Chapter Overview

Prior Restraint During Wartime:

Censorship of war news was common in the United States until the fighting began in Vietnam in the 1960s. Reporters were required to follow general security guidelines in their coverage of the war in Southeast Asia, but nevertheless went nearly everywhere, talked with nearly everyone, and presented the American people with a frank account of both the good and bad in that conflict. Many in the American military thought that that frankness was wrong, and since Vietnam the Pentagon has exercised a heavy hand in controlling press coverage of U.S. military operations. After the press was excluded for 72 hours during the invasion of Grenada, a military and civilian panel recommended the formation of a small press pool that would accompany U.S. forces during the first three days of fighting in future military operations. This pool concept worked well at first, but was a failure when the United States invaded Panama.

The censorship of the press during the war in the Persian Gulf was the most extensive of any war. The censorship was prompted by senior military officials who still distrusted the press as a result of Vietnam, by the anti-democratic government of Saudi Arabia, and by the administration's fear of losing public support for the war. Reporters were kept on a very short leash: Those leaving the rear area had to travel in groups or pools, accompanied by a military escort. Reporters could only go where they were invited, and all stories were extensively reviewed before they were permitted to be published or broadcast. At the same time, the government tried to fill the vacuum created by this censorship with frequent news briefings that were usually incomplete and often dishonest. Two lawsuits brought against the government because of the censorship came to naught when the courts refused to consider the larger matter of prior restraint. Since the war in the Persian Gulf the government and the press have attempted to establish new guidelines to facilitate the reporting of U.S. military operations. These new guidelines were applied as U.S. troops fought in Somalia, Yugoslavia and Afghanistan. The latter war created many new concerns because it involved a far larger military effort as well as the threat to homeland safety.

The First Amendment in the Schools:

In the 1960s courts ruled that both high school and college students enjoyed the rights of freedom of expression guaranteed by the First Amendment. But despite a seemingly broad First Amendment ruling by the Supreme Court in the case of Tinker v. Des Moines, lower courts refused to apply the high court's mandate and the censorship of high school publications and presentations continued. In 1988 even the Supreme Court turned its back on Tinker and gave high school authorities broad rights of censorship over newspapers produced as a part of the journalism curriculum. Today school authorities may censor publications or presentations for legitimate academic reasons. They may also censor stories that materially and substantially interfere with the requirements of discipline in the school, that interfere with the rights of students, that generate health and welfare concerns, and that are obscene or vulgar. Censorship in the high school press is common at many schools; at other institutions, however, journalism seems to be robust. The college press suffers less censorship, but recently attempts have been made to censor college and university publications that present material deemed by authorities to be "politically incorrect," that present the college or administrators in a bad light, or that report on crime on the campus.

Book banning, a traditional problem in the United States, has been more intensive in the past decade because the courts have failed to articulate specific standards to guide school administrators and, at the same time, protect the rights of students.

Time, Place and Manner Restrictions:

The prior restraint of expression is permissible under what are known as time, place and manner regulations. That is, the government can impose reasonable regulations about when, where and how individuals or groups may communicate with other persons. Time, place and manner rules apply to both public forums (settings owned or controlled by a government, such as a public street or an airport) and private forums (privately owned settings, such as residences and shopping centers). In order to be constitutional, time, place and manner restraints must meet certain criteria:

1. The regulation should be content neutral; that is, application of the rule should not depend on the content of the communication.
2. The regulation must serve a substantial governmental interest, and the government must justify the rule by explicitly demonstrating this interest.
3. There cannot be total prohibition of the communication. The speakers or publishers must have reasonable alternative means of presenting their ideas or information to the public.
4. The rules cannot be broader than they need to be to serve the governmental interest. For example, the government cannot stop the distribution of literature on all public streets if it only seeks to stop the problem of congestion on public streets that carry heavy traffic.

Other Prior Restraints:

A wide variety of legal issues relate to prior restraint. In recent years the Supreme Court of the United States has voided a statute aimed at denying criminals the right to earn profits from books or films about their crimes and voided a city ordinance that barred residents from putting signs on their front lawns or in their windows. At the same time, the high court has permitted limited restrictions aimed at those seeking to protest abortion at a clinic in Florida.

Hate Speech/Fighting Words:

Hate speech is not a new problem in America, but for the first time in many years the courts have been called in to determine just how far the state may go in limiting what people say and write about other people when their language is abusive or includes racial, ethnic or religious invective. In the early 1940s the Supreme Court ruled that so-called fighting words could be prohibited, but these words have come to mean face-to-face invective or insults that are likely to result in a violent response on the part of the victim. The high court voided a St. Paul, Minn., ordinance that punished such abusive speech because, the court said, the law did not ban all fighting words, merely some kinds of fighting words (i.e., racial or religious invective) that the community believed were improper. The decision in this case has sharply limited attempts by state universities and colleges and public schools to use speech codes to discourage hate speech or other politically incorrect comments or publications.

The First Amendment and Election Campaigns:

Efforts to reform the expensive American electoral process seem to be gaining momentum in the early part of the 21st century, but under the Constitution there is only so much that the law can do. The Supreme Court has ruled that while it is permissible to place a limit on how much money one person or business can donate to a campaign, it is a violation of the First Amendment to place a limit on how much a candidate may spend. Because the presentation of campaign messages via the mass media is so much a part of the current electoral process and because sending such messages costs money, campaign spending is tied closely to freedom of speech and press and is protected by the First Amendment, the court has ruled.