CRS Annotated Constitution

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Injunctions and the Press in Fair Trial Cases.—Confronting a claimed conflict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant.56 Though agreed on result, the Justices were divided with respect to whether “gag orders” were ever permissible and if so what the standards for imposing them were. The opinion of the Court utilized the Learned Hand formulation of the “clear and present danger” test57 and considered as factors in[p.1032]any decision on the imposition of a restraint upon press reporters (a) the nature and extent of pretrial news coverage, (b) whether other measures were likely to mitigate the harm, and (c) how effectively a restraining order would operate to prevent the threatened danger.58 One seeking a restraining order would have a heavy burden to meet to justify such an action, a burden that could be satisfied only on a showing that with a prior restraint a fair trial would be denied, but the Chief Justice refused to rule out the possibility of showing the kind of threat that would possess the degree of certainty to justify restraints.59 Justice Brennan’s major concurring opinion flatly took the position that such restraining orders were never permissible. Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would hold, and secrecy can do so much harm “that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained.”60 The extremely narrow exceptions under which prior restraints might be permissible relate to probable national harm resulting from publication, the Justice continued; because the trial court could adequately protect a defendant’s right to a fair trial through other means even if there were conflict of constitutional rights the possibility of damage to the fair trail right would be so speculative that the burden of justification could not be met.61 While the result does not foreclose the possibility of future “gag orders,” it does lessen the number to be expected and[p.1033]shifts the focus to other alternatives for protecting trial rights.62 On a different level, however, are orders restraining the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart,63 the Court determined that such orders protecting parties from abuses of discovery require “no heightened First Amendment scrutiny.”64

Obscenity and Prior Restraint.—Only in the obscenity area has there emerged a substantial consideration of the doctrine of prior restraint and the doctrine’s use there may be based upon the proposition that obscenity is not a protected form of expression.65 In Kingsley Books v. Brown,66 the Court upheld a state statute which, while it embodied some features of prior restraint, was seen as having little more restraining effect than an ordinary criminal statute; that is, the law’s penalties applied only after publication. But in Times Film Corp. v. City of Chicago,67 a divided Court specifically affirmed that, at least in the case of motion pictures, the First Amendment did not proscribe a licensing system under which a board of censors could refuse to license for public exhibition films which it found to be obscene. Books and periodicals may also be subjected to some forms of prior restraint,68 but the thrust of the Court’s opinions in this area with regard to all forms of communication has been to establish strict standards of procedural protections to ensure that the censoring agency bears the burden of proof on obscenity, that only a judicial order can restrain exhibition, and that a prompt final judicial decision is assured.69


Subsequent Punishment: Clear and Present Danger and Other Tests

Granted that the context of the controversy over freedom of expression at the time of the ratification of the First Amendment was almost exclusively limited to the problem of prior restraint, still the words speak of laws “abridging” freedom of speech and press and the modern adjudicatory disputes have been largely fought out over subsequent punishment. “The mere exemption from previous restraints cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications. . . .

“[The purpose of the speech–press clauses] has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. . . . The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.”70 A rule of law permitting criminal or civil liability to be imposed upon those who speak or write on public issues and their superintendence would lead to “self–censorship” by all which would not be relieved by permitting a defense of truth. “Under such a rule, would–be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so . . . . The rule thus dampens the vigor and limits the variety of public debate.”71


“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole– heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”72 “Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Con[p.1036]stitution so that free speech and assembly should be guaranteed.”73

“But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral.”74 The fixing of a standard is necessary, by which it can be determined what degree of evil is sufficiently substantial to justify resort to abridgment of speech and press and assembly as a means of protection and how clear and imminent and likely the danger is.75 That standard has fluctuated over a period of some fifty years now and it cannot be asserted with a great degree of confidence that the Court has yet settled on any firm standard or any set of standards for differing forms of expression.76 The cases are instructive of the difficulty.

Clear and Present Danger.—Certain expression, oral or written, may incite, urge, counsel, advocate, or importune the commission of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of “symbolic” action may either counsel the commission of criminal conduct or itself constitute criminal conduct. Leaving aside for the moment the problem of “speech–plus” communication, it becomes necessary to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. At first, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, the advocacy of or promotion of the conduct could be made criminal.77 Then, in Schenck v. United States,78 in which defendants had been convicted of seeking to disrupt recruitment of military personnel by dissemination of certain leaflets, Justice Holmes formulated the “clear and present danger” test which has ever since been the starting point of argument. “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. It is a question of proximity and degree.”79 The convictions were unanimously affirmed. One week[p.1037]later, the Court again unanimously affirmed convictions under the same Act with Justice Holmes speaking. “[W]e think it necessary to add to what has been said in Schenck v. United States . . . only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.”80 And in Debs v. United States,81 Justice Holmes was found referring to “the natural and intended effect” and “probable effect” of the condemned speech in common–law tones.

But in Abrams v. United States,82 Justices Holmes and Brandeis dissented upon affirmance of the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with United States participation in the War. The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the Government had made no showing of a clear and present danger. Another affirmance by the Court of a conviction, the majority simply saying that “[t]he tendency of the articles and their efficacy were enough for the offense,” drew a similar dissent.83 Moreover, in Gitlow v. New York,84 a conviction for distributing a manifesto in violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it created any immediate threat to the security of the State. In so doing, the Court discarded Holmes’ test. “It is clear that the question in such cases [as this] is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results. . . . In such cases it has been held that the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the[p.1038]legislative body might prevent. . . . [T]he general statement in the Schenck Case . . . was manifestly intended . . . to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character.”85 Thus, a state legislative determination “that utterances advocating the overthrow of organized government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil that they may be penalized in the exercise of its police power” was almost conclusive on the Court.86 It is not clear what test, if any, the majority would have utilized, although the “bad tendency” test has usually been associated with the case. In Whitney v. California,87 the Court affirmed a conviction under a criminal syndicalism statute based on defendant’s association with and membership in an organization which advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves “such danger to the public peace and the security of the State” was entitled to almost conclusive weight. In a technical concurrence which was in fact a dissent from the opinion of the Court, Justice Brandeis restated the “clear and present danger” test. “[E]ven advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on . . . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”88


56 Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976) .
57 Id. at 562, quoting Dennis v. United States, 183 F.2d 201, 212 (2d Cir. 1950), aff’d., 341 U.S. 494, 510 (1951) .
58 Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976) (opinion of Chief Justice Burger, concurred in by Justices Blackmun and Rehnquist, and, also writing brief concurrences, Justices White and Powell). Applying the tests, the Chief Justice agreed that (a) there was intense and pervasive pretrial publicity and more could be expected, but that (b) the lower courts had made little effort to assess the prospects of other methods of preventing or mitigating the effects of such publicity and that (c) in any event the restraining order was unlikely to have the desired effect of protecting the defendant’s rights. Id. at 562–67.
59 The Court differentiated between two kinds of information, however: (1) reporting on judicial proceedings held in public, which has “special” protection and requires a much higher justification than (2) reporting of information gained from other sources as to which the burden of justifying restraint is still high. Id. at 567–68, 570. See also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting aside injunction restraining news media from publishing name of juvenile involved in pending proceeding when name has been learned at open detention hearing that could have been closed but was not); Smith v. Daily Mail Pub. Co., 433 U.S. 97 (1979) .
60 Id. at 572, 588. Justices Stewart and Marshall joined this opinion and Justice Stevens noted his general agreement except that he reserved decision in particularly egregious situations, even though stating that he might well agree with Justice Brennan there also. Id. at 617. Justice White, while joining the opinion of the Court, noted that he had grave doubts that “gag orders” could ever be justified but he would refrain from so declaring in the Court’s first case on the issue. Id. at 570.
61 Id. at 588–95.
62 One such alternative is the banning of communication with the press on trial issues by prosecution and defense attorneys, police officials, and court officers. This, of course, also raises First Amendment issues. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F. 2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976) .
63 467 U.S. 20 (1984) .
64 467U.S. at 36 467U.S. at 36. The decision was unanimous, all other Justices joining Justice Powell’s opinion for the Court, but with Justices Brennan and Marshall noting additionally that under the facts of the case important interests in privacy and religious freedom were being protected. Id. at 37, 38.
65 Infra, pp.1149–59.
66 354 U.S. 436 (1957) . See also Bantam Books v. Sullivan, 372 U.S. 58 (1963) .
67 365 U.S. 43 (1961) . See also Young v. American Mini Theatres, 427 U.S. 50 (1976) (zoning ordinance prescribing distances adult theaters may be located from residential areas and other theaters is not an impermissible prior restraint).
68 Cf. Kingsley Books v. Brown, 354 U.S. 436 (1957) .
69 Freedman v. Maryland, 380 U.S. 51 (1965) ; Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968) ; Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968) ; Blount v. Rizzi, 400 U.S. 410 (1971) ; United States v. Thirty–seven Photographs, 402 U.S. 363, 367–375 (1971) ; Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) ; Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ; FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (ordinance requiring licensing of “sexually oriented business” places no time limit on approval by inspection agencies and fails to provide an avenue for prompt judicial review); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (seizure of books and films based on ex parte probable cause hearing under state RICO law’s forfeiture procedures constitutes invalid prior restraint; instead, there must be a determination in an adversarial proceeding that the materials are obscene or that a RICO violation has occurred).

Supplement: [P. 1033, add to n.69:]

But cf. Alexander v. United States, 509 U.S. 544 (1993) (RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses, based on the predicate acts of selling four magazines and three videotapes, does not constitute a prior restraint and is not invalid as “chilling” protected expression that is not obscene).

70 2 T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Powers of the States of the American Union 885–86 (8th ed. 1927).
71 New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) . See also Speiser v. Randall, 357 U.S. 513, 526 (1958) ; Smith v. California, 361 U.S. 147, 153–154 (1959) ; Time, Inc. v. Hill, 385 U.S. 374, 389 (1967) .
72 Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice Holmes dissenting).
73 Whitney v. California, 274 U.S. 357, 375–76 (1927) (Justice Brandeis concurring).
74 Id. at 373.
75 Id. at 374.
76 On the great range of expressive communications, see infra.
77 Davis v. Beason, 133 U.S. 333 (1890) ; Fox v. Washington, 236 U.S. 273 (1915) .
78 249 U.S. 47 (1919) .
79 Id. at 52.
80 Frohwerk v. United States, 249S., 204, 206 (1919) (citations omitted).
81 249 U.S. 211, 215–16 (1919) .
82 250 U.S. 616 (1919) .
83 Schaefer v. United States, 251 U.S. 466, 479 (1920) . See also Pierce v. United States, 252 U.S. 239 (1920) .
84 268 U.S. 652 (1925)
85 Id. at 670–71.
86 Id. at 668. Justice Holmes dissented. “If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who share the defendant’s views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and, if believed, is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they would be given their chance and have their way.” Id. at 673.
87 274 U.S. 357, 371–72 (1927) .
88 Id. at 376.
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