Rush Limbaugh the MAN Fast and Furious

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# 2 ,,,1992 CONSTITUTION OF THE UNITED STATES]

[Page 1020-1187]

[[Page 1020]]

FIRST AMENDMENT

RELIGION AND EXPRESSION

FREEDOM OF EXPRESSION--SPEECH AND PRESS


[[Page 1026]]
therefore limit coverage or degree of protection of the speech and press
clauses. For example, one school of thought believes that, because of
the constitutional commitment to free self-government, only political
speech is within the core protected area,\28\ although some commentators
tend to define more broadly the concept of ``political'' than one might
suppose from the word alone. Others recur to the writings of Milton and
Mill and argue that protecting speech, even speech in error, is
necessary to the eventual ascertainment of the truth, through conflict
of ideas in the marketplace, a view skeptical of our ability to ever
know the truth.\29\ A broader-grounded view is variously expounded by
scholars who argue that freedom of expression is necessary to promote
individual self-fulfillment, such as the concept that when speech is
freely chosen by the speaker to persuade others it defines and expresses
the ``self,'' promotes his liberty,\30\ or the concept of ``self-
realization,'' the belief that free speech enables the individual to
develop his powers and abilities and to make and influence decisions
regarding his destiny.\31\ The literature is enormous and no doubt the
Justices as well as the larger society are influenced by it, and yet the
decisions, probably in large part because they are the collective
determination of nine individuals, seldom clearly reflect a principled
and consistent acceptance of any philosophy.

\25\While ``expression'' is not found in the text of the First
Amendment, it is used herein, first, as a shorthand term for the
freedoms of speech, press, assembly, petition, association, and the
like, which are comprehended by the Amendment, and, second, as a
recognition of the fact that judicial interpretation of the clauses of
the First Amendment has greatly enlarged the definition commonly
associated with ``speech,'' as the following discussion will reveal. The
term seems well settled, see, e.g., T. Emerson, The System of Freedom of
Expression (1970), although it has been criticized. F. Schauer, Free
Speech: A Philosophical Inquiry, 50-52 (1982). The term also, as used
here, conflates the speech and press clauses, explicitly assuming they
are governed by the same standards of interpretation and that, in fact,
the press clause itself adds nothing significant to the speech clause as
interpreted, an assumption briefly defended infra, pp.1026-29.
\26\T. Emerson, The System of Freedom of Expression 15 (1970).
The practice in the Court is largely to itemize all the possible values
the First Amendment has been said to protect. See, e.g., Consolidated
Edison Co. v. PSC, 447 U.S. 530, 534-35 (1980); First National Bank of
Boston v. Bellotti, 435 U.S. 765, 776-77 (1978).
\27\T. Emerson, The System of Freedom of Expression 6-7 (1970).
For Emerson, the four values are (1) assuring individuals self-
fulfillment, (2) promoting discovery of truth, (3) providing for
participation in decisionmaking by all members of society, and (4)
promoting social stability through discussion and compromise of
differences. For a persuasive argument in favor of an ``eclectic''
approach, see Shriffrin, The First Amendment and Economic Regulation:
Away From a General Theory of the First Amendment, 78 Nw. U.L. Rev. 1212
(1983). A compressive discussion of all the theories may be found in F.
Schauer, Free Speech: A Philosophical Inquiry (1982).
\28\E.g., A. Meiklejohn, Political Freedom (1960); Bork, Neutral
Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971);
BeVier, The First Amendment and Political Speech: An Inquiry Into the
Substance and Limits of Principle, 30 Stan. L. Rev. 299 (1978). This
contention does not reflect the Supreme Court's view. ``It is no doubt
true that a central purpose of the First Amendment `was to protect the
free discussion of governmental affairs.' . . . But our cases have never
suggested that expression about philosophical, social, artistic,
economic, literary, or ethical matters--to take a nonexclusive list of
labels--is not entitled to full First Amendment protection.'' Abood v.
Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).
\29\The ``marketplace of ideas'' metaphor is attributable to
Justice Holmes' opinion in Abrams v. United States, 250 U.S. 616, 630
(1919). See Scanlon, Freedom of Expression and Categories of Expression,
40 U. Pitt. L. Rev. 519 (1979). The theory has been the dominant one in
scholarly and judicial writings. Baker, Scope of the First Amendment
Freedom of Speech, 25 UCLA L. Rev. 964, 967-74 (1978).
\30\E.g., Baker ``Process of Change and the Liberty Theory of
the First Amendment, 55 S. Cal. L. Rev. 293 (1982); Baker, Realizing
Self-Realization: Corporate Political Expenditures and Redish's The
Value of Free Speech, 130 U. Pa. L. Rev. 646 (1982).
\31\Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591
(1982).
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Freedom of Expression: Is There a Difference Between Speech and
Press

Utilization of the single word ``expression'' to reach speech,
press, petition, association, and the like, raises the central question
of whether the free speech clause and the free press clause are
coextensive; does one perhaps reach where the other does not? It has

[[Page 1027]]
been much debated, for example, whether the ``institutional press'' may
assert or be entitled to greater freedom from governmental regulations
or restrictions than are non-press individuals, groups, or associations.
Justice Stewart has argued: ``That the First Amendment speaks separately
of freedom of speech and freedom of the press is no constitutional
accident, but an acknowledgment of the critical role played by the press
in American society. The Constitution requires sensitivity to that role,
and to the special needs of the press in performing it
effectively.''\32\ But as Chief Justice Burger wrote: ``The Court has
not yet squarely resolved whether the Press Clause confers upon the
`institutional press' any freedom from government restraint not enjoyed
by all others.''\33
\32\Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring
opinion). Justice Stewart initiated the debate in a speech, subsequently
reprinted as Stewart, Or of the Press, 26 Hastings L. J. 631 (1975).
Other articles are cited in First National Bank of Boston v. Bellotti,
435 U.S. 765, 795 (1978) (Chief Justice Burger concurring).
\33\Id. at 798. The Chief Justice's conclusion was that the
institutional press had no special privilege as the press.
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Several Court holdings do firmly point to the conclusion that
the press clause does not confer on the press the power to compel
government to furnish information or to give the press access to
information that the public generally does not have.\34\ Nor in many
respects is the press entitled to treatment different in kind than the
treatment any other member of the public may be subjected to.\35\
``Generally applicable laws do not offend the First Amendment simply
because their enforcement against the press has incidental
effects.''\36\ Yet, it does seem clear that to some extent the press,
because of the role it plays in keeping the public informed and in the
dissemination of news and information, is entitled to particular if not
special deference that others are not similarly entitled to, that its
role constitutionally entitles it to governmental ``sensitivity,'' to
use Justice Stewart's word.\37\ What difference such

[[Page 1028]]
a recognized ``sensitivity'' might make in deciding cases is difficult
to say.

\34\Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice
Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell
v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Communications, 435
U.S. 589 (1978). The trial access cases, whatever they may precisely
turn out to mean, recognize a right of access of both public and press
to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
\35\Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury
testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S.
547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153
(1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663
(1991) (newspaper's breach of promise of confidentiality).
\36\Cohen v. Cowles Media, 501 U.S. 663, 669 (1991).
\37\E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241
(1974); Landmark Communications v. Virginia, 435 U.S. 829 (1978). See
also Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978), and id. at
568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709
(1972) (Justice Powell concurring). Several concurring opinions in
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), imply recognition
of some right of the press to gather information that apparently may not
be wholly inhibited by nondiscriminatory constraints. Id. at 582-84
(Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart).
On the other hand, the Court has also suggested that the press is
protected in order to promote and to protect the exercise of free speech
in the society, including the receipt of information by the people.
E.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966); CBS v. FCC, 453
U.S. 367, 394-95 (1981).
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The most interesting possibility lies in the area of First
Amendment protection of good faith defamation.\38\ Justice Stewart
argued that the Sullivan privilege is exclusively a free press right,
denying that the ``constitutional theory of free speech gives an
individual any immunity from liability for libel or slander.''\39\ To be
sure, in all the cases to date that the Supreme Court has resolved, the
defendant has been, in some manner, of the press,\40\ but the Court's
decision that corporations are entitled to assert First Amendment speech
guarantees against federal and, through the Fourteenth Amendment, state
regulations causes the evaporation of the supposed ``conflict'' between
speech clause protection of individuals only and of press clause
protection of press corporations as well as of press individuals.\41\
The issue, the Court wrote, was not what constitutional rights
corporations have but whether the speech which is being restricted is
expression that the First Amendment protects because of its societal
significance. Because the speech concerned the enunciation of views on
the conduct of governmental affairs, it was protected regardless of its
source; while the First Amendment protects and fosters individual self-
expression as a worthy goal, it also and as important affords the public
access to discussion, debate, and the dissemination of information and
ideas. Despite Bellotti's emphasis upon the nature of the contested
speech being political, it is clear that the same principle,

[[Page 1029]]
the right of the public to receive information, governs nonpolitical,
corporate speech.\42
\38\New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See
infra, pp.1136-45.
\39\Stewart, Or of the Press, 26 Hastings, L. J. 631, 633-35
(1975).
\40\In Hutchinson v. Proxmire, 443 U.S. 111, 133 n.16 (1979),
the Court noted that it has never decided whether the Times standard
applies to an individual defendant. Some think they discern in Gertz v.
Robert Welch, Inc., 418 U.S. 323 (1974), intimations of such leanings by
the Court.
\41\First National Bank of Boston v. Bellotti, 435 U.S. 765
(1978). The decision, addressing a question not theretofore confronted,
was 5-to-4. Justice Rehnquist would have recognized no protected First
Amendment rights of corporations because, as entities entirely the
creation of state law, they were not to be accorded rights enjoyed by
natural persons. Id. at 822. Justices White, Brennan, and Marshall
thought the First Amendment implicated but not dispositive because of
the state interests asserted. Id. at 802. Previous decisions recognizing
corporate free speech had involved either press corporations, id. at
781-83; and see id. at 795 (Chief Justice Burger concurring), or
corporations organized especially to promote the ideological and
associational interests of their members. E.g., NAACP v. Button, 371
U.S. 415 (1963).
\42\Commercial speech when engaged in by a corporation is
subject to the same standards of protection as when natural persons
engage in it. Consolidated Edison Co. v. PSC, 447 U.S. 530, 533-35
(1980). Nor does the status of a corporation as a government-regulated
monopoly alter the treatment. Id. at 534 n.1; Central Hudson Gas &
Electric Co. v. PSC, 447 U.S. 557, 566-68 (1980).
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With some qualifications, therefore, it is submitted that the
speech and press clauses may be analyzed under an umbrella
``expression'' standard, with little, if any, hazard of missing
significant doctrinal differences.

The Doctrine of Prior Restraint

``[L]iberty of the press, historically considered and taken up
by the Federal Constitution, has meant, principally although not
exclusively, immunity from previous restraints or censorship.''\43\
``Any system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity.''\44\
Government ``thus carries a heavy burden of showing justification for
the imposition of such a restraint.''\45\ Under the English licensing
system, which expired in 1695, all printing presses and printers were
licensed and nothing could be published without prior approval of the
state or church authorities. The great struggle for liberty of the press
was for the right to publish without a license that which for a long
time could be published only with a license.\46
\43\Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).
\44\Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963).
\45\Organization for a Better Austin v. Keefe, 402 U.S. 415, 419
(1971); New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
\46\Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-14
(1931): Lovell v. Griffin, 303 U.S. 444, 451 (1938).
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The United States Supreme Court's first encounter with a law
imposing a prior restraint came in Near v. Minnesota ex rel. Olson,\47\
in which a five-to-four majority voided a law authorizing the permanent
enjoining of future violations by any newspaper or periodical once found
to have published or circulated an ``obscene, lewd and lascivious'' or a
``malicious, scandalous and defamatory'' issue. An injunction had been
issued after the newspaper in question had printed a series of articles
tying local officials to gangsters. While the dissenters maintained that
the injunction constituted no prior restraint, inasmuch as that doctrine
applied to prohibitions of publication without advance approval of an
executive official,\48\ the majority deemed the difference of no
consequence, since in order to avoid a contempt citation the newspaper
would have to clear future publications in advance with the

[[Page 1030]]
judge.\49\ Liberty of the press to scrutinize closely the conduct of
public affairs was essential, said Chief Justice Hughes for the Court.
``[T]he administration of government has become more complex, the
opportunities for malfeasance and corruption have multiplied, crime has
grown to most serious proportions, and the danger of its protection by
unfaithful officials and of the impairment of the fundamental security
of life and property by criminal alliances and official neglect,
emphasizes the primary need of a vigilant and courageous press,
especially in great cities. The fact that the liberty of the press may
be abused by miscreant purveyors of scandal does not make any the less
necessary the immunity of the press from previous restraint in dealing
with official misconduct. Subsequent punishment for such abuses as may
exist is the appropriate remedy, consistent with constitutional
privilege.''\50\ The Court did not undertake to explore the kinds of
restrictions to which the term ``prior restraint'' would apply nor to do
more than assert that only in ``exceptional circumstances'' would prior
restraint be permissible.\51\ Nor did subsequent cases substantially
illuminate the murky interior of the doctrine. The doctrine of prior
restraint was called upon by the Court as it struck down a series of
loosely drawn statutes and ordinances requiring licenses to hold
meetings and parades and to distribute literature, with uncontrolled
discretion in the licensor whether or not to issue them, and as it
voided other restrictions on First Amendment rights.\52\ The doctrine
that generally emerged was that permit systems--prior licensing, if you
will--were constitutionally valid so long as the discretion of the
issuing official was limited to questions of times, places, and
manners.\53\ The most recent Court encounter with the doctrine in the

[[Page 1031]]
national security area occurred when the Government attempted to enjoin
press publication of classified documents pertaining to the Vietnam
War\54\ and, although the Court rejected the effort, at least five and
perhaps six Justices concurred on principle that in some circumstances
prior restraint of publication would be constitutional.\55\ But no
cohesive doctrine relating to the subject, its applications, and its
exceptions has yet emerged.

\47\283 U.S. 697 (1931).
\48\Id. at 723, 733-36 (Justice Butler dissenting).
\49\Id. at 712-13.
\50\Id. at 719-20.
\51\Id. at 715-16.
\52\E.g., Lovell v. Griffin, 303 U.S. 444 (1938); Cantwell v.
Connecticut, 310 U.S. 296 (1940); Kunz v. New York, 340 U.S. 290 (1951);
Niemotko v. Maryland, 340 U.S. 268 (1951); Staub v. City of Baxley, 355
U.S. 313 (1958). For other applications, see Grosjean v. American Press
Co., 297 U.S. 233 (1936); Murdock v. Pennsylvania, 319 U.S. 105 (1943);
Follett v. McCormick, 321 U.S. 573 (1944).
\53\Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New
Hampshire, 345 U.S. 395 (1953). In Carroll v. President & Comm'rs of
Princess Anne, 393 U.S. 175 (1968), the Court held invalid the issuance
of an ex parte injunction to restrain the holding of a protest meeting,
holding that usually notice must be given the parties to be restrained
and an opportunity for them to rebut the contentions presented to
justify the sought-for restraint. In Organization for a Better Austin v.
Keefe, 402 U.S. 415 (1971), the Court held invalid as a prior restraint
an injunction preventing the petitioners from distributing 18,000
pamphlets attacking respondent's alleged ``blockbusting'' real estate
activities; he was held not to have borne the ``heavy burden'' of
justifying the restraint. ``No prior decisions support the claim that
the interest of an individual in being free from public criticism of his
business practices in pamphlets or leaflets warrants use of the
injunctive power of a court. Designating the conduct as an invasion of
privacy . . . is not sufficient to support an injunction against
peaceful distribution of informational literature of the nature revealed
by this record.'' Id. at 419-20. See also City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the
mayor unbridled discretion to grant or deny annual permit for location
of newsracks on public property is facially invalid as prior restraint).
The necessity of immediate appellate review of orders
restraining the exercise of First Amendment rights was strongly
emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43
(1977), and seems to explain the Court's action in Philadelphia
Newspapers v. Jerome, 434 U.S. 241 (1978). But see Moreland v. Sprecher,
443 U.S. 709 (1979) (party can relinquish right to expedited review
through failure to properly request it).
\54\New York Times Co. v. United States, 403 U.S. 713 (1971).
The vote was six to three, with Justices Black, Douglas, Brennan,
Stewart, White, and Marshall in the majority and Chief Justice Burger
and Justices Harlan and Blackmun in the minority. Each Justice issued an
opinion.
\55\The three dissenters thought such restraint appropriate in
this case. Id. at 748, 752, 759. Justice Stewart thought restraint would
be proper if disclosure ``will surely result in direct, immediate, and
irreparable damage to our Nation or its people,'' id. at 730, while
Justice White did not endorse any specific phrasing of a standard. Id.
at 730-733. Justice Brennan would preclude even interim restraint except
upon ``governmental allegation and proof that publication must
inevitably, directly, and immediately cause the occurrence of an event
kindred to imperiling the safety of a transport already at sea.'' Id. at
712-13.
The same issues were raised in United States v. Progressive,
Inc., 467 F. Supp. 990 (W.D.Wis. 1979), in which the United States
obtained an injunction prohibiting publication of an article it claimed
would reveal information about nuclear weapons, thus increasing the
dangers of nuclear proliferation. The injunction was lifted when the
same information was published elsewhere and thus no appellate review
was had of the order.
With respect to the right of the Central Intelligence Agency to
prepublication review of the writings of former agents and its
enforcement through contractual relationships, see Snepp v. United
States, 444 U.S. 507 (1980); Alfred A. Knopf, Inc. v. Colby, 509 F.2d
1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975); United States v.
Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).
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Injunctions and the Press in Fair Trial Cases.--Confronting a
claimed conflict between free press and fair trial guarantees, the Court
unanimously set aside a state court injunction barring the publication
of information that might prejudice the subsequent trial of a criminal
defendant.\56\ Though agreed on result, the Justices were divided with
respect to whether ``gag orders'' were ever permissible and if so what
the standards for imposing them were. The opinion of the Court utilized
the Learned Hand formulation of the ``clear and present danger''
test\57\ and considered as factors in

[[Page 1032]]
any decision on the imposition of a restraint upon press reporters (a)
the nature and extent of pretrial news coverage, (b) whether other
measures were likely to mitigate the harm, and (c) how effectively a
restraining order would operate to prevent the threatened danger.\58\
One seeking a restraining order would have a heavy burden to meet to
justify such an action, a burden that could be satisfied only on a
showing that with a prior restraint a fair trial would be denied, but
the Chief Justice refused to rule out the possibility of showing the
kind of threat that would possess the degree of certainty to justify
restraints.\59\ Justice Brennan's major concurring opinion flatly took
the position that such restraining orders were never permissible.
Commentary and reporting on the criminal justice system is at the core
of First Amendment values, he would hold, and secrecy can do so much
harm ``that there can be no prohibition on the publication by the press
of any information pertaining to pending judicial proceedings or the
operation of the criminal justice system, no matter how shabby the means
by which the information is obtained.''\60\ The extremely narrow
exceptions under which prior restraints might be permissible relate to
probable national harm resulting from publication, the Justice
continued; because the trial court could adequately protect a
defendant's right to a fair trial through other means even if there were
conflict of constitutional rights the possibility of damage to the fair
trail right would be so speculative that the burden of justification
could not be met.\61\ While the result does not foreclose the
possibility of future ``gag orders,'' it does lessen the number to be
expected and

[[Page 1033]]
shifts the focus to other alternatives for protecting trial rights.\62\
On a different level, however, are orders restraining the press as a
party to litigation in the dissemination of information obtained through
pretrial discovery. In Seattle Times Co. v. Rhinehart,\63\ the Court
determined that such orders protecting parties from abuses of discovery
require ``no heightened First Amendment scrutiny.''\64
\56\Nebraska Press Ass'n. v. Stuart, 427 U.S. 539 (1976).
\57\Id. at 562, quoting Dennis v. United States, 183 F.2d 201,
212 (2d Cir. 1950), aff'd., 341 U.S. 494, 510 (1951).
\58\Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562 (1976)
(opinion of Chief Justice Burger, concurred in by Justices Blackmun and
Rehnquist, and, also writing brief concurrences, Justices White and
Powell). Applying the tests, the Chief Justice agreed that (a) there was
intense and pervasive pretrial publicity and more could be expected, but
that (b) the lower courts had made little effort to assess the prospects
of other methods of preventing or mitigating the effects of such
publicity and that (c) in any event the restraining order was unlikely
to have the desired effect of protecting the defendant's rights. Id. at
562-67.
\59\The Court differentiated between two kinds of information,
however: (1) reporting on judicial proceedings held in public, which has
``special'' protection and requires a much higher justification than (2)
reporting of information gained from other sources as to which the
burden of justifying restraint is still high. Id. at 567-68, 570. See
also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting
aside injunction restraining news media from publishing name of juvenile
involved in pending proceeding when name has been learned at open
detention hearing that could have been closed but was not); Smith v.
Daily Mail Pub. Co., 433 U.S. 97 (1979).
\60\Id. at 572, 588. Justices Stewart and Marshall joined this
opinion and Justice Stevens noted his general agreement except that he
reserved decision in particularly egregious situations, even though
stating that he might well agree with Justice Brennan there also. Id. at
617. Justice White, while joining the opinion of the Court, noted that
he had grave doubts that ``gag orders'' could ever be justified but he
would refrain from so declaring in the Court's first case on the issue.
Id. at 570.
\61\Id. at 588-95.
\62\One such alternative is the banning of communication with
the press on trial issues by prosecution and defense attorneys, police
officials, and court officers. This, of course, also raises First
Amendment issues. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F.
2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976).
\63\467 U.S. 20 (1984).
\64\467 U.S. at 36. The decision was unanimous, all other
Justices joining Justice Powell's opinion for the Court, but with
Justices Brennan and Marshall noting additionally that under the facts
of the case important interests in privacy and religious freedom were
being protected. Id. at 37, 38.
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Obscenity and Prior Restraint.--Only in the obscenity area has
there emerged a substantial consideration of the doctrine of prior
restraint and the doctrine's use there may be based upon the proposition
that obscenity is not a protected form of expression.\65\ In Kingsley
Books v. Brown,\66\ the Court upheld a state statute which, while it
embodied some features of prior restraint, was seen as having little
more restraining effect than an ordinary criminal statute; that is, the
law's penalties applied only after publication. But in Times Film Corp.
v. City of Chicago,\67\ a divided Court specifically affirmed that, at
least in the case of motion pictures, the First Amendment did not
proscribe a licensing system under which a board of censors could refuse
to license for public exhibition films which it found to be obscene.
Books and periodicals may also be subjected to some forms of prior
restraint,\68\ but the thrust of the Court's opinions in this area with
regard to all forms of communication has been to establish strict
standards of procedural protections to ensure that the censoring agency
bears the burden of proof on obscenity, that only a judicial order can
restrain exhibition, and that a prompt final judicial decision is
assured.\69
\65\Infra, pp.1149-59.
\66\354 U.S. 436 (1957). See also Bantam Books v. Sullivan, 372
U.S. 58 (1963).
\67\365 U.S. 43 (1961). See also Young v. American Mini
Theatres, 427 U.S. 50 (1976) (zoning ordinance prescribing distances
adult theaters may be located from residential areas and other theaters
is not an impermissible prior restraint).
\68\Cf. Kingsley Books v. Brown, 354 U.S. 436 (1957).
\69\Freedman v. Maryland, 380 U.S. 51 (1965); Teitel Film Corp.
v. Cusack, 390 U.S. 139 (1968); Interstate Circuit v. City of Dallas,
390 U.S. 676 (1968); Blount v. Rizzi, 400 U.S. 410 (1971); United States
v. Thirty-seven Photographs, 402 U.S. 363, 367-375 (1971); Southeastern
Promotions v. Conrad, 420 U.S. 546 (1975); Erznoznik v. City of
Jacksonville, 422 U.S. 205 (1975); FW/PBS, Inc. v. City of Dallas, 493
U.S. 215 (1990) (ordinance requiring licensing of ``sexually oriented
business'' places no time limit on approval by inspection agencies and
fails to provide an avenue for prompt judicial review); Fort Wayne
Books, Inc. v. Indiana, 489 U.S. 46 (1989) (seizure of books and films
based on ex parte probable cause hearing under state RICO law's
forfeiture procedures constitutes invalid prior restraint; instead,
there must be a determination in an adversarial proceeding that the
materials are obscene or that a RICO violation has occurred).