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Updated: 02/13/2004
Part 1 of this lecture can be found at http://fly.hiwaay.net/~jmcmulle/400prior1.htm
TIME, PLACE AND MANNER
Burning a Draft Card: Texas v. Johnson is an example. Flag burning was content based. The draft card had no content interest. And the government had a national defense interest in preserving the draft card. The speech was permissible, but he manner was not.
Demonstrating on Public Streets and Sidewalks:
Frisky v. Schultz (1988) : Brookfield, Wisconsin banned demonstrations near private homes because anti-abortion demonstrators picketed doctors home. The court upheld the ordinance.
Anti-Abortion protests have been the focus of a good deal of prior-restraint legislation and litigation.
1994 Congress passed Freedom of Access to Clinic Entrances (FACE) Act. The law prohibits blocking entrances to abortion clinics and intimidating patients and employees. Fines and prison terms extend from $10,000 and six months to life in prison and $250,000.
On appeal, the Supreme Court upheld the legislation in Woodall v. Reno and American Life League v. Reno saying that it did not restrict peaceful picketing, but only unprotected acts such as obstructing doorways.
1994 Madsen v. Women's Health Center: the Supreme Court ruled that a Florida Court order restricting demonstrators from approaching abortion clinic patients within 300 feet of an abortion clinic. The court held that the restriction was too broad.
1997 Schenk v. Pro-Choice Network In this case, the Supreme Court further protected the the rights of protestors, and overturned a judicial order which barred protesting within 15 feet of abortion clinic patients and employees. The order effectively established a floating protest free zone which the court threw out. It did uphold a 15-foot protest free zone around the clinic itself, however. The court reasoned that the floating bubble zone restricted speech more than necessary.
The debate goes on....
For more information on this matter, go to the Freedom Forum site, First Amendment section, and search using "abortion clinics" -- You'll find articles on all of these cases and more.
Parks: Ward v. Rock Against Racism. NYC regulations. required using Central Parks' sound system to keep noise level down. Court said that was Okay because the regulations weren't based on content.
Newsracks: Courts said cities could restrict placement of news racks or even ban them altogether, but such regulations couldn't be over-broad and must have NO relation to content.
State Fairs: States could restrict what was sold and distributed at STATE FAIRS.
Access to Parades: In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, the Supreme Court ruled that veterans' groups have a constitutional right to decide who they will allow in their parades. A private group could not be forced to include in its' parade a group with whom they disagreed. The parade is an expressive activity, and no one but its organizers and sponsors have a right to decide what its message or expression might be.
One of the most famous cases....Skokie March: Collins v. Smith, 1977. The Seventh Circuit Court of appeals threw out a Skokie, Illinois ordinance prohibiting a parade permit if the parade would incite violence, hatred, abuse, or hostility to groups or persons based on race, religion, or ethnicity. The court said the ordinance was directly linked to content, and that while time, place and manner restrictions were permissible, content restrictions were not.
Freedom of Association: Currant v. Mt. Diablo Council of the Boy Scouts of America. In this case the Supreme Court held that the first amendment rights of the organization to determine the leadership and membership of its organization, including its ban on homosexual scout masters took priority over the a California state law mandating equal access to public accommodations and forbidding discrimination against homosexuals by business organizations.
Son of Sam Laws: Laws which prohibited criminals from making money resultant from their criminal activity (as in writing books, selling movie rights, etc.) were ruled unconstitutional by the Supreme Court in 1991. In Simon and Schuster v. New York State Crime Victims Board, the court ruled that the law placed a financial burden on communication and that the financial burden was based on content. Under the law, proceeds from a book such as Wiseguy or the movie Goodfellas, written by mobster turned informant Henry Hill, were to be turned over to the Crime Victims Board of New York. Simon and Schuster decided to challenge the law when the board demanded money generate by the best seller.
Checkbook Journalism: After the O. J. Simpson cases when several witnesses were paid large sums of money to tell their story to tabloid television shows and magazines, California passed a law prohibiting the practice. In California First Amendment Coalition v. Lungren a federal district court overturned the law, considering the problems with it too many and too basic.
Discriminatory Taxation: Taxes placed on media which are placed on other types of businesses have long been viewed as discriminatory and designed to discourage free expression.
1936: In Grossjean v. American Press Co., Louisiana law which placed a 2 percent tax on papers with more than 50,000 subscribers was declared unconstitutional. Huey Long had tried to use the tax to silence papers which had been critical of his policies.
1987: The Supreme Court ruled an Arkansas tax on circulation magazines but not on religious, trade publications or professional journals was discriminatory.
1991: In Leathers v. Medlock, the Supreme Court held that cable and satellite television companies could be taxed, even if print media were not. The court said the tax was a general business tax on programs delivered by cable and satellite and was not based on content.
[These cases are for illustrative reasons only; you do not need to know them by name.]
HOW DOES THE COURT DECIDE WHEN PRIOR RESTRAINT is Justified?
As you know, the first thing that has to be determined is whether or not the speech is protected?
(Unprotected speech includes....obscenity, perjury, fighting words, libel, incitement to violent or dangerous conduct,....)
Each of these categories is defined and tests have been designated.
These are the tests we discussed earlier:
Useful links:
Student Press Law Center: http://www.splc.org/
Freedom Forum Online http://www.freedomforum.org/
USA Today has a good Supreme Court Index of stories at : http://www.usatoday.com/news/court/courtfront.htm
Resources Used in the Preparation of this
Lecture: