How far can the press go? From Schenck v. United States, to Near v. Minnesota, to New York Times v. United States.

1. The limits of prior restraint
How far can the press go?

2. Sedition Act of 1798
• Alexander Hamilton (left) is
accused of corruption by
James Thomson Callender
• Callender is imprisoned and
fined
• Callender later turns on
Jefferson, his benefactor

3. The end of seditious libel
• Sedition Act helps
lead to Adams’ defeat
in 1800
• Jefferson (left) lets
Sedition Act lapse
• Still, press is less free
during wartime

4. Abraham Lincoln
• Suspended habeas
corpus to crack down on
protesters
• Ohio publisher Clement
Laird Vallandigham
banished behind
Confederate lines
• Censorship in effect

5. Schenckv. United States (1919)
• Schenck charged with
violating Espionage Act
• Holmes (right)
establishes a new
standard: “clear and
present danger”
• Wartime is different

6. Gitlowv. New York (1925)
• 14th Amendment
extends First
Amendment to the
states
• Holmes now takes a
more expansive view
of free speech
• “Every idea is an
incitement”

7. Whitney v. California (1927)
• Brandeis (left) refines
“clear and present
danger”
• A “serious” and
“imminent” threat —
an “emergency”
• Brandeis sided with
majority on
technicality

8. Brandenburg v. Ohio (1969)
• Speech can be
prohibited if “directed
at inciting or
producing imminent
lawless action” and —
• Is “likely to incite or
produce such action”
• Brandeis standard

9. Near v. Minnesota (1931)
• Classic case defining
the limits of prior
restraint
• History of case told by
Fred Friendly in
Minnesota Rag

10. The Saturday Press
• Begun by Jay Near and
Howard Guilford
• Claimed Minneapolis was
controlled by Jewish
gangsters
• Shut down after nine
issues under state’s
Public Nuisance Law

11. Near loses at state level
• Argues that Public Nuisance Law violates
the First, Fifth, and Sixth Amendments
• Minnesota Supreme Court: “There is no
constitutional right to publish a fact merely
because it is true.”

12. Unlikely allies
Roger Baldwin Col. Robt. McCormick

13. Bad cases make bad law
• Harry Chandler, head of American
Newspaper Publishers Association, was
reluctant to get involved
• The Saturday Press was unsavory
• Chandler feared a defeat would set back
the cause of press freedom

14. Charles Evans Hughes
• Chief Justice replaced
Justice
Sanford, author of
Gitlow decision
• Reaffirmed that the
14th Amendment
incorporated the First
Amendment

15. Weymouth Kirkland
• “[E]very legitimate newspaper in the
country regularly and customarily publishes
defamation, as it has a right to in criticizing
government agencies”
• Akin to saying that seditious libel is the
purpose of a free press

16. Justice Brandeis
• “Of course there was defamation; you
cannot disclose evil without naming the
doers of evil”
• “A newspaper cannot always wait until it
gets the judgment of a court”
• Isn’t this why we have a First Amendment?

17. Near wins, 5-4
• Near fails to re-establish himself as a
newspaperman, dies in 1936
• Howard Guilford is assassinated by
gangsters in 1934
• Nevertheless, they contribute to the idea of
no prior restraint

18. Key points of Near
• Exceptions to the rule of no prior restraint
– National security
• Obstruction of draft
• Disclosing movement of ships or troops
– Obscenity
– Fighting words (incitement)

19. Key points of Near
• Exceptions to the rule of no prior restraint
• Unprotected speech may be punished after
the fact
– William Blackstone
– “Criminal” speech
– Libel — certainly an issue with The Saturday
Press

20. Key points of Near
• Exceptions to the rule of no prior restraint
• Unprotected speech may be punished after
the fact
• Minnesota’s Public Nuisance Law
tantamount to prior restraint

21. The Pentagon Papers
• Daniel Ellsberg
provided them to the
New York Times and
the Washington Post
• Federal appeals courts
ruled against the
Times and for the Post
• Supreme Court takes
the case

22. New York Times Co.
v. United States (1971)
• Supreme Court issues
nine separate
decisions
• Government could
prosecute after
publication
• Nixon tried, but was
derailed by Watergate