Prior Restraint Flashcards

Questions and Answers

What is prior restraint?

Censorship that occurs in advance of publication (correct)

Censorship after publication

An amendment to the Constitution

A type of legal trial

What does John Milton argue in Areopagitica?

He argues against prior restraint and suggests that good and evil ideas should 'fight it out'.

Framer's intent refers to whether the framers intended to include prior restraint in the First Amendment of the Constitution.

True

One argument against prior restraint is that it privileges the government over _______.

citizens Signup and view all the answers

What does risk aversion mean in the context of prior restraint?

It is when the government attempts to avert the consequences of speech that has yet to be uttered. Signup and view all the answers

What does the Brandenburg Test require for 'fighting words'?

The speaker must intend to provoke imminent lawless action and the action is likely to occur. Signup and view all the answers

What must a government prove to overcome the presumption of unconstitutionality regarding prior restraint?

The danger is serious, imminent, stopping the speech will stop the danger, no alternatives work, and the remedy is not vague or over-broad. Signup and view all the answers

What did Nebraska Press Association v. Stuart establish?

Courts must exercise the least restrictive means to guarantee the 6th Amendment right to a fair trial. Signup and view all the answers

What are Temporary Restraining Orders (TROs) used for?

They are used to maintain the status quo while a court gathers evidence. Signup and view all the answers

What case established limits of prior restraints on the press?

Near v. Minnesota Signup and view all the answers

The ruling in Near v. Minnesota stated that prior restraints are almost always unconstitutional under the First Amendment.

True Signup and view all the answers

What are the three exceptions to the ruling in Near?

All of the above Signup and view all the answers

What was the issue regarding the Pentagon Papers case?

Did the injunction violate the First Amendment? Signup and view all the answers

In national security cases, the government needs to prove that publication will provide 'direct, immediate and irreparable harm'.

True Signup and view all the answers

What must be shown to justify a gag order in Nebraska Press Assn. v. Stuart?

There must be a clear and present danger that the defendant will be deprived of a fair trial. Signup and view all the answers

Match the following issues with their corresponding cases:

Nebraska Press Assn. v. Stuart = Gag order on media coverage Pentagon Papers = Publication of stolen government documents Near v. Minnesota = Limits of prior restraint Brandenburg Test = Fighting words standard Signup and view all the answers

What are some other means of providing fair trials?

Sequester the jury, change the venue. Signup and view all the answers

Study Notes

Prior Restraint Overview

Prior restraint refers to censorship imposed in advance of publication, often involving government review of all proposed content.
Historically linked to the belief that unchecked speech can lead to harmful consequences.

Key Figures and Arguments

John Milton's "Areopagitica" argued against prior restraint, advocating for the open exchange of ideas.
The concept of framer's intent considers whether the Constitution's framers intended to include prior restraint prohibitions in the First Amendment.

Consequences of Prior Restraint

Censorship advantages government authority over individual freedoms, potentially fostering civil unrest.
A lack of information hinders citizens' ability to govern themselves effectively.

Legal Framework and Tests

Risk aversion in prior restraint reflects the government’s attempt to prevent potential harm from yet-uttered speech.
The Brandenburg Test addresses the criteria for 'fighting words': intent to incite imminent lawless action that is likely to occur.

Constitutional Standards

To challenge the presumption of unconstitutionality, the government must show:
- Serious and imminent danger posed by speech.
- That prior restraint effectively mitigates this danger without alternatives.
- The restraint must be narrowly tailored and neither vague nor overly broad.

Landmark Cases

Nebraska Press Association v. Stuart: Affirmed that courts must utilize the least restrictive means to ensure a fair trial, treating gag orders as a last resort.
Near v. Minnesota: Established that prior restraints on the press are almost always unconstitutional, with limited exceptions for national security, obscenity, and incitement to lawlessness.

Near v. Minnesota Details

The case involved Jay Near, charged with publishing defamatory reports, raising the issue of constitutional prior restraint under the 1st and 14th Amendments.
The ruling reinforced the constitutional protection against prior restraints, with three exceptions detailed for publication types.

Pentagon Papers Case

The Pentagon Papers case involved the government seeking an injunction against media publications of classified documents, questioning whether the injunction was a First Amendment violation.
The ruling emphasized the presumption of unconstitutionality for prior restraint, placing the burden of proof on the government.

Nebraska Press Association v. Stuart Analysis

Examined a gag order in a murder case's pretrial hearing, determining it violated the First and Fourteenth Amendments.
The ruling established guidelines requiring clear and present danger to justify gag orders, alongside a thorough consideration of alternative measures to ensure a fair trial.

Alternative Fair Trial Measures

Judges must evaluate other options like jury sequestration, changing trial venues, and other methods to protect defendants' rights without resorting to gag orders.

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Description

Dive into the concept of prior restraint with this flashcard quiz. Explore key terms such as Areopagitica and framer's intent, and understand the implications of censorship prior to publication. Perfect for students of media law and constitutional rights.