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Freedom of the Press - The Press And Prior Restraints

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Throughout history the most severe restrictions placed on the press has occurred during times of social stress, particularly during wars. The first restrictions by Congress on the press was through the Sedition Act of 1798, based on English common law, which prohibited malicious criticism of the government or government officials. Several editors were tried and convicted before the highly controversial law was allowed to expire in 1801. The convictions were subsequently pardoned and no legal challenges resulted. The Civil War in the early 1860s also brought press censorship through martial law. Again, no legal cases resulted. World War I brought a new set of federal and state sedition laws. Several newspaper editors were convicted under the laws and legal challenges this time did result. The Supreme Court uniformly rejected freedom of the press claims. Importantly among these rulings was the finding in Gitlow v. New York (1925) that First Amendment press protections applied to state laws as well as federal in the form of personal rights and liberties protected by the due process clause of the Fourteenth Amendment. In another of the sedition cases Justice Oliver Wendell Holmes established the "marketplace of ideas" metaphor which proved influential in supporting press freedoms throughout the twentieth century.

As with speech, the government has restricted the press through both prior restraints and through punishment after publication. Prior restraints have taken the form of censorship, taxation, and licensing. Punishment has been applied to publishers deliberately printing false and defamatory material about public and private individuals. Several aspects of press freedom were addressed by the courts since the World War I era sedition cases.

A prior restraint doctrine was first elaborated by the Supreme Court in the 1931 Near v. Minnesota ruling. The Court for the first time struck down a state law as an unconstitutional prior restraint on the press. The Court identified four situations where government censorship through prior restraint might be warranted: (1) protection of crucial war information; (2) banning obscene materials; (3) preventing the incitement of violence against the community or overthrow of the government; and, (4) protecting privacy. The obscenity prohibition was upheld in Kingsley Books v. Brown (1957) by supporting state law that allowed public officials to seek injunctions against the sale of materials considered obscene. The issue of civil or criminal liability regarding libel did not come to the Court until New York Times Company v. Sullivan (1964). The Court provided some protection to the press by holding that public officials must prove "actual malice" to recover libel damages. Later, the Court decreased press protection when non-public figures were suing. The most celebrated prior restraint decision regarding national security was New York Times v. United States (1971). The Court refused to block newspapers from publishing previously classified foreign policy information on the Indochina war but did leave open that national security considerations remained a legitimate cause for prior restraint. As a result criticism by the press greatly influenced public opposition to the Vietnam War.

Regarding privacy, the Court set limits on private damage suits against the press for invasion of privacy. In 1975, the Court in Cox Broadcasting Corp. v. Cohn overturned a Georgia state law prohibiting publication of rape victims' names already found in public records. But the Court noted states could pass laws keeping such information out of public records. Later, in 1989, the Court overturned a lower court's award of civil damages under a state law prohibiting disclosure of rape victim's name in Florida Star v. B. J. F. in a case where the victim's name was mistakenly and illegally placed in the public record. Regarding the old issue of newspaper taxation, the Court held in Minnesota Star v. Minnesota Commissioner of Revenue (1983) and later cases that any taxes must be equally applied to all, not singling out publishers.

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