Readings and Study Guides

Study Questions for Cases

Near v. Minnesota

1. What did Near do to run afoul of the law?

2. What is the legal issue in this case? Who won?

3. Does the court hold freedom of the press to be absolute?

4. Which does the court seem to think is worse: prior restraint or subsequent punishment of the press? Why?

5. What features of the Minnesota law bother the majority of the court?

6. Does the court essentially conclude that prior restraints are always unconstitutional? Why or why not?

7. What does the court suggest the victims of the Saturday Press's attacks should have done instead of having the paper enjoined?

8. What appears to be the central objection of the dissent?

1. What is the one thing about which the six justices who sided with the newspapers clearly agreed?

2. Justice White offers a concise and helpful statement of the government’s basic argument.  What is it?

3. What worried Justice Black about the concept of national security?  Is his an absolutist opinion?  How do you know?

4. Under what circumstances do you think justices Black and Douglas would uphold a prior restraint?

5. How could Near v. Minnesota be used as precedent by both sides in the case?

6. What is Justice Brennan’s central concern?  At what point would he apparently part company with Black and Douglas?

7. What does Justice Stewart mean when he says “when everything is classified, nothing is classified”?  What is his advice to the executive branch?

8. How does Justice White’s opinion nicely illustrate a common view of the difference between prior restraint and subsequent punishment?  Why is he unsympathetic to the government’s request?

9. Although Justice Marshall does not join the White or Stewart opinions, in what general way does he seem to agree with them?

10. What does Justice Burger think the press should have done regarding its receipt and publication of the classified papers?  What seems to be the primary reason he would leave the restraint in place?

11. What procedure for resolving the constitutionality of the restraint would Justice Harlan recommend?  Why?

12. In what way does Justice Blackmun’s view resemble Justice Burger’s?

1. On what test does the court primarily rely to resolve this case?

2. What factors does the court say must be considered in determining whether the test has been satisfied? Why did the restriction on the press fail that test?

3. What other tests of constitutionality does the court use? With what outcome?

4. Is this an absolutist ruling? Why or why not?

1. What did the media in the Smith case do – or fail to do – that got them into legal trouble?  Why did they argue that the law they were accused of violating was a prior restraint?

2. Why did the Supreme Court find it unnecessary to decide whether the law was technically a prior restraint or a subsequent punishment?

3. On what grounds did the state attempt to justify the law?

4. Even if the Court had accepted the state’s argument about how important its “state interest” was, why does the Court still express skepticism about the law?

5. What is it about the nature of the information restricted by the West Virginia law that clearly concerns the Court so much?

1. What did Schenck do that got him into so much trouble?

2. What evidence was there that Schenck's pamphlets had any bad impact on their recipients?

3. What test does the court use in determining whether or not to uphold Schenck's conviction? Do you think that in reality the court applied the test it said it was using?

1. Do you think there is much difference between the facts in this case and the facts in Schenck or Gitlow? What exactly did Brandenburg do that got him into trouble? What kind of law was he accused of violating?

2. Who wins this case?

3. What is the test the court applies in reaching the result?

1. What is the central legal issue in this case?

2. Who wins this case, the broadcasters or the FCC?

3. Whose First Amendment rights does the court find to be most important in this case? Why?

4. How does the court respond to the broadcasters' argument that the Fairness Doctrine and its related rules will cause self-censorship?

1. What is the central legal issue in this case? How does it differ, if at all, from the issue in Red Lion?

2. Who wins this case, the newspaper or Tornillo?

3. What logical argument does Tornillo use to claim that he has a right of access to the newspaper? Is the court receptive to this argument? Why or why not?

4. Why do you think the court never mentions or cites Red Lion in the Tornillo case?

5. How could Tornillo and Red Lion turn out so differently?

1. How did this case get started -- who complained about what? How many people complained?

2. Of what law or laws did the broadcaster run afoul?

3. How does indecency appear to differ from obscenity?

4. Aside from the old scarcity of frequencies rationale, the court suggests in this case that there might be other rationales for regulation of broadcasting. What are they?

5. What kind of First Amendment theory do you think the court is using in this case?

6. How does the court use the precedents of Schenck, Chaplinsky and Gertz?

7. After Pacifica, is indecent broadcasting entirely forbidden?

1. What differences do you see between the law being challenged in this case and the FCC regulation in question in Pacifica?

2. In what respects does the Court find the CDA to be vague? Why doesn't the Court accept the government's argument that the CDA's definition of indecency is no more vague than the Court's own definition of obscenity?

3. What does the government argue is the compelling interest that justifies the CDA? Does the Court agree?

5. What overbreadth problems does the Court find with the CDA?

6. Why is it significant to the Court that there is no current technology adequate to effectively restrict minors' access to indecent material?

7. Why, ultimately, does the Court see the CDA as inconsistent with the First Amendment? How much First Amendment protection does the Court grant to the medium of the Internet? Why? How does the see the Internet as a medium compared with broadcasting? Why?

1. Who was Sullivan and what exactly was the libel?

2. In what form was the libel published in the Times? Was Sullivan named in the material that he claimed libeled him? Were there in fact any mistakes in the material he complained about?

3. Who won when this case went to a jury? Who won at the Supreme Court?

4. What did the Times claim as its defense when this case reached the Supreme Court? Why was it almost forced to use this defense instead of any other defense?

5. What is the central holding in this case? In what ways did it dramatically change the law of libel?

6. What is "actual malice"? Why does the court conclude that public officials should have to establish actual malice before they can win libel suits?

1. What is Gertz able to make the central issue in this case? Does he win or lose at the Supreme Court?

2. In terms of legal "fault", how does the Supreme Court say private individuals may now be treated as opposed to public figures? Why?

3. What does the court mean when it says there can be no "liability without fault"?

4. How does the court say public figures can be distinguished from private figures? Into which category did Gertz fall? Why?

5. Aside from the matter of "fault", what rules does the court appear to establish regarding damages in libel actions?

6. Gertz has often been cited for the proposition that defamatory statements of opinion are absolutely protected by the constitution. Where in the case do you see support for that proposition?

1. Falwell sued for both libel and intentional infliction of emotional distress.  On which of these claims did a jury award damages?

2. How does intentional infliction of emotional distress seem to differ from libel?  Why might it be easier for a plaintiff to win under such a claim than for libel?

3. Why does the Court worry about permitting claims for intentional infliction without additional First Amendment protection?

4. Thanks to this case, what must a public-figure plaintiff prove in order to win an intentional infliction case?

5. Why was Hustler unable to satisfy this standard?

1. What standard/definition does the FTC apply in determining whether an advertisement is illegally deceptive?  Does the FTC require that consumers actually have been deceived before an ad can be declared deceptive?

2. What deceptive claim did the FTC argue was made by the Doan’s advertising?

3. What evidence did the FTC use to establish that the Doan’s advertising was legally deceptive?

4. What does the FTC mean by “extrinsic” evidence?  What kind of extrinsic evidence was used against Doan’s?

5. How can the remedy ordered by the FTC be seen as both a prior restraint AND compelled speech?

1. To what restriction placed on its advertising did Central Hudson object?  Why did the state assert that such a restriction was necessary?

2. Does the Court in this case give as much First Amendment protection to commercial speech as to other kinds of speech?  Are there any kinds of commercial speech that can be banned?

3. What are the details of the multiple-pronged test that the Court develops to determine whether a particular advertisement has First Amendment protection?

4. Does the state regulation being challenged pass or fail that test?  Why?