Preview Extract
Chapter 3 Methods of Control
True/False Questions
1) Although First Amendment doctrine presumes that prior restraints are unconstitutional, in
limited instances, such as cases involving false advertising or copyright violations, prior
restraints are permissible.
Answer: True
Rationale:
While the First Amendment generally disfavors prior restraints on speech, there are specific
situations where courts have found them permissible, such as in cases involving false
advertising or copyright violations, where there is a compelling governmental interest in
preventing harm.
2) The Blackstonian view of press freedom, which prohibits prior restraints but allows
subsequent punishment of illegal expression, was familiar to the founders of the U.S.
Constitution.
Answer: True
Rationale:
The Blackstonian view of press freedom, which emphasizes punishment for illegal expression
rather than prior restraints, was indeed familiar to the founders of the U.S. Constitution, as it
reflects the historical context in which they framed the First Amendment.
3) In Near v. Minnesota, Chief Justice Hughes stated that the First Amendment's prohibition
on prior restraints was absolute.
Answer: False
Rationale:
In Near v. Minnesota, Chief Justice Hughes did not state that the First Amendment's
prohibition on prior restraints was absolute. Instead, the Court recognized that prior restraints
are generally unconstitutional but acknowledged that there may be exceptional circumstances
where they could be justified.
4) In New York Times v. United States, the U.S. Supreme Court ruled that the injunction at
issue was unconstitutional, but provided little guidance about when injunctions in other cases
might be constitutional.
Answer: True
Rationale:
In New York Times v. United States (the Pentagon Papers case), the Supreme Court ruled
against the government's attempt to enjoin publication of classified information but did not
offer clear guidance on when injunctions in other cases might be constitutional, leaving the
issue open for future interpretation.
5) Just as private corporations may prohibit employees from revealing confidential business
information, the government may prevent its employees from divulging information that
would jeopardize national security.
Answer: True
Rationale:
The government has a legitimate interest in protecting national security, and therefore, similar
to how private corporations can prohibit employees from disclosing confidential business
information, the government may restrict its employees from divulging information that
would jeopardize national security.
6) Under the Snepp ruling, prepublication review of a CIA employee's book manuscript is a
violation of the employee's First Amendment rights.
Answer: False
Rationale:
In Snepp v. United States, the Supreme Court held that a CIA employee's prepublication
review requirement was enforceable as part of a contract, and the employee's failure to
submit his book manuscript for review breached that contract. The Court did not rule it as a
violation of the employee's First Amendment rights.
7) In Shuttlesworth v. City of Birmingham, the U.S. Supreme Court upheld a parade
ordinance that allowed local officials to prohibit parades that were harmful to the "public
welfare."
Answer: False
Rationale:
In Shuttlesworth v. City of Birmingham, the Supreme Court struck down a parade ordinance
that gave local officials unbridled discretion to deny parade permits, as it violated the First
Amendment's protection of free speech and assembly.
8) Even though local governments have the legal authority to license films, they no longer do
so.
Answer: True
Rationale:
While local governments may have had the legal authority to license films in the past, the
practice has become increasingly rare, and many local governments no longer engage in film
licensing due to changes in legal and cultural norms.
9) Due to the physical limitations of the electromagnetic spectrum, the U.S. Supreme Court
regards the licensing of broadcasters as permissible.
Answer: True
Rationale:
The Supreme Court has upheld the licensing of broadcasters as permissible due to the finite
nature of the electromagnetic spectrum and the need to allocate broadcast frequencies to
prevent interference and ensure orderly use.
10) The government's authority to revoke or not renew a broadcast license for programmingrelated reasons is similar to the government's power to control newspaper publishing.
Answer: False
Rationale:
While the government has authority to regulate broadcast licensing for reasons such as
promoting the public interest and preventing interference, this authority is not analogous to
the government's power to control newspaper publishing, which is protected by the First
Amendment's strong presumption against government interference in the press.
11) The FCC reviews television or radio programs prior to their being broadcast.
Answer: False
Rationale:
The FCC (Federal Communications Commission) does not typically review television or
radio programs prior to their broadcast. Instead, it regulates the content of broadcasts through
post-broadcast enforcement actions and fines for violations of broadcasting standards.
12) In Los Angeles v. Preferred Communications, the U. S. Supreme Court ruled that cable
franchising decisions by local governments are exempt from First Amendment scrutiny.
Answer: False
Rationale:
In Los Angeles v. Preferred Communications, the Supreme Court did not rule that cable
franchising decisions are exempt from First Amendment scrutiny. Instead, the Court held that
cable franchising decisions are subject to First Amendment scrutiny, particularly when they
involve content-based regulations.
13) A tax aimed solely at the largest newspaper in a state is unconstitutional, but a general
sale tax treating all newspapers like other businesses is constitutional.
Answer: True
Rationale:
Targeting a specific newspaper for taxation based on its size or circulation would likely be
deemed unconstitutional as it would amount to a content-based restriction on speech.
However, a general sales tax that applies equally to all newspapers, treating them like other
businesses, would generally be considered constitutional as it does not target specific content
or viewpoints.
14) A sales tax applicable to religious magazines, but exempting news magazines, is
permissible.
Answer: False
Rationale:
A sales tax that singles out religious magazines while exempting news magazines would
likely be considered unconstitutional as it would constitute discrimination based on the
content of the publication, violating the First Amendment's prohibition against content-based
restrictions on speech.
15) In Bartnicki and Florida Star, the U.S. Supreme Court held that a journalist's mere receipt
of information from a source is lawful, even when the source obtains the information illegally
or is not supposed to disclose it.
Answer: True
Rationale:
In Bartnicki v. Vopper and Florida Star v. B.J.F., the Supreme Court held that the First
Amendment protects the dissemination of lawfully obtained information, even if the
information was obtained illegally by a third party. The Court recognized the importance of
freedom of the press and the public's right to access information of public concern.
16) Beginning in the 1930s, the U.S. Supreme Court expanded its view of press freedom.
Answer: True
Rationale:
Beginning in the 1930s, the Supreme Court began to adopt a broader interpretation of press
freedom under the First Amendment, recognizing the importance of a free and independent
press in a democratic society. This expansion of press freedom continued through subsequent
decades, with the Court issuing landmark decisions protecting press rights.
17) A ban on public nudity is content neutral, but a ban on "erotic" nude dancing is content
based.
Answer: True
Rationale:
A ban on public nudity regulates conduct without regard to the expressive content of the
nudity and would therefore be considered content-neutral. In contrast, a ban on "erotic" nude
dancing specifically targets expressive conduct based on its content and would be considered
content-based.
18) The draft card law at issue in United States v. O'Brien was content neutral because it did
not single out public protestors but applied to all men who destroyed their draft cards.
Answer: True
Rationale:
In United States v. O'Brien, the Supreme Court upheld a law prohibiting the destruction of
draft cards, ruling that it was content-neutral because it regulated conduct (destroying draft
cards) without regard to the expressive content of the conduct. The law applied to all
individuals who destroyed their draft cards, regardless of their motivations or viewpoints.
19) Although content-based restrictions will generally be subjected to strict scrutiny by
courts, content-neutral restrictions are subjected to a less rigorous ad hoc balancing process.
Answer: True
Rationale:
Content-based restrictions on speech are generally subjected to strict scrutiny by courts,
requiring the government to demonstrate a compelling interest and narrowly tailored means
to achieve that interest. In contrast, content-neutral restrictions are typically subjected to a
less rigorous intermediate scrutiny, where courts balance the government's interests against
the impact on speech.
20) The U.S. Supreme Court regards content-neutral restrictions and content-based
restrictions as equally harmful to free expression.
Answer: False
Rationale:
The Supreme Court generally views content-based restrictions on speech as more problematic
than content-neutral restrictions because they target speech based on its content or viewpoint,
which is subject to strict scrutiny. Content-neutral restrictions, while still regulated by the
Court, are subject to a less stringent standard of review and may be upheld if they serve
important governmental interests unrelated to the suppression of speech.
Multiple Choice Questions
1) The 1931 case in which the U.S. Supreme Court established the presumption that prior
restraints are unconstitutional, but acknowledged that prior restraints might be permissible in
wartime to bar expression harmful to the safety of troops.
A) Gitlow v. New York
B) Schenck v. United States
C) Near v. Minnesota
D) Abrams v. United States
E) None of the above
Answer: C
Rationale:
Near v. Minnesota (1931) is the correct answer. In this case, the Supreme Court established
the principle that prior restraints on publication are generally unconstitutional, but it
acknowledged that in exceptional circumstances, such as wartime, prior restraints might be
justified to prevent expression harmful to national security, such as endangering the safety of
troops.
2) The 1971 case in which the U.S. Supreme Court ruled that the government had not met its
"heavy burden" of proof to overcome the presumption that prior restraints are
unconstitutional.
A) Near v. Minnesota
B) Smith v. Daily Mail
C) Cox v. New Hampshire
D) New York Times v. United States
E) Snepp v. United States
Answer: D
Rationale:
New York Times v. United States (1971) is the correct answer. In this case, commonly
known as the Pentagon Papers case, the Supreme Court ruled against the government's
attempt to restrain the publication of classified information, stating that the government had
not met the heavy burden required to justify prior restraints.
3) The 1952 case invalidating a state film-licensing statute and establishing that motion
pictures are a constitutionally-protected form of expression.
A) Burstyn v. Wilson
B) Freedman v. Maryland
C) Interstate Circuit v. Dallas
D) Mutual Film Corp. v. Ohio
E) Cox v. New Hampshire
Answer: A
Rationale:
Burstyn v. Wilson (1952) is the correct answer. This case invalidated a New York state filmlicensing statute and affirmed that motion pictures are a form of expression protected by the
First Amendment, establishing that censorship of films must meet the same standards as
censorship of other forms of expression.
4) The 1969 case establishing that broadcasters can be required to broadcast opposing views
on public issues.
A) Los Angeles v. Preferred Communications
B) CBS v. FCC
C) Red Lion Broadcasting v. FCC
D) Trinity Methodist Church, South v. FRC
E) FCC v. National Citizens Committee for Broadcasting
Answer: C
Rationale:
Red Lion Broadcasting v. FCC (1969) is the correct answer. In this case, the Supreme Court
upheld the FCC's fairness doctrine, which required broadcasters to provide balanced coverage
of public issues and to air opposing viewpoints when presenting controversial matters.
5) The 1979 case in which the U.S. Supreme Court established that it is extraordinarily
difficult for the state to punish the publication of lawfully acquired truthful information of
public significance.
A) New York Times v. United States
B) Smith v. Daily Mail Publishing Co.
C) Bartnicki v. Vopper
D) United States v. O'Brien
E) Cox Broadcasting v. Cohn
Answer: B
Rationale:
Smith v. Daily Mail Publishing Co. (1979) is the correct answer. In this case, the Supreme
Court held that the state's punishment of a newspaper for publishing lawfully obtained
information of public significance was unconstitutional, establishing strong protection for the
publication of truthful information.
6) The 1990 case in which the U.S. Supreme Court ruled unconstitutional a federal statute
protecting the American flag.
A) United States v. Eichman
B) United States v. O'Brien
C) Clark v. Community for Creative Non-Violence
D) Ladue v. Gilleo
E) United States v. Grace
Answer: A
Rationale:
United States v. Eichman (1990) is the correct answer. In this case, the Supreme Court struck
down a federal law prohibiting flag desecration, ruling that such prohibition violated the First
Amendment's protection of free speech.
7) Which of the following is not regarded as a prior restraint?
A) Injunction
B) Discriminatory taxes
C) Prepublication agreement
D) Security Review
E) Postpublication sanctions
Answer: E
Rationale:
Postpublication sanctions are not regarded as prior restraints because they occur after the
speech has already been made and do not prevent its initial publication.
8) Which of the following is a content-neutral law?
A) A law punishing treatment of the American flag in a disrespectful manner.
B) A sales tax applicable to religious magazines but not applicable to fashion magazines.
C) A law punishing "offensive" bumper stickers.
D) A law prohibiting the sale of violent video games to children.
E) A law prohibiting picketing inside the U.S. Supreme Court building.
Answer: E
Rationale:
A law prohibiting picketing inside the U.S. Supreme Court building is a content-neutral law
as it regulates conduct (picketing) without regard to the content of the speech involved.
9) Which of the following is a content-based law?
A) A law prohibiting distribution of leaflets inside university buildings.
B) A law prohibiting door-to-door solicitation inside university dorms.
C) A law prohibiting marches through residential neighborhoods.
D) A law banning billboards in historic neighborhoods.
E) A law banning picketing near embassies if the message of the picketers is critical of
foreign governments.
Answer: E
Rationale:
A law banning picketing near embassies if the message of the picketers is critical of foreign
governments is a content-based law because it regulates speech based on the content or
viewpoint of the message being expressed.
10) In which of the following did the U.S. Supreme Court find a content-neutral law to be
unconstitutional?
A) United States v. O'Brien
B) Clark v. Community for Creative Non-Violence
C) United States v. Grace
D) Ward v. Rock Against Racism
E) All of the above
Answer: C
Rationale:
United States v. Grace (1983) is the correct answer. In this case, the Supreme Court found a
content-neutral law unconstitutional, ruling that a federal statute regulating leafleting on the
grounds of the U.S. Supreme Court was not narrowly tailored to serve a significant
governmental interest.
Essay Questions
1) Discuss the distinction between content-based and content-neutral regulations of
expression.
Answer: Content-based regulations are those regulations of expression which facially
discriminate on the basis of content or are tied to audience reaction to expressive acts.
Content-based regulations compromise the government's obligation to be neutral in its
regulation of the marketplace of ideas; they are treated as presumptively unconstitutional. A
classic example of a content-based regulation is the flag desecration statute at issue in Texas
v. Johnson. Only certain expressive uses of the flag were illegal; other expressive uses which
conveyed ideas acceptable to the government were permissible. The Supreme Court found
this statute to be unconstitutional, stating, "If there is a bedrock principle underlying the First
Amendment, it is that the Government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable." Similar issues were raised in
United States v. Eichman where Congress proscribed disrespectful uses of the flag.
In contrast, content-neutral regulations permit the government to control aspects of speech,
such as noise level, without distorting the range of views available to the public. Contentneutral laws are presumptively constitutional; courts defer to the judgment of government
officials on matters such as preserving residential privacy or protecting government property.
As long as the government narrowly advances a substantial interest and leaves open
alternative means or places for expression, a court will uphold the regulation. The intensity of
content-neutral balancing is affected by factors such as the nature of the property (public
forum v. non-forum) and the burden on expression posed by the law (total ban v. limited
time, place and manner restriction). In rare circumstances, courts find content-neutral
regulations to be unconstitutional. For example, in Ladue v. Gilleo, a ban on residential signs
was unconstitutional because the city's interests in minimizing the visual clutter of signs were
not sufficiently important to justify the law. Also, the Court considered residential signs to be
uniquely important and alternative methods of communication were not considered to be
adequate substitutes for signs.
The distinction between content-based and content-neutral regulations is critical to
contemporary First Amendment doctrine. Content-based regulations are subject to strict
scrutiny; content-neutral regulations are subject to a less rigorous ad hoc balancing process.
The Supreme Court believes the government has latitude to regulate non-message aspects of
speech, such as noise level, without distorting the marketplace of ideas. Content-based
regulations, however, are disfavored because they distort the marketplace of ideas.
2) Discuss the distinction between prior restraints and post-publication penalties.
Answer: Sir William Blackstone's commentaries on English law were influential with the
Framers of the U.S. Constitution. Blackstone wrote at a time when press licensing had been
supplanted with a system of post-publication penalties. He summarized freedom of the press
in the following terms: liberty of the press "consists in laying no previous restraints upon
publications, and not in freedom from censure for criminal matter when published." Scholars
agree that at the time of the First Amendment's adoption, there was universal agreement that
the First Amendment prohibited prior restraints. There was no consensus, however, that postpublication penalties were to be forbidden. In Patterson v. Colorado (1905), the Supreme
Court adhered to the Blackstonian view, stating that the First Amendment prevented prior
restraints, but allowed subsequent punishment of communications "deemed contrary to the
public welfare." In the 1930s the Supreme Court departed from Blackstone in two significant
ways. First, in Near v. Minnesota (1931), the Supreme Court stated that prior restraints were
disfavored, but might be permissible in limited circumstances, such as during war time.
Secondly, in cases after Near, the Court expanded its view of press freedom and admitted that
the Blackstonian view was "too narrow" a view of press freedom. Modern Supreme Court
doctrine developed since the 1930s acknowledges the "chilling effect" or self-censorship that
occurs when post-publication sanctions are severe.
Although contemporary Supreme Court doctrine recognizes that certain post-publication
penalties can harm the marketplace of ideas, the Court continues to regard prior restraints as
the "most serious and least tolerable" form of regulating expression. Prior restraints can take
many forms, such as discriminatory taxation, but the classic form involves government
scrutiny of content prior to its publication. This is regarded as more inhibiting to expression
than the threat of a later punishment. Under a system of licensing, the government may
require that public expression be censored by a central authority. This creates a bottleneck
that intimidates speakers and greatly diminishes the valuable facts and ideas the public
receives. Where prior restraints are permitted, the public has no opportunity to judge the
worth of suppressed ideas.
Post-publication penalties offer the advantage of allowing ideas to circulate. Moreover, the
effects of a publication are readily assessed. In contrast, prior restraints involve speculation
about the harmful effects of a possible communication. When the government engages in
post-publication punishments instead of prior restraints, the government may lack the
resources to prosecute every publisher it would have censored under a licensing scheme.
Key Terms
1) Injunction
Answer: Order from a court telling a person or company to perform or refrain from some act.
In the context of free expression, injunctions aimed at preventing publication are regarded as
a form of prior restraint. Injunctions aimed at political expression are presumptively
unconstitutional. As shown in New York Times v. United States, the Government bears a
heavy burden of proof to overcome this presumption. In other settings, such as copyright
infringement or false advertising, injunctions are not regarded by courts as being as harmful
as in the area of political expression.
2) Security Review
Answer: Prepublication review by military officials of wartime press reports to ensure
classified information is not disclosed. American military officials are not obligated to allow
the press to enter military bases or to accompany troops in combat. If press coverage is
allowed, military officials establish elaborate ground rules relating to what may and may not
be published by the press. As a means of ensuring compliance with the ground rules,
commanders may choose to impose security review on journalists. The system of security
review has never been challenged by the press.
3) Franchise
Answer: Agreement between a city, county, or state and a cable system operator allowing the
operator to provide cable television service. Most communities have awarded only one
franchise, a process challenged in Los Angeles v. Preferred Communications. After the
Supreme Court ruled that prospective cable operators have First Amendment rights that must
be balanced against a city's interests in protecting public safety, lower courts found that the
city's interests did not justify an exclusive franchising scheme. Congress has outlawed
exclusive franchising.
4) Time, Place and Manner Regulation
Answer: Regulation of when, where, and how expression occurs, rather than regulation of the
message conveyed by communicators. A central feature of permissible time, place and
manner regulations is that they are content neutral. That is, they are not tied to a particular
message or audience reaction. Content neutral time place and manner regulations are
presumptively constitutional. Courts generally defer to the judgment of government officials
concerning the need for time, place and manner regulations. As long as the regulation
narrowly advances a substantial governmental interest, such as preserving park property or
promoting residential privacy, and leaves open alternative means or places of expression, it
will be constitutional.
Test Bank for The Law of Public Communication
Kent R. Middleton, William E. Lee
9780205484683
