Incorporation/UnitedStates

NOTE: This is a simple overview for those not hugely familiar with the United States legal system to understand how its organized. It is also a good refresher for those who had US Politics many many years ago

The United States is subdivided into 50 states, 4 unincorporated organized territories, several unincorporated unorganized territories, and the District of Colombia. In a legal sense, it operates as fifty independent nations bound together under a federal government, similar in relation of the European Union and its member states. Territories are directly administrated by the federal government, and do not have representation in either the Congress or the Senate.

Separation between the federal government and the states is defined by the US Constitution, defining which powers are reserved by the federal government and those by the individual states. Unlike the European Union, the federal government can levy taxes across the union (under the concept of "Taxation equals Representation") and represent the states collectively in international matters. Powers not granted to the federal government remain in the hands of the states. All states are bound to the US Constitution which operates as the highest law in the land.

With the exception of the State of Louisiana, [QUESTION: HOW IS LOUISIANA DIFFERENT?] both the federal government and the states operate under a system of common law. Common law is built on a combination of statute and case law, with case law in redefining, narrowing or widening statutes. [PLEASE FIX: DUPLICATED TEXT SPAN BEGINS:] Due to the relationship between the federal and state governments, case law is only binding to the jurisdiction in which it was founded. In short, a decision is only binding in the jurisdictions in which it was decided. Court jurisdiction are based on the laws being contested.[:DUPLICATED TEXT SPAN ENDS] For instance, copyright laws are incorporated on a federal level, which means matters of copyright are to be decided in the federal courts system. As incorporation is handed on a state level, issues relating to it would be heard in that state's local courts.

State courts are organized by the constitution of the state, which defines there local system of courts. For the most part, states such as New York and California operate on the concept of a district court and an appellate court (sometimes referred to as a supreme court, such as the New York Supreme Court). A specific state's court structure will be covered on an overview of that state.

Understanding Case Law

FIXME: Insert picture of the courts layout

Federal courts are organized under various circuits, which are a collection of states in a geographic area. There are three levels of courts from lowest to highest: district, appellate, and the Supreme Court.

Legal Protections for Freedom of Speech and Press

Freedom of speech and press in the United States descend from the first amendment to the United States Constituion.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment itself is applied to the states via the Fourteenth Amendment Section 1, reproduced below:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Over the course of two centuries, the courts have constantly re-affirmed this right but have defined exceptions to protected speech and protected press. These exceptions as of today are:

• Obscenity (as defined by the Milter Test)
• Pornography
• Defamation (defined New York Times Co. v. Sullivan; very limited)
• Commerical Speech (partially; only when done for profit, see below)
• Illegal Transactions (United States v. Williams)

A summary of various cases cited here followed.

Near v. Minnesota (1931)

• Decided in: Supreme Court of the United States
• Holding: Prior restraint is only permissible in cases of "exceptional circumstances"
• Wikipedia Summary: https://en.wikipedia.org/wiki/Near_v._Minnesota
• Judgement (original text): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=283&invol=697

Near v. Minnesota dealt with the question of prior restraint on publications; specifically, can the statute, or the government prevent the publication of something, and if so, under what grounds can it do so, and provided a key guideline with respect to the ability to restrain publications. It was cited heavily during New York Times Co. v. United States in deciding the judgement of that case.

Background

Jay M. Near and Howard A. Guilford, a resident of Minneapolis began to run his own newspaper called "The Saturday Post" who claims that various gangs were in fact running the city, including then future governor Floyd B. Olson. Articles from The Saturday Post were used to successfully prosecute at least one gangster called Big Moose Barrnett. Olson filed a complaint against Near and Guilford under Minnesota's Public Nuisance Law, in an attempt to silence the paper. The relevent section of this law was quoted in the Supreme Court brief:

Section 1. Any person who, as an individual, or as a member or employee of a firm, or association or organization, or as an officer, director, member or employee of a corporation, shall be engaged in the business of regularly or customarily producing, publishing or circulating, having in possession, selling or giving away.

'(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or

'(b) a malicious, scandalous and defamatory newspaper, magazine or other periodical,

-is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided.

Using Section 1(b) as justification to censor the paper, Olson filed a case in Minnesota. After battling it out in state courts, the case eventually made its way to the Supreme Court

Findings

The Supreme Court found that the First Amendment, via the Fourteenth Amendment, provided no grounds for censorship or prior restraint, regardless of the truth of the news itself. From the holding itself:

For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) [283 U.S. 697, 723] of section 1, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable, cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication.

However, an exception was also defined in the same holding that restraint is permissible in 'exceptional cases', such as posting times of troop movements, or military orders in times of wars.

The objection has also been made that the principle as to immunity from previous restraint is stated too [283 U.S. 697, 716] broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247, 249. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. 6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 139 , 31 S. Ct. 492, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra.

New York Times Co. v. United States (1971)

• Decided in: Supreme Court of the United States
• Holding: Prior restraint requires proof of "grave and irreparable" damage
• Wikipedia Summary: https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States
• Judgement (original text): https://supreme.justia.com/cases/federal/us/403/713/case.html

New York Times Co. v. United States was a re-affirmation of Near v. Minnesota, as well as strongly defining the test of prior restraint as applied to the United States government. It also re-affirms that publication of classified materials by newspapers is not inhertiantly illegal. The case itself revolves around the publication of the [Papers], a then-classified report which revealed that several successive administrations had mislead the American public and to Congress with its actions during the Vietnam War.

Summary

Daniel Ellsberg, an aide to Secretary of Defense Robert McNamara, and his friend Anthony Russo decided to leak a report detaining the real reasons the United States were involved in Vietnam to The New York Times after becoming disillusioned with the war, and after internal efforts to whistleblow were unheaded. The report, formally titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense became known as the Pentagon Papers after The New York Times began a publication of articles with the revealing the dirty truth behind the war. Sitting President Richard Nixon was convinced to prosecuite Ellsberg for leaking the papers, and to force the New York Times to cease publication after the paper refused a voluntary request.

Ellsberg also gave copies of the report to the Washington Post which began running its own articles. In an attempt to stop publication Attorney General John N. Mitchell obtained an injunction against the paper, citing Section 793 of the Espionage Act as justification. A massive law, only one small section of the Espionage Act provided the justification to censor the paper:

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defens, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.

.

The newspaper appealed the decision. The lower courts upheld the injection against the New York Times, causing the paper to appeal to the Supreme Court, which accepted certiorari and merged this case, and a second case against the Washington Post into New York Times Co. v. United States.

References

* US Constitution Article I, § 8
* Article III of the Constitution (courts organization)
* Ninth Amendment
* 14th amendment