Читать книгу American Democracy in Context - Joseph A. Pika - Страница 134

In the common law tradition inherited from England, the principle of freedom of the press had a rather narrow meaning: no prior restraint on publication. Prior restraint means censorship before publication. Such censorship emerged very quickly after the invention of the printing press. England required prepublication licensing as early as 1534. To publish something, an author first had to submit the material to the government for approval. This meant that the government could squelch political criticism and control the content of what people read. Prior restraint provoked great opposition, and England abolished the practice in 1695. Thereafter, the principle of no prior restraint became a part of English common law.

prior restraint Censorship before publication (such as government prohibition against future publication).

The principle of no prior restraint may have been what the framers had in mind when they wrote the First Amendment, but it was not until 1931 that the Supreme Court, by a narrow 5–4 vote, held prior restraint to be unconstitutional in Near v. Minnesota. In that case, Minnesota had imposed an injunction against a newspaper, The Saturday Press, on the grounds that it created a “public nuisance” because of its “malicious, scandalous, and defamatory” content.³⁰ There is no doubt that the newspaper was anti-Semitic, but the Court majority ruled that the injunction—which prohibited future publication—violated the First Amendment. Despite its ruling, the majority held that in “exceptional cases,” the government could still prohibit publication in advance. For example, the Court suggested that the government could use prior restraint to prohibit a publication detailing troop movements in times of war. The Court also suggested that obscene material was subject to prior restraint. And, despite the general presumption against prior restraint, the majority still held that certain types of punishment after publication were constitutional.

Forty years later, the Nixon administration tried to use Near v. Minnesota to justify imposing a prior restraint on The New York Times to prevent it from publishing a series of articles based on classified government documents related to Vietnam known as the “Pentagon Papers.” The government argued that publication of the documents would harm national security. However, the Supreme Court ruled against the government in New York Times v. United States (1971).³¹

After a court battle, the Supreme Court ruled in favor of The New York Times and allowed the paper to resume publishing classified documents related to the Vietnam war.

AP Photo / Jim Wells

In addition to national security sometimes justifying prior restraint, some argue that the Sixth Amendment guarantee of a fair trial may sometimes justify prior restraint. “Gag orders” to prevent prejudicial publicity are commonplace in some countries. For example, the French Civil Code protects the presumption of innocence by restricting the media from depicting suspects in handcuffs or describing them as guilty prior to conviction.³² There are no such constraints on the U.S. media, where courts protect even sensationalistic pre-trial coverage under the guise of freedom of the press.

A recent controversy related to prior restraint involves the nondisclosure agreements that President Donald Trump required White House employees to sign. The president and his legal team tried to use those agreements to prevent publication of books by former White House aides, such as Cliff Sims’s Team of Vipers. Trump did not succeed in blocking publication of that or other critical books, but his lawyers filed an arbitration claim against Sims for violating the terms of the nondisclosure agreement. Sims, in turn, filed a lawsuit in February 2019, arguing that such agreements in that context violate the First Amendment.³³

President Trump’s frequent denunciation of the news media has also raised free speech concerns. He has repeatedly labeled much of the mainstream media (including ABC, CBS, CNN, NBC, and The New York Times) as “fake news” and the “enemy of the American people,” as he did in a February 17, 2017 tweet (see photo at right).

President Trump’s repeated denunciations of the media have raised concerns about free speech as well as potential violence against journalists.

Anti-media rhetoric became a consistent theme at Trump rallies before and after his election as president, raising concerns among some that the rhetoric encouraged violence against reporters and was designed to limit freedom of the press. In June 2017, Republican Congressman Greg Gianforte from Montana was convicted of misdemeanor assault for body-slamming a reporter during his election campaign.³⁴ Subsequently, President Trump praised Gianforte at a rally, saying, “Any guy that can do a body slam, he’s my kind of—he’s my guy.”³⁵