Freedom of the Press and Symbolic Speech

Doctrine of No Prior Restraint

• English common law, assumed incorporation of the First Amendment

• taxes cannot be used as prior restraint

• dissemination of lawfully obtained info OK even if original source was unlawful

• national security is the only exception to no prior restraint

New York Times Co. v. United States (1971)

Vote: 6-3

Facts: Amidst growing opposition to the undeclared Vietnam War, the Nixon Administration wanted to stop the NYT and Washington Post from publishing articles based on the 47 volume study History of U.S. Decision-Making Process on Vietnam Policy. The Dept of Justice was granted a temporary restraining order against both papers. Preliminary injunction denied by district court, circuit extended the restraining order for more time to review docs and determine if national security.

Holding: An injunction against publication of the History of U.S. Decision-Making Process on Vietnam Policy is a violation of the First Amendment.

Opinion:

(1) Any system of prior restraint comes to this court bearing a heavy presumption against its constitutional validity.

(2) The Government “carries a heavy burden of showing justification for the imposition of such restraint”

Concurring (multiple):

(1) FIRST GUY: Freedom of press is absolute.

(2) SECOND: The president should silence it if he wants, not the courts. They can use judicial review after.

(3) THIRD: Only Congress has power to restrict this; President is trying to make law.

(4) FOURTH: We need more time to decide this.

Note: This is one of the most misunderstood modern cases. It is not a “no prior restraint” case, it is a “no restraint in this case.” 7 justices would permit, under certain circumstances, an injunction. Today, Presidents likely could NOT prevent publication b/c internet.

symbolic speech

symbols, signs, other means of expression

speech plus conduct

sit-ins, picketing, demonstrations

West Virginia State Board of Edu v. Barnette (1943)

Vote: 6-3

Facts: Walter Barnette, a Jehovah’s Witness, sought an injunction against the enforcement of compulsory flag salutes in school because it violated his and his children’s religious belief that they should not worship any graven image.

Holding: The enforcement of compulsory flag salutes in school is not congruent with the free speech clause of the First Amendment.

Opinion:

(1) The salute is expressive. We are dealing with the compulsion of students to declare a belief.

(2) Patriotism cannot be compelled.

(3) “Those who begin coercive elimination of dissent soon find themselves eliminating dissenters.”

(4) “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can proscribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word of act their faith therein.”

Note: Overturned Minersville v. Gobitis

Tinker v. Des Moines (1969)

Vote: 7-2

Facts: In December 1965, a group of adults and students decided to publicize their opposition to the war in Vietnam by wearing black armbands. The principals of the Des Moines Schools adopted a policy forbidding the wearing of armbands in school after they learned this, suspending any students who refused to comply. 15 y/o John Tinker was suspended, asked federal court for injunction, said no. Appellate court upheld; SC granted certiorari.

Holding: The Free Speech clause of the First Amendment protects a child’s right to symbolically wear an armband.

Opinion:

(1) First Amendment rights are available to teachers and students (Meyer v. Nebraska, Bartels v. Iowa)

(2) “The prohibition of expression of one particular opinion is not constitutionally permissible.” No viewpoint based policies.

Dissent:

(1) The armband was a distraction so school officials should be able to reprimand it.

Note: This is content-based and viewpoint-based. Other political symbols were allowed; only this one was banned. The school can punish for conduct, not opinion.

Texas v. Johnson (1989)

Vote: 5-4

Facts: Gregory Johnson was arrested for burning the American flag at a political demonstration protesting Reagan under a Teas statute prohibiting flag desecration. It defined flag desecration as “done in a way that will cause an onlooker to be offended.” No breach of the peace occurred at the time of flag burning.

Holding: Burning the American flag is protected under the Free Speech clause of the First Amendment.

Opinion:

(1) The law restricting Johnson’s expression is content-based, which means the statute is subject to “the most exacting scrutiny” (Boos v. Barry).

(2) “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea disagreeable or offensive.”

Dissent:
(1) The American flag is a unique symbol of our nation that justifies the prohibition of burning it (fighting words).

Note: The possibility of a breach of the peace is not enough. Even if Johnson did say something, speech would be protected because it was not targeted at anyone. Congress responded by making a federal law prohibiting flag burning, the Supreme Court struck it down.