Comm Law
Terms
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- Schenck v US (1919)
- Justice Holmes: Clear and Present Danger
- Barron v Baltimore
- Bill of Rights only applies to Federal Government
- Gitlow v New York (1925)
- Fourteenth Amendment applies First Amendment to state governments same as federal
- Near v Minnesota (1931)
- Prior restraint (censorship) is permitted in certain circumstances such as obscenity
- As a result of Near v Minnesota, when is censorship allowed?
- obscenity, incitement to violence, wartime
- Austin v Keefe (1971)
- Reinforced Near v Minnesota
- NY Times v US; US v Washington Post (1971)
- Could have argued against prior restraint; instead argued government failed to prove restraint necessary
- US v Progressive (1979)
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differentiated from Pentagon Papers
Historical v Contemporary
National Security
Specific Act violated - Time, Place, Manner restrictions
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Rules must be content neutral
Rules must not constitute a complete ban on communication
Rules must be justified by a substantial state interest
Rules must be narrowly tailored to further state interest - Absolutist theory
- Says First Amendment rights are absolute and unlimited
- Meiklejohnian theory
- Says free speech is vital to self-government and speech relating to government is absolutely protected
- Ad Hoc Balancing theory
- Balances free speech against other values, determines freedom of speech on a case by case basis
- Access theory
- Says all individuals should be able to have their views presented in media
- Preferred positions balancing theory
- Balances freedom of speech against other rights and values, with a preference toward free speech