That case set forth a “general scheme for assessing government restrictions on commercial speech.” Commercial speech will be protected by the First Amendment if: 1 it concerns lawful act
Trang 1to the organization’s exercise of its free speech
rights JusticeCLARENCE THOMAS, in his majority
opinion, addressed the freedom-of-speech
ar-gument He noted that the school was a limited
public forum and that the state, therefore, was
not required to permit persons “to engage in
every type of speech.” However, the state’s
ability to restrict speech was not unlimited In
addition, the state could not discriminate
against speech on the basis of viewpoint Justice
Thomas wrote that the school district decision
had unlawfully imposed this requirement He
pointed to recent Court decisions that had
forbidden states to prevent religious groups
from using public facilities or to receive funding
for an undergraduate organization
Statutes that prohibit the desecration of the
U.S FLAG have been found to restrict free
expression unconstitutionally In Texas v
Johnson, 491 U.S 397, 109 S Ct 2533, 105 L
Ed 2d 342 (1989), the Court overturned
Gregory L Johnson’s conviction for burning a
U.S flag during a demonstration Johnson’s
actions were communicative conduct that
warranted First Amendment protection, even
though they were repugnant to many people
Similarly, in United States v Eichman, 496 U.S
310, 110 S Ct 2404, 110 L Ed 2d 287 (1990),
the Court struck down the federal Flag
Protec-tion Act of 1989, 103 Stat 777, 18 U.S.C.A
§ 700, stating that the government’s interest in
passing the act had been a desire to suppress
free expression and the content of the message
that the act of flag burning conveys
The U.S Supreme Court has generally
struck down prohibitions on nudity and other
erotic, but not obscene, expressive conduct
However, in Barnes v Glen Theatre, 501 U.S
560, 111 S Ct 2456, 115 L Ed 2d 504 (1991),
the Court upheld a ban on totally nude dancing,
on the ground that it was part of a general ban
on public nudity While recognizing that nude
dancing generally has been considered protected
expressive conduct, the justices pointed out that
such activity is only marginally within the
perimeter of First Amendment protection
In City of Erie v Pap’s A M., 529 U.S 277,
120 S Ct 1382, 146 L Ed 2d 265 (2000), the
U.S Supreme Court upheld a local zoning
ordinance that banned nude-dancing clubs
within the city It found that freedom of speech
had not been unconstitutionally restricted
be-cause the ordinance did not ban the expressive
conduct of nude dancing but only the means for expressing it within the city It found that the city had good grounds for banning nude-dancing clubs; these were secondary effects on the community rather than the dancing itself
Therefore, the city had the authority to restrict the location of such clubs
Commercial Speech
Commercial speech, usually in the form of advertising, enjoys some First Amendment protection, but not to the same degree as that which is given to noncommercial forms of expression Generally, the First Amendment protects commercial speech that is not false or misleading and that does not advertise illegal or harmful activity Commercial speech may be restricted only to further a substantial govern-ment interest and only if the restriction actually furthers that interest In Central Hudson Gas &
Electric Co v Public Service Commission, 447 U.S 557, 100 S Ct 2343, 65 L Ed 2d 341 (1980), the U.S Supreme Court held that a statute banning promotional advertising by public utilities was unconstitutional That case set forth a “general scheme for assessing government restrictions on commercial speech.”
Commercial speech will be protected by the First Amendment if: (1) it concerns lawful activity and is not misleading; (2) the asserted govern-ment interest is not substantial; (3) the regula-tion does not directly advance the asserted governmental interest; and (4) the regulation is more extensive than is necessary to serve that interest The U.S Supreme Court has struck down bans on drug advertising, (Thompson v
Western States Medical Center, 535 U.S 357, 122
S Ct 1497, 152 L Ed 2d 563 (2002), and
TOBACCO advertising, Lorillard Tobacco Corp v
Reilly, 533 U.S 525, 121 S Ct 2404, 150 L Ed
2d 532 (2001), using this test
Defamation and Privacy
In New York Times v Sullivan, 376 U.S 254, 84
S Ct 710, 11 L Ed 2d 686 (1964), the U.S
Supreme Court declared that the First Amend-ment protects open and robust debate on public issues, even when such debate includes “vehe-ment, caustic, unpleasantly sharp attacks on government and public officials.” In Sullivan, a public official claimed that allegations about him that had appeared in the New York Times were false, and he sued the newspaper for libel
The Court balanced the plaintiff’s interest in
Trang 2preserving his reputation against the public’s interest in freedom of expression, particularly in the area of political debate It decided that, in order to recover damages, a public official must prove actual malice, which is knowledge that the statements were false or that they were made with reckless disregard of whether they were false
Where the plaintiff in aDEFAMATIONaction is
a private citizen who is not in the public eye, the law extends a lesser degree of constitutional protection to the statements at issue Public figures voluntarily place themselves in positions that invite close scrutiny, whereas private citizens have a greater interest in protecting their reputation A private citizen’s reputational and privacy interests tend to outweigh free speech considerations and, therefore, deserve greater protection from the courts (see Gertz v Robert Welch, Inc., 418 U.S 323, 94 S Ct 2997, 41 L
Ed 2d 789[1974])
FURTHER READINGS Amar, Vikram David, ed 2009 The First Amendment, Freedom of Speech: Its Constitutional History and the Contemporary Debate Amhurst, N.Y.: Prometheus Books.
Haiman, Franklyn S 1993 Speech Acts and the First Amendment Carbondale: Southern Illinois Univ Press.
Hall, Kermit L 1989 The Magic Mirror: Law in American History New York: Oxford Univ Press.
Heyman, Steven J 2008 Free Speech and Human Dignity.
New Haven, Conn.: Yale University Press.
Wagman, Robert J 1991 The First Amendment Book New York: World Almanac.
CROSS REFERENCES Broadcasting; Censorship; E-Mail; Fairness Doctrine; First Amendment; Freedom of the Press; Hate Crime; Movie Rating; Overbreadth Doctrine; Prior Restraint; Privacy;
Roth v United States; Symbolic Speech; X Rating.
FREEDOM OF THE PRESS Freedom of the press is the right, guaranteed by the First Amendment to the U.S Constitution, to gather, publish, and distribute information and ideas without government restriction; this right encompasses freedom from prior restraints on publication and freedom from censorship
The FIRST AMENDMENT to the U.S Constitu-tion reads, in part, “Congress shall make no law abridging the FREEDOM OF SPEECH, or of the press.” The courts have long struggled to determine whether the Framers of the Consti-tution intended to differentiate press freedom from speech freedom Many have concluded
thatFREEDOM OF THE PRESSderives from freedom
of speech Although some cases and some legal scholars, including JusticePOTTER STEWART, of the U.S Supreme Court, have advocated special press protections distinct from those accorded
to speech, most justices believe that the freedom
of the press clause has no significance indepen-dent of the freedom of speech clause
The Court explained its reasoning in First National Bank of Boston v Bellotti, 435 U.S 765,
98 S Ct 1407, 55 L Ed 2d 707 (1978) According to Chief Justice WARREN E BURGER, conferring special status on the press requires that the courts or the government determine who or what the press is and what activities fall under its special protection Burger concluded that the free speech guarantees of the First Amendment adequately ensure freedom of the press and that there is no need to distinguish between the two rights:
Because the First Amendment was meant to guarantee freedom to express and commu-nicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination
The Court has generally rejected requests to extend to the press PRIVILEGES AND IMMUNITIES
beyond those available to ordinary citizens In Branzburg v Hayes, 408 U.S 665, 92 S Ct 2646,
33 L Ed 2d 626 (1972), it held that a journalist’s privilege to refuse to disclose information such as the names of informants
is no broader than that enjoyed by any citizen
As long as an inquiry is conducted in GOOD FAITH, with relevant questions and no harass-ment, a journalist must cooperate
Justice Stewart’sDISSENTin Branzburg urged the Court to find that a qualified journalistic privilege exists unless the government is able to show three things: (1) probable cause to believe that the journalist possesses information that is clearly relevant; (2) an inability to obtain the material by less intrusive means; and (3) a compelling interest that overrides First Amend-ment interests In an unusual break with tradition, several circuit courts have applied Stewart’s test and ruled in favor of journalists who have sought special First Amendment protection Nonetheless, the Supreme Court has steadfastly held to its decision in Branzburg and shows no sign of retreating from its
550 FREEDOM OF THE PRESS
Trang 3position that the First Amendment confers no
special privileges on journalists
The Supreme Court’s reluctance to
recog-nize a journalist’s privilege has not stopped
lower federal courts from doing so A handful of
FEDERALcircuits and the district courts in those
circuits as of 2009 recognize a journalist’s right
not disclose the identity of his or her
confiden-tial informants At the state level, legislatures in
more than 25 states have enacted reporter
“shield laws” that protect journalists from being
forced to publicly reveal their sources
Addi-tionally, many state courts have interpreted
their state constitutions as conferring upon
journalists a privilege to maintain their sources’
confidentiality However, the privilege
recog-nized by state and federal jurisdictions is not
ABSOLUTE Journalists may still be compelled to
reveal the identity of a confidential informant if
the party seeking disclosure can make a showing
of relevance, need, and the unavailability of the
information from other, non-journalist sources
Despite the inroads journalists have made in
many state and federal jurisdictions, a large
number of jurisdictions have declined to
recognize a reporter’s privilege, as New York
Times reporter Judith Miller realized when she
was jailed forCONTEMPTof court after refusing to
disclose the identity of a confidential source in
the Valerie-Plame-Scooter-Libby affair The case
began when Chicago Sun-Times columnist
Robert Novak published a column disclosing
that Valerie Plame was a covert operative of the
CENTRAL INTELLIGENCE AGENCY (CIA), specializing
in gathering intelligence on WEAPONS OF MASS
DESTRUCTION (WMD) Based on Plame’s
recom-mendation, Novak revealed, the White House
had appointed Joseph Wilson, Plame’s husband,
to investigate a British intelligence report that
Iraq president Saddam Hussein had attempted to
purchase uranium from Niger for the purpose of
building a nuclear bomb After making the trip
to Niger in February 2002, Wilson concluded
that the intelligence report was wrong and that
Hussein had never contacted Niger about
purchasing uranium
However, President GEORGE W BUSH, in his
January 28, 2003, State of the Union Address,
repeated the substance of the British intelligence
report as a justification for the United States
taking possible military against Iraq Following
the invasion, Wilson wrote a series of opinion
pieces in the New York Times questioning the
war’s factual basis In one piece, Wilson argued that President Bush had misrepresented the pre-war intelligence by suggesting that the Iraqi regime had sought to purchase uranium from Niger Plame and Wilson then filed a lawsuit against Irve Lewis “Scooter” Libby, an assistant
to President Bush and chief of staff to VICE PRESIDENT Dick Cheney, for leaking the covert identity of Plame to members of the press
A federalGRAND JURY was also convened to investigate whether the leak constituted a crime, and it subpoenaed Judith Miller, a New York Times reporter who was believed to have met with Libby two days after Wilson’s allegations against Bush were published in the Times Libby was suspected of disclosing the covert status of Plame as payback for her husband’s article, which had made the president look bad
Although Miller admitted that a confidential informant had given her the information about Plame’s covert status, she refused to identify the name of that informant and was subsequently jailed for contempt of court by a federal district court
The U.S Court of Appeals for the DISTRICT
OF COLUMBIA upheld the contempt CITATION
against Miller’s assertion of “reporter’s privi-lege” (In re Grand JURY SUBPOENA, Judith Miller,
438 F.3d 1141[2006]) In rejecting the claim of privilege, the CIRCUIT COURT relied on the Supreme Court’s decision in Branzburg v
Hayes, 408 U.S 665, 92 S.Ct 2646, 33 L Ed
2d 626 (1972) In that case, the nation’s high court observed that grand juries operate under a longstanding principle that “the public has a right to every man’s evidence,” and “the only testimonial privilege for unofficial witnesses that is rooted in the federal constitution is the
FIFTH AMENDMENT privilege against compelled self-incrimination.” In the final analysis, the circuit court said it could not “seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or EVIDENCE
thereof, on the theory that it is better to write about a crime than to do something about it.”
As of the summer 2009, experts expected the Supreme Court to revisit this issue in the future and reconcile the differing views of the lower federal courts
Laws that affect the ability of the press to gather and publish news are suspect, but not automatically unconstitutional In Cohen v
Trang 4Cowles Media Co., 501 U.S 663, 111 S Ct 2513,
115 L Ed 2d 586 (1991), reporters for two Twin Cities newspapers were sued for breach of contract when they published the name of their source after promising confidentiality The reporters claimed that the law infringed their First Amendment freedom to gather news unencumbered by state law The Court held that the law did not unconstitutionally under-mine their rights because its enforcement imposed only an INCIDENTAL burden on their ability to gather and report information
Writing for the majority, JusticeBYRON R.WHITE
stated that laws which apply to the general public and do not target the press do not violate the First Amendment simply because their enforcement against members of the press has
an incidental burden on their ability to gather and report the news: “Enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied
to enforcement against other persons or orga-nizations.” The Cohen decision indicates the Court’s continued unwillingness to extend special First Amendment protection to jour-nalists
Generally, the First Amendment prohibits
PRIOR RESTRAINT, that is, restraint on a publication before it is published In aLANDMARKdecision in Near v Minnesota, 283 U.S 697, 51 S Ct 625, 75
L Ed 1357 (1931), the Court held that the government could not prohibit the publication
of a newspaper for carrying stories that were scandalous or scurrilous The Court identified three types of publications against which a prior restraint might be valid: those that pose a threat
to national security, those that contain obscene materials, and those that advocate violence or the overthrow of the government
The government argued that publication of certain material posed a threat to national security in the so-called Pentagon Papers case, New York Times Co v United States, 403 U.S
713, 91 S Ct 2140, 29 L Ed 2d 822 (1971)
There, the government sought an INJUNCTION
against newspapers that were planning to publish classified material concerning U.S
policy in Vietnam The Court found that the government had not proved an overriding government interest or an extreme danger to national security if the material were to be published The justices reiterated their position that a request for a prior restraint must
overcome a heavy presumption of unconstitu-tionality
The Court is steadfast in its holding that prior restraints are among the most serious infringements on First Amendment freedoms and that attempts to impose them must be strictly scrutinized In Nebraska Press Ass’n v Stuart, 427 U.S 539, 96 S Ct 2791, 49 L Ed 2d
683 (1976), the Court overturned a state court’s attempt to ban the press from a criminal trial The Court held that gag orders, although not per se invalid, are allowable only when there is a
CLEAR AND PRESENT DANGERto the administration
of justice
Freedom of the press, like freedom of speech, is not absolute Notwithstanding the limitations placed on it, the press exercises enormous power and influence and is burdened with commensurate responsibility Because journalists generally have access to more information than does the average individual, they serve as the eyes, ears, and voice of the public Some legal scholars even argue that the press is an important force in the democratic system of checks and balances
In the wake of the September 11, 2001, attacks, the White House placed pressure on the five majorTELEVISIONnetworks not to broadcast videotaped statements by terrorist mastermind Osama bin Laden and his associates The networks had shown a videotape of bin Laden, and this angered the White House In early October 2001, the networks agreed not to show such statements again without reviewing them first The decision came after a conference call among U.S national security adviser Condo-leezza Rice and the heads of the networks The White House feared that broadcasts from suspected terrorists could contain anything from incitement to coded messages This agreement aroused concerns that the press was forfeiting its responsibility to report all of the news Com-mentators noted that the rest of the world would see the bin Laden tapes via television and the
INTERNET, and that the security concerns raised
by the U.S government thus would have little impact
The balance between restraint and respon-sibility continued to be tested during the war againstTERRORISMand the 2003 invasion of Iraq
In contrast to the 1991 Gulf War, where the press was kept away from the battlefield, the war
552 FREEDOM OF THE PRESS
Trang 5in Iraq featured“embededded” journalists, who
traveled and reported in real time among the
U.S forces However, the press was restricted to
disclosing only certain types of information due
to security concerns
FURTHER READINGS
“News Media, Administration Struggle Over Press Freedom,
National Security ” 2001 Associated Press (October 12).
Wagman, Robert J 1991 The First Amendment Book New
York: World Almanac.
Walters, William E 2008 “Freedom of the Press and the
Rule of Law: Challenged Values in a Changing
Marketplace ” Colorado Lawyer 38 (March).
Werhan, Keith 2008 “Rethinking Freedom of the Press
after 9/11 ” Tulane Law Review 82 (March).
CROSS REFERENCES
Broadcasting; Cameras in Court; Evidence “Journalists’
Privilege ” (In Focus); Fairness Doctrine; Federal
Commu-nications Commission; First Amendment; Libel and
Slander; Mass Communications Law; New York Times Co v.
Sullivan; Pretrial Publicity; Sheppard, Samuel H.; Shield Laws;
Trial.
FREEHOLD
A life estate, an interest in land the duration of
which is restricted to the life or lives of a particular
person or persons holding it, or an estate in fee, an
interest in property that is unconditional and
represents the broadest ownership interest
recog-nized by law
In order to be categorized as aFREEHOLD, an
estate must possess the characteristics of (1)
immobility—in the sense that the property
must be either land, or some interest derived
from or affixed to land—and (2)INDETERMINATE
duration
DETERMINABLEfreeholds are life estates created
by language that provides that the estate is to
terminate automatically upon the occurrence of
a specified event
FREIGHT The price or compensation paid for the transpor-tation of goods by a carrier Freight is also applied
to the goods transported by such carriers
The liability of a carrier for freight damaged, lost, or destroyed during shipment is deter-mined by contract, statute, or TORT LAW The responsibility for the payment of freight
is a subject of a term of a sales contract between the buyer and seller of the goods to be shipped
When a contract contains a c.f & i provision, the buyer accepts liability for paying the cost of freight in addition to the costs of the goods and
INSURANCE on them
FREIGHT FORWARDER
An individual who, as a regular business, assembles and combines small shipments into one lot and takes the responsibility for the transportation of such property from the place of receipt to the place of destination
The role of aFREIGHT FORWARDERis to collect and consolidate shipments that are less than a carload or truckload and obtainCOMMON CARRIER
transportation for the long-haul transport of the property, which is owned by individual carload
or truckload shippers Such a forwarder ordi-narily has the same liability for loss as a common carrier
CROSS REFERENCE Shipping Law.
vFREUND, ERNST
ERNST FREUND was a brilliant legal scholar who oversaw the development of U.S administrative law at the turn of the twentieth century A social reformer, Freund was an early proponent of social research as a means of shaping the
Ernst Freund 1864–1932
❖
1864 Born, New York City
1861–65 U.S Civil War
◆
1884 Earned law degree from University
of Heidelberg
◆
1894 Joined University of Chicago faculty
1904 Police Power: Public Policy and
Constitutional Rights published
1908 Helped found the Immigrants' Protective League
1914–18 World War I
1917 Standards of American Legislation published
1903–32 Served
as full professor
at U of Chicago Law School
❖
1932 Died, Chicago, Ill.
◆
1928 Administrative Powers over
Persons and Property published
1939–45 World War II
Trang 6content of U.S law As a political progressive,
he also was an articulate supporter of free speech rights under theFIRST AMENDMENTof the U.S Constitution
Freund was born in New York City on January 30, 1864, to German American parents
He attended the University of Berlin and the University of Heidelberg, receiving a law degree from the latter in 1884 He went to New York and practiced law there from 1886 to 1894
Freund entered academe in 1892 when he became professor of administrative law and municipal corporations at Columbia University
(He was also a doctoral student at Columbia’s School of Political Science; he received his Ph.D
in 1897.) In 1894, he began a long association with the University of Chicago, accepting a position in the political science department as a professor of ROMAN LAW and JURISPRUDENCE In
1903, he joined the faculty of the university’s newly opened law school Freund taught courses in social legislation and proposed a new field, the “science of legislation,” to underscore the connection between political science and law
Freund became a prominent figure at the law school and served as the John P Wilson Professor of Law from 1929 to 1932 One of his many achievements was the establishment of the University of Chicago’s highly regarded graduate-level social services program, the first such program in the nation Involved in several professional organizations, Freund served as president of the American Political Science Association in 1915
Freund’s renown in legal circles grew as a result of his cogent writing on the function and parameters of administrative law (the body of statutes, regulatory rules and regulations, and court decisions implemented by administrative and government agencies) Freund’s most famous publication on the subject was Police Power: Public Policy and CONSTITUTIONAL Rights, published in 1904 Freund analyzed the limita-tions imposed on legislative power by the
FOURTEENTH AMENDMENTof the U.S Constitution
He advocated a system of legal regulations that balanced individual rights against business and property rights
Freund’s interest in statutory drafting led to
a position on the Commission on Uniform State Laws in 1908 Freund created model statutes to bolster the CIVIL RIGHTS of married women, and offered commentary on DIVORCE, guardianship,ILLEGITIMACY,LABOR LAW, and child labor He also produced a handbook on legislative drafting in 1921 and offered drafting
INSTRUCTIONSto theAMERICAN BAR ASSOCIATION
In 1928 Freund published Administrative Powers over Persons and Property, aTREATISEon the distinctions between the power held by government, individuals, and property In other works, Freund wrote about the necessity of protecting what he termed the dependent class, the less privileged members of society who were vulnerable to exploitation A man of action, he helped organize the Immigrants’ Protective League in 1908 and served as president of that organization for several terms
A staunch supporter of free speech, Freund published articles on the specific rights guaran-teed by the First Amendment of the U.S Constitution He believed that the open discus-sion of public affairs was a crucial underpinning
of U.S society
Freund married Harriet Walton on May 13,
1916 The couple had two children, Nancy Freund and Emily Lou Freund In 1931, Freund was awarded an honorary doctor of laws degree from the University of Michigan He died the following year, in Chicago, on October 20, 1932
FURTHER READINGS Firmage, Edwin Brown 1963 Ernst Freund, Pioneer: The Contributions of Ernst Freund to Administrative Law Chicago: Univ of Chicago Press.
Freund, Ernst 2006 Standards of American Legislation: An Estimate of Restrictive and Constructive Factors Clark,
NJ Lawbook Exchange.
Kraines, Oscar 1974 The World and Ideas of Ernst Freund Birmingham: Univ of Alabama Press.
THE STATE TAKES
PROPERTY BY
EMINENT DOMAIN
BECAUSE IT IS USEFUL
TO THE PUBLIC,AND
UNDER POLICE POWER
BECAUSE IT IS
HARMFUL
—E RNST F REUND
554 FREUND, ERNST