3.1 Prior restraint after WWII

World War II and the McCarthy Era

After the Sedition Act expired in 1921, the federal government stopped prosecuting dissent. At the outbreak of World War II, a new sedition law was attached to the Alien Registration Act of 1940. It became known as the Smith Act for its sponsor, Howard Smith.

There were no cases involving the Smith Act during the war, partly because few people opposed the fight against fascism in the U.S. However, after the war, the act was used to prosecute members of the Communist Party in the U.S.

— In Dennis v. U.S., 1951, for example, the “clear and present danger” test was used again to uphold the convictions of 12 party members under the Smith Act.

— About 121 others were prosecuted under the Smith Act’s conspiracy provisions, and many thousands of others were prosecuted under state laws outlawing mere membership in organizations that advocated violent overthrow of the government. A large number of these prosecutions were unsupported by evidence, and the McCarthy Era (named for then- Senator Joseph McCarthy) is remembered today for its “witch hunt” atmosphere. But the times were changing.

— In Yeats v. U.S. (1957), the Supreme Court (which now had several new members, especially the new Chief Justice Earl Warren) made a distinction between the abstract doctrine of overthrow of of the government and actually advocating violent action.

Outright prior restraint is usually unconstitutional because it targets particular content, but regulations that are content neutral and that advance an important interest are often considered to be acceptable.

For example, banning any billboards that advertise a certain political party in a city would be an unacceptable prior restraint. However, banning all billboards in an historic neighborhood in order to preserve the character of the neighborhood would be content neutral.

Similarly, keeping religious messages out of public buildings does not prevent people from creating and disseminating religious messages in a society. While courts ordered the removal of a prominent monument to Ten Commandments brought by a judge to a courthouse in Birmingham, Alabama in 2003, the courts did not prevent the people of Birmingham from discussing or practicing religion.

 The Pentagon Papers case

New York Times v. US, 1971 — President Nixon tried to stop publication of the “Pentagon Papers,” a secret history of the Vietnam War made for the Defense Dept. The papers had been leaked to reporters by Daniel Ellsberg, a Pentagon consultant. The court said the government had a heavy burden to prove there was a national security issue, and had failed to meet it. Thus, court orders halting publication of the papers were lifted.

Other cases involving anti-war dissidence

US v. The Progressive 1979 — The Progressive magazine of Wisconsin was going to print plans to build an H-bomb, gathered from public sources. The government asked the courts for a restraining order, and in the process of a lengthy investigation, it was found that many of the documents to be printed by the Progressive had, through carelessness, been available to the public in federal libraries. Fearful that it would lose the case, the federal government made the appeal moot by leaking documents to another publication and then stopping the prosecution.

Along with restrictions, incentives must also be content neutral. In Texas Monthly v. Bullock, 1989, the court said religious publications can’t be exempt from taxes when other publications have to pay taxes, the court decided in this case. This is an example of the “content neutral” doctrine. It would be OK to tax all publications, but not to exempt any one group on the basis of their content.

US v. OBrien, 1968 — laws criminalizing draft card burning were upheld because the Supreme Court said that effect of the law was not only to stifle dissent and the government’s interest was to be able to raise an army efficiently.

Similarly, in Clark v. Community for Creative Non-Violence, 1984, a law that said homeless people could not sleep in Lafayette park was upheld.

The Flag Burning Case

Of course, there have been many cases in which overly broad restrictions on speech have been struck down. Perhaps most famous are the forced speech cases and the flag burning cases.

In Texas v. Johnson, 1989, the Supreme Court said that a state law prohibiting flag burning was not constitutional because only messages of protest were being punished. Burning the flag in a respectful way (an approved method of destroying old flags) was not also being made illegal.

When Congress passed a similar law in 1990, it was struck down in US. v. Eichman. Considerable debate followed, but no law has yet been passed that will ban protest flag burning in a constitutional manner. Like many forms of dissent, flag burning makes people uncomfortable, which is the point for the protesters.

Modern day sedition in the US

The US decision to go to war in Iraq in 2003 led to a good deal of dissent in the US, and sometimes the dissidents were punished.  Generally, their rights are upheld in state or federal courts.

For example, Laura Berg, a clinical nurse specialist, wrote a letter in September 2005 to a weekly Albuquerque newspaper criticizing the administration for Hurricane Katrina and the Iraq War. She urged people to “act forcefully” to remove an administration she said played games of “vicious deceit.” A few weeks later, the head of the VA asked the FBI to investigate her for sedition, and her work computer was confiscated. Berg absoutely refused to back down, and by February the ACLU was suing the VA. By March 2006 the VA apologized and Berg was honored with a PEN award.

Hate speech and fighting words

Chaplinsky v. N.Hampshire, 1942 This case set out the “fighting words doctrine.” Chaplinsky was cited for a breech of peace for calling someone “a damned fascist.”The state law specifcally stated: “No person shall address any offensive, derisive or annoying word to any other person… ” He appealed and the court said that the words could lead to action.

RAV v. St Paul, 1992 — An ordinance banned burning crosses, displaying swastikas or expressing religious or racial hatred. Some in the court said the city had plenty of ways to punish cross burners without an overly broad ordinance. The majority said fighting words doctrine cant be used to limit hate speech, and more or less overturned Chaplinsky

Virginia v. Black, 2003 –A Virginia state law that bans cross-burning is (as in RAV) a violation of free speech rights, but if the cross is burned with the intent to intimidate, a law to prevent it is NOT unconstitutional. Arguments are discussed here at a Freedom Forum site. A burning cross, so long associated with racial violence in the US, is a “true threat” (as in Watts v. United States, 394 U.S. 705) A state may choose to prohibit “only those forms of intimidation that are most likely to inspire fear of bodily harm.”

Columnist James Kilpatrick said: “The Virginia law makes it a felony publicly to burn a cross “with the intent of intimidating any person or group of persons.” How is “intent” to be proved? No problem. “Any such burning of a cross shall be prima facie evidence of an intent to intimidate.” Heads I win, tails you lose. This was a law that could not withstand the first breeze that blows across the First Amendment.”

True threats

Planned Parenthood v. American Coalition of Life Activists — This is the “Nuremburg Files” abortion web site case involving an Oregon office of Planned Parenthood and a Christian activist named Neil Horsley.

The web site featured X-ed out names of doctors who had been assassinated and inflamatory “wanted for murder and genocide” posters of living doctors. There were also testimonials to Paul Hill, an anti-abortion activist who used a shotgun at short range to kill a doctor and his guard.

A jury found that the web site contained “true threats” and violated the Federal Access to Clinic Entrances (which protects against threats) and ordered the site taken down (see injunction). The coalition won at the 9th Circuit appeals level, but the case was heard again en banc and Planned Parenthood won. The coalition appealed to the US Supreme Court but cert. was denied in June 2003.

Right of association (or not)  

Hurley v. Irish American gay lesbian and bisexual group of Boston, 1995 — The Supreme Court said veterans groups have a right of association, and can decide whom they will include in their St. Patricks day parade. Gays have right to parade, too, and can exclude veterans if they like. To deny a right of association would be akin to forced speech, the court said.

Similarly, the court said in  Boy Scouts of America v Dale (2000) that a private organization has a First Amendment right to freedom of association in spite of state antidiscrimination laws.

The sensitivity to forced speech comes from a series of cases brought by Jehovah’s Witnesses For example, in West Virginia Brd. of Ed. v. Barnette, 1943, the Supreme Court said that the state cannot compel students to salute the flag.

State  suppression of speech by animal rights activists: “Ag-Gag” 

In 1990 and 1991, the first state laws to ban videotaping of cruelty in livestock production facilities passed in Kansas, Montan and North Dakota.  A second wave of laws hit legislatures, and some even passed,  in 2011 – 2013.  The early laws were aimed at the actions involved in animal “liberation” and were often accompanied by laws about making false statements on employment applications and laws against publishing untrue statements about agricultural products (“veggie libel” which we will take up in the Libel section).

The idea behind “Ag Gag” laws, plainly, is to silence critics of factory farming, as noted in this Mother Jones article from summer 2013. Many of the laws blur the line between action and speech in ways that many believe are probably not Constitutional. (An award-winning  student essay also makes this point in some detail, arguing against prior restraint.)

Westboro Church and Stolen Valor 

Two recent cases involving direct prior restraint by localities are:

US v Alvarez, 2012, in which the court struck down a law punishing a person for falsely claiming they had been awarded a military medal; and

Snyder v Phelps, 2011, in which the court said that the Westboro Baptist Church protests at funerals were not punishable under the “intentional infliction of emotional distress” statute.

 Photography and Censorship   


In recent years, police suppression of press and citizen photography has accelerated.  According to the American Civil Liberties Union, taking photographs and video of things that are plainly visible in public spaces is a constitutional right.  And yet,  there is “a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places, and harassing, detaining and arresting those who fail to comply.”

Civil liberties groups have been fighting this for years, and when cases go to court, they win.  But somehow, the police are not  getting the word.

Maybe they need to see this cartoon: