of [the amendments], will intercept at least some of the communica- tions just described” by Amnesty International and others bringing the case.

As we will see in a review of the history of freedom of speech and press in the United States to the present day, some of the same issues, albeit using different technologies, face Americans in the 21st century as faced those Americans who experienced its founding.

CENSORSHIP IN ENGLAND

This summary of the evolution of freedom of expression could begin in the ancient world, were this chapter a survey of the philosophical underpinnings of modern civilization. Powerful arguments for freedom of expression were made thousands of years ago in ancient Greece and several other places around the globe. But our tradition of freedom of expres- sion traces its roots most directly to England about 400 years ago.

English traditions. In the 1600s, England was caught up in a battle that mixed politics and religion. The monarchy and the government-sponsored Church of England were determined

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34 The Legacy of Freedom

to silence dissenters, many of them Puritans. The religious and political struggle was closely linked with an economic battle between the aristocracy and the rising middle class.

Leaders on both sides of this ideological battle understood the importance of the print- ing press and sometimes resorted to heavy-handed efforts to censor ideas they considered dangerous. In those days more than one Englishman was jailed, tortured and eventually executed for expressing ideas unacceptable to those in power. Brutality that would be shock- ing to Americans—or Britons—today was fairly commonplace in England in that period.

Official censorship was enforced through a licensing system for printers that had been introduced as early as 1530. The licensing denied access to printing presses to those with unacceptable ideas, but it also enabled government representatives to preview and pre- censor materials before publication. By making the possession of a license to print a coveted privilege, the government was often able to control underground printing. The licensed printers themselves helped to ferret out bootleg presses to protect their own self-interests.

Milton and the Puritans

By the early 1600s censorship was being used to suppress all sorts of ideas that threat- ened the established order. This inspired some of the leading political philosophers of the day to write eloquent appeals for freedom of expression as a vital adjunct to the broader freedom from religious and political oppression they sought. An early apostle of freedom of expression was John Milton, who in 1644 wrote his famous argument against government censorship, Areopagitica. Milton’s appeal for freedom contained this statement:

Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?

Out of this passage several modern ideas emerged, including the concept that a self- righting process would occur through open debate of controversial issues. In effect, Milton said censorship was unnecessary because true ideas would prevail over false ones anyway. He advocated something of a marketplace of ideas. That was a revolutionary idea: almost no one in Milton’s time believed that freedom of expression should be universal. But even to Milton, freedom had its limits. Although he favored far more freedom than most of his contempo- raries, Milton did not think these rights should be extended to those who advocated ideas he considered subversive. His appeal for freedom specifically excluded “popery (support for the Roman Catholic Church) and open superstition” and ideas that were “impious or evil.”

In fact, after the Puritan movement led by Oliver Cromwell gained control of England and executed King Charles I in 1649, Milton accepted a government appointment that required him to act as something of a government censor. One of his duties was to license and oversee the content of an official newssheet, Mercurius Politicus. By 1651—only seven years after he appealed to the government to allow true and false ideas to struggle for popu- lar acceptance—Milton was engaged in the prior censorship of ideas. And he was serving in a government that imposed strict Puritan beliefs on England and showed little tolerance for the beliefs of other religious groups.

Other advocates of free expression. There were some who went further than Milton did in advocating freedom of expression. Roger Williams, a onetime Puritan minister in the

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Massachusetts Bay colony who was exiled to Rhode Island for his controversial religious ideas, later returned to England and wrote Bloudy Tenent of Persecution for Cause of Conscience in the same year as Milton’s Areopagitica. Williams urged freedom of expression even for Catholics, Jews and Muslims—people Milton would not have included.

Perhaps even more emphatic in their arguments for freedom from censorship in the 1640s were the Levellers, a radical Puritan group. Their tracts consistently contained passages condemning censorship and the licensing system. In their view, free expression was essential to the religious freedom and limited government authority they so fervently sought.

In a 1648 petition to Parliament, the Levellers appealed for a free press. When “truth was suppressed” and the people ignorant, this ignorance “fitted only to serve the unjust ends of tyrants and oppressors.” For a government to be just “in its constitution” and “equal in its distributions,” it must “hear all voices and judgments, which they can never do, but by giving freedom to the press.”

Despite the Puritans’ rhetoric, England restored the monarchy in 1660 and the licensing of printers continued (although Parlia- ment by then had a much larger say in the process). Although the post-1660 Restoration period was marked by unprecedented freedom—and even bawdiness—in English literature, it was also a time of religious repression. A 1662 act of Parliament, for instance, limited the number of printing presses and prohibited the printing of books contrary to the Christian faith as well as seditious or anti- government works.

John Locke and natural Rights

As the struggle between the monarchy and Parliament became more intense in the late 1600s, new philosophers of free expression emerged. Perhaps chief among them was John Locke. His ideas were not necessarily original, but he presented them so eloquently that he is remembered as one of the most important political theo- rists of his time.

Social contract theory. Locke’s famous social contract theory said that governments were the servants of the people, not the other way around. Locke believed men were endowed with certain natural rights, among them the right to life, liberty and proper- ty ownership. In effect, Locke said the people make a deal with a government, giving it the authority to govern in return for the government’s promise to safeguard these natural rights.

Central to these natural rights, Locke felt, was freedom of expression. Thus, when the English licensing system came up for review in 1694, Locke listed 18 reasons why the act should be terminated. The act was allowed to expire, primarily because of

marketplace of ideas:

the notion that there should be freedom of speech so that all ideas would have a chance to be heard, consid- ered and compete

for attention and believers.

social contract theory:

a theory of govern- ment where the people give up some rights to enjoy other rights, moving from a state of nature to a state of cooperation for self-governance; Locke’s version of the social contract said that people have natu- ral rights such as life, liberty and property rights.

sedition:

incitement of resistance to or revolt against the government.

Copyright 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

Chapter Two 35

36 The Legacy of Freedom

“the practical reason arising from the difficulties of administration and the restraints on trade.”

Other forces in English society were also providing impetus for freedom of expression. For one, Parliament gained a major victory over the monarchy in the Glorious Revolution of 1688. James II, an avowedly Catholic king so offensive that several warring factions united against him, fled the country that year.

Then in 1689 Parliament enacted a Bill of Rights and invited William of Orange and his consort, Mary, James’ Protestant daughter, to assume the throne with limited powers. In the Declaration of Rights, William and Mary accepted these conditions, ending England’s century-long struggle between Parliament and the monarchy.

In addition, a two-party system was emerging in England; the times were ready for open, robust political debate. The two parties, the Whigs and Tories, both relied extensively on the printing press in taking their views to the people.

Seditious Libel as a Crime

If official censorship by licensing the press was a thing of the past as England moved into the 1700s, the crime of seditious libel (i.e., the crime of criticizing the government or government officials) remained a viable deterrent to those who publish defamatory tracts.

A good illustration of this problem was the 1704 case of John Tuchin, who was tried for “writing, composing and publishing a certain false, malicious, seditious and scandalous libel, entitled, The Observator” (Rex v. Tuchin, 14 Howell’s State Trials 1095). Tuchin was convicted, and in the process the judge defined the common law on seditious libel:

If people would not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very neces- sary for all governments that the people should have a good opinion of it. And nothing can be worse to any government, than to endeavor to procure animosi- ties, as to the management of it; this has been always looked upon as a crime, and no government can be safe without it be punished.

This common law rule did not go unchallenged for long. Free press advocates, perhaps strengthened by their success in abolishing licensing, opened the 18th century with a flurry of writings advocating greater freedom. Nevertheless, criticism of the government remained a crime throughout the century, with the truthfulness of the criticism not a defense against the charge. The prevailing legal maxim was “the greater the truth, the greater the libel.”

How could this be? The assumption underlying this philosophy was reminiscent of Milton: if a printer publishes a false attack on the government, it will be disregarded by the people; if, on the other hand, a truthful attack is published, the people are likely to lend it credence and perhaps revolt, causing disorder and anarchy.

Fox Libel Act. Parliament itself recognized the abuses possible under the common law of seditious libel, and in 1792 the Fox Libel Act was passed. That act permitted juries, rather than judges, to decide whether a statement was libelous. Prior to that, the law allowed the jury to determine only whether the defendant was guilty of printing the libel- ous publication. The judge ruled on the legal question of whether the material was actu- ally libelous. This reform did not eliminate seditious libel prosecutions, but it did make it

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Chapter Two 37

more difficult for a government to punish its critics because a jury, whose members might well sympathize with the defendant’s allegedly libelous statements, could decide if the statements were libelous.

An additional reform came in 1843, further strengthening the rights of those who would criticize the government in England. In that year, Parliament passed Lord Campbell’s Act, establishing truth as a defense in all seditious libel cases. Thus, the old maxim, “the greater the truth, the greater the libel,” was at last abolished.

While the struggle for freedom of expression was being fought in England, a parallel battle was under way in the American colonies.

FREEDOM IN A NEW NATION

Although many of the early colonists in North America left England or the European continent to escape religious or political oppression, they found (or created) an atmosphere of less than total freedom in some of the colonies here. As the Puritans gained control in New England, they established close church-state ties, and persons with unpopular religious or political ideas were hardly more welcome here than they had been in England.

In fact, the first laws that restricted freedom of the press in North America preceded the first newspaper here by some 30 years. Even without any specific authority, colonial rulers often simply assumed they had the right to censor dissenting publications because the authorities had that right in England. Even after licensing was abolished in England, colonial leaders continued to act as if they had licensing powers, and several colonial news- papers carried the phrase “published by authority” in their mastheads years after the right to publish without government permission was won in England.

Moreover, in North America as in England, seditious libel prosecutions were used to control the press, as were laws that placed special tax burdens on newspapers. The Stamp Act of 1765, for instance, taxed newspapers by forcing publishers to purchase revenue stamps to attach to each copy. The result was such blatant defiance of British authority by colonial publishers that it helped inspire the eventual revolution against the mother country.

The Zenger Libel Trial

Early in the colonial publishing experience there was a seditious libel case that became a cause célèbre on both sides of the Atlantic: the trial of John Peter Zenger in 1735 (Attorney General v. John Peter Zenger, 17 Howell’s State Trials 675).

Zenger, a German immigrant, was the publisher and printer of the New York Weekly Jour- nal. His paper became a leading voice for the opposition to a particularly unpopular royal governor, William Cosby. After some legal maneuvering, the governor was able to have Zenger jailed and charged with “printing and publishing a false, scandalous and seditious libel, in which…the governor…is greatly and unjustly scandalized, as a person that has no regard to law nor justice.”

Andrew Hamilton. Zenger was fortunate enough to have Andrew Hamilton of Phila- delphia, one of the most respected lawyers in the colonies, make the trip to New York for his defense. And Hamilton, ignoring the orders of Cosby’s hand-picked judge, appealed directly to the jury. He urged the jurors to ignore the maxim of “the greater the truth, the greater the libel” and to decide for themselves whether the statements in question were actually true, finding them libelous only if they were false.

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38 The Legacy of Freedom

“Nature and the laws of our country have given us a right—and the liberty—both of exposing and opposing arbitrary power …by speaking and writing truth,” Hamilton said.

In urging the jurors to ignore the judge’s instructions and acquit Zenger if they decided the statements were true, Hamilton was clearly overstepping the bounds of the law. A less prestigious lawyer might have been punished for an action so clearly in contempt of the court’s authority. However, Hamilton was not cited, and his eloquent appeal to the jury worked: the jury returned a not-guilty verdict even though there was little question that Zenger was the publisher of the challenged statements.

The impact. It would be difficult to overstate the importance of the Zenger trial in terms of its psychological impact on royal governors in America. Still, its direct effect on the common law was minimal in America and England itself. Even in those days, a criminal trial verdict established no binding legal precedent. English courts continued to punish truthful publications that were critical of government authority. For instance, the trial of John Wilkes for publishing a “wicked and seditious libel,” a 1763 English case, made it clear that the common law had not been changed by the Zenger trial.

Nevertheless, the argument was made again and again that mere words critical of the government—and especially truthful words—should not be a crime. In 1773 the Rev. Philip Furneaux wrote that only overt acts against a government should be punished: “The tenden- cy of principles, tho’ it be unfavourable, is not prejudicial to society, till it issues in some overt acts against the public peace and order; and when it does, then the magistrate’s authority to punish commences; that is, he may punish the overt acts, but not the tendency which is not actually harmful; and therefore his penal laws should be directed against overt acts only.”

THE FIRST AMENDMENT

When a series of incidents strained relations between England and the colonies past the breaking point, the colonists declared their independence in 1776. Yet even in breaking with England, the Americans borrowed heavily from the mother country. Thomas Jefferson’s ideas and even some of his language in the Declaration of Independence were borrowed from English political philosophers, notably John Locke. Locke’s natural rights and social contract ideas appear repeatedly in the declaration.

After independence was won on the battlefield, the new nation briefly experimented with a weak central government under the Articles of Confederation and then became a unified nation under the Constitution, ratified by the states in 1788. Despite its ratification, many Americans feared the new federal government, particularly because the Constitution had no guarantees that basic civil liberties would be respected. Although the defenders of the Constitution argued that these civil liberties were firmly entrenched in the common law we had inherited from England, many were wary. Some states ratified the Constitution only after they received assurances that it would be amended quickly to add a Bill of Rights.

That promise was kept. In the first session of Congress, the Bill of Rights was drawn up and submitted to the states to ratify. It was declared in force late in 1791. Of paramount concern to the media, of course, is the First Amendment. Taken literally, it is almost every- thing that a free press advocate might hope for, but phrases such as “Congress shall make no law” have not always been taken literally. In fact, the exact meaning of the First Amendment has been vigorously debated for more than 200 years.

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Chapter Two 39

Early First Amendment Questions

The record of the Congressional discussions when the Bill of Rights was drafted is sketchy: it is impossible to be certain what Congress had in mind. Constitutional scholars have advanced various theories, but most doubt that the majority of the framers of the Constitution intended the First Amendment to be an absolute prohibition on all govern- ment actions that might in any way curtail freedom of the press.

The crucial question, then, and the one that is the focus of the rest of this chapter, is this: which restrictions on freedom of expression are constitutionally permissible and which ones are not? Many scholarly works have been published attempting to answer this question; several historians have dedicated much of their lives to examining records, debates and documents of the period in an attempt to find the answers. Some of their conclusions will be presented shortly.

Alien and Sedition Acts. Whatever the first Congress intended in drafting those words, it was only a few years later that Congress passed laws that seemed to be a flagrant violation of the First Amendment. In 1798 Congress hurriedly approved the Alien and Sedition Acts, designed to silence political dissent in preparation for a war with France, a war that was never declared. The Sedition Act made it a federal crime to speak or publish seditious ideas. The law had one safeguard: truth was recognized as a defense. Nevertheless, a fine of up to $2,000 or two years’ imprisonment was prescribed for any person who dared to:

…[W]rite, print, utter or publish, or …knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States.

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Focus on… Monitoring international press freedom

The Daniel Pearl Freedom of the Press Act was named for Wall Street Journal reporter Daniel Pearl, who was killed by terrorists in Pakistan in 2002 while investigating the war on terrorism. President Obama signed this Act in 2010, requiring that the State Department look into possible violations of press freedoms when compiling its Annual Country Reports on Human Rights Practices series.

“What this act does is it sends a strong message from the United States government and from the State Department that we are paying attention to how other governments are operating when it comes to the press,” said Obama at the signing ceremony.

FIG. 6. President Barack Obama talks with Adam Pearl, son of murdered journalist Daniel Pearl, before signing the Daniel Pearl Freedom of Press Act in the Oval Office.

Official White House Photo by Pete Souza.

40 The Legacy of Freedom

There were about 25 arrests and 15 indictments under the Act. All were aimed at oppo- nents of President John Adams and the Federalist Party, which then controlled Congress and had enacted the law over the opposition of Jefferson and his followers. Even though the Federalist press was often guilty of vicious attacks on Thomas Jefferson and other non- Federalist government officials, no Federalist was ever prosecuted under the Sedition Act. A two-party system was emerging, and the Jeffersonian, or anti-Federalist, opposition party was the real target of the Sedition Act.

Jefferson, by then vice president, strenuously opposed the Alien and Sedition Acts. The Kentucky and Virginia legislatures passed resolutions, backed by Jefferson, that purported to “nullify” these laws, thus raising questions about states’ rights that would not be resolved until the Civil War. James Madison, later to be Jefferson’s secretary of state and then the fourth president, made it clear in drafting the Virginia Resolution that he felt the Sedition Act was a violation of the First Amendment. Madison believed the First Amendment was supposed to be an absolute prohibition on all actions of the federal government that restricted free- dom of the press. Jefferson probably agreed. In one letter to a friend, he wrote: “I am…for freedom of the press and against all violations of the Constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents.” When Jefferson ran for president in 1800, he made the Alien and Sedition Acts a major issue; public discontent over these laws was certainly an important factor in his victory. Immediately after his inauguration, Jefferson ordered the pardon of those who had been convicted under the Sedition Act.

Jefferson’s record as a champion of a free press was not entirely unblemished. During his presidency he was subjected to harsh personal attacks by opposition newspapers. Although he usually defended the right of his foes to express their views, he eventually became so annoyed that he encouraged his backers to prosecute some of his critics in state courts.

THE FIRST AMENDMENT: SCHOLARS’ VIEWS

The Sedition Act expired in 1801, and it was more than 100 years before Congress again attempted to make criticism of the government a federal crime. However, this does not prove the First Amendment was intended to eliminate seditious libel as a crime, and the debate over that issue continued well into the 20th century.

Leonard Levy. Historian Leonard Levy, a leading constitutional scholar, once wrote, “What is clear is that there exists no evidence to suggest an understanding that a constitu- tional guarantee of free speech or press meant the impossibility of future prosecutions of seditious utterances….”

Levy argued that most likely the framers of the First Amendment weren’t certain what its full implications were, but that most of the framers believed future prosecutions for sedi- tious utterances were possible. However, later in his life Levy rethought that conclusion based on extensive additional research into the content of early American newspapers. He ultimately decided that the framers must have intended for the First Amendment to provide “a right to engage in rasping, corrosive, and offensive discussions on all topics of public interest.” His earlier, more narrow view of the First Amendment was presented in a 1960 book, Legacy of Suppression: Freedom of Speech and Press in Early American History. In 1985, he published a revised and enlarged edition of the book retitled Emergence of a Free Press. In the preface, Levy wrote: “Some states gave written constitutional protection to freedom of the

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press after Independence; others did not. Whether they did or not, their presses operated as if the law of seditious libel did not exist.”

Zechariah Chafee. In revising his views, Levy came much closer to agreeing with several other noted legal historians. For example, Harvard Professor Zechariah Chafee wrote that the First Amendment was indeed intended to eliminate the common law crime of seditious libel “and make further prosecutions for criticism of the government, without any incite- ment to law-breaking, forever impossible in the United States.”

Chafee, in his 1941 work, argued that freedom of expression is essential to the emer- gence of truth and advancement of knowledge. The quest for truth “is possible only through absolutely unlimited discussion,” Chafee said. Yet, he noted that there are other purposes of government, such as order, the training of the young, and protection against external aggression. Those purposes, he said, must be protected too, but when open discussion inter- feres with those purposes, there must be a balancing against freedom of speech, “but free- dom of speech ought to weigh heavily on that scale.”

Chafee argued against prior restraint of expression unless it was very clear that such expression imperiled the nation. He wrote:

The true boundary line of the First Amendment can be fixed only when Congress and the courts realize that the principle on which speech is classi- fied as lawful or unlawful involves the balancing against each other of two very important social interests, in public safety and in the search for truth. Every reasonable attempt should be made to maintain both interests unimpaired, and the great interest in free speech should be sacrificed only when the interest in public safety is really imperiled, and not, as most men believe, when it is barely conceivable that it may be slightly affected.

Chafee’s boundary line, then, is that point where words will incite unlawful acts. As we’ll see later, that is precisely the point at which the Supreme Court has drawn the line in recent decisions on the meaning of the First Amendment.

Alexander Meikeljohn. A third noted constitutional scholar, Alexander Meiklejohn, agreed for the most part with Chafee’s interpretation of the First Amendment. He said only expression that incites unlawful acts should be punishable. Further, incitement does not occur unless an illegal act is actually performed and the prior words can be directly connect- ed to the act. Then, and only then, can words be punished in spite of the First Amendment.

Meiklejohn said that the First Amendment was written during a time when large sections of the population were hostile to the form of government then being adopted. Thus, the framers knew full well that a program of political freedom was a dangerous thing. Yet, Meiklejohn said, the framers chose to write the First Amendment as it is and not the way the courts have rewritten it during the twentieth century. He said that if the framers had wanted the federal government to control expression, the First Amendment could have read: “Only when, in the judgment of the legislature, the interests of order and security render such action advisable shall Congress abridge the freedom of speech.”

Both Chafee and Meiklejohn felt that the voters must be well informed to make wise decisions. Both endorsed Milton’s “marketplace of ideas” concept, and Meiklejohn supported Milton’s view that truth will prevail in this clash of ideas:

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Chapter Two 41

42

The Legacy of Freedom

Focus on… Marbury v. Madison, 5 U.S. 137 (1803)

Chief Justice John Marshall realized that the political clout of the Supreme Court was low in 1803. This case, which many legal scholars recognize as a legal tour de force, provided him the opportunity to make the judiciary a full partner in the country’s governance.

Marshall’s solution was both a brilliant legal tradeoff and a smart political move. In exchange for giving up a fairly minor right, Marshall claimed for the judiciary the power of judicial review—the power to invalidate a law when it’s in conflict with the Constitution.

Marshall, a Federalist, was also able to slap President Thomas Jefferson, a Republican, on the wrist for not having delivered Marbury’s commission in the first place! But had Marshall tried to force the delivery of the commission, Jefferson may have refused to do it, creating a situation where a direct order of the Supreme Court was ignored.

FIG. 7. John Marshall.

John B. Martin, Collection of the Supreme Court of the United States.

No one can deny that the winning of the truth is important for the purposes of self-government. But that is not our deepest need. Far more essential, if men are to be their own rulers, is the demand that whatever truth may become available shall be placed at the disposal of all the citizens of the community.

Much of what we have just discussed is quite theoretical, but the views of scholars such as Chafee, Meiklejohn and Levy have often influenced the U.S. Supreme Court when it was forced to make difficult decisions about the scope and meaning of the First Amendment in the real world.

NINETEENTH-CENTURY PRESS FREEDOM

Whatever the framers of the Constitution and Bill of Rights intended, the question received little attention in the 1800s. The nineteenth century was a time when Americans were preoccupied with such overriding issues as national expansion and slavery. There was surprisingly little attention given to the meaning of the First Amendment during most of that century. Instead, the country and the courts were looking at other issues.

The Supreme Court and Judicial Review: Marbury v. Madison

In 1803, the Supreme Court gained the power to declare acts of Congress unconstitu- tional and thereby invalidate them. In the landmark case of Marbury v. Madison (1 Cranch 137), what the Court really did was simply to declare that it had the power to overturn acts of Congress. Perhaps the Court got away with it mainly because President Jefferson and his followers were happy with the outcome of the case.

Just before his term expired, John Adams, the lame-duck Federalist president, had appointed a number of federal judges. Because of their belated appointments, they came to be called “midnight judges.” The new judges were Federalists, and the Jeffersonians were anxious to keep them from taking office. James Madison, Jefferson’s secretary of state, refused to give William Marbury, one of the would-be judges, his signed commission

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(the document appointing him to office). Marbury sued to get the commission. The Jeffer- sonians were not displeased when the Court, under its famous chief justice, John Marshall, dismissed Marbury’s claim by overturning the Judicial Act of 1789, on which the would-be judge had based his lawsuit. In the convoluted politics of the day, Marshall—a Federalist— had sided with the Jeffersonians on a small matter (Marbury’s commission), but in so doing Marshall had prevailed on the larger issue: the right of the courts to review actions of other branches of government for compliance with the Constitution.

Other Marshall decisions. Ironically, Chief Justice Marshall had himself been appointed by John Adams during the final year of his presidency. Although the Federalist Party faded away, never winning another national election, Marshall served as chief justice for 34 years, allowing the Federalist philosophy to have an ongoing impact on American law long after the Federalist Party disappeared from the scene. Marshall’s Supreme Court asserted its authority in many other areas, attempting to define the scope and limits of federal power. In 1812, the Court ruled that the federal courts had no authority to entertain actions involving common law crimes such as criminal libel. In U.S. v. Hudson and Goodwin (7 Cranch 32), the Court said this area of law fell within the exclusive domain of the states, a philosophy that has remained largely unchanged ever since. On the other hand, in McCulloch v. Maryland (4 Wheat. 316), an 1819 decision among Marshall’s most famous, the Court upheld the right of Congress to create a national bank and regulate the economy even though a narrow, literal reading of the Constitution might not permit it. Having so ruled, Marshall then declared once and for all that the states may not tax agencies of the federal government.

State powers. When the Bill of Rights was added to the U.S. Constitution, its authors wanted to be certain that the federal government’s powers would be strictly limited to avoid usurping the powers of the states. The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” To the amazement of many Americans, the Supreme Court reasserted the principle of a strictly limited federal government in a series of decisions 200 years later. For example, in 2000, the Court overturned the Violence against Women Act of 1994, holding that Congress had invaded an area reserved for the states (i.e., the prosecution of crimes such as rape) by passing this law (U.S. v. Morrison, 529 U.S. 598).

While the federal government stayed out of mass communications law during much of the nineteenth century, the states filled that void. Throughout the century, the states were expanding the common law and adopting statutory laws in such areas as libel and slander.

One of the best-known state cases was the 1804 libel trial of Harry Croswell in New York (People v. Croswell, 3 Johnson’s Cases 336). Croswell attacked President Jefferson in print and was prosecuted for criminal libel. He was convicted and appealed to a higher state court. His defense attorney, Federalist leader Alexander Hamilton, argued that truth plus “good motives for justifiable ends” should be a defense in such cases.

Although Croswell lost when the appellate panel of four judges deadlocked 2-2, the concept that truth should be a libel defense was sometimes called the Hamilton Doctrine and was adopted in a number of states during that era. For instance, the New York legislature recognized the truth defense by statute in 1805—and added a provision empowering the jury to determine whether the statement in question was actually libelous. Some states had recognized truth as a libel defense even before that time and, of course, the 1798 Sedi- tion Act had recognized it on the federal level. Nevertheless, what Andrew Hamilton, the distinguished Philadelphia lawyer, had argued for in the Zenger trial 70 years earlier gained

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Chapter Two 43

44 The Legacy of Freedom

general acceptance in American law only after another distinguished lawyer named Hamil- ton made it his cause as well.

Alexander Hamilton, of course, didn’t live long enough to enjoy whatever recognition the Hamilton Doctrine might have brought him: a newspaper account of something he purportedly said during the Croswell trial led to the infamous duel in which he was killed by Aaron Burr, then the vice president of the United States.

Slavery and Free Expression

Aside from the gradual evolution of libel law, probably the most significant conflict over American freedom of expression in the 1800s resulted from the struggle over slavery and the War Between the States.

As the national debate over slavery intensified in the early 1800s, a number of southern states enacted “gag laws” that prohibited the circulation of newspapers and other materials advocating the abolition of slavery. Although these laws were clearly acts of prior censorship and violated the spirit of the First Amendment, the First Amendment had not yet been made applicable to the states, and these laws were never tested for their constitutionality.

Some northern states also attempted to curb abolitionist literature through various laws; these laws too escaped constitutional scrutiny because the Bill of Rights did not yet apply to the states. Even Congress adopted rules to suppress debate about slavery that violated the spirit and probably the letter of the First Amendment. When anti-slavery groups began submitting petitions to Congress asking that the slave trade in Washington, D.C. be abol- ished, the House of Representatives adopted internal “gag rules” to prevent these petitions from being introduced and considered. These rules not only censored anti-slavery members of Congress but also took direct aim at the First Amendment’s provision guaranteeing the right to petition the government.

Rep. John Quincy Adams of Massachusetts, who returned to Congress after serving as the nation’s sixth president, led the fight against these gag rules. At one point he arrived in Washington with anti-slavery petitions signed by more than 50,000 persons. When he was barred from presenting them formally, he left the petitions stacked high on his desk in the House of Representatives as a silent protest against the gag rules. In 1844, Adams—by then 77 years old—finally garnered enough support to have the gag rules eliminated.

Copperheads and Lincoln. During the Civil War, a vigorous antiwar movement emerged in the North, and antiwar editors came to be known as Copperheads. Some of them tested freedom of the press in wartime to the limit, openly advocating a southern victory. The Copperheads’ rhetoric often hindered recruiting for the Union Army. On several occa- sions, military commanders in the North acted against Copperheads, creating a difficult dilemma for President Lincoln, who was deeply committed to the First Amendment but also wanted to end the war quickly. He is generally credited with exercising restraint in the face of vicious criticism from Copperhead editors. On one occasion he countermanded a general’s decision to occupy the offices of the Chicago Times to halt that paper’s attacks on the war effort.

However, in 1864 Lincoln reached his breaking point when two New York newspapers published a false story claiming there was to be a massive new draft call—an announcement sure to stir violent anti-draft riots. The president allowed the editors to be arrested and their papers occupied by the military until it was learned the newspapers got the story from a forged Associated Press dispatch that they had every reason to believe was authentic. As it

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Chapter Two 45

turned out, the story was fabricated by an unscrupulous journalist who hoped to reap large profits in the stock market during the panic he expected the story to produce.

The Fourteenth Amendment and due process. After the end of the Civil War, the Four- teenth Amendment was approved, requiring the states to safeguard the basic civil liberties of all of their residents. The relevant part of the Fourteenth Amendment reads as follows:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Like the First Amendment, this amendment had far-reaching consequences that were not fully understood when it was adopted. Its immediate impetus came from the desire to protect the former slaves from oppressive legislation in southern states. But during the twen- tieth century the “liberty” clause of the Fourteenth Amendment was relied upon repeatedly to make the various federal rights guaranteed in the Bill of Rights—including the First Amendment—applicable to the states. Under a modern understanding of constitutional law, no state could enforce a gag law of the sort adopted by many states before the Civil War.

John Stuart Mill’s Philosophy: On Liberty

While the United States was preoccupied with the struggle over slavery, John Stuart Mill, an English political philosopher, was refining theoretical concepts of freedom of expression. Mill’s On Liberty, first published in 1859, defined the limits of freedom and authority in the modern state. He said that by the mid-1800s the important role of the press as one of “the securities against corrupt or tyrannical government” was well recognized—at least in such countries as England and the United States. He stressed that any attempt to silence expression, even that of a one-person minority, deprives the people of something important. He said that “if the opinion is right, they (the people) are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer

perception and livelier impression of truth, produced by its collision with error.” Mill presented four basic propositions in defense of freedom of expression. First, he said an opinion may contain truth, and if one silences the opinion, the truth may be lost. Second, there may be a particle of truth within a wrong opinion; if the wrong opinion is suppressed, that particle of truth may be lost. Third, even if an accepted opinion is the truth, the public tends to hold it not on rational grounds but as a prejudice unless forced to defend it. And fourth, a commonly held opinion loses its vitality and its effect on conduct and character if

it is not contested from time to time. In these terms, Mill expanded upon Milton’s “marketplace of ideas” concept. The impact

of these ideas on the evolution of free expression became evident in the twentieth century.

SEDITION IN THE TWENTIETH CENTURY

Wars and the threat of wars tend to make lawmakers worry more about national security and less about such ideals as freedom of speech. The Alien and Sedition Acts of 1798 were passed at a time when war with France seemed imminent, and the Civil War created pressures for censorship of those who opposed that war effort.

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46 The Legacy of Freedom

Espionage and Sedition Acts. Early in the twentieth century, this nation became involved in what many Americans thought would be the war to end all wars: World War I. In prepar- ing the country for this all-out war, Congress again decided that domestic freedom would have to be curtailed. The result was the Espionage Act in 1917, which was expanded by the Sedition Act in 1918.

In passing these laws, Congress was not merely expressing its own collective desire to suppress unpopular views. In fact, there was a growing worldwide movement for fundamen- tal social change, a movement many Americans found threatening. Already, Marxist revolu- tionaries were on the move in Russia, and socialists, anarchists and Marxists were also highly visible in this country. Moreover, we were about to undertake a war against Germany, and yet there were millions of persons of German descent living in America. In addition, labor unions such as the Industrial Workers of the World (the “Wobblies”) were gaining wide support and calling for basic changes in the capitalist system.

The Espionage Act was passed shortly after the United States entered World War I. It prohibited seditious expression that might hurt the war effort. This federal law was particu- larly aimed at those who might hamper armed forces recruiting, and it was written so broad- ly that it was once used to prosecute a grandmother who wrote a letter urging her grandson not to join the army.

Unlike the 1798 Sedition Act, which resulted in only a handful of prosecutions, the 1918 Sedition Act was vigorously enforced. About 2,000 persons were arrested for violating the Espionage and Sedition acts and nearly 1,000 were convicted. Several of the convictions were appealed to the U.S. Supreme Court, which upheld every conviction it reviewed.

Early Free Expression Decisions

The first Espionage Act or Sedition Act case to reach the Supreme Court was Schenck v. U.S. (249 U.S. 47) in 1919. Charles T. Schenck, general secretary of the Socialist Party, and another socialist were convicted under the Espionage Act and state anarchy and sedi- tion laws for circulating about 15,000 leaflets to military recruits and draftees. The tracts denounced the draft as an unconstitutional form of involuntary servitude, banned by the Thirteenth Amendment. They urged the draftees not to serve and called the war a cold- blooded venture for the profit of big business.

Clear and present danger rule. When their conviction was reviewed by the Supreme Court, the socialists argued that their speech and leaflets were protected by the First Amend- ment. The Court was thus compelled to rule on the scope and meaning of the First Amend- ment. In a famous opinion written by Justice Oliver Wendell Holmes Jr., the Court rejected the socialists’ argument:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent (emphasis added).

In short, the Supreme Court said the First Amendment is not absolute. Congress may abridge freedom of speech whenever that speech presents a “clear and present

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(L) FIG. 8. John Locke (1632-1704).

Library of Congress.

(R) FIG. 9. John Stuart Mill (1806- 1873).

Library of Congress.

danger” to some other national interest that is more important than freedom of speech at the moment.

In reaching this conclusion, Holmes made his famous analogy: “free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Thus, he wrote, free speech can never be considered absolute. Instead, each abridgment of freedom must be weighed against its purpose to decide if it is an appropriate or inappropriate one.

Although the clear and present danger test has proved to be vague and difficult to admin- ister, it replaced a common law test for allegedly dangerous speech that was even more difficult to administer without unduly inhibiting freedom. The old common law test, known as the reasonable tendency or bad tendency test, was established in England in the 1700s and adopted as American common law along with the rest of the English common law.

This test could be used to forbid any speech that might tend to create a low opinion of public officials, institutions or laws. It gave prosecutors wide latitude to prosecute anyone charged with seditious libel. Whatever its limitations, the clear and present danger test was more precise and offered more protection for unpopular speech than the old reasonable tendency test.

Following Schenck, the Supreme Court quickly upheld the convictions of two other persons charged with violating the Espionage Act: Jacob Frohwerk, a German language newspaper editor, and Eugene V. Debs, the famous leader of the American Socialist Party, who later received nearly a million votes for president of the United States while in jail.

Eight months after the Schenck, Frohwerk v. U.S. (249 U.S. 204) and Debs v. U.S. (249 U.S. 211) decisions, the Supreme Court ruled on another Espionage Act case, Abrams v. U.S. (250 U.S. 616). The convictions of Jacob Abrams and four others who had published antiwar leaf- lets were upheld, but this time the Court had a new dissenter: Justice Holmes had rethought his position and wrote an eloquent defense of freedom of expression that was joined by Justice Louis Brandeis.

In the majority opinion that affirmed the convictions, Justice John Clarke said the primary goal of Abrams and his co-defendants was to aid the enemy. That constituted a clear and present danger to national interests. But Holmes and Brandeis replied in dissent: “Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without

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Chapter Two 47

48 The Legacy of Freedom

more, would present any immediate danger that its opinions would hinder the success of the government aims or have any appreciable tendency to do so.” This opinion was very influential in later years, but at the time it was a minority view. Neither the country nor the Supreme Court was in a mood to be tolerant toward political radicals.

In the Court’s last reviewed Espionage Act, it affirmed a lower court ruling that denied second-class mailing privileges to the Milwaukee Leader, the best known Socialist paper in the country. The Court found that articles in the Leader “sought to convince readers…that soldiers could not be legally sent outside the country,” and thus the sanctions were appropri- ate (U.S. ex rel. Milwaukee Social Democratic Publ’g Co. v. Burleson, 255 U.S. 407, 1921).

By today’s standards, these Supreme Court decisions seem repressive. The expression of views that would have been considered well within the protection of the First Amendment in more recent times led to criminal prosecutions during World War I. Obviously, First Amend- ment law was in its infancy at that point. The courts felt little obligation to observe the niceties of constitutional law at a time when leftists seemed threatening to many Americans.

THE FIRST AMENDMENT AND THE STATES

During the first part of the twentieth century, at least 20 states enacted their own laws against various kinds of political radicalism. The common element in these laws was a fear of groups that sought to change the American political and social system and advocated force as a means of accomplishing their goals. The constitutionality of these laws was soon challenged by those convicted under them, and it wasn’t long before some of these cases reached the U.S. Supreme Court.

Probably the most important of these state sedition cases was Gitlow v. New York (268 U.S. 652), which reached the Supreme Court in 1925. Benjamin Gitlow, a New York social- ist, and three others were convicted of violating a state criminal anarchy law by writing a document called the “Left Wing Manifesto.” They were also convicted of distributing a paper

FIG. 10. Supreme Court of the United States, 1924.

Library of Congress.

Front, L-R: Justice Willis Van Devanter, Justice Joseph McKenna, Chief Justice William Howard Taft, Justice Oliver Wendell Holmes, Justice James McReynolds. Back, L-R: Justice Pierce Butler, Justice Louis Dembitz Brandeis, Justice George Sutherland, Justice Edward Sanford.

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called The Revolutionary Age. Gitlow argued that the New York law violated his freedom of expression, as guaranteed under the First Amendment. In so doing, he was asking the high court to reverse an 1833 decision that said the Bill of Rights only applied to the feder- al government (Barron v. Baltimore, 7 Peters 243). Gitlow contended that the Fourteenth Amendment’s requirement that the states safeguard the “liberty” of their residents meant the civil liberties guaranteed in the Bill of Rights could no longer be violated by the states.

Enacted after the Civil War and intended to safeguard the civil rights of the former slaves, the Fourteenth Amendment applies specifically to the states. Among other things, it has a provision known as the due process clause, which says, “…nor shall any state deprive any person of life, liberty or property, without due process of law….” Gitlow argued that “liberty,” as the term is used in the Fourteenth Amendment, includes all of the freedoms guaranteed in the First Amendment.

Incorporation Doctrine. By making this argument, Gitlow won a tremendous long-term victory for freedom of expression, but he lost his own appeal. In an amazingly brief passage, the Supreme Court completely rewrote the rules on constitutional law, acknowledging that the Fourteenth Amendment had indeed made the First Amendment applicable to the states (known as the incorporation doctrine). But then the Court said the First Amendment did not protect Gitlow’s activities, upholding the New York conviction: “A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace.”

Although Gitlow’s conviction was affirmed, the Supreme Court had almost offhandedly rewritten the basic rules governing free expression rights at the state and local level. By requiring the states (and their political subdivisions such as city and county governments) to respect freedom of speech, press and religion, the Supreme Court had vastly expanded the rights of Americans. In 2010 the Supreme Court by a 5-4 vote incorporated the Second Amendment, the right to keep and bear arms (McDonald v. City of Chicago, 561 U.S. 742).

“More speech, not enforced silence.” Two years after Gitlow, the Court affirmed another state conviction in a case that produced a famous opinion defending freedom of expression. In that case (Whitney v. California, 274 U.S. 357), Charlotte Anita Whitney was prosecuted for violating a California criminal syndicalism law, a law that made it a felony to belong to a group that advocated forcible change. She was a member of the Communist Labor Party, but she had argued against its militant policies at a meeting just before her prosecution.

Despite these mitigating circumstances, the Supreme Court affirmed Whitney’s convic- tion. For technical reasons, Justice Brandeis concurred in the Court’s decision, but his concurring opinion (which Justice Holmes joined) was a powerful appeal for freedom:

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportu- nity for full discussion. If there be time to expose through discussion the false- hood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

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Chapter Two 49

50 The Legacy of Freedom

clear and present danger:

a judicial test to determine whether speech should be suppressed; only when speech poses a clear and present danger should it be stopped.

due process:

a constitutional guarantee, contained in the Fifth and Fourteenth Amendments, that the government may not take away anyone’s life, liberty or property arbitrarily or unfairly, and that legal proceedings will be fair and include notice to those affected.

incorporation doctrine:

a constitutional doctrine by which many of the rights contained in the first eight amendments of the Bill of Rights are applied to the states using the

due process clause of the Fourteenth Amendment; the First, Second, Fourth, and Sixth Amendments, as well as parts of the Fifth and Eighth Amendments, have been incorporated.

Brandeis said he believed that free speech should be suppressed only in times of emergency and that it was always “open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.”

The Supreme Court finally reversed a conviction for express- ing radical ideas for the first time in another 1927 case, Fiske v. Kansas (274 U.S. 380). In that case, a defendant was prosecuted merely for belonging to the Industrial Workers of the World, the “Wobblies”—and the primary evidence against him was the preamble to the Wobblies’ constitution. There was no evidence that he had advocated or engaged in any violent or otherwise unlawful acts. The Court said the preamble simply didn’t present sufficient evidence of unlawful goals to justify the conviction.

POSTWAR SEDITION AND DISSENT

The 1918 Sedition Act, like its 1798 predecessor, was only in force a short time: most of its provisions were repealed in 1921. Major portions of the 1917 Espionage Act were not repealed, but that law was specifically written so that it only applied in wartime. Thus, for nearly two decades after 1921, there was no federal law prohibiting seditious speech. But as World War II approached, those who felt the need to curtail freedom in the interest of nation- al security again gained support in Congress.

The Smith Act. Finally, a sedition law was attached to the Alien Registration Act of 1940, popularly known as the Smith Act because one of its sponsors was Congressman Howard Smith of Virginia. Among other things, the new sedition law made it a crime to advo- cate the violent overthrow of the government or even to belong to a group that advocated overthrowing the government by force. In addition, there were provisions making it a crime to proselytize for groups having such goals. The law did not require proof that the group might actually carry out any of those goals before its members could be prosecuted; mere advocacy was sufficient. Nor did this law apply only during wartime.

The 1940 law was rarely used at first. In fact, compared to other wars, World War II elicited little domestic opposition, perhaps because of the manner in which the United States became involved in that war as well as the widely publicized atrocities of the Nazis. However, during the tense “cold war” era that followed World War II, the Smith Act was used to prosecute numerous members of the American Communist Party. The Smith Act’s constitutional- ity was first tested before the U.S. Supreme Court in a 1951 case involving 12 alleged Communists, Dennis v. U.S. (341 U.S. 494). Eugene Dennis and the others were tried on charges of willfully and knowingly conspiring to overthrow the U.S. government by

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force. After a controversial nine-month trial, they were convicted and the Supreme Court eventually upheld the convictions.

“Gravity of the evil” rule. Chief Justice Fred Vinson’s opinion, in which three other justices joined, didn’t specifically apply the clear and present danger test to the defendants’ activities. Instead, the Court adopted a test formulated by Learned Hand, a famous appel- late court judge who heard the case before it reached the Supreme Court. Hand’s test is this: “In each case (courts) must ask whether the gravity of the “evil,” discounted by its improb- ability, justifies such invasion of free speech as is necessary to avoid the danger.” By using Judge Hand’s modified version of the clear and present danger test, it was possible for the Supreme Court to sustain the convictions without any evidence that there was a real danger that the Communists could achieve their stated goals.

Justice Vinson ruled that the American Communist movement, tiny though it was, consti- tuted a sufficient “evil” to justify the limitations on freedom of speech in the Smith Act. For the moment, it would be unlawful even to belong to an organization that advocated the violent overthrow of the government. Chief Justice Vinson wrote, “Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inad- equate numbers or power of the revolutionists, is sufficient evil for Congress to prevent.”

After winning the Dennis case, the U.S. Justice Department began a new series of prosecu- tions under the Smith Act. During the early 1950s at least 121 persons were prosecuted under the act’s conspiracy provisions, and others were prosecuted under the provisions outlawing mere membership in organizations advocating violent overthrow of the government.

This may seem to be an alarming violation of the American tradition of free speech, but it was in keeping with the mood of the times. The early 1950s were the heyday of McCarthyism, a time when prominent Americans were accused of pro-Communist sympa- thies, often with little or no proof. For example, a number of well-known writers and motion picture celebrities were blacklisted in the entertainment industry after undocumented charges were made against them. In Congress, the House Committee on Un-American Activities conducted investigations that its critics felt were little more than witch-hunts designed to harass those with unpopular ideas.

However, the times were changing, and so was the makeup of the Supreme Court. Senator Joseph McCarthy of Wisconsin, the man whose name is synonymous with the red scare, was censured by his Congressional colleagues, and public disapproval of his tactics increased notably by the time of his death in 1957. Meanwhile, the Court gained several new members, most notably Chief Justice Earl Warren, who led the Court into an unprecedented period of judicial liberalism. Warren was appointed in 1953 after the death of Chief Justice Vinson.

“Advocacy to action” rule. In 1957 the Supreme Court responded to these changes by modifying the Dennis “gravity of the evil” rule in another case involving the prosecu- tion of alleged Communists under the Smith Act, Yates v. U.S. (354 U.S. 298). In this case, the Supreme Court reversed convictions or ordered new trials for 14 people charged with Communist activities. In so ruling, the Court focused on the distinction between teaching the desirability of violently overthrowing the government as an abstract theory and actually advocating violent action. The Court said the convictions had to be invalidated because the jury instructions did not require a finding that there was any tendency of the advocacy to produce forcible action.

The Supreme Court said the Smith Act could only be used against “the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of

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Chapter Two 51

52 The Legacy of Freedom

principles divorced from action.” The justices did not return to the clear and present danger test as such, and the Court insisted it was not abandoning the Dennis rule. But the new requirement of proof that the defendant was calling for action rather than teaching an abstract doctrine made it very difficult to convict anyone under the Smith Act. As a result, this controversial law was almost never used against political dissidents after that time.

Changing Times: the 1960s

Perhaps it was fortuitous timing that the Smith Act was rarely used against radicals after 1957, because in the 1960s there was a period of political dissent unprecedented in twentieth-century America. Eventually millions of Americans came to disagree with their government’s handling of the Vietnam War, and countless numbers of them vociferously demanded changes in the political system that led to this unpopular war. Had that happened at a time when the government was prepared to vigorously enforce the Smith Act (and when the courts were willing to brush aside the First Amendment and let it happen) far more people than were jailed under the World War I Sedition Act might have been imprisoned for opposing the government during the Vietnam War.

Incitement to imminent lawless action. The First Amendment protection for those accused of seditious speech was again expanded in a controversial 1969 Supreme Court decision involving a Ku Klux Klansman. In that case, Brandenburg v. Ohio (395 U.S. 444), a man convicted of violating an Ohio criminal syndicalism law contended that his conduct was protected under the First Amendment. Brandenburg spoke at a Klan rally that was filmed. Part of the film was later televised nationally. Much of what was said was incomprehensible, but the meaning of other remarks was quite clear. Brandenburg urged sending “niggers” back to Africa and Jews to Israel, and also talked of the need for “revengeance.”

Was this a call for action that could be prosecuted under the Yates rule, or was it merely the teaching of abstract doctrine? The Supreme Court went beyond the constitutional protection it had given speech in the Yates decision. In Brandenburg, the justices said the First Amendment even protects speech that is a call for action, as long as the speech is not likely to produce imminent lawless action. Thus, the point at which the First Amendment ceases to protect seditious speech is not when there is a call for action, but when that call for action is persuasive and effective enough that it is likely to produce imminent results. The Court said:

[T]he constitutional guarantees of free speech do not permit (state regulation) …except where the speech is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action.

Brandenburg’s criminal conviction was reversed, and the Supreme Court invalidated the Ohio criminal syndicalism law itself. In so doing, the Court reversed the 1927 Whitney v. California decision, in which a state law virtually identical to Ohio’s had been upheld. This provides an interesting illustration of the way a dissenting or concurring opinion of one generation can inspire a majority opinion in another. Justice Brandeis’ concurring opinion in Whitney argued for an imminent danger requirement: Brandeis said the First Amendment should not permit sanctions for political speech unless it threatens to provoke imminent lawless action. More than 40 years later, the Supreme Court adopted that view in the Brandenburg decision, repudiating the majority opinion in Whitney.

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Chapter Two 53

Even now—many years after the Brandenburg decision—millions of Americans feel passionately that the Supreme Court was wrong: the Ku Klux Klan and other racist organizations do not deserve First Amendment protection, they believe. During the 1980s and 1990s, there was national controversy about “hate speech.” Many states passed laws forbidding that kind of speech, and the Supreme Court ultimately stepped into the debate by ruling on the issue twice, in 1992 and 1993 (see Chapter Three).

INTERPRETING THE CONSTITUTION

In tracing the development of First Amendment freedoms, we have noted several philosophies and “tests” that have been proposed to aid in interpreting what the First Amendment means. Because interpreting the Constitution is so central to the study of media law, we will summarize some basic principles of constitution- al interpretation.

Balancing tests. Almost every dispute about constitutional rights involves some kind of a balancing test. The courts must weigh conflicting rights and decide which is the most important. That means sometimes one constitutional principle must give way to another: there are few absolutes in constitutional law. That fact, of course, is unfortunate for the media. Were the First Amendment an absolute, many of the legal problems the media face would not exist. Given an absolute First Amendment, there would be no such thing as sedition or prior restraint, and it is doubtful the media could even be held accountable for libel, invasions of privacy, or copyright infringements. Certainly there would be no obscenity law and no limits on media coverage of the criminal justice system. But if that were the case, many of society’s other interests would be forced to yield to freedom of speech and freedom of the press.

First Amendment absolutism. Fortunately or unfortunately, depending on your point of view, the absolutist theory of the First Amendment has never been the majority view on the U.S. Supreme Court. Some of the founding fathers, such as James Madison, may have considered it something of an absolute safeguard for free speech, and two well-known Supreme Court justices who served during the 1950s and 1960s (Hugo Black and William O. Douglas) took an almost absolutist position. However, the majority view has always been that the First Amendment must be weighed against other rights and social needs. Thus, the courts’ task over the years has been to develop guidelines to assist in this balancing process.

One of the best-known of these guidelines for balancing the First Amendment against other interests has been the clear and present danger test. As already noted, it was first cited by Justice Oliver Wendell Holmes in the 1919 Schenck decision. In the years

imminent lawless action:

the current incar- nation of the clear and present danger test; speech can be suppressed if it causes or results in immedi- ate violence or other lawlessness.

absolutist theory:

a reading of the First Amendment which takes literally the phrase “Congress shall make no law,” suggest- ing an absolute protec- tion for speech.

preferred position theory:

a theory of the First Amendment which favors the rights of free speech and press over other rights when balanced against those rights.

rational relationship:

a theory that gives high deference to government regula- tion; if government provides a legitimate objective and the regu- lation is reasonably related to that objec- tive, the regulation will stand.

compelling state interest:

a right that is funda- mental to society, like voting or national security, receives the highest level of judicial review.

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54 The Legacy of Freedom

vagueness:

unclear or subject to several interpretations by reasonable indi- viduals; laws that are vague are often over- turned on that basis.

overbreadth:

regulating too much protected speech in regulating unprotect- ed speech; laws must be written so as not to proscribe protected speech.

police power:

the power that states have to regulate the health, safety, welfare and morals of their citizens.

since, it has sometimes been applied to political speech cases, although in recent years the Supreme Court has not mentioned it in the leading decisions on free speech. As Chapter Eight explains, the Court has also applied the clear and present danger test in resolving conflicts between the media and the courts. Weighing the First Amendment guarantee of a free press against judges’ rights to exercise their contempt of court powers.

Preferred position. Some constitutional scholars argue for a preferred position test as an alternative to balancing the First Amendment against other rights and interests. In their view, the amendment should occupy a preeminent place in constitutional law and should rarely give way to other interests. Some believe that during the era when Earl Warren was chief justice, the Supreme Court leaned toward that view of the First Amendment. Indeed, many of the decisions most favorable to the media were handed down by the Warren Court.

In a more general way, the Supreme Court always uses a kind of preferred position test in weighing constitutionally protected inter- ests against other values. In U.S. v. C.I.O. (335 U.S. 106), a 1948 case, Justice Wiley Rutledge articulated this view. The normal rule of judicial interpretation requires the courts to adopt a presump- tion in favor of the validity of legislative acts. However, he said, when a legislative act restricts First Amendment rights, the presumption must be reversed so that there is a presumption against the validity of the law rather than in favor of its validity. Thus, he advocated a “reverse presumption of constitutionality” when a statutory law is challenged on constitutional grounds.

The concept that the rights protected by the Bill of Rights occupy a preferred position compared to other interests has been mentioned in a number of other Supreme Court decisions. Howev- er, on a practical level that bias in favor of constitutional rights does not necessarily translate into tangible results. What the Court still does is balance the competing interests—albeit with the scales tipped slightly toward constitutional rights.

Rational relationship vs. compelling state interest. The Supreme Court has also developed a series of more specific guide- lines to use in evaluating claims that a statutory law or government action violates a constitutional right. When a statute (or a state’s application of the common law) is challenged, the Court normally looks for nothing more than a rational relationship between the law and a legitimate government goal. When a state law is challenged, the state may try to defend it by showing that the law bears a ratio- nal relationship to its police power or its duty to promote health and welfare of its citizens.

However, when the claim is that the statute violates a fundamental right protected by the Constitution, the state must show a compelling state interest to justify the statute. The state

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must, in effect, convince the court that its objective in enacting this statute is of such over- riding importance that a fundamental right (such as freedom of expression) must give way.

A good example of this is described in Chapter Thirteen, where the Court’s landmark decisions on commercial speech are discussed. Although advertising generally enjoys less First Amendment protection than most other forms of speech, in some cases the Court has required a state to show a compelling state interest to justify restrictions even on some types of advertising (see Bigelow v. Virginia, 421 U.S. 809, 1975). More often, though, governments must show only a substantial government interest rather than a compelling one to justify restric- tions on advertising (see Central Hudson Gas and Electric v. Public Service Commission of New York, 447 U.S. 557). These tests are admittedly subjective, and not even all justices agree about when each should apply. Justice Clarence Thomas, for example, has often claimed that advertising should have no less First Amendment protection than other forms of speech.

Vagueness and overbreadth. Another way the courts, and particularly the Supreme Court, evaluate state and federal statutes is to decide whether they are vague or overly broad. If a law limit- ing constitutionally protected rights is so broad that it inhibits freedom more than necessary to achieve a legitimate government purpose, or so vague that it is difficult to know exactly what speech or conduct is prohibited, it may be invalidated for overbreadth or vagueness. If a court is going to invalidate a statutory law, it has two options: (1) to find that the law is unconstitutional and thus void under all circumstances; or (2) to find that it is unconstitutional only as it has been applied to the person challenging the law. Moreover, given an ambiguous law, the courts have an obligation to resolve the ambiguity in such a way as to avoid a constitutional conflict if possible.

Who has final say? The U.S. Supreme Court has the final say in construing the language in federal statutes, but the state courts have the final say in interpreting state laws. The Court can only decide whether a state law is unconstitutional as interpreted by the state courts; it cannot reinterpret a state statute. This means the U.S. Supreme Court sometimes has to send a case back to a state court to find out what a state law means. Once the state court spells out the meaning, the nation’s highest court can then decide whether the law—as interpreted by the state court—violates the U.S. Constitution. If it does, it is invalid, of course. But if the state court can interpret the law in a way to avoid a conflict with the U.S. Constitution, the law is valid. Obviously, determining whether a given statute or government action violates the Constitution is a difficult and subjective job. The Supreme Court has a variety of guide- lines that it may choose to follow (or choose to ignore) in any given situation.

Critics of the process suspect that whatever test is or isn’t applied in a particular case, the ultimate outcome of the case depends more on the values and priorities of the nine justices than on how the facts measure up against one or another set of guidelines. In short, what- ever other test may be applied, cases are decided on the basis of a rather subjective balanc- ing process in which various competing values, interests and social objectives are weighed.

In his autobiography, former Justice William O. Douglas described a conversation he had with then-Chief Justice Charles Evans Hughes soon after being appointed to the Court:

Hughes made a statement to me which at the time was shattering but which over the years turned out to be true: “Justice Douglas, you must remember one thing. At the Constitutional level where we work, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.”

In the end, most Supreme Court-watchers would probably agree. So much for theories that purport to reconcile the Court’s seemingly inconsistent rulings on the meaning of the First Amendment…

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Chapter Two 55

56 The Legacy of Freedom

Against this backdrop of historical and legal developments, we can argue that the more things change, the more they stay the same. That is, many of the issues facing American society today reflect similar concerns for the law of free speech and press as have been faced throughout the decades. Yet technological developments and new forms of war have put a new face on these issues.

THE FUTURE OF FREEDOM IN A TERRORIST ERA

In this chapter, we have traced nearly 400 years of struggles for freedom of expression. Of the total history of humanity, that is but a tiny portion. Where, then, is freedom going in the next 400 years? Perhaps more to the point, what will be the future of freedom in the near future—an era that may be dominated by the threat of terrorism in many parts of the world?

Obviously, no one can answer these questions. Freedom in America may depend on who runs the country—and the world. It also depends on who is appointed to the Supreme Court, the federal appellate courts and the appellate courts of the 50 states. And it depends on who is elected to national, state and local offices. It is those people who shape the law.

In a larger sense, the future of freedom is always decided by the changing mood of the times. As several later chapters explain, there has been a growing sentiment in America today in favor of more restrictions on free expression. Polls often show that large numbers of people think the First Amendment should not protect the work of artists, musicians and others whose choice of language or subject matter may be offensive. Many people think the broadcast media, including cable and satellite television, should be subject to tougher government restrictions to curb the use of offensive language and images. Some also believe the Internet should be more regulated to limit the kind of words and images that are allowed. How can such restrictions on free expression be reconciled with the First Amendment?

In much of the world the Internet has revolutionized the idea of free expression. Even in China, which by some estimates has at least 30,000 government workers policing the Inter- net for unacceptable content in a program that critics have called the “great firewall,” the Internet has brought new freedom.

One dramatic illustration of the power of unfettered information was demonstrated in the 2011 resignation of Egyptian president Hosni Mubarak. Mubarak, widely known to suppress dissent and political opponents, stepped down amid anti-government protests and civil unrest that was broadcast worldwide on Twitter and Facebook. Despite the govern- ment’s shutdown of Internet access throughout the country for a time, images and state- ments posted online were reposted by sympathetic people around the world.

Was this the first “Twitter revolution,” and can we expect more? Opinions vary. While it is clear that social media helped the revolt to gather momentum, some have suggested that once the Internet was shut down, Egyptians engaged in the kind of protest that has been going on for centuries: they went out on the streets with thousands of others. Yet it seems clear that social media has the power to create international buzz for social movements.

In the U.S., the threat of terrorism and the government’s response to it has given rise to new developments in law and the spread of information in a free society—perhaps best demonstrated by a pair of recent developments: a website called WikiLeaks and the mass disclosure of classified documents by government contractor Edward Snowden. But first, some background.

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The USA PATRIOT Act

In America, the threat of terrorism prompted new restrictions on civil liberties in the aftermath of the events of Sept. 11, 2001. The USA PATRIOT Act, passed shortly after the attacks, created a new crime of domestic terrorism, broadened the federal government’s power to monitor telephone and Internet communications and authorized the attorney general to detain any foreigner believed to threaten national security, among other things. The law’s name is an acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.”

Congressional reauthorizations. Despite growing concerns about the USA PATRIOT Act’s implications for the civil liberties of Americans, Congress has reauthorized the law several times. The new version made permanent many provisions of the act that had origi- nally been temporary measures with a four-year sunset clause. Two controversial provisions were renewed with some modifications and only for another four years. One is the “library provision” that allows government investigators to obtain records from libraries and busi- nesses that would reveal an individual’s financial or medical information or even private reading habits. A second controversial provision extends the authorization for “national security letters”—subpoenas issued by a government agency such as the FBI instead of a court.

In 2010, three controversial elements of the USA PATRIOT Act that were set to expire were extended by President Barack Obama: a “lone wolf” provision that allows the govern- ment to track a non-United States person who has no discernable affiliation to a foreign power; a “business records provision” that allows the government to compel third parties, such as financial services and travel and telephone companies, to turn over business records of a terrorism suspect without that suspect’s knowledge; and a “roving wiretaps” provision which allows the government to monitor phone lines or Internet accounts of terrorism suspects, regardless of whether non-suspects regularly use those lines or accounts. In 2011, President Obama signed another extension of these provisions.

A showdown in 2015 over renewal of the USA PATRIOT ACT underscored the tensions between civil liberties and national security. Led by U.S. Senator Rand Paul (R-Kentucky), a coalition of lawmakers caused several provisions of the law to expire on June 1. The next day, Congress passed a compromise bill that restricted the government’s access to American citizens phone “metadata” that the National Security Agency had collected under Section 215 of the USA PATRIOT Act. The NSA collection of metadata under Section 215 was one of the first disclosures from Edward Snowden that sparked outrage about government surveil- lance programs. The new law still requires that phone companies keep the data, but requires that the NSA get approval from a court before it can access the information.

Legal challenges. A federal judge ruled in 2004 that the USA PATRIOT Act violated fundamental constitutional safeguards by allowing federal agencies to gather information about U.S. citizens secretly under national security letters without court approval. The same judge ruled in 2007 that the new version of the act still gives federal investigators unconsti- tutionally broad powers to spy on individuals. In 2008, the federal government appealed, contending that the USA PATRIOT Act’s sweeping authorization of domestic surveillance is needed to fight terrorism and does not violate the Constitution. In that case, Doe v. Mukasey (549 F.3d 861), a three-judge panel of the Second Circuit upheld the lower court’s deci- sion that the “gag order” provisions imposed on recipients of National Security Letters (subpoenas used by the Federal Bureau of Investigation and other agencies), forbidding

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Chapter Two 57

58 The Legacy of Freedom

them to talk to anyone about those letters, violated the First Amendment. The burden of proof was also shifted from the recipient of the letter to the government to initiate judicial review of the gag orders.

“Material support.” In 2010 the Supreme Court took up the question of whether some attempts to monitor terrorism activity conflict with the First Amendment. In Holder v. Human- itarian Law Project (561 U.S. 1), the Court upheld the constitutionality of 18 U.S.C. §2339B, a “material support” statute that criminalizes the provision of material support or resources to any foreign terrorist organization designated by the Secretary of State, including “training,” “expert advice and assistance,” “service” and “personnel,” even to support peaceful actions. Under the most stringent level of review applied to laws that regulate speech based on its content (strict scrutiny, discussed in Chapter Three), the government had met its burden.

Chief Justice John Roberts, writing for a 6-3 majority, limited the decision’s breadth, noting that other applications of the statute may not be constitutional: “[W]e in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations.” The dissenters felt otherwise: “[T]he Court has failed to examine the Government’s justifica- tions with sufficient care. It has failed to insist upon specific evidence, rather than general assertion. It has failed to require tailoring of means to fit compelling ends. And ultimately it deprives the individuals before us of the protection that the First Amendment demands.”

Subsequent lower court rulings have generally been deferential to the government. In 2011, the Second Circuit ruled that §2339B was not unconstitutionally vague in U.S. v. Farhane (634 F.3d 127). American citizen Rafiq Sabir, a medical doctor, had sworn allegiance to al-Qaeda and promised to treat its wounded members; he was convicted and sentenced to 25 years. The court rejected Sabir’s claims, saying that the law clearly defined the various elements of material support and that Sabir’s claim of a right to practice medicine was not more important than Congress’ right to pass laws in the nation’s defense. The Fifth Circuit in 2011 also upheld the convictions of five individuals who served as officers of the Holy Land Foundation for Relief and Development under §2339B (U.S. v. El-Mezain, 664 F.3d 467). The foundation, the government alleged, was a front to funnel funds and assistance to Hamas, considered a foreign terrorist organization.

In 2013, Muslim pharmacist Tarek Mehanna faced criminal charges of conspiracy after it was determined that during a 2004 trip to Yemen, he translated al-Qaeda documents in coordination with that organization. A trial court convicted Mehanna of terrorist activities and ordered him sentenced for 17 years, and the Second Circuit affirmed. One of Mehanna’s allegations was that the trial court judge had instructed the federal grand jury not to worry about First Amendment issues, because the terrorism statutes (18 U.S.C. §§ 956 and 2332) already took free-speech protections into account. The Second Circuit dismissed this allegation, saying that the jury instructions’ “context made clear that the government’s ‘translations-as-material-support’ theory was premised on the concept that the translations comprised a ‘service,’ which is a form of material support within the purview of the statute” (U.S. v. Mehanna, 735 F.3d 32).

WikiLeaks and Chelsea Manning

Perhaps no media story of 2010 and 2011 garnered quite as much publicity, shock, and controversy as the release by WikiLeaks of thousands of confidential pages of sensitive or embarrassing government information. Touting itself on its website (wikileaks.org) as a publisher of “material of ethical, political and historical significance while keeping the

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(L) FIG. 11. WikiLeaks editor-in-chief Julian Assange, 2010.

Espen Moe, “IMG_4739,” March 20, 2010 via Flickr, Creative Commons attribution license.

(R) FIG. 12. Woman holding sign in support of PFC Bradley (now Chelsea) Manning.

Owen Wiltshire, Bradley Manning Support Network, “Mass demonstration for Bradley Manning at Fort Meade,” June 1, 2013 via Flickr, Creative Commons attribution license.

identity of our sources anonymous,” WikiLeaks and its colorful (and controversial) spokes- person and editor-in-chief, Julian Assange, not only made government officials nervous but resulted in calls for new legislation to prevent such unauthorized releases of information.

On at least three occasions in 2010, WikiLeaks released classified information: a group of over 76,000 documents entitled “Afghan War Diary” about the war in Afghanistan; over 40,000 documents called “Iraq War Logs;” and most dramatically, over 250,000 United States embassy cables, some of which proved humiliating to U.S. diplomats (for example, one cable described current Russian president Dmitry Medvedev as playing Robin to previous president and prime minister Vladimir Putin’s Batman).

The source of the leaks was Chelsea (formerly Bradley) Manning, a United States Army soldier who worked during the Iraq War as an intelligent analyst. Manning had become morally opposed to the War and smuggled the classified documents on compact discs labeled “Lady Gaga.” She first tried to pass the material to the Washington Post and New York Times, but neither seemed interested, so she contacted Wikileaks.

International reactions to the leaks were varied, with some foreign officials laughing it off to others expressing concern about the information contained in the documents and about the matter of the leak in general. The White House issued a strong statement of condemnation: “The United States strongly condemns the disclosure of classified infor- mation by individuals and organizations which could put the lives of Americans and our partners at risk, and threaten our national security.” The Washington Post reported in 2013 that Assange is unlikely to face charges in the U.S. for the leaks.

In the wake of the release of the embassy cables, both houses of Congress introduced versions of a bill named the SHIELD Act (‘‘Securing Human Intelligence and Enforcing Lawful Dissemination Act’’). The act would amend the Espionage Act of 1917 to make it a crime for any person to knowingly and willfully disseminate “in any manner prejudicial to the safety or interest of the United States” any classified information about “the human intelligence activities of the United States.” The bill did not become law, but President Obama in 2011 issued Executive Order 13587, titled “Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified

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Chapter Two 59

60 The Legacy of Freedom

FIG. 13. Protestor holding poster of Edward Snowden at rally in Hong Kong.

See-ming Lee, “Is Snowden a Hero?” June 15, 2013 via Flickr, Creative Commons attri- bution license.

Information” to avoid classified information leaks. The order stressed the dual goals of “responsible sharing and safeguarding of classified information on computer networks that shall be consistent with appropriate protections for privacy and civil liberties.” WikiLeaks released over 700 files related to prisoner interrogations at Guantánamo Bay in April 2011. In the ongoing investigation of WikiLeaks, the Department of Justice subpoenaed Twitter account information of several key individuals. Two judges granted access, rejecting both First and Fourth Amendment arguments to the contrary.

Manning is serving a 35-year prison sentence after being convicted in 2013 of 21 charges, including violation of the Espionage Act. She was found not guilty of the most serious charge of aiding the enemy, which could have resulted in a death sentence. Her appeals have thus far been denied, and she will be eligible for parole after serving one-third of her sentence. In 2015, Manning joined Twitter from prison using the handle @xychelsea.

Edward Snowden Leaks

Chelsea Manning’s leaks to the website Wikileaks made public many significant classi- fied documents, much to the consternation of the U.S. government. But an even bigger leak occurred when Edward Snowden provided several journalists with an estimated 1.7 million documents exposing a myriad of top-secret government surveillance programs, some of which had questionable legal bases.

In 2013, Snowden, a contractor retained by Booz Allen Hamilton, smuggled the confi- dential information out of National Security Administration offices in Hawaii on flash drives. Using encrypted email and instant messaging, Snowden contacted several journalists to provide them with the documents while he fled to Hong Kong in fear of arrest by the American government, documented in the 2014 film Citizenfour.

Snowden has said his motive for the leaking was to let the public know what the govern- ment was doing in their name. He said he was careful to give the documents directly to trusted journalists and asked them to evaluate what information should be made public and what information would be too harmful to be made public. He was charged with theft of government property and two counts of violating the Espionage Act, including “unauthorizedcommunicationofnationaldefenseinformation”and“willfulcommunicationof classified communications intelligence information to an unauthorized person.”

PRISM. One of the first major stories from the Snowden documents was reported by Glenn Greenwald, a freelance journalist working for the British newspaper The Guardian.

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Greenwald worked with Snowden to break the news in June 2013 that the United States and Great Britain were engaged in a mass surveillance program called PRISM. The initial Greenwald story alleged that “The National Security Agency is currently collecting the tele- phone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.” The justification for this surveil- lance came from Section 215 of the USA PATRIOT Act, which allows the FBI to compel the overturning of “any tangible things” to help in its investigations regarding national security. The Guardian also posted a copy of a Microsoft Powerpoint document that outlined how PRISM was supposed to work. The presentation, The Guardian suggested, “was apparently used to train intelligence operatives on the capabilities of the program.” Nine communi- cations companies, including Microsoft, Yahoo!, Facebook, Google, Skype, YouTube and Apple, were included in the presentation as participants in PRISM.

Immediately after the disclosure, national intelligence sources said that PRISM was not a surveillance program but rather a way to gather and organize information under the guid- ance of the Foreign Intelligence Surveillance Act (FISA). However, the disclosure led Rep. James Sensenbrenner, an author of the PATRIOT Act and a Republican House member from Wisconsin, to say the program far exceeded its legal basis.

Two courts in 2013 considered whether the NSA’s collection of phone metadata is consti- tutional—and came to opposite conclusions. In Klayman v. Obama (957 F. Supp. 2d 1), the D.C. District Court said that the collection was “almost-Orwellian” and noted that not only was the Supreme Court case which evaluated the government’s ability to gather telephone data dated from 1979 (Smith v. Maryland, 442 U.S. 735) dated in terms of the scope of that ability. However, a federal court in New York found otherwise. District judge William Pauley pointed out several circumstances under which NSA surveillance, had it been in place prior to the Sept. 11, 2001 attacks, could have foiled al-Qaeda plots (ACLU v. Clapper, 959 F. Supp. 2d 724). The tool works now, Judge Pauley said, because it is “blunt” and “collects everything.” Pointing out that Section 215 of the PATRIOT Act has been renewed by Congress seven times because “the war on terror did not end,” he could find no First Amendment violation.

Other disclosures and reactions. PRISM was just one of many programs made public by the Snowden leaks. Other programs of mass surveillance had names such as Tempora, Boundless Informant and XKeyscore. In an ominous quote underscoring the reach of these programs, Snowden said, “I, sitting at my desk, [could] wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email [address].”

Snowden has been hailed a traitor as well as a hero for his leaks, thought to be the largest in American history. President Obama said Snowden’s leaks laid bare to other countries and terror- ists some of the United States’ most important national security efforts. U.S. Secretary of State John Kerry said Snowden’s leaks “damaged his country very significantly.” Conversely, Daniel Ellsberg, who leaked the famous Pentagon Papers (discussed in Chapter Three), said in 2014, “Edward Snowden has done more for our Constitution in terms of the Fourth and First Amend- ment than anyone else I know.” Two newspapers, the Guardian and the Washington Post, were awarded the 2014 Pulitzer Prize for Public Service for their reporting on the Snowden leaks.

In 2013, Attorney General Eric Holder announced that Snowden would not face the death penalty or torture if he returned to the U.S. to face charges of espionage. At the time of this writing, Snowden remains in Russia, where he has been living with temporary asylum.

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Chapter Two 61

62 The Legacy of Freedom

Censorship in the 21st Century

In much of the world it is still commonplace for governments to censor the media directly. It was not long ago that those who advocated basic civil liberties were brutalized in many other countries that now permit free expression and free elections. The story of how earlier generations won the freedoms we enjoy today is an important part of this summary of mass communications law. Within the United States, however, the overriding factor in determining the status of freedom in the near future is likely to be the progress of the war against terrorism. Already, legal controversies have raged over issues such as the propriety of trying some of those accused of terrorist acts in military as opposed to civilian courts, as President George W. Bush decreed by executive order. Military courts lack some of the safe- guards guaranteed by the U.S. Constitution in civilian courts.

Whenever a society feels threatened by subversive forces within or powerful enemies abroad, freedom suffers. Over the past 200 years, constitutional freedoms have been curtailed repeatedly in wartime. Former Chief Justice William Rehnquist wrote a book in 1998, several years before Sept. 11, summarizing some of that history. In All the Laws but One: Civil Liberties in Wartime, Rehnquist discussed Supreme Court decisions concerning the constitutionality of military trials for those accused of subversive activities. His conclusion was that the Supreme Court has often interpreted the law differently in wartime than in peacetime, but with each successive war, Americans became more protective of civil liberties and less willing to abandon constitutional rights in the name of national security.

Is that still true in this era of terrorism? Although the limits on First Amendment free- doms within the United States since Sept. 11 have been minimal compared to those imposed during World War I, for example, there have been growing concerns both in the U.S. and abroad about America’s respect for human rights overseas. The United States was once something of a beacon to the world in advocating broader human rights. When the United Nations General Assembly approved the Universal Declaration of Human Rights in 1948, the United States was its most prominent advocate. The U.S. was a leading advocate of the 1975 Helsinki Accords, in which 35 mostly European countries pledged to respect basic human rights. The U.S. has also been a leading advocate of human rights within the Inter- American Commission on Human Rights, among other international bodies.

But in the 2000s, many human rights advocates in America and abroad expressed concerns about the way the U.S. government was pursuing the war on terrorism. Perhaps the most controversial practice was “extraterritorial rendition” in which U.S. agents kidnapped suspected terrorists and their supporters in foreign countries and took them to still other countries for questioning that involved torture, using methods not legal within the U.S. Many Americans and others asked whether these acts were necessary and appropriate ways to fight terrorism. The abuse and torture of Iraqi detainees by American military personnel in the Abu Ghraib prison is another uncomfortable element of this new war on terror.

Looking beyond the effect of terrorist threats on civil liberties, there are other issues that should not be ignored. The behavior of the media themselves may help determine how much freedom we have. Journalistic sensationalism, inaccuracy and arrogance—as well as monopolistic media business practices—invite punitive responses by governments. Perhaps one can point at WikiLeaks and Snowden as well, as its bold releases of information are decried by some as espionage. If the media are to preserve their freedom, they must stand firm against abuses by governments at all levels, but they must also be responsible in exercis- ing that freedom.

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Chapter Three 63

3

Modern Prior Restraints

Censorship. That word has a lot of emotional impact today, just as it has throughout American history. But its meaning has shifted over the years. Today, censorship in a legal sense usually means prior restraint of communications by an agency of govern- ment, not subsequent punishment for disseminating an unlawful form of communication. As Chapter Two explains, the First Amendment is not absolute: the courts have allowed a variety of limitations on freedom of expression. But most of those limitations would be classified as subsequent punishments, not prior restraints. For example, lawsuits that charge someone with libel or invasion of privacy involve the threat of subsequent punishments, not prior restraints. The media are free to disseminate defamatory communications or communications that invade someone’s privacy, but they must be prepared to face the legal consequences—afterward.

However, there are some occasions when prior restraints are permitted—times when an agency of government actually engages in some form of prior censorship. And prior restraints are usually considered a far greater threat to freedom than subsequent punish- ments. If the media are free to publish controversial or unpopular facts and opinions without government interference beyond the threat of punishment afterward, at least a few courageous publishers and broadcasters (or bloggers) will take the risk and make the ques- tionable material public. If the material turns out to be of social importance, the publisher may still be punished, but at least the people will have the information and a public dialogue can begin. However, if government authorities can prevent the publication from ever occurring, the public may never know about important facts or ideas, and the democratic process may be thwarted. A democratic society cannot long survive if prior censorship by government is commonplace.

Only a few forms of prior restraint are permitted in America today; many communica- tions that are highly offensive to someone (or perhaps to almost everyone) are protected by the First Amendment and may not be censored. Nevertheless, there are times when prior censorship does occur, or is attempted, at least. The result may be a major controversy—and perhaps a landmark court decision. For example, sometimes government officials attempt to censor the news media to prevent the dissemination of information that they see as a threat to national security. And sometimes unpopular groups are denied the right to demonstrate or distribute literature in public places such as city sidewalks or parks, or to place their monuments in those parks.

Another form of prior restraint involves laws that have been enacted to forbid “hate speech” that expresses hostility on the basis of ethnicity, religion, gender or sexual orientation; as we will see, funerals have become a hot spot for picketing activity, with the Supreme Court agreeing to hear a funeral picketing case. Also, discriminatory taxation of the media can be a form of government censorship. And there are other examples of prior restraints: government censorship of controversial films, bureaucratic attempts to regulate stock market newsletters, issues of animal cruelty and rules that forbid the media to publish confidential information such as the names of juvenile offenders or rape victims. In all of these diverse situations, there is one common element: a government agency or official is attempting to censor some kind of communication that is considered unacceptable—and that action raises First Amendment questions. In this chapter, we look at these and a few other forms of prior restraint.

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64 Modern Prior Restraints

prior restraint:

government stopping speech before it has been published; also often called censorship.

vacate:

to set aside or void.

content-neutral regulation: a regulation that regulates all speech the same, regardless of content; gets a lower level of judicial scrutiny, called “ordinary scrutiny” or “relaxed scrutiny.”

content-based regulation:

a regulation that regulates speech based on its content; gets a high level of judicial scrutiny, called “strict scrutiny.”

intermediate scrutiny:

a standard of review that requires that the law furthers an important govern- ment interest in a way substantially related to that interest.

time, place and manner regulation: a content-neutral regu- lation that regulates the time, place and/or manner of speech acts.

public forum:

a place in which free speech activities tradi- tionally take place.

NEAR V. MINNESOTA

A good place to begin any discussion of prior restraints is a landmark Supreme Court decision more than 85 years ago—a case that resolved some of the most basic issues in this field of law. In the 1931 case of Near v. Minnesota ex rel. Olson (283 U.S. 697), the U.S. Supreme Court made it clear that prior restraints are gener- ally improper in America. The case resulted from a Minnesota state law that allowed government officials to treat a “malicious, scandalous and defamatory newspaper” as a public nuisance and forbid its publication. Under this law, a county attorney brought suit to shut down The Saturday Press, a small weekly newspaper produced by Howard Guilford and J. M. Near.

Guilford and Near had published several articles critical of certain public officials over a period of two months. In their attacks, they charged that a gangster controlled gambling, bootlegging and racketeering in Minneapolis. They claimed law enforcement agen- cies did little to stop this corruption. In particular, they accused the police chief of gross neglect of duty, illicit relations with gangsters and participation in corruption. A trial court ruled the paper a public nuisance under the Minnesota law and banned its further publication. The Minnesota Supreme Court affirmed the ruling, and Near appealed to the U.S. Supreme Court.

Rare prior restraints. In a decision that made constitutional history, the Court overturned the lower courts and allowed Near to continue publishing. In a narrow 5-4 decision, the Court traced the history of prior restraints and concluded that a newspaper may not be censored before publication except under very exceptional circumstances. Chief Justice Charles Evans Hughes wrote:

The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publica- tions relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional rights. The general principle that the constitutional guaranty of the liberty of the press gives immunity from previous restraints has been approved in many decisions under the provisions of state constitutions.

The Court cited James Madison’s interpretation of the First Amendment as well as the views of William Blackstone, a highly respected British jurist of the eighteenth century. Blackstone argued against prior restraints but in favor of punishments after- ward for those whose publications turn out to be unlawful.

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Chapter Three 65

The Supreme Court also pointed to Schenck v. U.S. (discussed in Chapter Two) as an example of an exceptional circumstance in which prior restraint might be proper. Chief Justice Hughes said that, in addition to prior censorship in the interest of national security, prior restraints might be proper to control obscenity and incitements to acts of violence. The Court said, “The constitutional guaranty of free speech does not protect a man from an injunction against uttering words that may have all the effect of force.”

In the decades since the landmark Near v. Minnesota decision, the closeness of the Supreme Court’s vote against prior restraints has often been overlooked. The dissenters in Near, who needed just one more Supreme Court justice on their side to prevail, would have allowed prior restraints under many more circumstances. In fact, their reading of history led them to believe that the only form of prior restraint the First Amendment was actually intended to prohibit was licensing of the press by the executive branch of government.

Despite the decision’s closeness, the Near case established a pattern that the Supreme Court has followed ever since. The Court has often invalidated prior restraints on the media, declaring that censorship would be possible under the right conditions but usually failing to find those conditions. But this doesn’t mean there are no attempts at prior restraint; in just one example, in 2010 a judge enjoined a legal newspaper from publishing informa- tion obtained from court records in a story about POM Wonderful; this case is discussed in Chapter Seven (and POM’s health claim issues are covered in Chapter Thirteen).

NATIONAL SECURITY AND THE “PENTAGON PAPERS”

One of the most controversial forms of prior restraint has involved government efforts to censor the news media to prevent potential breaches of national security. In 1971 the Supreme Court decided a very significant case involving censorship in the name of national security, a case that pitted then-President Richard Nixon against two leading newspapers, the New York Times and the Washington Post. The case came to be known as the “Pentagon Papers” case, although its official name is New York Times v. U.S. (403 U.S. 713). For the first time in U.S. history, the federal government sought to censor major newspapers to prevent them from publishing secret documents that would allegedly endanger national security.

Background. A secret Defense Department study of American policy during the Vietnam war was surreptitiously photocopied and portions of it given to several newspapers. It revealed questionable decisions by four presidents (Truman, Eisenhower, Kennedy and Johnson) that led the country into war. Although the “Pentagon Papers” only covered the period through 1968, and thus did not cover Nixon’s presidency (he took office in 1969), the Times’ and Post’s editors knew Nixon would be outraged if these documents were published. But after consulting with First Amendment lawyers, the Times and Post went ahead.

When the first installment of a planned series based on the “Pentagon Papers” appeared in each newspaper, the Nixon administration demanded that the Times and Post halt all further stories on the subject. When they refused, the Justice Department secured a tempo- rary order from a federal district judge forbidding the Times to publish any more articles on the “Pentagon Papers.” The judge then changed his mind and vacated (set aside) the order, but a federal appellate court reinstated it. The case was immediately appealed to the U.S. Supreme Court. Meanwhile, another federal appellate court refused to stop the Post from publishing more stories about the “Pentagon Papers.”

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66 Modern Prior Restraints

In view of the flagrant censorship inherent in the order against the Times, the Supreme Court decided the case only two weeks after the controversy arose, during what might other- wise have been its summer recess. The Nixon administration argued that publication of the “Pentagon Papers” would endanger national security and damage U.S. foreign relations.

The newspapers replied that this was a clear-cut First Amendment issue involving infor- mation of great importance to the American people. Further, the newspapers contended that the entire classification system under which these documents were declared secret should be revised. The system existed only by presidential order; it was not established by an act of Congress. And at least one Pentagon official had conceded in Congressional testimony that only a few of the millions of classified documents actually dealt with bona fide military secrets or other material affecting national security.

The decision. The Supreme Court voted 6-3 to set aside the prior restraint and allow the publication of articles based on the “Pentagon Papers.” Journalists proclaimed the victory as if it were the outcome of the Super Bowl. Newsweek, for instance, put “Victory for the Press” in bold yellow type on its cover. But unfortunately, it wasn’t that clear cut. In a brief opinion, the Court had simply said the government had failed to prove that the articles would endan- ger national security sufficiently to justify prior restraint of the nation’s press. In the majority were Justices Black, Brennan, Douglas, Marshall, Stewart and White. The minority consisted of Justices Harlan and Blackmun and Chief Justice Burger.

In addition to the brief opinion by the Court, the nine justices wrote their own separate opinions explaining their views. When legal scholars began analyzing those opinions, they realized the decision was no decisive victory for the press. Only two of the justices (Black and Douglas) took the absolutist position that prior restraints such as the government sought would never be constitutionally permissible. Justice Marshall said the courts should not do by injunction what Congress had refused to do by statute (i.e., authorize prior censorship). Justice Brennan said the government simply hadn’t satisfied the very heavy burden of proof necessary to justify prior censorship in this case.

However, the other five made it clear they either favored censorship in this case or would at least condone criminal sanctions against the nation’s leading newspapers after publication of the documents. At least two justices (Harlan and Blackmun) favored prior restraint in this case, while Chief Justice Burger voted to forbid publication at least until the lower courts had more time to consider the matter, although he didn’t really address the substantive issue of prior restraint. Justice White, in an opinion joined by Justice Stewart, said the government had not justified prior censorship but also suggested (as did Burger) that the editors could face criminal prosecution after publication for revealing the secret documents.

Thus, the “Pentagon Papers” case was not a clear-cut victory for freedom of expres- sion, but at least the nation’s press was allowed to publish stories based on the documents. No journalist was ever prosecuted in connection with the “Pentagon Papers,” although the government unsuccessfully prosecuted Dr. Daniel Ellsberg, the social scientist who copied the documents in the first place. In June 2011, the federal government finally released the entire 7,000-page report, 40 years after the Times published its stories.

The Progressive case. The question of prior restraint in the interest of national security also arose in a controversial 1979 case, U.S. v. The Progressive (467 F. Supp. 990). This case was never given full consideration even by a court of appeals, let alone by the Supreme Court, so it has limited value as a legal precedent. Nevertheless, it did dramatize the conflict between freedom of the press and the need for national security.

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FIG. 14. Daniel Ellsberg speaking at the 2012 Whistleblower Conference in Berkeley.

Carol Leigh AKA Scarlot Harlot, “Daniel Ellsberg at Whistleblower Conference Berkeley 2012,” Feb. 17, 2012 via Flickr, Creative Commons attribution license.

The Progressive, a liberal magazine, was planning to publish an article entitled “The H-bomb Secret: How We Got It, Why We’re Telling It.” The author, Howard Morland, had assembled an apparently accurate description of a hydrogen bomb through library research. The magazine sent the article to the federal government prior to publication, requesting that its technical accuracy be verified. The U.S. Department of Energy responded by declar- ing that publication of the article would violate the secrecy provisions of the 1954 Atomic Energy Act. The U.S. Justice Department sought a court order prohibiting publication.

Federal Judge Robert Warren issued an order forbidding the magazine to publish the article. He said the article could “accelerate the membership of a candidate nation in the thermonuclear club.” He distinguished this case from the “Pentagon Papers” case in that he said the H-bomb article posed a current threat to national security. Also, he ruled, a specific statute prohibited the article’s publication, whereas there was no statutory authorization to censor the “Pentagon Papers.”

Ultimately, however, Judge Warren offered a pragmatic rationale for censorship: “Faced with a stark choice between upholding the right to continued life and the right to freedom of the press, most jurists would have no difficulty in opting for the chance to continue to breathe and function as they work to achieve perfect freedom of expression.”

Doubting that the issue was quite that black and white, The Progressive appealed Warren’s ruling. However, before a federal appellate court could decide the case, articles describ- ing an H-bomb in similar detail appeared in other publications, rendering the case moot (beyond the law’s reach). Once the information was published elsewhere, the government dropped its attempt to censor the magazine article.

Therefore, the Progressive case left many important issues unresolved. One of the most troubling is that the information for the article was gleaned from non-classified sources, yet when it was put into an article questioning the classification system, the U.S. government tried to censor it. Also, Judge Warren’s abandonment of the First Amendment invited appel- late review. In reviewing Warren’s order, a higher court might have clarified the extent to which the national security classification system overrides the First Amendment.

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68 Modern Prior Restraints

Censoring Present and Former Government Employees

Should government employees have the same First Amendment rights as other citizens? What about employees of agencies such as the Central Intelligence Agency (CIA), who have access to government secrets and are required to sign agreements that they will not disclose these secrets? What about other government employees—people who have no particular access to government secrets?

Problematic books. A major challenge to the national security classification system came from two former employees of the Central Intelligence Agency, both of whom published books on their CIA experiences. In both instances, the agency attempted to censor the ex-employees’ writings under a provision of their employment contracts that prohibited them from publishing information they gained as CIA agents without the agency’s prior approval. Both employees said these provisions violated their First Amendment rights.

The first case, U.S. v. Marchetti (466 F.2d 1309, 1972), arose after Victor L. Marchetti left the CIA and published a book and a magazine article critical of CIA activities. When the agency learned he was about to publish another book, it got a court order temporarily halt- ing the project. After a secret trial (much of the testimony was classified), the court ordered Marchetti to submit everything he might write about the CIA to the agency for approval. Marchetti appealed that decision, but it was largely affirmed by the U.S. Court of Appeals.

However, the appellate court said the CIA could only censor classified information, and after further legal maneuvering a district court allowed the agency to censor only 27 of 166 passages in the new book that the agency wanted to suppress.

Although the U.S. Supreme Court refused to review the Marchetti case, in 1980 it did rule on a similar case, Snepp v. U.S. (444 U.S. 507). Former CIA agent Frank Snepp resigned in 1976 and wrote a book alleging CIA ineptness in Vietnam. He did not submit it for prior CIA approval, as required by his employment contract. After its publication, the U.S. govern- ment filed a breach of contract suit against Snepp. Snepp contended the contract violated his First and Fifth Amendment rights.

A trial court ordered Snepp to turn over all his profits from the book to the government and submit any future manuscripts about the CIA to the agency for prior approval. An appel- late court reversed that ruling in part, prompting the Supreme Court to hear the case.

The Supreme Court reinstated the trial court’s order against Snepp without even hear- ing full arguments from both sides: the Court never let Snepp present his case. But the high court upheld the validity of the contract, ignoring the prior censorship implications of such contracts. The Court said: “He (Snepp) deliberately and surreptitiously violated his obligation to submit all material for prepublication review. Thus, he exposed the classified information with which he had been entrusted to the risk of disclosure.”

The Snepp case, then, was decided according to the provisions of Snepp’s employment contract and would not be applicable to persons who had not signed such contracts. However, thousands of present and former CIA employees are subject to such contracts—and the CIA has now reviewed and censored many other manuscripts written by former employees.

This issue arose again in 2007 when former CIA operative Valerie Plame Wilson and her publisher sued the CIA for forbidding her to publish such basic facts as the dates of her CIA employment in her memoir. Plame became newsworthy because the former top aide to Vice President Dick Cheney, I. Lewis “Scooter” Libby, was convicted of perjury for denying his role in revealing Plame’s CIA status to the media after her husband wrote a newspaper column critical of the Bush administration. She lost, even though those dates

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had been reported online because the government had not declassified them. In 2009, the Second Circuit ruled that the CIA’s refusal to allow Wilson to publish information about her possible pre-2002 CIA service, even though the information had been previously publicly disclosed, did not violate the First Amendment (Wilson v. CIA, 586 F.3d 171).

Honoraria. Another controversy over restrictions on the speech rights of government employees occurred in 1989 when Congress amended the Ethics in Government Act to bar not only members of Congress but virtually all federal workers from receiving “hono- raria”—payments for writing articles or giving speeches—even if the subject has little to do with their official duties. Few would question the wisdom of telling federal officials they cannot be paid for giving talks about job-related subjects to special interest groups that they regulate. But the federal regulations written to implement the law did not stop there. One Internal Revenue Service worker pointed out that she had been supplementing her $22,000 annual salary by earning about $3,000 a year as a freelance writer. Her articles were about camping and the outdoors, a subject that had nothing to do with her job, but the new rules prohibited her from being paid for her writing. Other workers who wrote or gave talks about subjects such as African-American history, the Quaker religion and dance performances also objected to the rules. Several lawsuits were filed by government workers who had been paid for writing or speaking about subjects unrelated to their work, contending that they should have the same right as other citizens to be paid for writing and speaking.

In 1995, the Supreme Court ruled on this question in U.S. v. National Treasury Employees Union (513 U.S. 454). The Court said the ban on federal employees receiving pay for writ- ing articles or giving speeches was excessively broad and a violation of the First Amend- ment. The Court’s 6-3 majority held that Congress had gone too far by banning payments for speeches and articles not only by senior government officials but also by rank and file employees of the executive branch. The Court ruled that lower-level employees could not be barred from accepting payments for speeches and articles.

In 1993 Congress expanded the free expression rights of federal workers by amending the Hatch Act, which prohibited most partisan political activities by federal employees for more than 50 years. Under the 1993 amendments, most federal workers may now work in political campaigns, do political fund-raising and hold positions in political parties— as long as it’s on their own time. Federal workers are still barred from holding partisan elective offices, however. About 85,000 workers in sensitive federal jobs, such as many law enforcement and national security-related positions, are not covered by the 1993 Hatch Act amendments and are still barred from partisan political activities, even on their own time.

Speech acts. Although many public employees now have a right to speak publicly about controversial issues, the First Amendment does not necessarily protect their right to report alleged wrongdoing to superiors inside a government agency. In Garcetti v. Ceballos (547 U.S. 410), a 2006 decision, the Supreme Court ruled that the First Amendment does not protect a government attorney who allegedly faced retaliation after reporting suspicions of police misconduct to a supervisor. Writing for a 5-4 majority, Justice Anthony Kennedy said, “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The First Amendment applies if certain conditions are met: the employee is speaking as a private citizen, not as a public employee, and the speech is a matter of public concern.

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70 Modern Prior Restraints

The Court was divided along liberal-conservative lines, with Samuel Alito providing the deciding vote. The Court was apparently deadlocked 4-4; the case was re-argued when Alito joined the Court, enabling him to participate—creating a 5-4 majority. (A newly appointed justice cannot vote in cases argued before he or she joined the Court.)

Then, in 2011, the Court handed down a pair of decisions that provided additional guid- ance regarding the First Amendment’s protections on speech or petition acts by government employees. The first case, Nevada Comm’n on Ethics v. Carrigan (131 S. Ct. 2343), saw the Court uphold a Nevada law that prohibited government employees from voting on or debat- ing matters in which they have a conflict of interest. Sparks city council member Michael Carrigan was censured by the state for failing to recuse himself from a vote for a casino proj- ect whose developer retained a close friend of Carrigan’s.

Writing for a unanimous Court, Justice Antonin Scalia noted that voting by a lawmaker should not be considered a personal speech act. “[A] legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal” and not his own speech act, unlike those of voters, which are their own symbolic speech acts, said Scalia. Moreover, he added, the United States has had a long history of conflict-of-interest rules that require recusal.

In the second 2011 case, Borough of Duryea v. Guarnieri (131 S. Ct. 2488), the Court placed additional limits on government employees’ First Amendment protections for work- place grievances. Charles Guarnieri filed a union grievance when he was fired as chief of police in Duryea, Penn., and when he was rehired, orders were issued that governed his return to the position. He argued that the grievance was a petition protected by the First Amendment (by the petition clause, not the free speech clause), and these orders were in retaliation for that protected grievance. The Third Circuit said that the public concern test does not limit public employees’ petition clause claims, but the Supreme Court disagreed, ruling unanimously that government retaliation against an employee does not create liability under the First Amendment’s petition clause unless the petition deals with a public concern.

Justice Anthony Kennedy did not create a different rule for actions under the peti- tion clause: “Unrestrained application of the Petition Clause in the context of government employment would subject a wide range of government operations to invasive judicial super- intendence,” adding, “Petitions, no less than speech, can interfere with the efficient and effective operation of government.” Justices Clarence Thomas and Antonin Scalia concurred; Thomas doubted that lawsuits should count as petitions under the First Amendment, and Scalia questioned whether the “public concern” test should apply in petition cases.

In 2014, the Court unanimously said that the First Amendment protects a public employee’s subpoenaed testimony (Lane v. Franks, 134 S. Ct. 2369). Here, Edward Lane, who worked for a community college program, was protected for his testimony in a criminal case examining fraud in that program. But the protection did not extend to personal liability for Lane’s firing, because the law was not sufficiently settled. Justice Sonia Sotomayor wrote bluntly for the Court, “[T]he First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities,” calling this speech “speech as a citizen for First Amendment purposes.” The case, she said, was “a straightforward application of Garcetti.”

Whistleblowers and state laws. Garcetti does not affect federal and state laws that protect whistleblowers. However, said the Court, if no such law protects an employee in a particular situation, the First Amendment does not fill the gap. On the other hand, if an employee’s allegation of wrongdoing by superiors is not related to the employee’s official

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duties, such speech is still protected by the First Amendment, according to a 2007 Ninth Circuit decision (Marable v. Nitchman, 511 F.3d 924). Ken Marable, an engineer for the Washington State Ferry system, complained that his superiors were engaged in corrupt practices that wasted public funds and endangered public safety. He said he faced disci- plinary actions and sued, alleging his First Amendment rights had been violated. The court said Marable had a right to pursue his case because his speech had nothing to do with his official duties and had “all the hallmarks that we normally associate with constitu- tionally protected speech.”

State law can also control whether an employee’s speech is protected. In Huppert v. City of Pittsburg (574 F. 3d 696, 2009), the Ninth Circuit said that a police officer who talks to FBI agents about police corruption outside his normal job and is allegedly punished by the police department for doing so is actually pursuing his official duties, and therefore that speech is not protected. Relying on Garcetti, the court said that Ron Huppert’s speech “owes its existence to [his] professional responsibilities” and was not protected—even though Huppert had been told by the FBI that his inquiries were not part of his official duties. The court added that police officers’ official duties under California law include crime detection and prevention, so Huppert’s conversations with the FBI were part of his job.

A related question that often arises among journalists and public relations practitioners is whether government employees can be forbidden to talk to a reporter without first seek- ing approval of a public affairs officer or other government official. The Second Circuit held that such a requirement violates the First Amendment in Harman v. City of New York (140 F.3d 111, 1998). A radio station interviewed a child-welfare worker about the death of a young child. When the interview was aired, the employee was suspended for speaking to the media without first getting approval from New York’s Media Relations Office as required by city policy. The worker sued, and the appellate court held that the city could not justify such censorship of government workers. Even though the city contended that the policy did not prevent city employees from speaking to the media, the court rejected it because it allowed city officials to delay an employee until his/her comments were no longer newsworthy.

Union membership and dues. The Supreme Court created a new category of public workers in 2014 in Harris v. Quinn (134 S. Ct. 2618), calling them “partial public employ- ees.” On a 5-4 vote, the justices said that the First Amendment does not allow these types of employees (here, home health care providers who don’t want to join a union) to be forced to pay an agency fee. Calling into question a 1977 precedent, Abood v. Detroit Bd. of Ed. (431 U. S. 209), in which it was held that forcing non-union members of a Detroit public school district to pay for collective bargaining did not violate the First Amendment, the Court said that “Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector.” Writing for the majority, Justice Samuel Alito declined to expand Abood’s reach. “If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line,” he wrote. The dissenters would have extended Abood.

On the heels of Harris v. Quinn, the Supreme Court granted cert for its 2015 Term a case in which the constitutionality of requiring government workers to pay fees to support labor union activity would be at issue. The case, Friedrichs v. California Teachers Ass’n (2013 U.S. Dist. LEXIS 188995), according to some commentators, was a direct challenge to Abood at its inception, and the lower courts decided it without opinions to clear the way for it to go to the Supreme Court.

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72 Modern Prior Restraints

Need Answers To An Open Book Exam For A Communication Law & Ethics Class On Chapters 1-3

False Speech

In recent years there have been a number of cases, including two high court decisions, dealing with false speech. Can a person be punished for publishing or saying things he or she knows to be false but that aren’t defamatory?

Stolen Valor Act. Several recent cases, including a Supreme Court case, dealt with a 2005 law called the Stolen Valor Act. This act criminalizes the false representation of having been awarded “any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item.” Courts’ reactions to the law were mixed. The Ninth Circuit struck down the act by a 2-1 vote as overbroad, while the Tenth Circuit upheld it.

The U.S. Supreme Court granted cert in the Ninth Circuit case and overturned the Stolen Valor Act by a 6-3 vote in 2012 (U.S. v. Alvarez, 132 S. Ct. 2537). Calling Xavier Alva- rez’s lies “but a pathetic attempt to gain respect that eluded him,” Justice Anthony Kennedy wrote that there is no “general exception to the First Amendment for false statements.” Quoting Justice Oliver Wendell Holmes’ dissent in Abrams v. U.S. (see Chapter Two), that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Kennedy said that the power of the American people to ferret out and refute false claims like those covered in the Act was preferable. “Truth needs neither handcuffs nor a badge for its vindication,” he added. Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, dissented. Alito accused the majority of a departure from “a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest.”

In two related cases, federal courts upheld a law that criminalizes knowingly wearing unauthorized military uniforms or insignia. In U.S. v. Hamilton (699 F.3d 356, 2012), the Fourth Circuit said, “We conclude that the insignia statutes are drawn sufficiently narrowly to satisfy the ‘most exacting scrutiny’ standard. By preventing the unauthorized wearing of military uniforms and honors, the insignia statutes seek to ensure that the individuals displaying these honors to the general public are those who actually have received such honors.” The Ninth Circuit agreed in U.S. v. Perelman (695 F.3d 866), saying that the law “reaches only intentionally deceptive acts, thus limiting the statute’s reach to a narrow range of conduct similar to that prohibited by impersonation statutes.”

Other false speech issues. The Stolen Valor Act is not the only instance of knowingly false speech to be punishable under state or federal law, and the outcomes are decidedly varied. For example, an Illinois state appeals court upheld a state law that criminalized false representation of someone as a parent, legal guardian or other relation of a minor child to any government official (Illinois v. Farmer, 949 N.E.2d 770), while a Minnesota state appeals court overturned a state statute that criminalized “knowingly making false statements that allege police misconduct, but not knowingly making false statements to absolve police” as an unconstitutional content-based restriction (Minnesota v. Crawley, 789 N.W.2d 899).

The Eighth Circuit relied on the Ninth Circuit’s analysis in Alvarez to overturn a part of the Minnesota Fair Campaign Practices Act that criminalizes knowingly making a false state- ment about a proposed ballot initiative. The court applied strict scrutiny and said, “Prior decisions that have discussed the worthlessness of speech categorically excepted from the First Amendment are descriptive not prescriptive—they tell us something about the speech

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Chapter Three 73

that is exempt but not about what other types of speech may be exempt from First Amend- ment scrutiny” (281 Care Committee v. Arneson, 638 F.3d 621, 2011).

In 2007, the Washington Supreme Court overturned a state law that allowed a government agency to punish political candidates for making what the agency deemed to be false statements in campaign materials. Marilyn Rickert, a Green Party candidate for state legislature, was fined $1,000 for making statements that the Public Disclosure Commission determined to be false about State Sen. Tim Sheldon, who was re-elected despite the alleg- edly false campaign flier. She challenged the fine. In Rickert v. Public Disclosure Commission (168 P.3d 826, 2007), the 5-4 majority said, “The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment.” The dissenters said the decision was an “invitation to lie with impunity.”

In Susan B. Anthony List v. Driehaus (134 S. Ct. 2334), the Supreme Court in 2014 unani- mously said that state laws making it a crime to issue false statements during a campaign are open to constitutional challenge. Sixteen states have such laws, and the Ohio Elections Commission law (up to six months in jail and a fine of up to $5,000) was at issue here, by Susan B. Anthony List, a pro-life group that had criticized members of Congress who voted for the Patient Protection and Affordable Care Act (“Obamacare”). Steve Driehaus, a former Congressman, brought suit because a SBA press release said he had “voted FOR taxpayer-funded abortion.”

Justice Clarence Thomas, writing for the Court, said, “[W]e have permitted pre-enforce- ment review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of pros- ecution thereunder.’” The Court remanded the case for the First Amendment challenge.

CENSORING “HATE SPEECH”

One of the most troubling First Amendment issues involves restrictions on what is called “hate speech.” During the late 1980s and 1990s, several hundred colleges adopted rules forbidding hostile remarks toward persons of any racial or ethnic group, gender or sexual orientation. These rules are intended to foster a campus environment that is not perceived as hostile by members of any group. But because many of these rules were written so broadly that they could be used to prohibit expression of unfashionable viewpoints on social issues, critics charged that they really enforced “politically correct” speech. Meanwhile, more than 40 states adopted laws criminalizing “hate speech” in various forms. Like many of the campus rules, some laws banned the expression of ideas, rather than forbidding violent acts.

Fighting words. Because these rules and laws are intended to punish those who express bigoted ideas, they have staunch defenders, including many civil libertarians. But do they really square with the First Amendment? Their defenders say that they do, and they cite the fighting words doctrine expounded by the Supreme Court in a famous case more than 60 years ago: Chaplinsky v. New Hampshire (315 U.S. 568, 1942). In that case, the high court upheld the criminal conviction of a man who used words likely to produce an immedi- ate violent response—a breach of the peace. Thus, speech likely to cause a fight, such as calling someone a “damned fascist” during the heyday of Hitlerism (as happened in Chaplinsky), may be prohibited, the Court ruled. Like calling someone a fascist then, “hate

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74 Modern Prior Restraints

speech” can be banned today under the fighting words rationale, the defenders of these laws and rules say.

However, in 1992 the Supreme Court revisited this controversial issue and ruled that “hate speech” cannot be banned on the basis of its content—although violent action can, of course, be prohibited. Ruling in the case of R.A.V. v. St. Paul (505 U.S. 377), the high court overturned a St. Paul, Minn. ordinance intended to punish those who burn crosses, display swastikas or express racial or religious hatred in other ways. The case involved a Caucasian youth who burned a homemade cross in the front yard of an African-American family’s home. He could have been prosecuted for a variety of other offenses, including arson and trespassing, but city officials chose to prosecute him under the “hate speech” law. Because he was a juvenile, “R.A.V.” was originally identified only by his initials. Later he was widely identified in the media as Robert A. Viktora.

In ruling against the St. Paul law, Justice Antonin Scalia said, “Let there be no mistake about our belief that burning a cross in someone’s yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amend- ment to the fire.” In an opinion that was a wide-ranging defense of the First Amendment right to express unpopular and offensive ideas, Scalia said that governments may not punish those who “communicate messages of racial, gender or religious intolerance” merely because those ideas are offensive and emotionally painful to those in the targeted group.

The Supreme Court was unanimous in overturning the St. Paul “hate speech” ordinance, but the justices disagreed about the legal rationale for doing so. Four justices (Byron White, Harry Blackmun, Sandra Day O’Connor and John Paul Stevens) argued that the ordinance was unconstitutional only because it was overly broad—not limited to expressions that could lead to violence under the fighting words doctrine.

The other five joined in a majority opinion taking a much broader view of the First Amendment rights of those who engage in “hate speech.” They said that any law is uncon- stitutional if it singles out expressions of “bias-motivated hatred” for special punishment. While the majority did not specifically overturn Chaplinsky, they made it clear that the fighting words doctrine cannot be used to suppress the expression of racial, religious or gender-based hostilities. That kind of viewpoint discrimination violates the First Amendment.

The R.A.V. v. St. Paul decision stirred a new national controversy about the meaning of the First Amendment—and it created deep rifts among traditional allies. The St. Paul youth was represented by the American Civil Liberties Union, which argued that St. Paul’s “hate speech” law violates the First Amendment. But other traditionally liberal, pro-civil-liberties groups such as People for the American Way criticized the Supreme Court ruling.

The R.A.V. ruling raised serious doubts about the constitutionality of many other “hate speech” laws as well as many of the campus speech codes adopted in recent years. However, this was by no means the first time the courts had held that “hate speech” is protected by the First Amendment. Several universities’ speech codes had been overturned by lower courts prior to the Supreme Court’s ruling in the R.A.V. case.

The Court’s 1992 decision on “hate speech” was reminiscent of Brandenburg v. Ohio, the Court’s 1969 decision upholding the First Amendment rights of a Ku Klux Klan member. As Chapter Two explains, that case represented an expansion of the scope of the First Amend- ment in that the Court upheld the Klansman’s right to make an offensive, bigoted speech at a Klan rally, as long as the speech did not create an imminent danger of violent action.

Penalty enhancement. On the other hand, when an act of violence is motivated by hatred based on race, religion, national origin, gender or sexual orientation, the First Amendment

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Chapter Three 75

Focus on… The law of flags

The flag is a revered symbol in America. For many, there is no more precious symbol of democracy and freedom. So when it’s burned or there are issues with its display, lawmakers get involved.

Burning the flag is an acceptable way to dispose of a damaged or old flag, and it is currently constitutional to burn one in protest. Inter- estingly, even after flag desecration laws were struck down in 1989 in Texas v. Johnson, legal blogger and First Amendment scholar Eugene Volokh found at least a dozen flag desecration prosecutions since 1992 (post-R.A.V.) in Florida, North Carolina, Pennsylvania, Texas, and Washington state (he reported that most were dismissed but two led to convictions).

In 2006, President Bush signed the Freedom to Display the American Flag Act, which prohibits condominium associations from denying their members the ability to display the flag. Associations can put reasonable time, place and manner restrictions on the display, such as size and flag pole placement, but cannot ban American flag display altogether. Several states have similar laws.

FIG. 15. American flag.

Author’s collection.

does not protect the violent act. Indeed, a state may impose harsher penalties for violent acts motivated by hatred than it would otherwise for the same violent acts. The Supreme Court so held in a unanimous 1993 decision, Wisconsin v. Mitchell (508 U.S. 476). The case arose when several African-American youths watched the movie Mississippi Burning and then attacked a white youth. After seeing the movie, Todd Mitchell, then 19, asked his friends, “Do you feel all hyped up to move on some white people?” Then Mitchell saw a 14-year-old youth across the street and said, “There goes a white boy. Go get him.” The victim spent several days in a coma, but survived. Mitchell was convicted of aggravated battery, and his sentence was increased under a state hate-crime law. Writing for a unanimous Court, Chief Justice William Rehnquist said, “A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.”

In so ruling, the Court upheld the law in Wisconsin—and similar laws in many other states—that treat hate crimes as more serious offenses than crimes in which hate cannot be proven to be the motivation. In 2000, the Supreme Court added a proviso to this: if there is a sentence enhancement for a hate crime (i.e., a crime is punished more severely if motivated by hate), that extra sentence must be imposed by the jury—not added later by the judge (Apprendi v. New Jersey, 530 U.S. 466).

Cross-burning. In 2003, the Supreme Court once again addressed the conflict between the First Amendment and legislative attempts to curb expressions of hate such as cross- burning. The Court again said cross-burning is protected by the First Amendment—but not when the act is an attempt to intimidate someone rather than an expression of symbolic speech. In Virginia v. Black (538 U.S. 343, 2003), the Court reviewed Virginia’s across-the- board ban on cross-burning. The Court upheld its use to prosecute those who burn a cross on a neighbor’s property with the intent to intimidate those who live there—or the intent to intimidate anyone else. But a majority of the Court also held that burning a cross in an open field at a political rally is protected by the First Amendment as symbolic speech unless the specific intent to intimidate can be proven.

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76 Modern Prior Restraints

Writing for the Court, Justice Sandra Day O’Connor said that the Ku Klux Klan’s history of using burning crosses to intimidate African-Americans, Jews and others justified Virgin- ia’s law against cross-burning that is intended to intimidate someone. “Threats of violence are outside the First Amendment,” she wrote, adding, “The burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm.” She said this history justifies Virginia’s decision (and that of many other states) to ban cross-burning as a “signal of impending violence.”

However, the Court overturned the conviction of the lead defendant in the case, Barry Elton Black, a Klansman who led a rally in an open field at a Virginia farm. The Court said there was insufficient proof that this political rally, which featured a verbal attack on “the blacks and Mexicans” and on former President Bill Clinton and his wife, Hillary Rodham Clinton, was specifically intended to intimidate anyone. Instead, the Court saw it as a form of protected symbolic speech. The rally concluded with the singing of “Amazing Grace,” and the symbolic burning of a 30-foot cross. The Court said two other defendants who had burned a cross in an African-American neighbor’s yard could be prosecuted for that.

Justice O’Connor reconciled the case with R.A.V. v. St. Paul by interpreting that deci- sion narrowly to protect only symbolic speech but not cross-burning intended to intimidate someone. “A ban on cross-burning carried out with the intent to intimidate is fully consistent with our holding in R.A.V. and is proscribable under the First Amendment,” she explained.

The 2003 decision led several justices to issue separate concurring or dissenting opinions. Perhaps most notable was Justice Clarence Thomas’ opinion. Thomas, the Court’s only African-American justice, said he would uphold the Virginia law and other anti-cross- burning laws in full. During oral arguments in this case, Thomas had called cross-burning “a symbol of a reign of terror.” In his separate opinion when the case was decided, he said cross- burning should never be regarded as symbolic speech protected by the First Amendment.

On the other hand, Justices David Souter, Ruth Bader Ginsburg and Anthony Kennedy said they would not uphold any law forbidding cross-burning. In an opinion joined by Gins- burg and Kennedy, Souter said any ban on cross burning is a “content-based” ban on a symbolic message and could not survive First Amendment scrutiny. One irony in Virginia v. Black is that Virginia rewrote its cross-burning law after a lower court invalidated the version of the law under review by the Supreme Court. The new law requires proof of intent to intimidate and would probably be upheld in full under the Court majority’s rationale.

In 2009, President Barack Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act after over a decade of advocacy by human rights groups. The act gives the Department of Justice jurisdiction over violent crimes where a victim has been chosen due to his/her race, color, religion, gender, sexual orientation or disability. The department can also help state and local jurisdictions with investigation of hate crimes.

Profane or offensive speech. Some years earlier the Supreme Court ruled that still another form of inflammatory and offensive speech is protected by the First Amendment in Cohen v. California (403 U.S. 15, 1971). In that case, Paul R. Cohen was criminally pros- ecuted for appearing in a Los Angeles courthouse wearing a leather jacket emblazoned with the motto “Fuck the Draft.” At the time, several people who had demonstrated against the Vietnam-era military draft were standing trial. The Supreme Court ultimately held that this was a constitutionally protected expression of opinion, despite the offensiveness of the word. Writing for the Court, Justice John Marshall Harlan said:

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While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because govern- mental officials cannot make principled distinctions in this area that the Consti- tution leaves matters of taste and style so largely to the individual.

Perhaps the main point of all of these cases is that the First Amendment protects the expres- sion of opinions in many forms, however unenlightened or vulgar the speaker’s ideas (or choice of words or symbols) may seem to be.

Is writing a profane sentence on the top of a traffic ticket payment punishable? No, said a state court judge in People v. Barboza (unpublished 2013 case, Justice Court Town of Falls- burg). A harassment charge was leveled against Willian Barboza, who wrote on the top of the payment to the town of Fallsburg, New York, “FUCK YOUR SHITTY TOWN BITCHES.” In dismissing the charge, the judge said that although the language was profane, “it is not a threat, it does not contain ‘fighting words,’ or create an ‘imminent danger.’” Barboza has brought suit in federal court for First and Fourth Amendment violations. Stay tuned.

City council meetings. The First Amendment does not protect unlawful conduct such as acts of intimidation, violence, arson or trespass. But the line is not bright: the Ninth Circuit in 2010 overturned a city council’s expulsion of a man who gave the Nazi salute at a council meeting. Robert Norse, a homeless advocate, performed the salute at two Santa Cruz city council meetings and was ejected. A panel of the Ninth Circuit found that the ejections did not violate Norse’s rights because his salutes were not “on account of any permissible expres- sion of a point of view” but rather in response to the council enforcing its own rules.

The Ninth Circuit reheard the case en banc and ruled for Norse on procedural grounds. The court said that the district court had not provided Norse enough time for him to build his case, nor did it rule on his objections to evidence (Norse v. City of Santa Cruz, 629 F.3d 966). Concurring, the redoubtable former Chief Judge Alex Kozinski noted that Norse’s salute might not have even been noticed had not one council member gotten offended and ordered Norse ejected. The council member, Kozinski said, “clearly wants Norse expelled because the ‘Nazi salute’ is ‘against the dignity of this body and the decorum of this body’ and not because of any disruption. But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech.” The Supreme Court denied cert. Norse lost in a federal jury trial in 2012, and his appeal for a new trial was rejected in 2013.

But part of another Southern California city council’s policy was rejected in 2012 as overbroad in Acosta v. City of Costa Mesa (694 F.3d 960). Benito Acosta was ejected from a Costa Mesa city council meeting because, he alleged, he expressed an opinion contrary to the mayor’s. The Ninth Circuit found the city council policy, which included a prohi- bition on “disorderly, insolent, or disruptive behavior” to include a significant amount of “non-disruptive, protected speech.” Instead of being limited to only actual disturbances, the policy, the court said, was facially overbroad.

“Not quite right” speech. What about speech that federal authorities feel is “not quite right” but isn’t an outright threat, or bumper stickers with a contrary political message at a president’s public speech? Steven Howards and his son were at a Colorado mall when then-Vice President Richard Cheney was making a public appearance there. Secret Service agents heard Howards tell someone on his cell phone, “I’m going to ask him [the Vice

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78 Modern Prior Restraints

President] how many kids he’s killed today.” The agents watched as Howards approached Cheney, asked him a question, and then laid a hand on his shoulder. The agents arrested Howard and turned him over to state law enforcement; those charges were dropped but Howards sued the agents under the First and Fourth Amendments. The Tenth Circuit said that agents violated Howards’ First Amendment rights by retaliating against him.

But the Supreme Court in 2012 unanimously said that the agents did not violate Howards’ First Amendment rights (Reichle v. Howards, 132 S. Ct. 2088). Justice Clarence Thomas wrote that the question was not one of First Amendment retaliation, but rather the “right to be free from a retaliatory arrest that is otherwise supported by probable cause”—and there is no such right, he said. Justice Ruth Bader Ginsburg, concurring in the result, added that the agents “were duty bound to take the content of Howards’ statements into account in deter- mining whether he posed an immediate threat to the Vice President’s physical security.”

Similarly, the Court in Wood v. Moss (134 S. Ct. 2056, 2014), clearly wanting to err on the side of precaution, unanimously said that the Secret Service did not have to treat a president’s supporters differently from his detractors when it came to ensuring his safety. Secret Service agents had moved a protesting group of individuals down the road from President George W. Bush as he ate dinner on a patio outside a restaurant in Jacksonville, Ore., putting the detractors about a block farther from the president than the supporters. The detractors sued, saying that the move was an unconstitutional viewpoint-based decision.

Expressing concern for direct lines of fire to President Bush, Justice Ruth Bader Ginsburg wrote for the Court, “No decision of which we are aware, however, would alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation ‘to ensure that groups with different viewpoints are at comparable locations at all times.’” The unusual addition of an area map, with an arrow added by the Court showing a direct line of fire from the first position to which the protestors were moved, further dramatized the Court’s holding in this very fact-based holding.

In a case that drew two Supreme Court justices’ dissent from denial of cert, a divid- ed panel of the Tenth Circuit affirmed qualified immunity for Secret Service agents who refused to allow two individuals to attend a 2005 speech given by President George W. Bush at a Colorado museum because the bumper sticker on their car read “No More Blood For Oil” (Weise v. Casper, 593 F.3d 1163). Leslie Weise and Alex Young were removed from the event in accordance with a White House Advance Office policy of excluding those who disagree with the President from his official public appearances. The court said that the law regarding was not clearly established at the time of the event, and “no specific authority instructs this court … how to treat the ejection of a silent attendee from an official speech based on the attendee’s protected expression outside the speech area.” The dissent pointed out that the speech in question “is unquestionably protected, or more accurately, entitled to be protected under the First Amendment.”

Weise and Young appealed to the Supreme Court, which declined to hear the case. However, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, took the unusual step of issuing a dissent from the denial of cert: “I cannot see how reasonable public officials, or any staff or volunteers under their direction, could have viewed the bumper sticker as a permissible reason for depriving Weise and Young of access to the event.”

Threats against the President. Sadly, the election of the first African-American president resulted in threats against the life of President Barack Obama and his family. The first arose against then-candidate Obama by Walter Bagdasarian, described by the Ninth Circuit as “an

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especially unpleasant fellow.” Bagdasarian posted on a Yahoo! message board comments such as “Obama fk the niggar, he will have a 50 cal in the head soon.” He was charged under a law that makes it a felony to threaten to kill or do bodily harm to a major presidential candidate. Under Virginia v. Black (discussed earlier), the court said the question that must be asked is “Did the speaker subjectively intend the speech as a threat?” In this case, the court said no, and thus there is no true threat (U.S. v. Bagdasarian, 652 F.3d 1113, 2011).

Flag-Burning and the First Amendment

While the constitutional ramifications of laws forbidding “hate speech” were being debated at colleges, in the media and in the nation’s courtrooms, there has also been much debate concerning a related free-expression issue: flag desecration. Americans have been bitterly divided over two Supreme Court decisions holding that flag-burning is a protected form of expression. Like cross-burning, the act of burning the American flag stirs strong feelings in many people—and they find it hard to see the value of permitting this kind of symbolic “speech.” When this issue gained national attention, it became clear that many Americans believed the American flag was a national symbol that deserved special protection. But like Ku Klux Klan members, those who desecrate the flag were given First Amendment protection by the Supreme Court. The Court concluded that there is a higher principle involved in these cases, and that a truly democratic society must extend free expres- sion rights even to those whose ideas or political activities are reprehensible to most people.

In 1989 and 1990, the Supreme Court handed down two separate decisions on flag- burning as symbolic speech protected by the First Amendment. In 1989, Texas v. Johnson (491 U.S. 397), the Court declared that Gregory Lee Johnson could not be punished for burning an American flag during the 1984 Republican National Convention to protest then- President Reagan’s policies. In a decision that produced strong dissenting opinions by four justices, the majority ruled that flag desecration is a protected form of symbolic speech, particularly when it occurs in a clearly political context (as it did in this case).

Like the Ku Klux Klan decision of 1969 and the “hate speech” decision in 1992, the flag desecration ruling brought vehement objections from many people. President George H.W. Bush, for example, called for a constitutional amendment to overturn the Johnson ruling and restore flag desecration as a crime. On the other hand, many civil libertarians feared that such a constitutional amendment would end up including restrictions on other First Amendment freedoms such as the right to express controversial views on racial issues and the right of consenting adults to possess erotic but non-obscene literature.

After a major public debate over this question, Congress enacted the Flag Protection Act of 1989, a federal law that carried penalties of up to a year in jail and a $1,000 fine for flag desecration. President Bush allowed this act to go into effect without his signature, declar- ing that he still favored a constitutional amendment instead of a statutory law that could be overturned by the courts. Predictably, the new law was challenged in court as soon as it went into effect. Recognizing the importance of this question, the Supreme Court agreed to hear this new case on an expedited schedule. In 1990—just a year after its first decision on this issue—the Court declared the new flag protection law to be unconstitutional.

Ruling in the case of U.S. v. Eichman (496 U.S. 310), the same 5-4 majority reaffirmed its earlier holding that flag desecration is a form of symbolic political speech protected by the First Amendment. While the four dissenting justices again advanced legal arguments to explain why they felt that the First Amendment should not protect those who desecrate

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Modern Prior Restraints

FIG. 16. Protesters outside the Lloyd Center Mall, August 2007.

Lisa Norwood, “Wars are barbaric slaughter,” August 28, 2007 via Flickr, Creative Commons attribution license.

the flag—as they did a year earlier—in the later decision they also took the unusual step of criticizing public officials who exploited the popular emotions on this issue for their own partisan gain. Writing for the four dissenters, Justice John Paul Stevens said the integrity of the flag is tarnished “by those leaders who seem to advocate compulsory worship of the flag even by individuals it offends, or who seem to manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends.”

Nevertheless, the Eichman decision triggered a new campaign for a constitutional amendment that would modify the First Amendment to exclude flag desecration from its scope. Congress took up the issue immediately. But this time, much of the debate centered on the question of whether it was wise to amend the First Amendment for the first time in American history. In June 1990, only days after the Eichman ruling, the proposed anti-flag-burning amendment was killed when the House of Representatives failed to give it the two-thirds majority required for constitutional amendments. As the debate reached its conclusion, many members of Congress argued that the flag is a symbol of American freedom—including even the freedom to burn the flag itself as a political protest. Repeated attempts at such an amendment have failed in Congress. But because most if not all state legislatures have already endorsed such a constitutional amendment, it could well be ratified by the necessary three-fourths (38) of the states if it ever clears both houses of Congress. The most recent version of the proposed constitutional amendment said only this: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

Does the R.A.V. decision—upholding the First Amendment rights of racial or religious bigots—and the Johnson and Eichman rulings—which upheld the First Amendment rights of flag-burners—mean that the First Amendment never allows speech or symbolic speech to be made a crime unless there is a call for action that may actually lead to unlawful acts or intimidate someone? Generally, the answer has been yes—even if the speech is highly offen- sive. But if unlawful acts of violence do occur, the violent acts are not protected by the First Amendment, as the Supreme Court pointed out in Wisconsin v. Mitchell.

In addition, the Supreme Court has also ruled that in some circumstances speech itself may be censored. For example, the high court has often ruled that the First Amendment does not protect speech or writings that are legally obscene. The problem in that area, of course, is deciding whether a particular work is obscene or merely pornographic but not legally obscene. That task has fallen to the Supreme Court, which has sometimes had to decide

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Chapter Three 81

on a case-by-case basis whether specific films, books, images or performances are obscene. Chapter Ten discusses the problems of obscenity, pornography and the First Amendment. Another category of speech that has not always been given full First Amendment protection is commercial speech (including commercial advertising), although that appears to be chang- ing now (see Chapter Thirteen). In addition, broadcasting does not enjoy the same First Amendment protection as other media. The courts have sometimes upheld government controls on broadcast content when similar controls would be unconstitutional if applied to other media (see Chapter Eleven).

CONTROLS ON LITERATURE DISTRIBUTION

If the First Amendment does not permit the direct censorship of such offensive forms of expression as “hate speech” or flag-burning, are there other ways governments can control those who want to engage in these forms of expression? Could a local government simply refuse to let a group like the Ku Klux Klan or the Nazi Party hold rallies or distribute litera- ture on public property? What about other groups whose views are controversial, such as Operation Rescue, an anti-abortion group known for confrontational demonstrations?

Over the years, there have been hundreds of court decisions about questions such as these. The basic answer is that federal, state and local governments may adopt content- neutral time, place and manner restrictions on First Amendment activities—but groups wishing to express controversial views cannot be censored through the use of laws governing public assemblies or literature distribution. For example, a government agency may require that all groups obtain a permit before holding a parade on the public streets or a large rally in a public park. And the permit could impose reasonable time limits or noise limits for such events. Similarly, a government agency may set reasonable limits on the places where groups hand out their literature or collect signatures on petitions. However, no government may issue permits for rallies, parades and literature distribution to groups with which it agrees, while denying permits to groups with which it disagrees unless there is a compelling state interest that justifies such a content-based restriction on First Amendment activities. The Supreme Court has repeatedly ruled on cases involving these issues, holding that governments may not arbitrarily deny controversial or unpopular groups the right to distribute literature or hold rallies or demonstrations in a public forum—a public place where First Amendment activities are regularly permitted.

Governments can also declare certain areas to be nonpublic forums and control literature distribution in that way. For example, in 2010 the Seventh Circuit rejected a non-profit group’s argument that a display rack in a state park was a public forum and said the park could refuse to display the group’s “scary” pamphlet that provided tips on avoiding asbes- tos contamination at the park (Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources, 584 F.3d 719). The Supreme Court declined to review the case.

Jehovah’s Witness Cases

The Supreme Court first ruled on the constitutionality of restrictions on literature distri- bution in cases involving the proselytizing activities of the Jehovah’s Witness movement. Since this religious group engages in door-to-door and street-corner soliciting that is unpop- ular with many Americans, its efforts led to restrictive ordinances in a number of cities by the late 1930s. The Witnesses challenged these limits on their First Amendment rights in a

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82 Modern Prior Restraints

series of lawsuits, several of which reached the U.S. Supreme Court and established new free- expression safeguards that benefitted not only Jehovah’s Witnesses but also the advocates of many other religious and political causes. In 2002, the Supreme Court revisited these issues again in still another Jehovah’s Witness case, illustrating the timelessness of these issues.

The first of these Jehovah’s Witness cases was Lovell v. City of Griffin (303 U.S. 444), decided in 1938. Alma Lovell, a Witness, circulated pamphlets in Griffin, Ga., without the city manager’s permission, something a local law required. She was fined $50, but she took her case all the way to the Supreme Court and won.

The Supreme Court found the ordinance invalid, saying it “strikes at the very foundation of the freedom of the press by subjecting it to license and censorship.” The city claimed the First Amendment applied only to newspapers and magazines and not to Lovell’s pamphlets. The Supreme Court disagreed: “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.” Moreover, the Court emphasized that the First Amendment protects the right to distribute literature as well as the right to publish it.

Elsewhere, a number of communities attempted to curb Jehovah’s Witnesses by using anti-littering ordinances against them. Several of these laws were considered by the Supreme Court in a 1939 case, Schneider v. State of New Jersey (308 U.S. 147).

The Court said a city indeed has the right to prevent littering, but it must do so by punishing the person who actually does the littering, not by punishing someone who hands literature to willing recipients. The person handing out a pamphlet cannot be punished even if the recipient later throws it away, the high court said.

In Schneider, the Supreme Court also invalidated a city ordinance that required anyone seeking to distribute literature door-to-door to get police permission first. The Court said giving the police discretion to decide which ideas may and may not be advanced by neighborhood canvassing is a violation of the First Amendment. A city may limit the hours of door-to-door soliciting, but requiring an advance permit is unconstitutional when the permit system gives police discretion to approve or deny permits for causes they like or don’t like.

In 1942, the Supreme Court first approved and then invalidated another city ordinance that had been used against a Jehovah’s Witness, this one simply requiring a $10 “book agent” license for all solicitors. In this case (Jones v. Opelika, 316 U.S. 584), the high court initially upheld the license requirement. But some 11 months later, the Court vacated its decision and adopted what had been a dissenting opinion as the majority view. The court’s final deci- sion was based on the fact that the ordinance gave city officials discretion to grant or revoke these licenses without explaining why the action was taken.

To the amazement of many, 60 years later the same kind of questions were addressed again in still another Supreme Court decision involving Jehovah’s Witnesses, Watchtower Bible and Tract Society v. Village of Stratton (536 U.S. 150, 2002). Stratton, a small town in Ohio, adopted an ordinance that made it a misdemeanor for door-to-door “canvassers” to promote “any cause” without first obtaining a permit from the mayor’s office. The ordinance also made it a misdemeanor for anyone to go to a private home where a “no solicitors” sign was posted—a provision the Jehovah’s Witnesses did not challenge.

After lower courts largely upheld the Stratton ordinance, the Supreme Court over- turned its permit requirement on an 8-1 vote. Writing for the Court, Justice John Paul Stevens said extending such a permit requirement to religious and political advocates and

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other non-commercial canvassers violates the First Amendment. The Court did not rule out permit systems that apply only to commercial solicitors.

Stevens said the Stratton ordinance is overbroad and “offensive—not only to the values protected by the First Amendment, but to the very notion of a free society.” He condemned laws that require citizens, “in the context of everyday public discourse,” to first inform the government of their desire to speak “and then obtain a permit to do so.”

As a result of these and other Jehovah’s Witness cases, it is now a settled principle of constitutional law that government authorities may not arbitrarily grant solicitation permits to those advocating popular ideas while denying permits to advocates of unpopular ideas. Even a content-neutral permit system that merely controls the time, place and manner of free expression raises constitutional questions because it precludes anonymous religious or political speech and forces those who want to engage in this kind of activity to ask a govern- ment for prior permission. For example, the Witnesses won a remand in 2011 in the First Circuit against a Puerto Rican law intended to combat crime called the Controlled Access Law, which permits municipalities to grant permits to neighborhood homeowners’ associa- tions to control vehicular and pedestrian access. The First Circuit said the law, as applied to the Witnesses, unreasonably burdened them in their proselytizing. Applying intermediate scrutiny, the court said that the law was not facially unconstitutional but that some limits on access were acceptable. Calling the case “novel and difficult,” the court noted that “the prec- edents on access to public places require fine tuning of the statute’s local administration” and remanded the case for further consideration (Watchtower Bible and Tract Society of New York, Inc. v. Sagardía de Jesús, 638 F.3d 81).

Prison inmates. What about access to prison inmates? The Ninth Circuit addressed the question in 2011 in Hrdlicka v. Reniff (631 F.3d 1044). Ray Hrdlicka wanted to distribute his magazine, Crime, Justice & America, free but unsolicited, to prison inmates in California county jails. Several jails had policies that did not allow the distribution. Relying on a test from an earlier Supreme Court case (Turner v. Safley, 482 U.S. 78, 1987), the district court had issued summary judgment for the jails. But a divided panel of the Ninth Circuit said that the Turner test was more nuanced than the district court had thought and reversed and remanded the case; the fact that the publication was not solicited by the prisoners did not, for the majority, matter: “A First Amendment interest in distributing and receiving informa- tion does not depend on a recipient’s prior request for that information.”

However, these cases generally involve the acts of government agencies that attempted to control the dissemination of ideas in public forums or by door-to-door canvassing. Is the rule different if the activity occurs in a company-owned town or a private shopping center?

Private Property and Literature Distribution

The Supreme Court first addressed the question of literature distribution on private property in a 1946 case, Marsh v. Alabama (326 U.S. 501). The case arose in Chickasaw, Alabama, a company town owned by Gulf Shipbuilding. The distribution of literature with- out permission of the town’s authorities was forbidden.

The case arose when a Jehovah’s Witness tried to pass out tracts there. She was told that permission was required before solicitation was allowed, and she would not be given permis- sion. She was ordered to leave, and when she refused she was prosecuted for trespassing.

Even though the entire town was privately owned, the high court stood by its earlier decisions in the Marsh case. Noting that for all practical purposes this company town was a

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84 Modern Prior Restraints

city, the Court applied the same rules to it as had been applied to other cities. The Court pointed out that the town was in fact open to the public and was immediately adjacent to a four-lane public highway. Even though the streets were privately owned, the public used them as if they were public streets. The Court said:

Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.

Shopping centers. More than 20 years later, the Supreme Court applied the same kind of logic to a private shopping center in Amalgamated Food Employees Local 590 v. Logan Valley Plaza (391 U.S. 308, 1968). This case involved union picketing, which had been forbidden on shopping center premises. The union challenged this rule and won.

The Supreme Court compared the private shopping center to the private town in Marsh and said the same right to distribute literature existed here. However, the Court said a factor in its decision was that the case involved a labor dispute to which a merchant in the shopping center was a party. The Court did not say whether the First Amendment would have applied if there had not been this close relationship between the picketing and the merchant.

That question was addressed by the Supreme Court in 1972 in Lloyd Corp. v. Tanner (407 U.S. 551). In that case there was no relationship between the material being distributed and any merchant in a shopping center. This decision allowed a large shopping center in Port- land, Oregon, to ban anti-Vietnam War protesters who wanted to pass out literature.

In the years between the Logan Valley and Lloyd decisions, four Supreme Court justices appointed by Richard Nixon had replaced key members of the liberal Warren Court, and those four justices helped create a new majority that backed away from the Court’s previous rulings about literature distribution on private property. The Court said there was no consti- tutional right to distribute literature in this case, particularly because there was no rela- tionship between the literature and the business being conducted at the shopping center. However, the majority did not specifically say it was overruling the Logan Valley decision.

In 1976 the Supreme Court came full circle, expressly reversing the Logan Valley deci- sion as it decided another shopping center case, Hudgens v. NLRB (424 U.S. 507). This case involved warehouse employees of the Butler Shoe Company who were on strike. When they picketed a Butler store in an Atlanta shopping center, the center’s management ordered them out of the mall. The National Labor Relations Board held this to be an unfair labor practice, and the shopping center owner appealed.

The Hudgens majority made it clear that there is no longer any constitutional right to distribute literature at a private shopping center, even if the literature specifically involves a labor dispute with a merchant doing business there. The Court said that, if First and Fourteenth Amendment rights are involved, the content of the material should be irrel- evant; it shouldn’t matter whether the literature has anything to do with the business being conducted at the shopping center or not. Whatever the subject matter of the literature, there is no constitutional right to distribute it at a private shopping center, the Hudgens majority ruled. However, this would not prevent the NLRB from ordering an employer to allow picketing on another legal basis; the Court merely ruled out any such right under the

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federal Constitution. The NLRB, for example, could rule that to deny picketing rights was an unfair labor practice, in violation of federal labor laws.

The PruneYard case. There were those who thought Hudgens settled the matter of litera- ture distribution at private shopping centers, but they were wrong. In 1980, the Supreme Court made another sharp turn in its circuitous route through this area of law in the case of PruneYard Shopping Center v. Robins (447 U.S. 74). This case presented the conservative majority on the Supreme Court with a classic confrontation between private property rights and states’ rights, two causes that have sometimes been rallying cries of conservatives. At a shopping center near San Jose, California, a group of high school students tried to distrib- ute literature opposing a United Nations resolution against “Zionism.” They were refused permission, and they sued in California’s state courts. The state supreme court said that the California Constitution provides a broader guarantee of free expression than the federal Constitution. The California court said there is a right to distribute literature in private shop- ping centers in California, even if no such right is guaranteed by the federal Constitution.

The center’s owners appealed to the U.S. Supreme Court, contending that this ruling denied their property and due process rights under the federal Constitution. The respon- dents replied, of course, in states’ rights terms, asserting the right of a state to afford its citizens more free speech rights than the federal Constitution mandates.

In a 7-l opinion, Justice William Rehnquist chose states’ rights over property rights, ruling that the California Supreme Court decision violated no federal right of the shop- ping center owners that was as important as a state’s right to define freedom for its citi- zens. Rehnquist said the U.S. Supreme Court’s earlier rulings on access to shopping centers were not intended to “limit the authority of the state to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”

In short, the Supreme Court affirmed California’s right to create broader rights than the federal Constitution requires. The effect of the PruneYard decision is to leave it up to other state legislatures and courts to decide whether to grant literature distribution rights in private places similar to those recognized in California.

In the years since the PruneYard decision, the highest courts in a few other states have recognized at least a limited right to engage in various forms of free expression at private shopping malls. These decisions have been based on several different legal grounds, includ- ing general free expression provisions in state constitutions and the right to circulate peti- tions for ballot measures, also recognized in some state constitutions.

States that have recognized free expression rights at large malls include Massachusetts (Batchelder v. Allied Stores Int’l, 445 N.E.2d 590), Colorado (Bock v. Westminster Mall Co., 819 P.2d 55), Washington (Alderwood Associates v. Washington Environmental Council, 635 P.2d 108, but also note Southcenter Joint Venture v. National Democratic Policy Committee, 780 P.2d 1282, which curbed free expression other than petition-circulating at malls in Washington) and New Jersey (New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 650 A.2d 757, and Green Party of New Jersey v. Hartz Mountain Industries, 752 A.2d 315).

In New Jersey, for example, the state high court ruled in the Coalition Against War case that the owners of large regional shopping malls must permit leafletting and similar political speech, subject to reasonable time, place and manner restrictions. In the Green Party case, the New Jersey Supreme Court ruled that a mall could not require those who want to do leafletting to obtain a $1 million liability insurance policy. Such insurance is prohibitively

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86 Modern Prior Restraints

expensive if it can be obtained at all, the court noted. Nor can mall managers limit groups that want to do leafletting to just one day a year. Those restrictions are not reasonable, the New Jersey Supreme Court ruled. However, the court also emphasized that it was authoriz- ing only literature distribution, not bullhorns, megaphones, placards, picket signs, parades or similarly intrusive actions. And the court emphasized that it was authorizing free-expres- sion activities only at large regional malls, not at smaller shopping centers, football stadiums, theaters or other private places that may attract crowds.

Las Vegas Strip. In Nevada, a major legal controversy has involved literature distribution and picketing on the heavily-used sidewalks along the Las Vegas Strip. When the street was widened in the early 1990s, local authorities allowed several large hotels to retain ownership of the new sidewalks as their private property.

Hotel owners then banned leafletting on the new sidewalks for “erotic” entertain- ment, arguing that as private property, the sidewalks are not a public forum. The county also restricted commercial leafletting along the Strip in general. In 2001, a divided Nevada Supreme Court upheld the right of the casinos to ban leafletting for outcall services and similar businesses. Three justices joined in an opinion saying the sidewalks are not a public forum. Two others said that even if the sidewalks are a public forum, the leafletting in ques- tion is not protected by the First Amendment because it represents a commercial message for an apparently illegal activity (S.O.C. v. The Mirage, 23 P.3d 243, 2001).

However, the hotel owners quickly learned that it wouldn’t be that easy to control the privatized, once-public sidewalks. Two months later the Ninth Circuit held that the sidewalks along the Strip are in fact a public forum to which the First Amendment applies (Venetian Casino Resort v. Local Joint Executive Board of Las Vegas, 257 F.3d 937). In a case involving pick- eting by a labor union, the court rejected The Venetian’s attempt to render the sidewalks off limits to free expression. The U.S. Supreme Court declined to hear the hotel’s appeal, leaving the Ninth Circuit decision as a binding precedent and protecting the right to engage in traditional First Amendment activities such as union picketing along the Strip. Later the D.C. Circuit also ruled in favor of the unions, holding that the hotel violated labor law by trying to halt picketing on the sidewalks (Venetian Casino Resort v. NLRB, 484 F.3d 601, 2007).

In 2004 local officials, casinos owners and civil libertarians reached an agreement that would allow many forms of free expression on Las Vegas Strip sidewalks, including the priva- tized ones in front of leading hotels on the Strip.

Downtown Las Vegas. A similar dispute arose a few miles away in downtown Las Vegas when the city closed five blocks of Fremont Street, creating a pedestrian mall on which all forms of solicitation and leafletting were banned. In 2003 the Ninth Circuit held that the downtown mall was still a traditional public forum where any government restriction on free expression would have to be justified under a rigorous strict scrutiny test (City of Las Vegas v. ACLU, 333 F.3d 1092). In 2006, the same court ruled that the city’s restrictions on solicita- tion on Fremont Street were unconstitutional because they were not content-neutral: some kinds of soliciting were allowed but others were not (ACLU v. City of Las Vegas, 466 F.3d 784).

The Ninth Circuit also ruled in 2008 that a private business could not exclude a group from petition signature-gathering on public sidewalks. John Ascuaga’s Nugget, a private company, had obtained a permit from Sparks, Nev., to hold a rib cook-off in a public area. When a group of individuals tried to gather signatures on a petition there, they were told that the area was now private because of the permit, and law enforcement escorted them out. The court said that the group had been completely excluded “for no reason other than

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the asserted right of the permittees to exclude anyone expressing a political message,” and this is a First Amendment violation (Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892).

Mormon Temple Square. Another controversy concerning privatized once-public side- walks arose in Salt Lake City. In 2002, the Tenth Circuit held that the sidewalks along a recently-closed portion of Main Street in Salt Lake between the Mormon Temple Square and the church’s administrative complex are still a public forum. Ruling in First Unitarian Church et al. v. Salt Lake City Corp. (308 F.3d 1114), the court held that the Church of Jesus Christ of Latter-day Saints could not ban expressive activities on the sidewalks even though the city sold the street to the church. After buying that block of Main Street, the church converted it into an “ecclesiastical park.” The city retained a pedestrian easement to assure that the sidewalks would remain open to the public. The church left the sidewalks open but banned traditional free expression activities such as leafletting, soliciting, picketing and demonstrating. The ban was challenged by local organizations, backed by the ACLU. The court agreed, concluding that the area within the public sidewalk easement retained its status as a free-speech zone: “The city cannot create a ‘First Amendment-free zone.’”

Later the city and the church reached an agreement under which the city abandoned the public sidewalk easement altogether, allowing the church to control or forbid expressive activities there, while the city received two acres of land elsewhere in return. The church agreed to build a $5 million recreation center on the two acres. That arrangement was upheld by the Tenth Circuit (Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 2005).

Signage. Still another aspect of the problem of First Amendment rights on private prop- erty led to an important Supreme Court decision in 1994: the question of local ordinances that forbid property owners to place signs containing political messages on their own prop- erty. In City of Ladue v. Gilleo (512 U.S. 43), the Court overturned an ordinance in Ladue, Mo. (a suburb of St. Louis) that barred almost all signs in the front yards of private homes.

The case arose when a Ladue woman, Margaret Gilleo, put up a sign in her yard protest- ing the Persian Gulf War in 1990. It was stolen, so she put up another sign. Someone knocked that sign down, and she reported this vandalism to police. She was then told her signs were illegal and she sued, alleging that the city was violating her First Amendment rights. After a lower court ordered the city not to enforce its sign ordinance, Gilleo placed a sheet of paper in a window that read, “For Peace in the Gulf.” That, too, was probably a violation of Ladue’s rules, but it didn’t matter: the Supreme Court ruled that the town’s strict sign ordi- nance was unconstitutional. The court said this ban on almost all yard signs precluded an entire category of speech, thereby violating the First Amendment. The court conceded that Ladue could ban most commercial signs in front yards (but not “for sale” signs: see Chapter Thirteen for a discussion of that issue). However, this ordinance went too far by censoring all political and religious messages that might be conveyed in yard signs.

The Supreme Court overturned the Ninth Circuit’s finding that a town’s sign code was content-neutral in 2015 (Reed v. Town of Gilbert, No. 13-502). Justice Clarence Thomas wrote the majority opinion. He applied strict scrutiny to the town’s sign policy and found it want- ing. Three of the categories exempt from display without a license were “ideological signs,” “political signs,” and “temporary directional signs relating to a qualifying event.” Pastor Clyde Reed and the Good News Community Church wished to advertise Sunday services at loca- tions where they were to be held (the church had no building of its own). Church members put up such signs early on Saturdays and removed them midday on Sundays. But this ran afoul of the sign policy. The Ninth Circuit said that the sign code was content-neutral.

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88 Modern Prior Restraints

Focus on… The law of license plates

You might not think that license plates would generate much First Amendment law, but surpris- ingly, there have been several cases in the appeals courts, and two that made it all the way to the Supreme Court. In Wooley v. Maynard (430 U.S. 705, 1977) the Court said that New Hampshire could not require its citizens to display the state motto, “Live Free or Die,” on their license plates if they have moral objections to that sentiment. And, as discussed in this chapter, the Supreme Court

in 2015 answered the question of whether license plates are government speech in the affirmative in Walker v. Sons of Confederate Veterans. But this decision does not mean that all such cases are moot. Here are Photo by Lourdes Cueva Chacón. Used with permission. a few cases from the past on which Walker might shed some light. Which might turn out differ- ently under the Court’s Walker rationale?

In Cressman v. Thompson (719 F.3d 1139, 2013), plaintiff Keith Cressman said the standard Oklahoma license plate image of a Native American shooting an arrow skyward was religious speech he did not want to display. The Tenth Circuit found that Cressman had a “plausible compelled speech claim” and remanded the case.

In 2008, the Seventh Circuit held in Choose Life Illinois v. White (547 F.3d 853) that Illinois could constitutionally exclude all points of view on abortion from its plates. But in other venues, the outcome was different. In 2004, the Fourth Circuit in Rose v. Planned Parenthood of SC (361 F.3d 786) said that South Carolina could not issue “Choose Life” plates without allowing the pro- choice side a similar forum; the same court said the same thing about North Carolina in 2014 (ACLU of NC v. Tata, 742 F.3d 563). A federal district court in South Carolina said that a state law requiring “I Believe” license plates violated the constitutional separation of church and state (Summers v. Adams, 669 F. Supp. 2d 637, 2009). The Sixth Circuit held in 2006 that Tennessee could issue “Choose Life” but not pro-choice plates in ACLU of Tenn. v. Bredesen (441 F.3d 370).

The Eighth Circuit said in 2009 in Roach v. Stouffer (560 F.3d 860) that Missouri could not discrim- inate based on the viewpoint of the speaker when approving applications for specialty plates. The Ninth Circuit agreed in 2008 and said that Arizona had created a public forum in its plates and could not discriminate in that forum in Arizona Life Coalition v. Stanton (515 F.3d 956). The Third Circuit said in 2010 that New Jersey’s rejection of the plates may be unconstitutional viewpoint discrimination in Children First Foundation Inc. v. Legreide (373 Fed. Appx. 156) and remanded the case. In 2010, the Second Circuit overturned Vermont’s ban on plates that referred to religion or deities as unconstitutional viewpoint discrimination (Byrne v. Rutledge, 623 F.3d 46). The Supreme Court has declined to review any of these decisions.

FIG. 17. License plates, Ardovino’s Desert Crossing, New Mexico.

However, Thomas wrote, the code “is content based on its face. It defines ‘Temporary Directional Signs’ on the basis of whether a sign conveys the message of directing the public to church or some other ‘qualifying event.’ It defines ‘Political Signs’ on the basis of wheth- er a sign’s message is ‘designed to influence the outcome of an election.’ And it defines ‘Ideological Signs’ on the basis of whether a sign ‘communicat[es] a message or ideas’ that

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Chapter Three 89

do not fit within the Code’s other categories.” Thus, the code must undergo strict scrutiny. Because the town’s interests were at best weak (not compelling), and the code “hopelessly underinclusive,” it must fail.

PRIOR RESTRAINTS AND ABORTION PROTESTS

Between the 1980s and the 2000s, the controversy over abortion led to new conflicts concerning the scope and meaning of the First Amendment. The debate continued to rage; in June 2010, the New York Times reported that at least 11 states had passed laws regulating or restricting abortion so far that year. Congress, the courts and state and local governments have all become involved in the emotion-charged debate not only about abortion itself but also about the methods used by demonstrators who oppose abortions. There are several related questions involved. Under what circumstances may demonstrations near medical clinics be restricted? When may demonstrations that target the homes of doctors and other clinic workers be restricted? When does the First Amendment protect the fiery rhetoric of abortion foes? And may the federal anti-racketeering law be used against a group that espouses a cause such as the idea that abortion is morally wrong?

The Supreme Court first addressed the question of whether a town may ban demonstra- tions near the homes of doctors and other abortion workers in a 1988 case, Frisby v. Schultz (487 U.S. 474). In this case the town of Brookfield, Wisc., a suburb of Milwaukee, banned demonstrations near private homes after anti-abortion protesters picketed several times in front of a doctor’s home. Sandra Schultz and other demonstrators sued Russell Frisby and other officials, charging that the ordinance violated their First Amendment rights. The Court affirmed Brookfield’s right to ban targeted picketing at a specific private home. In essence, the majority held that while residential streets in general are a public forum, the space in front of a specific home is not. That means a city must allow protesters to walk down residential streets carrying signs, but if they stop and linger too long near one particular residence, that is not protected by the First Amendment. If a local government wishes to do so, it may forbid targeted picketing at someone’s home.The Court based its decision largely on the idea that a person is entitled to a certain amount of privacy and freedom from harass- ment in his or her own home. Writing for the Court, Justice Sandra Day O’Connor said:

The First Amendment permits the government to prohibit offensive speech as intrusive when the “captive” audience cannot avoid the objectionable speech…. The target of the focused picketing banned by the Brookfield ordinance is just such a “captive.” The resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech.

In the years since Frisby v. Schultz was decided, the controversy over abortion demon- strations has become even more heated. Some anti-abortion groups have launched major campaigns targeting the homes of doctors and others who work at clinics that perform abortions. By 2006, many cities had adopted restrictions on picketing individual homes patterned after the Brookfield ordinance, and the courts, including the Supreme Court, ruled on anti-abortion protest questions in many new cases.

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90 Modern Prior Restraints

During the 1990s many cities and states—and eventually Congress—passed laws to curtail demonstrations not only near clinic workers’ homes but also near clinics where abor- tions are performed. In 1994, Congress enacted the Freedom of Access to Clinic Entrances (FACE) Act, which prohibits protesters from blocking access to abortion clinics or intimi- dating patients and employees. First offenses carry fines of up to six months in prison and $10,000 fines. Those convicted of repeated violations of the law could face life imprison- ment and fines of up to $250,000.

Lower court opinions. Almost as soon as the new federal law went into effect, anti- abortion demonstrators challenged it in court. Among other things, they contended that it unduly restricts their First Amendment freedoms and violates the ban on cruel and unusual punishments in the Eighth Amendment by imposing such severe sentences on persons who are doing nothing more than civil rights and antiwar demonstrators did in the 1960s: engag- ing in civil disobedience as an act of conscience. In 1995, those arguments were rejected in two federal appellate court decisions, Woodall v. Reno (47 F.3d 656) and American Life League v. Reno (47 F.3d 642). Deciding the cases together, the Fourth Circuit ruled the FACE Act does not violate the First Amendment because it targets unprotected acts such as obstructing doorways, not activities protected by the First Amendment such as peaceful picketing.

But in 2008, the Ninth Circuit held that the First Amendment rights of anti-abortion activists were infringed when they were ordered to leave the site of a middle school they were circling with a truck emblazoned with enlarged images of aborted fetuses. In Center for Bio-Ethical Reform v. Los Angeles County Sheriff Dept. (533 F.3d 780), the court said that police violated the First Amendment when they required the activists to remove their truck from an area adjacent to the middle school. There was some disruption to normal school activities, but the court said that it was not acceptable to remove the speakers just when they started to get reactions from their intended audience.

The Center, however, lost in the Sixth Circuit in 2011 on a challenge to a “Rightwing Extremist” policy they allege was in a report from the Department of Homeland Secu- rity. The plaintiffs claimed the government had a “policy of targeting certain individuals and groups…for disfavored treatment based on their viewpoint on controversial political issues[.]” A district court denied the claim, and the Sixth Circuit affirmed, saying that, in addition to not having established that such a policy even exists, the plaintiffs had not shown injury “that would deter a person of ordinary firmness from further participation in consti- tutionally protected activity” (Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365).

But a Colorado appeals court upheld an injunction that forbid the display of “gruesome” images near a church in Saint John’s Church in the Wilderness v. Scott (296 P.3d 273, 2012). Protestors had displayed graphic anti-abortion posters near a Denver church. Citing the compelling interest in protecting children from harm from seeing these images, the court said the injunction was narrowly tailored: “identifying the prohibited content as ‘gruesome images of mutilated fetuses’ is the least restrictive means available to protect young children who are attending worship services.”

Censoring “The nuremburg Files”

The FACE Act was also the basis for a controversial appellate court decision in 2002 that upheld part of a large monetary judgment against anti-abortion activists and also affirmed a judge’s order censoring a website that allegedly advocated violence against abortion workers.

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Ruling in Planned Parenthood of the Columbia/Willamette v. American Coalition of Life Activists (290 F.3d 1058), the Ninth Circuit ruled on a 6-5 vote that the judgment did not violate the First Amendment rights of anti-abortion activists. The case involved a website named “The Nuremburg Files” that called abortion doctors “baby butchers” and included names, home addresses and license plate numbers as well as names of spouses and children of some doctors who performed abortions. If such a doctor was killed, as three who were depicted in “wanted” posters on the website had been, the site showed a line through the doctor’s name.

When a group of abortion providers sued under the FACE Act, a federal jury awarded $107 million in actual and punitive damages. Over the objections of five dissenters, the six- judge majority on the Ninth Circuit upheld the actual damages but ordered the trial court to reconsider the amount of the punitive damages. The majority also upheld an injunction by the trial judge ordering some of the “wanted” posters taken down, an order that was undisputedly a prior restraint of communications on a controversial public issue.

Eleven judges participated instead of the usual panel of three because the court was reconsidering the case en banc. Earlier, a three-judge panel of the Ninth Circuit had upheld the website and posters as protected speech in a ruling that was set aside by the en banc deci- sion. The majority ruled that the language of the website constituted “true threats” to health care workers even though there were no explicit threats on the site. Writing for the majority, Judge Pamela Rymer said a true threat is one “where a reasonable person would foresee that the listener will believe he will be subjected to physical violence upon his person, (and) is unprotected by the First Amendment.” She added, “It is not necessary that the defendant intend to, or be able to carry out the threat; the only requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.”

In three separate opinions, the dissenters said the majority was weakening the First Amendment by its dismissal of the free expression rights of abortion foes. Judge Alex Kozin- ski, joined by four judges, wrote: “While today it is abortion protesters who are singled out for punitive treatment, the precedent set by this court… will haunt dissidents of all political stripes for many years to come.” In another dissenting opinion, Judge Marsha Berzon said the abortion foes who faced this large monetary penalty “have not murdered anyone.”

Supreme Court Rulings on Abortion Protests

Prior to the “Nuremburg Files” decision, the activities of abortion protesters near clinics led to three U.S. Supreme Court decisions, all of which required the Court to balance the rights of protesters against those of clinic patrons and staff. The Supreme Court handed down a fourth decision on the rights of abortion protesters in 2003.

In a 1994 case, the Supreme Court upheld a Florida court’s injunction ordering demon- strators to stay 36 feet away from the entrances to an abortion clinic (Madsen v. Women’s Health Center, 512 U.S. 753). In that case, the Supreme Court’s 6-3 majority, in an opinion by Chief Justice William Rehnquist, said the 36-foot buffer zone was not an undue restriction on demonstrators’ First Amendment rights.

However, in Madsen the Supreme Court overturned several other parts of the Florida court order, including a provision that barred demonstrators from approaching patients anywhere within 300 feet of the clinic. The Court also overturned a portion of the Flori- da order that banned demonstrations within 300 feet of the residences of clinic workers. Rehnquist said that was too broad a restriction on the First Amendment rights of anti-abor- tion demonstrators, although a smaller buffer zone around workers’ homes, coupled with

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92 Modern Prior Restraints

limits on the time and duration of residential demonstrations, might be acceptable. The Supreme Court also overturned a portion of the Florida court order that prohibited demon- strators from displaying “images observable” by patients in the clinic. Rehnquist said the complete ban on signs was overly broad, although a ban on signs carrying threats might be acceptable. On the other hand, Rehnquist’s opinion upheld a part of the Florida order that banned excessive noise during abortion protests.

In 1997, the Supreme Court went further to protect the First Amendment rights of anti- abortion demonstrators, overturning a New York judge’s order that required them to stay 15 feet away from clinic patrons and workers. Ruling in Schenck v. Pro-Choice Network (519 U.S. 357), an 8-1 majority of the Court held that demonstrators have a right to approach patrons on public sidewalks. The Court overruled the judge’s order establishing a 15-foot “floating bubble” around patrons that abortion protesters could not enter. But the Court upheld another part of the judge’s order that created a 15-foot no-demonstration zone around clinic entrances. Again writing for the Court, Chief Justice Rehnquist emphasized that pick- eting, leafletting and even loud protesting are “classic forms of speech that lie at the heart of the First Amendment.” Rehnquist noted that sidewalk protesters have no right to grab, push or stand in the way of persons going to abortion clinics, but he also said the New York judge’s ban on approaching patrons or workers was overly broad: “We strike down the float- ing buffer zones around people entering and leaving clinics because they burden more speech than is necessary” to protect the free flow of traffic and public safety.

In ruling on all of these specific restrictions on demonstrations, the Supreme Court held that they were content neutral (that is, they would apply to everyone, regardless of the issue addressed by demonstrators). Therefore, the restrictions were valid unless they imposed a greater burden on First Amendment freedoms than was necessary to serve a significant government interest. The Court’s majority concluded that there was a significant government interest in protecting the safety of clinic workers and patients, and in assuring that they could enter and leave the clinic freely. The Court held that small buffer zones around clinic entrances are sufficient to accomplish those goals, and that larger buffer zones or floating buffer zones around clinic patrons or workers create an undue burden on free expression.

Lower federal courts applied these principles similarly in cases decided after Schenck v. Pro-Choice Network. For example, in 1997 the Ninth Circuit overturned several provisions of a Phoenix city ordinance in Sabelko v. City of Phoenix (120 F.3d 161), including a requirement that protesters step back eight feet from clinic patients and workers even when they were much farther than 15 feet from a clinic entrance. The court ruled similarly in overturning a Santa Barbara, Calif. ordinance that established an eight-foot floating buffer zone around clinic workers and patients (Edwards v. City of Santa Barbara, 150 F.3d 1213, 1999).

In 2000, however, the Supreme Court upheld a Colorado state law that included an eight- foot floating buffer zone. Ruling in Hill v. Colorado (530 U.S. 703), the Court’s 6-3 majority said the Colorado law was narrowly tailored enough to pass constitutional muster. The law established a 100-foot zone around every health care facility’s entrance. Inside that perim- eter, no one could distribute leaflets, display signs or engage in sidewalk counseling within eight feet of another person unless that person consented to being approached. Displaying signs within the perimeter, but not within eight feet of any person, was legal.

After first ruling that the Colorado law was content neutral, the Court held that it was a valid time, place and manner regulation of speech. The Court noted that protest signs can be read, and normal conversations can occur, at a distance of eight feet. The Court called

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that distance a “normal conversational distance.” The Court said the ban on approaching people does not prevent leafletting because a protester can stand in one place and hand out leaflets as people approach the person doing the leafletting.

“This statute simply empowers private citizens entering a health care facility with the ability to prevent a speaker, who is within eight feet and advancing, from communicating a message they do not wish to hear,” Justice John Paul Stevens wrote for the Court. In short, the majority in Hill said this floating buffer zone is sufficiently different from the one over- turned in Schenck to be constitutional.

But in 2014, the Court struck down a Massachusetts buffer zone in McCullen v. Coakley (134 S. Ct. 2518). The 2007 law had made it a crime for anyone to stand on a public road or sidewalk within 35 feet of any abortion clinic. Anti-abortion protestors had argued that this rule made it difficult for them to counsel women as they approached the clinic. While all nine justices agreed that the law was unconstitutional, they came to no clear consensus as to why. Chief Justice John Roberts wrote the majority opinion, saying that the law does not regulate what is said, but where it is said. Thus, strict scrutiny does not apply. But the law still must be narrowly tailored to meet the government’s goals, and it is not: “the Commonwealth has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate,” wrote Roberts, adding that no other state has a buffer zone law like this one.

Justice Antonin Scalia, joined by Justices Anthony Kennedy and Clarence Thomas, agreed with the outcome but would have overruled Hill v. Colorado and saw no reason for the majority to engage in a scrutiny evaluation: “Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in public streets and sidewalks.” Justice Samuel Alito also concurred with the outcome, but said that the law “blatantly discriminates based on viewpoint.” Still, he noted, it would even be unconstitutional because it was overbroad even if it were viewpoint-neutral.

Lower court opinions. Buffer zones were before the circuit courts several times in 2009. The Third Circuit struck down a two-layer protest zone scheme in Brown v. City of Pittsburgh (586 F.3d 263). That court said that the two zones together, a buffer zone of 15 feet from facility entrances and a “bubble zone” of 100 feet in which protestors could not come closer than eight feet to an individual, made it impossible for those who wished to hand out leaflets to reach their audiences: “With the Ordinance’s multi-zone restrictions, not only are leaflet- ters unable to stand within fifteen feet of clinic entrances, but they are constrained from moving freely even outside of that protective zone.” The Third Circuit said in McTernan v. City of York (577 F.3d 521) that a handicapped ramp leading to a Planned Parenthood clinic was off-limits to anti-abortion protestors. Because the protestors were able to gather on the sidewalk next to the ramp and access all clinic visitors, the state had a public interest in keep- ing the ramp safe for handicapped patrons, and the ramp was a non-public forum, the court rejected the plaintiffs’ claims that their freedom of speech and religion were chilled.

An Oakland ordinance modeled after the Colorado one survived part of a challenge in 2011 in Hoye v. City of Oakland (653 F.3d 835). The Ninth Circuit upheld the “bubble ordi- nance” itself but said that the way in which it was enforced violated the First Amendment because it affected the anti-abortion speakers but not the escorts walking with clients to the clinics. And, the court said, the ordinance had been applied “only to efforts to persuade women approaching reproductive health clinics not to receive abortions or other reproduc- tive health services, and not to communications seeking to encourage entry into the clinic

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for the purpose of undergoing treatment.” This discriminatory enforcement is content- based, so the court sent the case back to fashion a remedy to ensure equal enforcement.

In 2003, the Supreme Court ruled, in Scheidler v. National Organization for Women (537 U.S. 393), that the federal Racketeer Influenced and Corrupt Organizations (RICO) Act cannot ordinarily be used by abortion providers to win treble damages and nationwide injunctions against abortion foes. Those who demonstrate near clinics that perform abortions can still be sued under the Freedom of Access to Clinic Entrances (FACE) Act. However, that law lacks a treble damage provision and requires abortion foes to be sued state by state.

Several other groups that have demonstrated for various causes, including People for the Ethical Treatment of Animals (PETA), supported the anti-abortion groups, fearing that they, too, could be sued under the treble damages provisions of RICO.

Chief Justice William H. Rehnquist wrote the Court’s majority opinion in Scheidler, saying that the holding should not affect the usefulness of RICO as a weapon to fight organized crime. In a concurring opinion, Justice Ruth Bader Ginsburg, joined by Stephen Breyer, said RICO could have also been used against civil rights demonstrators during the 1960s under the broad reading of RICO urged by abortion supporters.

Some years earlier, the Supreme Court ruled on another right-to-demonstrate question: the right to picket near a foreign government’s embassy in Washington, D.C. In Boos v. Barry (485 U.S. 312, 1988), the Court overturned some provisions of a Washington, D.C. local ordinance aimed at preventing embarrassing demonstrations outside foreign embassies.

The Court held that Congress, in passing local ordinances to govern Washington, could not forbid picket signs that might say embarrassing things. Writing for the majority, Justice Sandra Day O’Connor said, “The display clause of (the ordinance) is unconstitutional on its face. It is a content-based restriction on political speech in a political forum, and it is not narrowly tailored to serve a compelling state interest.” However, the Court affirmed another part of the ordinance requiring protesters to stay 500 feet away from the embassy that is the target of the picketing if police believe they pose a threat to the security of the embassy.

The Supreme Court granted cert in two abortion cases for its October Term, one on a state abortion law (discussed in Chapter Five) and one on abortion speech. In McCullen v. Coakley (708 F.3d 1, discussed above), the Court will evaluate a Massachusetts law on abor- tion protests and determine whether Hill v. Colorado is still good law.

OTHER PICKETING AND RELATED ISSUES

If picketing in front of a private home can be banned to avoid disrupting the lives of the occupants, is it possible to ban other First Amendment activities that might be disrup- tive, inconvenient or embarrassing to an unwilling audience? The U.S. Supreme Court has addressed that kind of question several times.

In 1971 the Supreme Court was confronted with such a prior restraint issue in the case of Organization for a Better Austin v. Keefe (402 U.S. 415). Jerome Keefe was a real estate broker who allegedly engaged in “blockbusting” tactics in the community of Austin, near Chicago, Ill. That is, he was accused of attempting to panic white residents into selling at low prices to escape an influx of blacks that he claimed were moving into their neighborhoods. The Orga- nization for a Better Austin (OBA), trying to halt this white flight, began circulating fliers attacking Keefe for his “panic peddling” tactics. Keefe got a court order that prohibited the OBA from distributing its fliers or picketing. The order was affirmed by an Illinois appellate

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court, and OBA appealed to the U.S. Supreme Court. The Supreme Court invalidated the injunction, noting that peaceful pamphleteering is protected by the First Amendment, and its prohibition is a prior restraint.

The Supreme Court has dealt with somewhat more difficult First Amendment problems in a series of cases involving the Hare Krishna movement, cases reminiscent of the early Jehovah’s Witness cases. In a 1981 case, Heffron v. International Society for Krishna Conscious- ness (452 U.S. 640), the Court had to decide how much access to a state fair Hare Krishna believers should have. Like members of the Jehovah’s Witness movement, Hare Krishna adherents believe their faith requires them to distribute literature and solicit donations from the public. Krishna members have attempted to promote their faith and solicit funds in many public places where people gather, often citing the earlier Jehovah’s Witness cases to support their right to do so. The Heffron case arose when Krishna members were refused permission to distribute literature and solicit funds freely at the Minnesota State Fair. They were told they could only do so at a single booth. Under the fair’s rules, booths were avail- able to all groups on a non-discriminatory first-come, first-served basis.

The Krishna movement challenged the rules as a violation of the First Amendment, and the case eventually reached the U.S. Supreme Court. Krishna followers argued that distrib- uting literature and soliciting funds are actually part of the movement’s religious ritual, required of all members. To limit these activities is a violation of the First Amendment as interpreted in the Schneider and Lovell cases (discussed earlier), they contended. Minnesota fair officials conceded that Krishna followers, like Jehovah’s Witnesses or anyone else, have a constitutional right to propagate their views at the state fair. However, they said it was neces- sary to restrict all such groups to booths to keep the fair orderly.

The Supreme Court majority agreed: it is not a violation of the First Amendment to require Krishna followers to practice their religion at a booth rather than throughout the state fair. The majority pointed out that Krishna members remained free to mingle with the crowd and orally present their views, but it upheld the rule limiting solicitations and literature distribution to individual booths, explaining that if the Krishnas were allowed to proselytize throughout the fairgrounds, other groups would have to be given the same privilege.

Access to Public Airports

If religious pamphleteering can be curtailed at government-sponsored events such as a state fair, can it also be restricted at other government-owned facilities where it might be disruptive, such as major airports?

The Supreme Court has addressed that issue in two cases inspired by the activities of Hare Krishna believers. In a 1987 case, Board of Airport Commissioners v. Jews for Jesus (482 U.S. 569), the Court overturned a rule adopted by the government agency in charge of Los Angeles International Airport that flatly prohibited all First Amendment activities at this government-owned facility.

After lower courts overruled several earlier attempts by the airport commissioners to ban literature distribution by Hare Krishna believers, the board adopted a complete ban on all First Amendment activities at the airport. Under this rule a clergyman associated with Jews for Jesus, an evangelical Christian organization, was barred from distributing leaflets there. The Jews for Jesus organization decided to challenge the validity of the ban on First Amendment grounds.

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The high court unanimously held that the regulation was so sweeping as to be unconsti- tutional on its face. Writing for the Court, Justice Sandra Day O’Connor said almost any trav- eler might violate such an all-encompassing ban on First Amendment activities—by doing something as commonplace as talking to a friend or reading a newspaper, for instance. However, the Court did not rule out the possibility that more narrowly drawn regulations limiting the time, place and manner of literature distribution might pass constitutional muster. Nonetheless, federal judges repeatedly rejected later ordinances intended to regu- late soliciting at Los Angeles International Airport. After Sept. 11, 2001, however, very little space at the airport was left open to the general public, and in 2006 a federal judge upheld post-Sept. 11 regulations that limited soliciting to only a few areas. In 2010 the California Supreme Court declined to say whether the Los Angeles airport was a public forum (Interna- tional Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, 48 Cal. 4th 446).

In 1992 the Supreme Court had ruled on another case resulting from Hare Krishna members’ First Amendment activities at airports. This time the Court ruled that soliciting donations can be banned, although handing out literature must be permitted at appropri- ate places in public airports. Ruling in Lee v. International Society for Krishna Consciousness (505 U.S. 830), a 6-3 majority of the Court held that Hare Krishna members could be barred from fund-raising at the New York area’s public airports. Five of the justices also agreed that unlike city streets and parks, airports are not traditional public forums for First Amendment activities. However, in a separate opinion the Court ruled by a 5-4 vote that airports must still be open for First Amendment activities that are less intrusive than soliciting money (for example, handing out free literature).

By holding that distributing literature, but not soliciting money, at airports is protected by the First Amendment, the Court was following the pattern set two years earlier in a case involving U.S. Post Offices: U.S. v. Kokinda (497 U.S. 720, 1990). In that case, the Court upheld regulations of the Postal Service that prohibit all soliciting at post offices. The case began when several representatives of the National Democratic Policy Committee were criminally prosecuted for setting up a table to distribute literature and solicit contributions at the Bowie, Md. post office.

In a 5-4 decision that produced a strongly worded dissent by Justices Brennan, Marshall, Blackmun and Stevens, the Court upheld regulations that banned soliciting (but not all First Amendment activities) at post offices. Writing for the Court, Justice O’Connor said Postal Service regulations forbidding soliciting were justified because soliciting at post offices had often caused disruptions that interfered with the mail service. Post offices had never been First Amendment forums, she concluded, adding: “Whether or not the Service permits other forms of speech, it is not unreasonable for it to prohibit solicitation on the ground that it inherently disrupts business by impeding the normal flow of traffic.”

The four dissenting justices said they thought post offices were public forums and that in their view the ban on soliciting was not a reasonable time, place and manner restriction.

As a result of these cases, fund-raising can be prohibited not just at airports and post offices but also at many other government-owned facilities that are open to the public but are not traditional public forums. However, governments must allow other First Amend- ment activities such as literature distribution at many of these same places. And there is still a First Amendment right to solicit donations at places that are traditional public forums— subject only to the authorities’ right to impose reasonable restrictions on the time, place, and manner of free expression activities.

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FIG. 18. Shirley Phelps-Roper of the Westboro Baptist Church surrounded by counter-protesters in Long Beach, Calif., Feb. 2010.

Photo by Christine Amarantus. Used with permission.

On the other hand, purely private facilities such as shopping centers are not ordinarily First Amendment forums. First Amendment activities may usually be banned in such places whenever the owners choose to do so. Of course, if the owners wish to allow free expression activities—or if a state chooses to require the owners to allow such activities—they can occur on private property even though the United States Constitution does not guarantee litera- ture distribution rights on private property.

The Supreme Court has ruled on one other aspect of literature distribution rights that should be noted here: the right to distribute unsigned political literature. In an important 1995 case, McIntyre v. Ohio Elections Commission (514 U.S. 334), the high court overturned laws in almost every state that banned the distribution of anonymous political handbills. Based on the idea that anonymous political “hit pieces” are unfair, inaccurate and often libelous, most states have had laws requiring that political literature carry the originator’s name and address. But in the 1995 decision, the Court held that the concern about possible fraud and libel in unsigned political literature did not justify such a sweeping restriction on First Amendment rights. Ohio’s ban on unsigned leaflets applied even to those that were completely truthful, the Court noted. Under the McIntyre decision, there is now a constitu- tional right to distribute unsigned political literature. In 2002, the high court concluded that this right also undergirds the right to do door-to-door non-commercial soliciting with- out first obtaining a city permit. Any permit requirement compels canvassers to give up their constitutionally protected anonymity, as the Court noted in Watchtower Bible and Tract Society v. Village of Stratton, discussed earlier.

Access to Parades, Public Places and Organizations

Another issue that stirred controversy in recent years has been whether privately spon- sored parades and fairs on public property are First Amendment forums open to all view- points, or whether the sponsors have a First Amendment right to decide who will participate.

Gay marchers on March 17. A focal point of this debate has been the efforts of gay groups to participate in St. Patrick’s Day parades. In New York, the Ancient Order of Hibernians, a Roman Catholic fraternal organization, sponsors the nation’s oldest formal St. Patrick’s Day parade: it was first held in 1762. Based on their religious beliefs, the Hibernians have

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refused to allow gay and lesbian groups to join the parade, which annually attracts as many as 150,000 participants and two million spectators. In 1993, a federal judge ruled that the Hibernians have a First Amendment right to exclude groups with whom they disagree.

On the other hand, the largest St. Patrick’s Day parade in Boston has been sponsored by veterans’ groups rather than a religious group, and in 1994 the veterans were ordered by a Massachusetts court to include a gay and lesbian group in the parade under a state law guar- anteeing gay men and lesbians equal access to public facilities. The veterans’ groups decided to cancel the parade instead. In 1995, they replaced the St. Patrick’s Day Parade, in which marchers traditionally have carried green banners, with a protest march in which the march- ers carried black flags to protest the court order. Meanwhile, the veterans also appealed to higher courts. The Massachusetts Supreme Court upheld the lower court’s order, but in 1995 the U.S. Supreme Court disagreed and ruled in favor of the veterans.

In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (515 U.S. 557), the Court ruled unanimously that the veterans’ groups have a First Amendment right to choose which other groups they will include in their parade. Justice David Souter said the state could not use its public accommodations law to force a private group to admit anyone with whom it disagreed to a parade. He wrote, “One important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.”

Souter noted the “enlightened purpose” of the public accommodations law (to prevent discrimination against gay men and lesbians), but said the state cannot force a private orga- nization to alter its own message. Souter also added that individual gay men and lesbians are entitled to march in the parade as members of any group that is admitted to the parade, and that gay men and lesbians are certainly free to conduct their own parade on city streets (and presumably, to exclude veterans’ groups if they wish).

Gay Scoutmasters. A related issue has arisen concerning groups such as the Boy Scouts of America, an organization that has traditionally barred homosexuals from being scoutmas- ters. Do state laws guaranteeing equal access to public facilities or forbidding discrimination against homosexuals by business enterprises apply to private organizations? How can those laws be reconciled with a private organization’s First Amendment freedom of association rights? Also, do these laws require the Boy Scouts to admit members who are unwilling to take the Scouts’ oath affirming a belief in God?

The U.S. Supreme Court ruled on this issue in a 2000 decision, Boy Scouts of America v. Dale (530 U.S. 640). The 5-4 majority ruled that the Boy Scouts may exclude gays as troop leaders, declaring that a private organization has the right to set its own moral code and espouse a viewpoint. In so ruling, the high court overturned a New Jersey Supreme Court decision that said the Boy Scouts had to allow gay scoutmasters under that state’s law banning discrimina- tion in public accommodations. Writing for the Court, Chief Justice William Rehnquist said the Boy Scouts have a First Amendment right to freedom of association, including the right to include or exclude persons based on their beliefs or their sexual orientation. Thus, the Scouts could exclude James Dale, a one-time Eagle Scout and assistant scoutmaster who was dismissed after Scout leaders learned he was gay. “It appears that homosexuality has gained greater societal acceptance. But this is scarcely an argument for denying First Amendment protection to those who refuse to accept those views,” Rehnquist wrote.

In 1996, the U.S. Supreme Court addressed another issue that touched upon the constitutional rights of gay men and lesbians and their critics. Although it is not a First Amendment case as such, it should be noted here. In Romer v. Evans (517 U.S. 620), the

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Court overturned a Colorado ballot initiative banning state and local laws giving legal protection to the rights of gay men and lesbians. The initiative was approved by a major- ity of Colorado voters in 1992. In a 6-3 ruling, the Court said a state cannot single out a group for “disfavored treatment” based on “animosity.” Writing for the majority, Justice Anthony Kennedy said that the ballot initiative “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do.” This decision does not necessarily guarantee gay men and lesbians equal rights in all areas of the law. But it was the first time the Court overturned a law intended to legalize discrimination against them.

On the other hand, in 1998 the Court declined to review a decision of the Sixth Circuit upholding a Cincinnati, Ohio, city charter provision that eliminated special protections for gay men and lesbians. The Cincinnati charter provision ruled out “any claim of minority or protected status, quota preference or other preferential treatment” for gay men and lesbi- ans (Equality Foundation of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289).

Funeral protests. The Respect for America’s Fallen Heroes Act was passed in 2006 and prohibits protests within 300 feet of the entrance of any cemetery under the control of the National Cemetery Administration from an hour before to an hour after a funeral. Many states have similar laws, passed in response to protests by the Westboro Baptist Church (WBC). The church, based in Topeka, Kansas, made headlines when it picketed the funerals of those who are gay or have gay affiliations, or those of soldiers who served in the armed forces under the theory that the Lord is punishing America for its evils. When Missouri passed its law banning protests at funerals, members of the church filed suit, claiming that their First Amendment rights were infringed. In 2008, the Eighth Circuit found that the church would likely prove that even though the Missouri law was content neutral, it was also likely to be overbroad, and enjoined the enforcement of the law, permitting the church’s funeral pickets to continue until the law is fully evaluated. In Phelps-Roper v. Nixon (545 F.3d 685), the court said that the church “presents a viable argument that those who protest or picket at or near a military funeral wish to reach an audience that can only be addressed at such occasion and to convey to and through such an audience a particular message.”

The Eighth Circuit’s decision conflicts with the Sixth Circuit’s 2008 conclusion in Phelps- Roper v. Strickland (529 F.3d 356), where that court said that a similar Ohio funeral protest law was content neutral, sufficiently narrowly tailored and served an important governmen- tal interest; the Supreme Court declined to hear an appeal in Nixon.

The church continues to appear in court to challenge funeral protest ordinances. Two 2011 Eighth Circuit decisions struck down funeral protest laws, one a local ordinance in Manchester, Mo. (Phelps-Roper v. City of Manchester, 658 F.3d 813) and the other the Nebraska state law (Phelps-Roper v. Troutman, 662 F.3d 485). The court relied in both cases on its prec- edent in Nixon. Judge Diana Murphy, concurring in both decisions, nonetheless suggested in Troutman that “resolution of the competing legal interests arising in [Nixon] should be reconsidered by the full court.” The Eighth Circuit did just that in the Manchester case and then said that “the final version of the city’s ordinance is a legitimate time, place, and manner regulation consistent with the First Amendment” (Phelps-Roper v. City of Manchester, 697 F.3d 678, 2012), which also overruled much of the Nixon holding. After the Manchester holding, another panel of the Eighth Circuit reheard arguments in the Nebraska case (Phelps-Roper v. Troutman, 712 F.3d 412, 2013) and remanded the case to a lower court to consider whether a change in the law’s buffer zone from 300 to 500 feet would change the outcome. Finally, in

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2013, the Eighth Circuit also remanded to a lower court the remaining part of the Missouri law left standing after the 2012 Manchester case (Phelps-Roper v. Koster, 713 F.3d 942).

The Supreme Court stepped into the fray in 2011, agreeing 8-1 with the Fourth Circuit that the WBC’s funeral picketing activities and website (www.godhatesfags.com) were protected under the First Amendment. Albert Snyder’s son, Marine Lance Cpl. Matthew A. Snyder, was killed in Iraq in the line of duty, and the members of the church picketed his Maryland funeral. The picketers complied with regulations and police directions, and Snyder did not see the protest until after the funeral when it was shown on local television.

In Snyder v. Phelps (562 U.S. 443), Chief Justice John Roberts wrote that the content of the signs displayed by WBC protestors related to matters of public, rather than private, inter- est, as those signs focused on political and moral questions, and the protest was not intended as a private assault on the Snyder family, as WBC had been protesting funerals for some time. Because the WBC members followed all police rules as to where they protested and did not interfere with the funeral itself, the distress felt by the family was a result of the content of the signs. “What Westboro said, in the whole context of how and where it chose to say it, is entitled to ‘special protection’ under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous,” wrote Roberts.

Justice Samuel Alito, writing in dissent, pointed out that the WBC could have chosen anywhere in Maryland or Washington, D.C. in which to protest, and the fact that they chose Snyder’s funeral made the protest personal and was done to increase publicity. He conclud- ed, “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like [the Snyder family].”

While there are federal and state funeral protest laws on the books, in the wake of Snyder, at least one bill was proposed to revise a federal law: the Safe Haven for Heroes Act would prohibit protests for five hours before and five hours after a military funeral and will limit protests to 2,500 feet from the funeral facility. However, this law may be too broad to pass constitutional muster, given that several months prior to the Supreme Court’s decision, a federal judge in Missouri struck down that state’s funeral protest law, which called for no protests for one hour before and one hour after the funeral and limited protests to 300 feet from ceremonies and processions (Phelps-Roper v. Koster, 734 F. Supp. 2d 870).

FIG. 19. A Newseum display of a Ten Commandments monument at

the Texas Capitol Building, similar to the one in Pleasant Grove City, Utah.

Author’s collection.

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Parks. The Supreme Court has also addressed the question of when government regula- tions concerning the use of a public place such as a park become a form of censorship. In Thomas v. Chicago Park District (534 U.S. 316), the high court in 2002 upheld the reasonable- ness of Chicago’s rules for deciding whether to grant permits to demonstrators seeking to stage an event in a public park. The Court ruled unanimously that the city’s 13-point guide- lines, which require groups of more than 50 people to prove they have insurance, among other requirements, does not violate the First Amendment because it applies equally to all groups regardless of their viewpoint. Chicago officials defended the policy as necessary to assure fair access to local parks by individuals as well as large groups.

Writing for the Court, Justice Antonin Scalia said, “The licensing scheme at issue here is not subject-matter censorship but content-neutral time, place and manner regulation of the use of a public forum.” He added, “The picnicker and soccer player, no less than the political activist or parade marshal, must apply for a permit if the 50-person limit is to be exceeded.”

A different kind of access issue is presented by the permanent installation of monuments in public parks. The Supreme Court entered the controversy in a 2009 case called Pleasant Grove City v. Summum (555 U.S. 460). At issue was whether Corky Ra, founder of Summum, a religion whose goal it is “to help you liberate and emancipate you from yourself,” could force Pleasant Grove City, Utah, to display a monument containing the “Seven Aphorisms of Summum” because the city had already accepted other monuments, including one of the Ten Commandments. The Supreme Court said that the city did not have to display the Summum monument because the placement of a permanent monument in a city park was a form of government speech and not subject to the First Amendment.

Relying on cases involving government-sponsored speech like Johanns v. Livestock Market- ing Association (discussed in Chapter Thirteen), Justice Samuel Alito, speaking for a unani- mous Court, said, “Permanent monuments displayed on public property typically represent government speech.” Government need not maintain neutrality when it speaks, and govern- ment speech does not receive First Amendment scrutiny. Even if the monuments that Pleas- ant Grove City accepted were funded privately, the city engaged in selectivity in the choice of those monuments and did not open the park in which they were installed to all monuments. A federal judge in 2010 dismissed a followup lawsuit against Pleasant Grove alleging an establishment clause violation by the city for allowing the Ten Commandments monument.

License plates. A “Focus On” box in this chapter contains discussions of state license plate controversies. But the Supreme Court settled the question of whether speech on license plates constituted private or governmental speech in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (No. 14-144). Texas offers for sale over 350 license plate designs, ranging from school logos to Mothers Against Drunk Driving to private organizations. The Sons of Confederate Veterans wanted approved a specialty plate featuring a Confederate flag. The Texas Division of Motor Vehicles Board denied the application, and the Sons appealed. The Fifth Circuit said that license plates were private speech and thus the board engaged in unlawful content-based regulation. But the high court reversed.

Justice Stephen Breyer, writing for a 5-4 majority, relied on the reasoning in Pleas- ant Grove City v. Summum, discussed above. “First, the history of license plates shows that, insofar as license plates have conveyed more than state names and vehicle identification numbers, they long have communicated messages from the States,” he noted, adding that “Texas license plates are, essentially, government IDs. And issuers of ID ‘typically do not

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permit’ the placement on their IDs of ‘message[s] with which they do not wish to be associated.’” Texas’ ability to control the messages makes the speech on the plates govern- mental; Texas can choose to promote the various schools its residents attend but need not, for example, allow an anti-schooling plate.

Justice Samuel Alito, joined by Justices Antonin Scalia, Clarence Thomas, and Chief Justice John Roberts, posed a hypothetical situation where one would watch cars go by on a Monday morning on a Texas highway:

As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?

Of course not, said Alito, and that is why the plates are private speech. Calling license plates “little mobile billboards on which motorists can display their own messages,” he expressed concern about the application of the “little” billboard policy onto “big” billboards that were perhaps erected by the state—where he alleged that viewpoint discrimination would be unlawful.

Campuses. The Supreme Court ruled on another access issue in 2006, upholding the Solomon Amendment, a federal law requiring colleges and universities to allow military recruiting if they receive federal funds and allow other recruiters. On many campuses, mili- tary recruiters had been barred because of the military’s “don’t ask, don’t tell” policy toward homosexual service personnel. A coalition of law schools and professors argued that they have a First Amendment right to decide who recruits on campus, and to bar recruiters who will not sign a non-discrimination pledge. In Rumsfeld v. Forum for Acad. & Inst’l Rights (547 U.S. 47), Chief Justice John Roberts offered a three-part analysis of the First Amendment question. Writing for a unanimous Court, he said the Solomon Amendment does not require law schools or their faculties to speak in favor of military service. Nor does it prevent them from speaking against military service. Roberts wrote: “Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amend- ment restricts what the law schools may say about the military’s policies.”

Military bases. In U.S. v. Apel (134 S. Ct. 1144, 2014), the Court ruled unanimously that the military, once it sets up a base, fully controls the use of all base property, even if it allows some public use of some of the base. John Apel, an antiwar activist, demonstrated at Vanden- berg Air Force Base beyond the designated protest area and threw blood on a sign. He was convicted of trespass but argued that the military should not have full control over public roads on an easement. Chief Justice John Roberts wrote that it would not require judges to evaluate military sites on a case-by-case basis, adding, “The use-it-or-lose-it rule that Apel proposes would frustrate the administration of military facilities and raise difficult questions for judges, who are not expert in military operations.” Apel did, however, have the right to continue a First Amendment claim, as the ruling was just on the law, not on its application to him. Justice Ruth Bader Ginsburg, while agreeing with the law’s interpretation, said that

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she wasn’t convinced “whether Apel’s ouster from the protest area can withstand constitutional review” because the Air Force didn’t seem to care who used the protest zone. In 2015 the Court denied cert on Apel’s appeal on remand.

Access to national Landmarks

In the 2000s, courts have been asked whether government restrictions on speech around national monuments or in nation- al parks unduly restrict speech. In 2010, the Third Circuit threw out the conviction of religious protester Michael Marcavage after he refused to move away from the Liberty Bell at a National Park Service ranger’s request. Applying strict scrutiny, the court found that the government had not narrowly tailored its response to him, particularly given that there were other groups gathered at the Bell, and did not exercise the least restrictive means of dealing with his speech(U.S. v. Marcavage, 609 F.3d 264).

Marcavage made an appearance in the Seventh Circuit in 2011 as well, as part of a protest he organized in Chicago during the 2006 Gay Games (Marcavage v. City of Chicago, 659 F.3d 626). He alleged that he was restricted from entering three areas during the Games because he did not obtain a permit. The court threw out two of the three complaints and remanded the third back to the lower court to evaluate whether Marcavage’s First Amendment rights had been violated. The court said that because of the loca- tion of the third area, Gateway Park near the Navy Pier, it may be that “the imposition of burdensome restrictions for small groups… might be overreaching.”

Marcavage also showed up at the Republican National Conven- tion in New York to protest, and he was arrested after failing to comply with police orders to move to a place where protests were approved (Marcavage v. City of New York, 689 F.3d 98, 2012). In supporting the arrest, the Second Circuit said the restrictions were content neutral and narrowly tailored, and “the record amply establishes non-security reasons for banning protesters from occu- pying a crowded sidewalk” as well as sufficient security reasons.

Similarly, the D.C. Circuit struck down as overbroad the rules governing protests in national parks in 2010 (Boardley v. U.S. Dept. of the Interior, 615 F.3d 508). Michael Boardley and his group distributed free religious tracts in a “free speech zone” in Mount Rushmore National Park, and they were told by a ranger that they needed a permit; they left and applied for one but never received a response. When he filed suit, he then received the permit, but continued the suit on the grounds that the speech rules were too broad. The appellate court agreed: “The Constitution does not tolerate regulations that, while serving their purported aims, prohibit a wide range of activities that do not interfere with the

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Focus on… True threats

In June 2009, the FBI arrested Internet radio host and blog- ger Hal Turner for threats against three Seventh Circuit judges for their decision upholding handgun bans.

According to a DOJ press release, Turner wrote on his blog, “Let me be the first to say this plainly: These Judges deserve to be killed.” He posted their photographs, phone numbers, work address and room numbers, and infor- mation about the building in Chicago in which they work.

Turner also noted that another judge who had decided a case against a white supremacist found her husband and mother murdered in their home, saying, “Apparently, the 7th U.S. Circuit court didn’t get the hint after those killings. It appears another lesson is needed.”

Turner claimed he was trained as an agent provocateur by the FBI. Two trials ended in deadlock, and he was convicted in a third in August 2010.

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Government’s objectives,” the court wrote. The court listed a number of speech acts, rang- ing from Girl Scout meetings to teachers taking students on field trips, that would require permits even though they do not interfere with government interests.

On the other hand, a regulation prohibiting chalking messages on the street in front of the White House was found to be constitutional because it was intended to prohibit deface- ment of public and private property in a content-neutral way, said the D.C. Circuit in 2011 (Mahoney v. Doe, 642 F.3d 1112). Rev. Patrick Mahoney requested permission for a chalk

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Focus on… Is it protected? 2015 edition

Courts have construed many activities to have expressive components and thus to be under the First Amendment’s purview. Here are a few of the odder freedom of expression questions that courts have been asked to address.

Not admitting to owning animals. Under the District of Columbia’s Animal Control Act, it is unlawful for any person to “knowingly and falsely deny ownership of any animal.” Ivar Johnson, an animal rights activist, believes that people should not be allowed to “own” animals. at a dog show, 5/8/1920. While Johnson has not been prosecuted under Library of Congress.

this act, he said his speech was chilled because he did not want to admit to “owning” his dog, Liam. The district court said he had no standing to sue because there was no reasonable threat that he would be prosecuted if he gave speeches saying he did not “own” Liam (Johnson v. District of Columbia, 2014 U.S. Dist. LEXIS 148596).

Being banned for life from college athletic events. Not a violation of the First Amendment, said a North Carolina court of appeals about John Donnelly’s lifetime ban from University of North Carolina sporting events. Donnelly had, during his time as a fan and usher for UNC, “made sexually suggestive comments to female UNC Athletics staff members, traveled to UNC women’s soccer matches and appeared at the hotel where the players were staying and harassed the players,” and more. These were not expressive acts protected by the First Amendment

(Donnelly v. Univ. of North Carolina, 763 S.E.2d 154, 2014).

Claiming unpublished court comments as endorsement by a judge: Protected. Attorney Andrew Dwyer published on his website several compliments from judges that appeared in unpublished cases. When a judge objected, the New Jersey Committee for Attorney Advertising adopted a rule forbidding extracting advertising content from cases like this without publishing the whole case. The Third Circuit said that forcing the entire case to be published online violated Dwyer’s First Amendment rights because the rule was not “reasonably related to the State’s interest in prevent- ing deception of consumers” (Dwyer v. Cappell, 762 F.3d 275, 2014).

Cussing outside a courtroom because a judge took a break: Protected, since there was no intent to embarrass the judge. Valerie Perez, waiting for traffic court, burst out, “I waited all fucking morning and now she takes a break” when the judge left the courtroom. She was charged with indirect criminal contempt. But, said an Illinois appellate court, the state did not find her guilty beyond a reasonable doubt, nor did Perez “communicate this statement directly to the judge or identify the judge by name while in the hallway” (People v. Perez, 2014 IL App (3d) 120978).

FIG. 20. Franklin D. Roosevelt & daughter, Anna,

demonstration against abortion in 2008. He was allowed to bring banners and signs but was prohibited from chalking 1600 Pennsylvania Avenue NW, in front of the White House. The appellate court said that the chalking ban was a reasonable time, place and manner restriction because it was content neutral and served an important government interest in preserving the aesthetics of public property. Judge Brett Kavanaugh, concurring in the judgment, further noted, “No one has a First Amendment right, for example, to spray-paint the Washington Monument or smash the windows of a police car.”

How about silent dancing in the Jefferson Memorial rotunda? No, said the D.C. Circuit in 2011. Mary Brooke Oberwetter and her friends refused to stop “silent expressive dancing” inside the Jefferson Memorial, saying they were observing Thomas Jeffer- son’s birthday. She was arrested under National Park Service regulations that prohibit demonstrations without a permit. The court pointed out that of course she could dance to honor Jefferson, but “the question this case presents is whether she had the right to perform her dance inside the Jefferson Memorial.” The court said she did not, because the Jefferson Memorial is “a space with a solemn commemorative purpose that is incompatible with the full range of free expression that is permitted in public forums” (Oberwetter v. Hilliard, 639 F.3d 545).

In 2012 President Obama signed the Federal Restricted Buildings and Grounds Improve- ment Act of 2011. The law criminalizes impeding or disrupting the conduct of government business or official functions in or near “any restricted buildings or grounds”—including the White House and vice president’s residence, anywhere the president or others protected by Secret Service are or will be temporarily visiting, or an event of national significance. Critics call it the “anti-Occupy law” and allege that the breadth and vagueness of the law may well render it unconstitutional. In addition, the Supreme Court issued regulations about protests in its building in June 2013. The language says: “No person shall engage in a demonstration within the Supreme Court building and grounds. The term ‘demonstration’ includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers.”

newsrack Ordinances

Another difficult First Amendment issue concerns newsracks on public property. Many states and cities have adopted laws regulating the size and placement of newsstands on sidewalks, for instance. Some banned newsracks altogether. This has produced a variety of conflicting court rulings. In 1988, the Supreme Court squarely addressed this issue for the first time, and in so doing handed the news media a significant victory.

In City of Lakewood v. Plain Dealer Publishing Co. (486 U.S. 750), the Court voted 4-3 to overturn a Lakewood, Ohio, ordinance that gave the town’s mayor broad discretion to grant or deny publishers’ requests to place newsstands on public sidewalks. The Court ruled that newsracks are a legitimate form of expression in a public forum protected by the First Amendment, and a city may not base decisions to grant or deny newsrack space on the content of the publication. The mayor of Lakewood, a suburb of Cleveland, rejected the Cleveland Plain Dealer’s request to place newsracks at 18 locations in the town. The newspaper argued that the decision was arbitrary and violated the First Amendment.

Writing for the majority, Justice William Brennan acknowledged that a city could flatly prohibit all newsracks, but he said a city may not ban some while permitting others based

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on arbitrary decisions about their content. The Supreme Court remanded the case to deter- mine if the Lakewood ordinance would be valid if the provisions allowing discrimination based on content were deleted. Justice Byron White and two others joined in a vigorous dissenting opinion that compared newsracks to soft-drink vending machines and questioned their right to enjoy First Amendment protection.

In 1993, the Supreme Court went even further in upholding the right to distribute litera- ture in newsracks on public property. In Cincinnati v. Discovery Network (507 U.S. 410), the Court said the city of Cincinnati could not flatly ban newsracks for commercial literature while allowing newspaper vending machines. City officials ordered Discovery (the publisher of a free magazine describing adult educational and recreational courses) and the publish- ers of a free real estate magazine to remove 62 newsracks from city property. Meanwhile, the city allowed more than 2,000 newspaper vending machines to remain on public property.

Voting 6-3, the Court rejected the city’s contention that the free flyers could be banned because they were merely commercial speech. The Court ruled that commercial speech enjoys considerable First Amendment protection and cannot be banned by a government agency unless the agency has a reasonable basis for doing so. The Court rejected Cincin- nati’s argument that banning the 62 commercial newsracks would enhance the appearance of the city at a time when the city was not acting to remove 2,000 newspaper stands. The commercial speech aspects of this case are discussed in Chapter Thirteen.

Numerous lower courts have addressed these issues. In 2010, for instance, the Fourth Circuit found a public airport’s total ban on newsracks to be a significant harm to newspaper publishers’ protected expression (News and Observer v. Raleigh-Durham Airport Auth., 597 F.3d 570). In 2012, the Fifth Circuit upheld the city of Houston’s newsrack ordinance against a First Amendment challenge, saying it was content-neutral and tailored to meet city aesthetic concerns (Lauder, Inc. v. City of Houston, 670 F.3d 664).

ANONYMOUS SPEECH

Increasing numbers of litigants have been willing to go to court to protect their anonym- ity—or to discover others’ identities to sue them for libel or copyright infringement. In the 1990s and beyond, courts, including the Supreme Court, have been asked to wrestle with whether and when to unmask anonymous speakers.

As noted earlier, the Supreme Court’s lead case in anonymous speech is McIntyre v. Ohio Elections Commission, in 1995, in which the Court struck down laws that prohibited the dissemination of anonymous campaign literature. But how does this endorsement of the right to remain anonymous apply to the online environment, particularly when there is a lawsuit at stake? Recent cases address anonymity in several online and offline contexts.

Online Anonymity

The case that is often considered to be the lead case in whether to require an online anonymous speaker to be revealed is the 2001 case of Dendrite International, Inc. v. Doe (775 A.2d 756). Dendrite, a pharmaceutical sales and support company, wanted the identity of an anonymous online poster to a Yahoo! message board so that the company could sue the person for libel. The New Jersey court denied Dendrite’s claim and provided a five-part test for revealing the identity of an anonymous entity: First, the plaintiff must attempt to notify the anonymous poster, including by posting on the original message board. Second, the

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plaintiff must identify allegedly actionable statements made by the defendant. Third, the plaintiff must provide a basis on which to bring suit, such as libel. Fourth, the plaintiff must provide evidence for that claim, and finally, the court should “balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.” (Prima facie is Latin for “at first sight,” and it means obvious or self-evident.) In this case, the court said there was no evidence to suggest that Dendrite had been harmed or its stock prices reduced due to the false anonymous postings.

The Dendrite test. In the first such ruling by a state’s highest court, the Delaware Supreme Court in 2005 upheld the right of Internet bloggers to speak anonymously. In John Doe No. 1 v. Cahill (884 A.2d 451), the court, using a modified version of the Dendrite test, said blog- gers have a First Amendment right to anonymity unless someone suing a blogger has a clearly valid case, rejecting a local official’s attempt to identify bloggers who criticized him on a newspaper-sponsored blog site. The Delaware court likened bloggers to the political pamphleteers who won Supreme Court decisions protecting their anonymity. Other courts are adopting or adapting this approach; for example, in 2008, a Maryland appeals court said a plaintiff had not made a strong enough defamation case against five anonymous bloggers to compel their identification (Independent Newspapers Inc. v. Brodie, 966 A.2d 432).

In the late 2000s, the number of cases dealing with anonymous online speech exploded, with courts adapting elements from tests in cases like Dendrite and Cahill. A few cases are offered here, but there are many more. In 2009, the District of Columbia appeals court added a requirement that plaintiffs make the case that the information they are seeking is truly important for their cases in Solers, Inc. v. Doe (977 A.2d 941). A software industry associa- tion investigated Solers, a defense industry software company, in response to an anonymous tip to determine whether it was using pirated software. Although the industry association found no wrongdoing, Solers filed a complaint against the anonymous tipster. The court dismissed Solers’ claim and said that the plaintiff must “determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.” Also in 2009, model Liskula Cohen was able to discover the identity of an anonymous blogger whom she wanted to sue for defamation for writing about her on a blog entitled “Skanks of NYC” (Cohen v. Google, Inc., 887 N.Y.S.2d 424). The New York court said that to unmask an anonymous defendant, the plaintiff must make a prima facie showing of a “meritorious cause of action.” (This case’s libel actions will be discussed in Chapter Four.)

In 2010, the New Hampshire Supreme Court also explicitly endorsed the Dendrite test in a case involving an online service that gathers and posts online information about mort- gage lenders, saying that it did not have to reveal the identity of an anonymous poster. The court said in Mortgage Specialists Inc. v. Implode-Explode Heavy Industries Inc. (999 A.2d 184), “We hold that the qualified privilege to speak anonymously requires the trial court to ‘balanc[e]…the equities and rights at issue,’ thus ensuring that a plaintiff alleging defama- tion has a valid reason for piercing the speaker’s anonymity.” The court remanded the case to the trial court to apply the Dendrite standard.

But courts differ in their willingness to apply these emerging tests. In 2010, a divided Illinois appeals court reversed a lower court’s dismissal of a plaintiff’s petition to reveal an anonymous source, ordering a news organization to reveal the anonymous poster. In Maxon v. Ottawa Publishing Co. (929 N.E.2d 666), the majority said that an Illinois rule made the application of the Dendrite/Cahill test unnecessary. The dissent claimed that the

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Dendrite/Cahill test “adds a crucial extra layer of protection to anonymous speech” and is “designed to protect the identity of those participating in non-actionable anonymous speech.” And the Second Circuit adopted a test from a New York federal district court in determining whether to reveal the identity of an anonymous filesharer: “(1) [the] concrete[ness of the plaintiff’s] showing of a prima facie claim of actionable harm… (2) [the] specificity of the discovery request… (3) the absence of alternative means to obtain the subpoenaed information… (4) [the] need for the subpoenaed information to advance the claim, …and (5) the [objecting] party’s expectation of privacy” (Arista Records LLC v. Doe 3, 604 F.3d 110, 2010).

But what if a news organization decides to reveal the identity of an anonymous online commenter? A Cleveland newspaper settled with an Ohio judge after it revealed her identity in 2010. Cuyahoga County Court of Common Pleas Judge Shirley Strickland- Saffold and her daughter, Sydney, sued the Cleveland Plain Dealer for defamation, breach of contract, and invasion of privacy after the Plain Dealer divulged that the pseudonym “lawmiss” connected to the judge’s e-mail address was the source of comments about cases currently before her court (the Ohio Supreme Court removed the judge from one of those, a serial murder case). The judge claimed that her daughter and ex-husband were the authors of those comments.

However, the Ninth Circuit applied a reduced level of protection to anonymous commer- cial communication in 2011. In what was primarily a procedural case between Amway (formerly Quixtar) and Signature Management TEAM, a company that provides support materials like books and motivational speaker appearances to those who sell Amway prod- ucts, the court said that the district court’s application of the strict standard established in Cahill (a political speech case) went too far in protecting anonymous commercial speech. “[W]e suggest that the nature of the speech should be a driving force in choosing a standard by which to balance the rights of anonymous speakers in discovery disputes,” the court said (In re Anonymous Online Speakers, 661 F.3d 1168).

Could this be the start of a trend in which courts evaluate different types of online anonymous speech differently? If so, the anonymity of participants on sites like Yelp and Urbanspoon, in which users review restaurants and shops, could be in danger. At least one district court in the Ninth Circuit has applied the distinction (Cornelius v. DeLuca, 39 Media L. Rep. 1660) but protected the anonymity of an online poster, saying that the post “is deserv- ing of more protection than mere commercial speech but less than speech that lies at the heart of First Amendment values, such as religious or political speech.”

Not every court follows the Dendrite/Cahill standard, believing it to be an unnecessary addition to the law. In considering whether clothing company Façonnable could obtain the identities of anonymous editors of a Wikipedia site that alleged that Façonnable was a supporter of militant group Hezbollah, a federal district court in Colorado said instead that “existing procedures, applied with a heightened sensitivity to any First Amendment implica- tions, is the correct approach” to determine when anonymous speakers can be unmasked. The court ordered online service provider Skybeam to provide the identities; however, Skybeam was granted an emergency stay to avoid the disclosure. Then Façonnable volun- tarily dismissed the case. The court later vacated the original order so as not to prejudice Skybeam in other cases (Façonnable USA Corp. v. John Does 1-10, 799 F. Supp. 2d 1202).

Some states are considering bills to combat anonymous online posting. In New York, such a bill, introduced in 2012, would mandate that website administrators, if asked, “shall remove any comments posted on his or her web site by an anonymous poster unless such

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anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.”

Offline Anonymity

While offline anonymity is not nearly as hot a legal topic as its online counterpart, the Supreme Court in 2010 again stepped into the debate in Doe v. Reed (561 U.S. 186). At issue was whether the First Amendment is violated when a state compels public release of identify- ing information about petition signers—in this case, those who had signed an anti-gay rights petition in Washington state.

The Court said that as a general rule, disclosure of names under the Washington public records act is not a free speech violation, but disclosure could be problematic in some cases based on their facts. The plaintiffs in this case brought their case to the lower court again. The case is discussed in more depth in Chapter Nine.

DISCRIMINATORY TAXATION AS CENSORSHIP

One of the oldest forms of government control over the media is discriminatory taxa- tion. Authorities in seventeenth- and eighteenth-century England used taxes to control the press. One of the major grievances of the colonists before the revolutionary war was the Stamp Act, which singled out newspapers and legal documents for heavy taxation. Taxes may be burdensome for everyone, but if governments can levy high taxes on the news media and exempt other kinds of businesses, governments can force crusading news organizations into bankruptcy—or force them to become docile to avoid punitive taxation.

For many years after independence, attempts to single out newspapers for special taxes were rare in America, but a classic example of such a tax cropped up in the 1930s.

In 1936, just five years after its landmark Near v. Minnesota decision, the Supreme Court decided Grosjean v. American Press (297 U.S. 233). This case arose because Louisiana, domi- nated by Governor Huey “Kingfish” Long’s political machine, had imposed a special tax on the 13 largest papers in the state, 12 of which opposed Long. The tax applied to total adver- tising receipts of all papers and magazines with a circulation over 20,000 copies per week.

The newspapers challenged the tax and a federal court issued an order barring the tax as a violation of the First Amendment. The Supreme Court heard the case on appeal and unanimously affirmed the lower court. In an opinion by Justice George Sutherland, the Court said the First Amendment was intended to prevent prior restraints in the form of discriminatory taxes. Sutherland noted that the license tax acted as a prior restraint in two ways. First, it would curtail advertising revenue, and second, it was designed to restrict circu- lation. The Louisiana tax, Sutherland said, was “not an ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press.”

The Supreme Court has overturned three other state tax systems that improperly singled out the media for unconstitutional taxation. In 1983, the Court overturned a Minnesota plan that taxed some—but not all—newspapers. Minnesota created a “use” tax on the ink and newsprint used by newspapers in 1971. But after some of the smaller papers complained of the economic hardship the tax caused, the legislature rewrote the law to exempt the first $100,000 in newsprint and ink each newspaper purchased annually. Thus, the law in effect exempted small newspapers or, to put it another way, singled out large newspapers for a special tax. By 1974, one newspaper company—the Minneapolis Star & Tribune—was paying about two-thirds of the total amount the state collected from all Minnesota newspapers

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110 Modern Prior Restraints

through this tax. Citing the Grosjean precedent, the Star & Tribune company challenged the constitutionality of the tax.

In Minneapolis Star & Tribune v. Minnesota Commissioner of Revenue (460 U.S. 575, 1983), the Supreme Court voted 8-1 to overturn Minnesota’s tax on ink and newsprint. Justice Sandra Day O’Connor, writing for the Court, warned that because such a tax “targets a small group of newspapers,” it “presents such a potential for abuse that no interest suggested by Minnesota can justify the scheme.” Justice William Rehnquist dissented, arguing that the use tax in question was less of a burden than the normal sales tax paid by other businesses. (Minnesota had exempted newspapers from the state sales tax, a practice that was then common in other states as well.) Rehnquist said the state was actually conferring a benefit on the press, something the states may do without violating the First Amendment.

In 1987 the Supreme Court overturned another state taxation scheme that singled out some media for taxes not paid by others. This case involved an Arkansas sales tax that applied to general interest magazines but not to newspapers or to specialized magazines (e.g., reli- gious, professional, trade and sports publications). In Arkansas Writers’ Project v. Ragland (481 U.S. 221), the Supreme Court ruled the tax unconstitutional, relying on much the same rationale as in the Minneapolis Star & Tribune case.

In fact, the Court said the Arkansas tax was even more flagrantly unconstitutional than the one in Minnesota because it required government officials to base a tax break on the content of the media. “[O]fficial scrutiny of the content of publications as the basis for impos- ing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press,” Justice Thurgood Marshall wrote for the majority. Thus, any tax giving some media favorable treatment while not extending the benefit across the board is unconstitutional. However, the Court did not rule out the possibility that a state could impose a tax on entire categories of media, taxing all newspapers while exempting all magazines, for instance.

The ruling produced a strong dissent from Justices Antonin Scalia and William Rehnquist (by then the Chief Justice). Scalia said that instead of promoting press freedom, the ruling would actually undermine other government tax breaks based on content, such as subsidies of public broadcasting, educational publications and the arts in general.

In 1989, the Supreme Court continued in this pattern by overturning a Texas tax system that granted sales tax exemptions to religious books, magazines and newspapers but not to secular publications. In Texas Monthly v. Bullock (489 U.S. 1), the majority ruled that the Texas tax scheme was unconstitutional because it violated the First Amendment’s require- ment of separation of church and state. In effect, the tax break was an unconstitutional state action to subsidize religion, they ruled.

But, in 1991 the Supreme Court again made it clear that the media are subject to the same taxes as other businesses—as long as the tax does not improperly single out the media. Ruling in Leathers v. Medlock (499 U.S. 439), the Court voted 7-2 to uphold an Arkansas sales tax that applied to cable and satellite television services—as well as to utilities, hotels and other businesses. Writing for the Court, Justice Sandra Day O’Connor said this tax was not like the taxes on the media that the Court had previously overturned: “There is no indica- tion in this case that Arkansas has targeted cable television in a purposeful attempt to inter- fere with its First Amendment activities.” Justices Thurgood Marshall and Harry Blackmun dissented, arguing that this kind of sales tax could be used to inhibit freedom of expression.

A week after it upheld the Arkansas cable tax, the Supreme Court disposed of three other cases involving taxes on the media. The Court declined to review state court deci- sions on media taxes in Tennessee and Iowa. But in the third case, Miami Herald v. Dep’t of

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Revenue (499 U.S. 972), the high court issued an order directing the Florida Supreme Court to reconsider the validity of a sales tax on magazines but not newspapers. The state court complied with the U.S. Supreme Court’s order—and again ruled that the state cannot tax just magazines. Such a tax is improper because it is based on the content, the court ruled in 1992 (Dep’t of Revenue v. Magazine Publishers of America, 604 So.2d 459).

To summarize, these decisions on media taxation basically say that the media may not be taxed in a discriminatory fashion. If some media must pay a tax that does not apply to others based on their content or their size, the tax is unconstitutional. But if the tax applies across the board to similar media—and especially if it applies to other businesses—it is valid.

OTHER PRIOR RESTRAINT QUESTIONS

The twentieth century was a time of government regulation, an era when many forms of activity were brought under government supervision for the first time. When the targeted activity involved the communication of ideas or information, however, the regulation has often been challenged as a violation of the First Amendment. This has forced the nation’s courts—and ultimately the Supreme Court—to look at government control of expressive activities of many kinds. This section summarizes some key questions.

Censorship and Financial Information

Does the federal government have the right to prohibit the publication of newsletters offering advice to stock market investors by people with questionable backgrounds, or does the First Amendment protect the right to publish such newsletters? How about lawyers giving bankruptcy advice to clients; can that be regulated?

The newsletter question was raised in a 1985 Supreme Court decision, Lowe v. SEC (472 U.S. 181). Under the federal Investment Advisers Act, the SEC is empowered to regulate the dissemination of investment advice, even when the advice is in the form of a publication that would seem to be protected by the First Amendment. The act exempts bona fide newspapers and magazines. Christopher Lowe was convicted of mishandling a client’s funds, and the SEC canceled his registration as an investment adviser. However, he continued to publish a financial newsletter. When the SEC tried to stop him from publishing his newsletter, he argued that he had a First Amendment right to publish it. The Court ruled that Lowe’s newsletter was in fact a bona fide publication and therefore exempt from regulation by the SEC. But writing for the majority, Justice John Paul Stevens noted that Lowe’s newsletter contained disinterested investment advice intended for numerous readers, not personalized advice for specific individual clients. The Court said the SEC could regulate those who give individualized advice, as opposed to publishers who offer their analyses of various invest- ments to a general audience.

In short, the Court liberally interpreted the Investment Advisers Act’s exemption for bona fide publications, and thereby avoided the First Amendment implications of the act’s restrictions on giving investment advice. The Court did not resolve the question of when the right to communicate opinions about the stock market is protected by the First Amendment.

However, a year after it lost Lowe at the Supreme Court, the SEC abandoned many of its efforts to regulate publications and broadcasts that give investment advice or discuss economic issues. Nevertheless, the SEC continued to act against financial publications that allegedly published misleading information that might affect the stock market. In 1988, the SEC lost such a case in the U.S. Court of Appeals, SEC v. Wall Street Publ’g Institute Inc.

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(851 F.2d 365). That firm, the publisher of Stock Market Magazine, was accused of publishing articles that were little more than corpo- rate “flackery” (as a federal judge put it)— uniformly flattering articles that were written by the companies or their public relations agencies.

The appellate court ruled that neither the SEC nor the courts can delve into the sources or origins of magazine articles without violating the First Amendment. However, the appellate court did send the case back to a trial judge to determine whether some of the articles might have been paid advertising disguised as news. The court said that if the magazine was accepting payment for publishing the articles, the SEC might have the authority to force the magazine to disclose that fact. Accepting payment to publish an article would make the article a form of advertising; it should be identified as such.

In contrast, the government can constitutionally put limita- tions on bankruptcy advice. In 2010 the Supreme Court decided Milavetz, Gallop & Milavetz v. U.S. (559 U.S. 229), holding that prohibitions on bankruptcy advisers giving certain types of advice to their clients contained in the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) did not run afoul of the First Amendment. At issue was BAPCPA’s provision barring debt relief services from advising clients to incur more debt for filing for bank- ruptcy; a law firm filed a pre-enforcement suit to request that the court say that it was not a debt relief agency and could advise its clients to incur additional debt.

Justice Sonia Sotomayor, writing for the Court, said that attor- neys who provide bankruptcy advice are considered debt relief agencies for the purpose of BAPCA. Moreover, the law does not overburden speech, as it regulates only one form of legal advice: recommending that clients incur more debt in advance of filing for bankruptcy. She added, “[I]t is hard to see how a rule that narrowly prohibits an attorney from affirmatively advising a client to commit this type of abusive prefiling conduct could chill attorney speech or inhibit the attorney-client relationship.”

Rock Concerts and the First Amendment

If motion pictures are protected from direct government censorship by the First Amendment, what about rock concerts? May a city restrict the sound levels at rock concerts in a city park without violating the First Amendment? In 1989, the Supreme Court ruled on this question in Ward v. Rock Against Racism (491 U.S. 781). For a number of years a group called Rock Against Racism sponsored annual concerts at a bandshell in New York City’s Central Park. The group drew repeated complaints from other park-goers and nearby residents about the sound level at RAR concerts. Eventually

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Focus on… Hit Man

While we will never know if Paladin Press would have won or lost at the Supreme Court, it is clear that the Fourth Circuit was uncomfortable protecting Hit Man. A few excerpts cited by the court:

“It is my opinion that the professional hit man fills a need in society and is, at times, the only alternative for ‘personal’ justice. More- over, if my advice and the proven methods in this book are followed, certainly no one will ever know.”

“[After you killed your first victim,] you felt absolutely nothing. And you are shocked by the nothingness. … After you have arrived home the events that took place take on a dreamlike quality. … You don’t worry. You don’t have nightmares. You don’t fear ghosts. When thoughts of the hit go through your mind, it’s almost as though you are recall- ing some show you saw on television.”

“Your experience in facing death head-on has taught you about life. You have the power and ability to stand alone.”

the city set limits on the sound level and placed monitors to measure the sound. When the prescribed volume was repeatedly exceeded during a RAR concert, city officials ordered the sound turned down. The concert promoters refused and were cited for excessive noise several times as the concert continued. The city finally cut off power to the bandshell to halt the concert—and refused to allow RAR to hold future concerts in Central Park. RAR sued the city.

The Court acknowledged that rock music is a form of expression protected by the First Amendment. However, the city’s limits on sound level were a reasonable time, place and manner restriction. The majority said the city’s policy has “no material impact on any performer’s ability to exercise complete artistic control over sound quality.” The Court conceded that the city’s use of its own technician to control sound levels was not the least intrusive means of achieving the goal (i.e., keeping the volume down). The city could have continued to monitor sound levels, issue citations, and halt concerts if the sound level remained too high. In earlier cases, governments had been required to use the least intru- sive means of regulating time, place and manner. However, the Court dropped that require- ment and said that it is no longer necessary that time, place and manner restrictions on First Amendment freedoms be as non-intrusive as possible.

Dissenting, Justices Marshall, Brennan and Stevens objected to the broad sweep of the Court’s decision: “Until today, a key safeguard of free speech has been government’s obliga- tion to adopt the least intrusive restriction necessary to achieve its goals. By abandoning the requirement that time, place and manner regulations must be narrowly tailored, the major- ity replaces constitutional scrutiny with mandatory deference (to local officials’ decisions).”

The Court’s decision settled the question of regulation of sound levels at rock concerts: the sound level may be limited—and government employees may be placed in charge of the equipment to make sure the limits are observed—without that violating the First Amend- ment. However, that does not mean government officials are free to control other aspects of performances at government-owned amphitheaters and arenas.

Government Money, Government Views?

Under what circumstances may the government use its money to control what is said by those organizations and individuals who accept that money? The Supreme Court has ruled on this question several times (in abortion speech, in Rust v. Sullivan, in Chapter Five, and in arts speech in NEA v. Finley, in Chapter Ten), but in 2013 it issued Agency for Int’l Dev. v. Alliance for Open Society Int’l (133 S. Ct. 2321) in which it said that what organizations say that does not align with governmental goals must be paid for with their own money. The Alli- ance, an organization that combats HIV/AIDS overseas, got funding from the government that came with the requirement that it must be “opposed to ‘prostitution and sex trafficking because of the psychological and physical risks they pose for women, men, and children.’” The Alliance said that explicitly opposing prostitution may make host countries less likely to work with them and could result in self-censorship and less ability to carry out its goals.

Chief Justice John Roberts, writing for a 6-2 Court (Justice Elena Kagan did not partici- pate), said that the case was “about compelling a grant recipient to adopt a particular belief as a condition of funding.” The policy, said Roberts, mandates that the Alliance “pledge alle- giance to the Government’s policy of eradicating prostitution.” And that is in violation of the First Amendment. Justice Antonin Scalia, with Justice Clarence Thomas, dissented, saying that it was common sense that “the Constitution does not prohibit government spending

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that discriminates against, and injures, points of view to which the government is opposed; every government program which takes a position on a controversial issue does that.”

Access to Ballots and Other Election Speech Issues

Several cases have arisen in the past few years questioning the rules governing access to election ballots for issues and candidates. Is there a First Amendment right to appear on a ballot for election, and what burdens, if any, can states place on minority party candidates to qualify for a ballot spot?

The Sixth Circuit in Jolivette v. Husted (694 F.3d 760) in 2012 let stand a lower court’s injunction forbidding Greg Jolivette from appearing on an Ohio ballot as an independent for state representative. There was evidence that Jolivette had been affiliated with the Repub- lican Party prior to and during his attempts to get on the ballot as an independent, and the court said that a state law that said he had to be truly unaffiliated was constitutional: Jolivette “has not shown that the application of Ohio law’s ‘good faith’ standard for disaffiliation to his case violated his constitutionally protected rights as a candidate.”

Two minority parties in Tennessee alleged that “the requirements to qualify for the Tennessee ballot as a ‘recognized minor party’ are overly restrictive” and thus unconsti- tutionally burden their First Amendment rights (Green Party of Tenn. v. Hargett, 700 F.3d 816, 2012). The Green and Constitution Parties alleged several other issues with the state ballot process, and a federal district court upheld all of them. However, during the litigation, Tennessee amended its minority party ballot requirements, and the court found that this mooted several of their claims, because, said the court, “the 2012 legislation allows minor parties to select their nominees for all offices according to their own rules.”

The Libertarian Party of Virginia challenged a requirement to have signatures on the ballot nominating petition witnessed by a “resident of the Commonwealth” (Libertarian Party of Va. v. Judd, 718 F.3d 308, 2013). Because the party used paid professionals and volunteers to gather signatures, and only two of these people were residents, the signature-gathering process was slowed because nonresidents had to be accompanied by a resident witness. The Fourth Circuit applied strict scrutiny and found that the requirement was not narrowly tailored and could not stand. The Libertarian Party recommended that “the Commonwealth could compel nonresidents, as a condition of witnessing signatures on nominating petitions, to enter into a binding legal agreement with the Commonwealth to comply with any civil or criminal subpoena that may issue,” which would be less restrictive and still accomplish the state’s desire to combat fraud. The state did not provide evidence to suggest that this less- restrictive means would not achieve its ends, the court found.

The Ninth Circuit in 2014 invalidated a California statute that required initiative propo- nents’ names to be listed on each petition sheet. In Chula Vista Citizens for Jobs v. Norris (755 F.3d 671), the court said, “California provides no explanation for how its interest in the integrity of the electoral process relates to the petition proponent disclosure requirement. It simply asserts the interest.” This is not enough for the statute to survive strict scrutiny, and the court added, “If the state is concerned about fraudulent proponents, as the district court suspected, it can protect against that possibility using the unchallenged disclosure requirements.” The court did leave in place a statute that limited sponsorship of initiatives to individuals, not groups.

Several states have laws that forbid the wearing of electioneering materials (t-shirts, hats, buttons, stickers) in polling places. Minnesota’s policy was challenged and found to be

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constitutional in Minn. Majority v. Mansky (708 F.3d 1051, 2013). Several election reform groups challenged the policy after members were delayed in voting by having to remove buttons or t-shirts, even though these materials did not advocate to vote for or against anyone or anything on the ballot. They argued that polling places were public fora. The Eighth Circuit disagreed and found that the policy was viewpoint neutral: “Because a statute restrict- ing speech related to a political campaign outside the polling place survives strict scrutiny, the Minnesota statute, to the extent it restricts speech about a political campaign inside the polling place, is ‘reasonable in light of the purpose which the forum at issue serves.’”

In North Dakota, a federal judge overturned a 1911 law forbidding campaigning on Election Day as “archaic” (Emineth v. Jaeger, 901 F. Supp. 2d 1138). Gary Emineth had a number of campaign signs on his property and did not want to remove them on Election Day, as the law required. He argued that the law criminalizes all speech that seeks to influence votes on Election Day. The judge, agreeing and overturning the ban as unconstitutional, wrote that the ban “flies in the face of general constitutional principles the Supreme Court has articulated in the context of both the free speech and free press clauses for decades.”

The Third Circuit took on a ballot access question in 2014 in Constitution Party v. Aichele (757 F.3d 347), a case in which the Constitution Party of Pennsylvania and other parties were granted standing to bring suit against Pennsylvania’s election code, particularly the rules governing “minor parties’” access to the ballot. The parties alleged that “Pennsylva- nia’s ballot access scheme violated rights guaranteed to them by the First and Fourteenth Amendments of the United States Constitution, by forcing them to assume the risk of incur- ring substantial financial burdens if they defend nomination petitions they are required by law to submit.”

Overturning the district court’s application of a stricter standard to as-sess standing to sue, the Third Circuit said that under the more relaxed standard required by law, “the award of costs in past cases has had a chilling effect on protected First Amendment activity. Political actors have used the recent precedents from Pennsylvania courts as a cudgel against non- major parties and their candidates. … Democrats and Republicans—acting strategically, as one would expect of people in high-stakes political contests—have tried and will continue to try to block anyone from the ballot box who might strip votes from their favored candidates.”

Access to polling places. Is there guaranteed access to the media to enter a polling place during an election? There is now a circuit split about that question. The Third Circuit upheld a Pennsylvania law restricting access in 2013 (PG Publ’g Co. v. Aichele, 705 F.3d 91). Saying that the media is not “entitled to any greater protection under this [newsgathering] right than is the general public,” the court drew an interesting distinction, saying that it was not concerned with limitations on access to a forum, but rather on access to information. Because “the matter here concerns information about government bodies, their processes, and their decisions,” the court did not use forum analysis. This decision contrasts with a Sixth Circuit 2004 decision, Beacon Journal Publ’g Co. Inc. v. Blackwell (389 F.3d 683), in which that court used traditional forum analysis.

Censoring Computer Encryption Software

Another prior restraint controversy involves government restrictions on the distribution and especially the export of computer encryption software—software that allows computer messages to be encoded so unauthorized persons cannot read them. The federal government imposed these restrictions out of fear that terrorists or others who might threaten national

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security could use the encryption technology to engage in secret communications that could not be intercepted and monitored by law enforcement authorities.

Eventually these export restrictions were undermined by two federal appellate court decisions—and dropped by the federal government itself—in a series of legal actions that extended First Amendment protection to computer source code (i.e., the basic computer instructions built into software). In 1999, the Ninth Circuit overturned the original export restrictions in Bernstein v. U.S. Department of Justice (176 F.3d 1132). The court rejected the government’s concerns that the unregulated spread of encoded messages would aid criminals and terrorists, ruling 2-1 that the restrictions constituted an impermissible prior restraint. The court said the regulations gave virtual veto power to federal bureaucrats to prevent the free distribution of source code needed by cryptography academicians and scientists to exchange ideas about encryption.

Shortly after the original Bernstein decision, the Ninth Circuit voted to withdraw the ruling and reconsider the case en banc. But then the federal government liberalized the rules concerning the overseas distribution of encryption software. Under the new rules, most limi- tations on the export of encryption software were dropped, leaving Americans free to export even the most powerful data-scrambling software without an export license. That also left Americans free to post encryption software online—something the federal government had opposed on the ground that it would make encryption software accessible overseas.

In 2000 another federal appellate court ruled decisively that computer source code, including code used for encryption, is fully protected by the First Amendment. In Junger v. Daley (209 F.3d 481), the Sixth Circuit upheld law professor Peter Junger’s right to place encryption software on his website, even though that would make it readily accessible to Internet users overseas. Ironically, the federal government had allowed Junger to export his computer law textbook, which contained the same encryption software. But the government refused to authorize him to put the software on his website.

Seizing Criminals’ Royalties

Is it an unlawful form of censorship for a state to seize profits or royalties a criminal receives for telling or writing about his/her crimes? Many states and the federal government have laws allowing the authorities to take criminals’ publishing profits and give them to the victims of their crimes. These laws are often called “Son of Sam” laws because New York’s pioneering law of this type was enacted after serial killer David Berkowitz, who called himself by that name, received lucrative offers to tell his story.

The Supreme Court addressed this issue in 1991. The Court held that New York’s “Son of Sam” law was unconstitutional because it imposed a special financial burden on commu- nications—based on the content of the message. In Simon & Schuster v. New York State Crime Victims Board (502 U.S. 105), the Court said New York would have to show a compelling state interest to justify a law that burdened First Amendment activities in this way—and that the state had failed to do so.

Writing for the Court, Justice Sandra Day O’Connor said the law was “overinclusive” and therefore unconstitutional because it would apply to many legitimate literary works. Had it been in effect in an earlier era, the law would have allowed the state to seize the profits from works such as Henry David Thoreau’s Civil Disobedience, O’Connor wrote. Under the New York law, criminals were required to give up the royalties and profits from books, movies and other communications that in any way concerned their crimes. The money was then placed in a fund to compensate crime victims. It was challenged by the publishing house of Simon

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& Schuster, which paid Henry Hill, a former mafia figure, nearly $100,000 for his story about his life as a mobster who became a government informant. The resulting book, Wiseguy, became a best seller and was made into the movie Goodfellas. Simon & Schuster was holding another $27,000 that it owed to him when the Crime Victims Board demanded the money. Instead of complying, the publisher challenged the “Son of Sam” law—and prevailed when the Supreme Court declared the law to be unconstitutional.

In the years since the Simon & Schuster Supreme Court decision, several states have enacted narrower laws to give crime victims any money earned by convicted felons for telling the stories of their crimes. These laws generally apply only to persons convicted of a crime and are limited to money earned for a specific, detailed account of the crime.

Liability for Inspiring Crimes

Another troubling First Amendment question involves holding the media accountable for crimes committed by readers or viewers who were allegedly inspired by a movie, website, television show, book, news story, magazine article or an advertisement. Although such cases may involve subsequent punishments rather than prior restraints, the issues they raise should be discussed here.

In 1998, the Supreme Court refused to intervene in a case where a book allegedly facili- tated a crime: Rice v. Paladin Enterprises (128 F.3d 233, 1997). In this case, the publisher of a book called Hit Man: A Technical Manual for Independent Contractors was sued by the families of three people who were killed by a man who followed the detailed instructions in Hit Man. The publisher sought to have the lawsuit dismissed on First Amendment grounds, but a federal appellate court held that this book, with its “extraordinary comprehensiveness, detail and clarity” in describing how to commit murder, is not exempted from civil lawsuits by the First Amendment. The court held that a publisher can be sued by those who are injured (or the families of those who are killed) in this situation.

The Fourth Circuit called the 130-page book a “step-by-step murder manual, a training book for assassins.” Because it was intended to train potential murderers and not merely to entertain, it falls outside the scope of the First Amendment, the court ruled.

After the Supreme Court refused to hear an appeal, Paladin settled. However, the case caused alarm among media organizations. Publishers, broadcasters and filmmakers, among others, had urged the Supreme Court to hear the case, arguing that the same rationale could be used in lawsuits alleging that books, magazines, scientific and military manuals, movies and other media might have inspired or assisted someone who committed a crime.

Similar issues were also raised in several other widely publicized recent cases, including one in which an Oakland, Mich. jury ordered the producers of the Jenny Jones television talk show to pay almost $30 million in damages to the family of a man who was killed by another man who had appeared with him on the show. The victim said (on camera) that he had a gay interest in the man who later shot and killed him. In 2002, a Michigan appellate court overturned the jury verdict, holding that the show’s producers “had no duty to anticipate and prevent the act of murder committed by (a guest) three days after leaving defendants’ studio and hundreds of miles away” (Graves v. Warner Bros., 656 N.W.2d 195).

In 1999, the U.S. Supreme Court declined to intervene in a similar case where a Louisi- ana appellate court held that the family of a shooting victim could sue the producers of the movie Natural Born Killers if they could prove that the producers intended to inspire others to commit violent acts. In Byers v. Edmonson (712 So.2d 681), the Supreme Court refused to hear an appeal of the Louisiana court’s ruling, which cleared the way for a lawsuit by the

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family of Patsy Byers, a convenience store clerk who was seriously wounded by a couple who had repeatedly watched Natural Born Killers and then went on a crime spree.

The Byers family never proved that filmmaker Oliver Stone and others involved in produc- ing this movie actually intended to inspire violent acts by viewers, and a Louisiana judge eventu- ally dismissed the case. However, this legal victory, coming only after lengthy (and costly) litiga- tion, does little to protect the media from other lawsuits by crime victims or their families when a crime is committed by someone who watched a movie or television program—or read a book, a news story or a magazine article—about a similar crime.

Although lawsuits alleging that the media inspired a crime are becoming commonplace, this is not a new phenomenon. Nearly a decade before these cases arose, a family sued Soldier of Fortune magazine and won a large award because the magazine published an advertise- ment that led to a murder for hire. The Eleventh Circuit eventually upheld the award and dismissed the magazine’s First Amendment arguments (Braun v. Soldier of Fortune Magazine, 968 F.2d 1110, 1992). In 1985, the magazine carried an ad from an unemployed Vietnam veteran who described himself as a “37-year-old professional mercenary (who) is discrete (sic) and very private. Body guard, courier and other special skills. All jobs considered.” He accepted an assignment to kill a man in Atlanta and was later caught and convicted of the crime. The family sued the magazine for wrongful death; a jury awarded the family $4.3 million. Publishers and industry groups asked the Supreme Court to grant cert, arguing that the case could have a serious chilling effect on First Amendment freedoms, but to no effect.

Animal Cruelty

As the success of organizations like People for the Ethical Treatment of Animals (PETA) demonstrates, the issue of cruelty to animals is a hot political and social topic. In 1992, Congress passed the Animal Enterprise Protection Act (AEPA). The act was intended to punish interference with commerce or commercial activities involving animals for research or testing. In 2009, the Third Circuit in U.S. v. Fullmer (584 F.3d 132) upheld its constitution- ality. The plaintiffs, a group of animal-cruelty activists, argued that AEPA criminalized the speech on their website. The court said that at least some of the speech on the website was not protected under the Brandenburg standard (see Chapter Two), and some of the speech was reasonably considered to be “true threats” because, as the court pointed out, “given the success of the campaign in the past, including the destruction of private property and the telecommunication attacks on various companies, the implied threats were not conditional, and this speech rightly instilled fear in the listeners.”

It is rare when an entire category of speech is excluded from First Amendment protec- tion. The Supreme Court declined to do that in 2010 in U.S. v. Stevens (559 U.S. 460), in a case involving the sale of videos depicting animal cruelty. Robert Stevens sold videos of pit bulls engaged in dogfighting to law enforcement and was charged under a 1999 federal animal cruelty law, the first person to be charged. A divided en banc Third Circuit struck down the law, saying that it did not advance the government’s interest in reducing animal cruelty but merely punished its depiction. Nor could the government demonstrate a compelling interest in regu- lating the speech. The Court overturned the law as overbroad. Chief Justice John Roberts, writ- ing for an 8-1 majority, rejected the notion that animal cruelty speech should be outside the protection of the First Amendment based on “an ad hoc balancing of relative social costs and benefits.” However, Roberts did leave open the notion that a more carefully crafted animal cruelty law might be constitutional. Justice Samuel Alito dissented, saying that he did not think the law overbroad; it contains “a substantial core of constitutionally permissible applications.”

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At the end of 2010, President Barack Obama signed a law specifically banning at crush videos. Called the Animal Crush Video Prohibition Act of 2010, it criminalizes the creation, sale, and marketing of these videos. The law labels the videos “obscene,” which may result in challenges because no sexual acts usually take place in these videos.

Unlicensed Advice

Several cases have arisen which question the right of individuals to publish health or other advice—where it could be accessed by individuals in states in which the author is not licensed to practice. In North Carolina, blogger Steve Cooksey said that all he wanted to do was offer advice to help other diabetics eat more healthily, but the North Carolina Board of Dietetics/Nutrition brought suit against him to enjoin his blog, saying that it is illegal for anyone without a dietician’s license to offer diet advice to anyone in the state. But the Fourth Circuit didn’t agree (Cooksey v. Futrell, 721 F.3d 226, 2013). Claiming that the district court had not considered Cooksey’s First Amendment rights, the court said that Cooksey’s self-censorship of his blog damaged him. “He received a red-pen mark-up of his website from the State Board Complaint Committee, which surely triggered the same trepidation we have all experienced upon receiving such markings on a high school term paper. Furthermore, the red-pen review was accompanied by the statement, ‘we would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.’” That would chill any reasonable person, the court said. It also dismissed the board’s argument that the law was a professional regulation without implication for the First Amendment. The court remanded the case.

Similarly, John Rosemont, who has written a regular newspaper column about parenting since 1976, was told by Kentucky’s Board of Examiners of Psychology that the column was an illegal practice of psychology in Kentucky. Rosemont, who does have a psychology license in North Carolina, filed suit, saying that the Kentucky board was engaging in censorship. The Reporters Committee for Freedom of the Press reported: “Rosemond’s lawyers argued that the U.S. Supreme Court has held that ‘individualized advice is protected speech entitled to the highest level of First Amendment protection.’” Kentucky has agreed not to enforce the law until the lawsuit is resolved. Stay tuned.

Online Speech Protection

Although the Supreme Court said in Reno v. ACLU (see Chapter Eleven) that there is no reason to give less protection to speech on the Internet, courts still hear cases about online speech. Social media sites in particular are often part of these cases.

Facebook threats? The Supreme Court took up the question of online threats in 2015. Anthony Elonis claimed that his violent posts on Facebook (including one to his ex-wife: “If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder”) were merely a way to vent and let off steam, and that he did not mean to threaten anyone. The Third Circuit disagreed: “Limiting the definition of true threats to only those statements where the speaker subjectively intended to threaten would fail to protect indi- viduals from the fear of violence.”

The Supreme Court reversed (Elonis v. U.S., No. 13-983). Chief Justice John Roberts, writing for the majority, said that the Third Circuit’s negligence standard was not sufficient to uphold a conviction against Elonis. “Elonis’s conviction … was premised solely on how

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his posts would be understood by a reasonable person. Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct— awareness of some wrongdoing,’” the chief justice wrote. “The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liabil- ity generally does not turn solely on the results of an act without considering the defendant’s mental state,” said Roberts.

Justice Clarence Thomas dissented. He wrote that nine circuits had adopted the posi- tion that a general intent was sufficient to convict as a true threat, and two circuits had used the “intent-to-harm” standard. But now, he said, instead of resolving the circuit split, lower courts “can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough.” Thomas added, “Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were ‘true threats’ unpro- tected by the First Amendment, I would affirm the judgment below.” Justice Samuel Alito, concurring in part and dissenting in part, said that the Court had not given appropriate guidance to courts and Facebook users as to what type of intent would be necessary for hate speech to qualify as a true threat.

The “Like” button. Is clicking “Like” on a Facebook page protected speech? Six employ- ees of the Hampton, Va. sheriffs’ office “Liked” the Facebook campaign page of Jim Adams, the sheriff’s opponent, before a 2009 election. When the incumbent, B.J. Roberts, won, he let the employees go. The employees sued for retaliation, claiming that the reason they were fired is because they supported Roberts’ opponent with a click on the “Like” button on his Facebook page. The district judge said that a “Like” was not really speech.

But the Fourth Circuit overturned in 2013 (Bland v. Roberts, 730 F.3d 368). “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable,” the court said, adding, “That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.”

Interestingly, another government agency is getting involved with social media usage by employees: the National Labor Relations Board (NLRB). As the New York Times put it, the NLRB “says workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook.” In one NLRB holding of note, Hispanics United of Buffalo, Inc. and Carlos Ortiz (Case 03-CA-027872, 2012), in response to one co-worker’s allegations that others were not doing their work, several co-workers had discussed workload, conditions and complaints over the weekend on their Facebook pages. They were subsequently fired. The NLRB said that the firing was unlawful, saying that the discussion was coordinated activity, and “Given the negative impact such criticisms could have on their employment, the five employees were clearly engaged in protected activity in mutual aid of each other’s defense to those criticisms.”

Censoring the Arts

As will be discussed in Chapter Ten, the Supreme Court upheld the requirement that National Endowment of the Arts recipients sign anti-obscenity pledges and that grantors of

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federal funding for artistic endeavors take into account “general standards of decency” in NEA v. Finley. Several appellate decisions have addressed other issues of artistic freedom.

The Ninth Circuit, sitting en banc in Berger v. City of Seattle (569 F.3d 1029, 2009), over- turned Seattle’s street performance rules for the Seattle Center as prior restraints. “Magic Mike” Berger, a balloon artist and street performer, alleged that the rules requiring all performers to get permits, wear badges, perform only in certain areas and not verbally solicit donations violated the First Amendment because they applied only to performers. A three-judge panel of the Ninth Circuit upheld the rules. However, the court reheard the case en banc and found that the rules were not the least restrictive means of achieving the city’s desired goals of ensuring public and performer safety and reducing territorial conflicts among performers. The majority said that the rules require “single individuals to inform the government of their intent to engage in expressive activity in a public forum, a requirement that neither we nor the Supreme Court has ever countenanced.” The ever-quotable former chief judge, Alex Kozinski, dissented for himself and two other judges, saying that the major- ity demanded not just rule workability, but perfection, and “perfection is hard to find in rules written and applied by mortals.” He added, “There are times when the best thing judges can do is to butt out; this is surely one of them.”

Art may be many things to many people, but in San Marcos, Tex., it is not a sledgeham- mer-wrecked car filled with dirt and planted with flowers. The Fifth Circuit upheld the city’s “junked vehicle” ordinance designed to eliminate public eyesores against a First Amend- ment challenge brought by a novelty gift store chain that celebrated the opening of a new store by inviting the public to sledgehammer a car which is then planted and displayed (Kleinman v. City of San Marcos, 597 F.3d 323, 2010).

Censoring Confidential Information

Another form of prior restraint results from laws and court orders forbidding the media to publish confidential information, often concerning crimes and court proceedings. This creates legal problems that fall into several areas, including fair trial-free press (discussed in Chapter Seven) and the privacy of crime victims (discussed in Chapter Five). This chapter discusses Supreme Court decisions concerning the censorship questions in these laws.

Victims and offenders. One of the most difficult problems in this area involves laws forbidding the media to reveal the names of crime victims, particularly sex crime victims. Although a good case can be made for protecting the privacy of crime victims, the Supreme Court has held that the media have a right to publish their identities if the information was lawfully obtained from court records. The Court so ruled in 1975, overturning a Georgia privacy judgment against a broadcaster who published a rape victim’s name. In that case (Cox Broadcasting v. Cohn, 420 U.S. 469), a television reporter had obtained the victim’s name from a court record, and the station later faced a civil invasion of privacy suit for broadcasting it. (No criminal charges were filed, although publishing the name was illegal.) The Court said the First and Fourteenth Amendments do not permit either criminal sanc- tions or civil invasion of privacy lawsuits for the publication of truthful information lawfully obtained from court records. However, the states can keep victims’ names secret if they wish.

Two years later the Court overturned an Oklahoma court order that banned publica- tion of the name of an 11-year-old boy allegedly involved in a fatal shooting, in Oklahoma Publishing v. District Court (430 U.S. 377, 1977). Reporters attended the boy’s initial hearing and learned his name there. Local media carried the name, but a judge ordered them not

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122 Modern Prior Restraints

to publish the boy’s name or picture again. The Oklahoma Publishing Company appealed the order to the state supreme court, which upheld it. The U.S. Supreme Court reversed, ruling that the order amounted to prior censorship in violation of the First and Fourteenth Amendments. The Court relied on Cox Broadcasting and said there was no evidence that the press got the information unlawfully or even without the state’s permission.

In 1979, the Court overturned a West Virginia law that imposed criminal sanctions on newspapers for publishing the names of juvenile offenders. In this case (Smith v. Daily Mail, 443 U.S. 97), a newspaper published the name of a youth who killed another student at a junior high school. Reporters learned his name by monitoring police radio broadcasts and talking to eyewitnesses. The Supreme Court again ruled that the media cannot be punished for publishing truthful information that was lawfully obtained. One aspect of the law that amazed Justice William Rehnquist, who wrote a concurring opinion, was that it prohibited newspaper publication of juvenile names but not a broadcast of the same information.

In 1989, the Court again addressed this kind of issue in Florida Star v. B.J.F. (491 U.S. 524). Under Florida law in effect then the media were forbidden to publish the names of sex crime victims. However, a reporter for the Florida Star copied the name of a rape victim from a police report that was posted on the Jacksonville Sheriff’s pressroom wall. The name was published, and the crime victim sued. She won a $97,000 judgment from the newspa- per, but the Supreme Court overturned the verdict, ruling that the newspaper could not be penalized for publishing the name when it was lawfully obtained from a police record—even though the police may have violated the Florida law by making the information available to a reporter. However, the 6-3 majority declined to rule that the media are always exempt from liability for publishing information that they lawfully obtain. The Court said that Cox Broadcasting and other earlier cases had stopped short of ruling out all liability for the truth- ful publication of lawfully obtained information. But when judicial records are involved, the Court seemed to say that the media are free to publish information they lawfully obtain.

An interesting footnote to the Florida Star case is that the state law forbidding the media to publish the names of sex crime victims was eventually ruled unconstitutional by the Flor- ida Supreme Court. In Florida v. Globe Communications Corp. (648 So.2d 110, 1994), the state court ruled that the Florida law was too broad because it banned the publication of victims’ names without any consideration of the circumstances—and also too narrow because it applied only to the media. This case arose when the Globe, a tabloid newspaper, published the name of the woman who accused William Kennedy Smith, a nephew of former President John F. Kennedy and Sen. Edward Kennedy, of rape. As was true in the Florida Star case, the Globe lawfully obtained the alleged victim’s name, and the woman eventually agreed to the release of her name—even appearing on national TV after Smith was acquitted. When the Globe was criminally prosecuted for publishing the name, a trial court, a state appellate court and the Florida Supreme Court all agreed that the state law was unconstitutional.

Judicial performance. The publication of another kind of confidential information produced a 1978 U.S. Supreme Court decision, Landmark Communications v. Virginia (435 U.S. 829). The case involved the Virginian Pilot’s coverage of the proceedings of a state commission reviewing a judge’s performance in office. The paper published the name of the judge and other information. Virginia had a law making these proceedings confiden- tial. The paper was criminally prosecuted and fined for publishing, and the state supreme court upheld the judgment. But the Supreme Court ruled that the law violated the First

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Amendment. The Court said judges have no greater immunity from criticism than other persons or institutions. When a newspaper lawfully obtains information about a proceed- ing such as the one in question, the paper may not be criminally punished for publishing what it learns.

Grand jury testimony. The Supreme Court ruled on another Florida case involving the right to publish lawfully obtained information in Butterworth v. Smith (494 U.S. 624, 1990). A reporter who had testified before a grand jury wanted to write about the things he told the grand jury—including alleged wrongdoing by a local public official. But under Florida law, it was illegal for a grand jury witness to disclose his/her testimony ever. In overturning the Florida law, the Court ruled that it is an unconstitutional prior restraint to prohibit a witness from disclosing his own testimony even after the grand jury investigation ends. Chief Justice William Rehnquist said this case did not involve the reporter disclosing anything he learned from a secret grand jury investigation. Instead, it was merely a journalist forbidden to publish information already in his possession before he testified. That violates the First Amendment.

One noteworthy limitation on the media’s right to publish lawfully obtained informa- tion involves the pretrial discovery process when a news organization is involved in a lawsuit. The Supreme Court has held that a judge can forbid a newspaper to publish information it obtains during discovery. In Seattle Times v. Rhinehart (467 U.S. 20, 1984), the Court said the Seattle Times and another paper could be forbidden to publish information they learned while defending a libel suit against a religious group. During discovery, the plaintiff was ordered to provide his organization’s membership lists, tax returns and other financial information. The Court upheld the trial judge’s order forbidding the newspapers to publish this material, saying they would be free to publish the information if they learned of it independently, but when a plaintiff is compelled to hand it over in a libel case, the judge may require that it remain confidential. This may be a prior restraint, but the Court said that it was legitimate. The Seattle Times case is a rare exception to the rule that the media may not be forbidden to publish court documents that they lawfully obtain.

• Does my state have hate crime or penalty enhancement laws? If so, what do they cover?

• Does my state have a “Son of Sam” law? • What regulations do my state, city or municipality put on

newsracks, billboards, and public transportation shelter signs? • Are there ordinances that regulate how and where protests

may take place? What do they specify? Are there fees? • What noise regulations are there in my area? • What has my state and federal circuit said about anonymity?

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WhAT ShOULD I knOW ABOUT MY STATE?

124 Modern Prior Restraints

SUMMARY

A SUMMARy OF PRIOR RESTRAINTS

What Is a Prior Restraint, and Is It Permitted in America?

A prior restraint is an act of government censorship to prevent facts or ideas that the government considers unacceptable from being disseminated. It is a far greater abridgment of freedom of expression than a subsequent punishment system, which allows publication but punishes the publisher afterward for any harm. Prior restraints are permitted only under extremely compelling circumstances, with the government agency that wishes to censor required to carry a very heavy burden of proof to justify it.

When Would a Direct Prior Restraint Be Constitutional?

In the “Pentagon Papers” case, the Supreme Court ruled that prior censorship of the news media would be permissible if the government could prove that irreparable harm to national security would otherwise occur. However, the government was unable to prove national security was sufficiently endangered to justify prior restraint in that case.

What is a Time, Place and Manner Regulation?

Governments may lawfully regulate the time, place and manner in which First Amendment activities occur, provided the rules are content neutral. Rules are content neutral if they treat all speech the same, regardless of its content. Rules that are content based, that treat different content of speech differently, must undergo increased judicial scrutiny. They may be found constitutional but the burden on the government is much higher to justify them.

Are There Other Rules Concerning Prior Restraints Today?

Laws that unduly restrict literature distribution or other free expression activities on public property may be prior restraints. Private property owners, on the other hand, may usually prohibit First Amendment activities on their property, although some states recognize limited free expression rights at quasi-public places such as large shopping malls. Discriminatory taxes that single out some media have also been declared unconstitutional. Laws forbidding racial and religious “hate speech” have been overturned on First Amendment grounds. However, material that is found to be a threat to individuals is not protected. Laws or court orders forbidding the media to publish information they lawfully obtain are usually unconstitutional, even if the information is legally confidential (e.g., some crime victims’ names). While the media may not have a right of access to this kind of news, governments cannot ordinarily prevent its publication once the media have it—particularly if obtained from a public record. The law on anonymous speech, particularly online, is still developing.

Copyright 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.

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