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10 Cards in this Set
- Front
- Back
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The role of the framers intent in interpreting the law today |
- Their intent is unknown and unknowable - Professor Levy believed it was just prior restraint - Others say prior restraint as well as subsequent punishment. - Matters because current interpretation of the Constitution begins with framers intent. |
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Define Prior Restraint |
- Historically it is submitting all publications to the government censors who would approve the publication in advance of the publication. - It's a government action that prohibits speech or other expression before it can take place. - The least tolerable infringement of free speech. |
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Subsequent Punishment |
- Provides an opportunity for public appraisal and criticism - Punishment after the infringement on freedom of speech. - The First Amendment offers some protection from subsequent punishment. - The speaker remains responsible for the contents of his or her speech. |
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Blasi's Premises |
1) Prior restraint implies trust in the state rather than in an individual or in the public. 2) Speech is too risky in a democracy. 3) Individuals should have no autonomy from the state. - Based on these three things, prior restraint cannot be consistent with the implementation of limited government. |
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Near v. Minnesota |
- Jay Near Sued Minnesota - In 1931, it was the first time the Supreme Court adopted prior restraint as a Constitutional Law. - Near had published malicious and scandalous libels in his Saturday press, and was ordered to not publish any more under threat of contempt in court. - He argued that this was an infringement of his First Amendment rights. - Recognized freedom of the press by rejecting prior restraints on publication. |
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Grosjean v. American Press Co. Inc. |
- American Press Co. sued Grosjean in a 9-0 decision in 1936. - Involved a Louisiana tax on selected newspapers. - The tax was imposed newspapers that circulated more than 20,000 copies weekly and forced them to pay a 2% tax on gross receipts. - It was imposed by statute and the penalty for not paying was a fine of up to $500 and up to 6 months in prion. - it was found unconstitutional because it was a threat to the First Amendment value of freedom of the press. - Matters: articulates the checking function of the press and the threat the government poses to the freedom of the press. |
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New York Times v. U.S. |
- In 1971 the New York Times sued the U.S. - In a 6-3 decision the Supreme Court ruled that the First Amendment did protect the rights of the newspaper to publish the material. - The government argued that publishing the papers would give away a bunch of secrets, but the Vietnamese already knew everything. - Justice Hugo Black argued that the government was only really afraid of its own embarrassment. - Matters: the paradox of gaining security through risk, and sometimes that's a risk worth taking. |
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Abrams v. United States |
- The United States sued Abrams for throwing critical pamphlets from windows. - In a 7-2 Supreme Court Decision, they ruled the defendant's freedom of speech was not violated. - Convicted of inciting resistance to the war effort. - They advocated a strike in munitions production and violent overthrow of government. - Holmes said that there needed to be a better version of the clear and present danger test. - Matters: dissenting opinion, which stiffened the meaning of present danger. |
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Nebraska Press Association v. Stuart |
- Nebraska Press Association sued Stuart - Judge Hugh Stuart issued an order prohibiting the pubic dissemination of any testimony evidence, and the Nebraska Press Association appealed the prior restraint. - The order was deemed defective because it was vague and overboard. - You can't assume the worst is going to happen and suppress speech based on that. You have to be more specific. Matters: reaffirms the nation's commitment to free speech. |
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U.S. v. Turner |
- The U.S. sued Turner for threatening judges. - Turner was upset with an appellate court ruling that limited the right to bear firearms, so he blogged that the judged deserved to be killed. - The Court upheld his conviction stating that they didn't need any proof that he was actually going to carry out an assassination. - There was definitely clear and present danger. - Matters: it was enough that he made the claims |
