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e-book Commercial Speech and the First Amendment (Constitutional Law Series)

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The principal part of the paper then surveys the First Amendment interests that might be implicated in corporate speech. Corporations cannot have free speech rights for their own sake; their speech is protected for the sake of actual human speakers and listeners. However, no speaker interests are at stake in corporate speech: it is not the speech of shareholders, officers or directors, or any other constituency. Meanwhile, case law and theoretical considerations suggest that listener interests alone merit only a reduced degree of protection under the First Amendment.

Moreover, even from the standpoint of listeners, corporate speech has particularly low interest, precisely because it is not the speech of any speaker. Finally, I address objections that reduced protections for corporate speech would distort public debate unfairly, and that it may be difficult in principle or in practice to draw lines between corporate speech and other speech—such as that of the press—that unquestionably merits full First Amendment protection.

Civil contempt can result in a fine or incarceration, which terminates when the reporter divulges the information sought or when the underlying proceeding is completed. Some state shield laws provide that reporters cannot be held in contempt for refusing to testify.

If a reporter is a party to a case, such as a defendant in a libel or privacy suit, and refuses to reveal a confidential source or unpublished information, some courts will rule that the reporter automatically loses the suit. Or, the court may presume as a matter of law that the reporter never had a confidential source, whether or not this is the case. This means that the reporter may lose the suit unless he or she decides to disclose the source. The act lists some exceptions. Also, if the information is necessary to prevent death or serious harm to someone, it may be seized.

If law enforcement officials violate any provision of the act, a news organization may sue and receive damages to cover legal fees and actual injury. Even though the Privacy Protection Act applies to state searches as well as those conducted by federal authorities, at least nine states — California, Connecticut, Illinois, Nebraska, New Jersey, Oregon, Texas, Washington and Wisconsin 19 — have laws providing similar or even greater protection. Some states require that search warrants for documents be directed only at parties suspected of involvement in the commission of a crime, which generally exempts journalists.

Although staff members may not impede the law enforcement officials, they are not required to assist the searchers. If you can, consult an attorney immediately after the search is over about filing a suit in either state or federal court. It is important to move quickly because you may be able to obtain emergency review by a judge in a matter of hours. If your news organization does not have an attorney, contact the Reporters Committee for assistance in obtaining one.

In , Congress passed the Foreign Intelligence Surveillance Act FISA ,21 which created a secret spy court with powers to issue secret warrants authorizing officials to perform wiretaps and searches. The act expanded several categories of information that may be obtained by the court, and allowed for sharing of information by a broad range of agencies.

Proceedings of the FISA court are conducted in secret, and people investigated under its powers are not aware of the investigation. One concern of the news media is that the FISA could be used by the government to spy on journalists and discover their sources. And because proceedings of the FISA court are secret, journalists will have no warning that their sources are being disclosed.

Indeed, a journalist whose source is revealed in the course of a FISA inquiry may never find out about the breach.

First Amendment Handbook

The court cannot grant such an order for the sole purpose of investigating activities protected by the First Amendment. Nevertheless, if a business is subject to such a search, the business will also be served with a gag order prohibiting them from talking about it. Indeed, Justice Department officials have conceded that newspapers might be subject to a court order requiring production of documents. A prior restraint is an official government restriction of speech prior to publication.

Prior restraints are viewed by the U. As a result, editorial decisions about publication of information the government deems sensitive are generally left solely to the discretion of news organizations. One interesting aspect of this area of the law is that while courts have been clear that prior restraints will rarely survive scrutiny even when national security concerns are raised, courts seem to be most willing to allow restraints when the administration of a trial is at issue, or when fair trial rights are implicated.

In the landmark case Nebraska Press Association v. Stuart , the Court addressed the constitutionality of an order prohibiting the media from publishing or broadcasting certain information about Erwin Charles Simants, who was accused of murdering the Henry Kellie family in a small Nebraska town. On appeal, the U.

Supreme Court struck down the prior restraint order. Finally, the Court considered the effectiveness of a restraining order in preventing the threatened danger. The trial judge should have considered changing the location of the trial, postponing the trial, intensifying screening of prospective jurors, providing emphatic and clear instructions to jurors about judging the case only on the evidence presented in the courtroom or sequestering the jury.


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Nevertheless, government officials and private individuals occasionally attempt to stop publication. In Toledo Blade Company v.

The Supreme Court has recognized that, theoretically, publication of some information may be restrained to protect national security. A federal district court issued a restraining order when The Progressive threatened to publish an article explaining the design of a hydrogen bomb. An appeals court ultimately dismissed the case after the article appeared in another publication. Courts have recognized that prior restraints may be imposed where the activity restrained presents a clear and present danger or a serious and imminent threat to the administration of justice.

Court of Appeals in Washington, D. Information Agency and the Agency for International Development to submit for prepublication review articles, speeches and teaching materials that discuss those agencies or U. A divided three-judge appellate panel held that because the policy requires only agency review and not agency consent, it is not an unconstitutional restriction on speech. Law enforcement officials often tell reporters not to publish certain information about crimes — for example, the names of victims or witnesses, or the place where the crime occurred.

Reporters should be skeptical about admonitions not to publish, particularly when such officials have made the information readily available. The decision to publish in such contexts is a matter of ethical considerations, not legal restraints. Private individuals occasionally try to convince reporters to refrain from publishing information that might be embarrassing. Sometimes these people have sought court orders barring publication, though they are typically unsuccessful.

Freedom of speech does not include the right:

He later withdrew his lawsuit. District Court in New York City lifted a temporary restraining order issued two days earlier and denied a request by Paula Jones, who had accused President Bill Clinton of sexual harassment, for a preliminary injunction against Penthouse magazine, which printed nude pictures of her in its January issue.

The court ruled that the photographs had a relationship to an editorial questioning her credibility, and that the matter was in the public interest.

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The unauthorized publication of sexually explicit images has resulted in a significant amount of litigation. In , a U. District Court in California issued a preliminary injunction prohibiting the publication, distribution or other dissemination of a sexually explicit videotape of entertainers Pamela Anderson and Brett Michaels on multiple grounds, including both copyright and privacy theories.

Circuit Court for the Sixth Circuit stayed a U. The unpublished decision by the Sixth Circuit stated that the injunction was a prior restraint unlikely to survive constitutional analysis.

Commercial Speech and the First Amendment

To the extent information is revealed in open court, it cannot be censored. For example, if jurors are identified in open jury selection proceedings, the court cannot restrain the press from publishing the identity of jurors because such information is part of the public record. In Arkansas Democrat-Gazette v. Zimmerman , the Arkansas Supreme Court held that an order prohibiting publication or distribution of the names or pictures of a juvenile defendant, the victim, and their families was an overbroad prior restraint of the press in violation of the First Amendment.

First, the juvenile proceedings were open to the public and the media. While the judge could prohibit photographs in areas adjacent to the courtroom, she could not prohibit photographs outside the courthouse, including public streets and sidewalks. In Freedom Communications, Inc. Superior Court 18 , the California Court of Appeals overturned a trial court order that prohibited the Orange County Register from reporting on witness testimony in a case in which the newspaper was a party.

More recently, another California Court of Appeals reached a similar conclusion in an unpublished decision in Los Angeles Times Communications,. LLC v. Superior Court.

How the Constitution Protects Economic Liberty: Part Three - Institute for Justice

Businesses have been able to secure injunctions to protect trade secrets, although courts usually require that there be some special relationship between the company seeking the injunction and the party being enjoined. Justice Blackmun, acting as Circuit Justice for the U.


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  • Court of Appeals 8th Cir. The appropriate remedy would be a subsequent suit for civil or criminal damages, not a prior restraint, he concluded. With varying outcomes, trial courts have also on occasion issued prior restraints to prohibit the publication of information contained in sealed court records that falls into the hands of reporters.