B issue is national security a justification for a

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b. Issue : Is national security a justification for a prior restraint? c. Holding : No. i. Majority opinion was very, very brief. Just said that this was an abridgment of the 1st Am and the injunction shouldn’t have been granted. ii. The Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. iii. Concurrences: Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified. 1. Brennan hints at precedent supporting a very narrow war time exception when doing so would prevent actual obstruction to the government’s recruiting source or the publication of transports or number and location of troops. iv. “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” iii. Symbolic Speech: Conduct As Speech 1. The Supreme Court has long protected conduct that communicates under the First Amendment. a. “It is possible to find a kernel of expression in almost every activity a person undertakes…but such a kernel is not sufficient to bring the activity within the First Amendment.” b. The Court emphasized two factors when determining conduct is communicative: i. An intent to convey a particularized message ii. A substantial likelihood that the message would be understood by those receiving it. c. Finding that conduct is communicative does not mean that it is immune from government regulation. Then: does the 32
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government have sufficient justification for regulating the conduct? 2. United States v. O’Brien a. Facts : Defendant and several other protestors burned their drafts cards. They were charged with violation of a federal act governing your registration certificate. b. Issue : Is this speech protected by the 1st Am so that the statute is unconstitutional in “purpose”? c. Holding : No. i. When “speech” and “non-speech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limits on First Amendment freedoms. ii. Test : 1. A government regulation is sufficiently justified if it is: a. Within the constitutional power of the government, b. If it furthers an important or substantial government interest; c. If the interest is unrelated to the suppression of free expression; d. And if the incidental restriction on the alleged 1st Am freedoms is no greater than is essential to the furtherance of that interest. 2. Very similar to intermediate scrutiny. 3. When speech is regulated as to time, place, and manner it must be narrowly tailored to serve a significant public interest and there must be ample alternative channels of communication.
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  • Spring '18
  • Government, Fourteenth Amendment to the United States Constitution

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