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 inherently illegal. The case itself revolves around the publication of the [[1]Pentagon Papers], a then-classified report which revealed that several successive administrations had mislead the American public and the 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 detailing 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 at whistleblowing were unheeded. 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 revealing the dirty truth behind the war. Sitting President Richard Nixon was convinced to prosecute 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 defense, 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.

Findings

The Supreme Court found in favor of the New York Times, defining a test of "grave and irreparable" for prior restraint. As written by Justice White

The Government's position is simply stated: The responsibility of the Executive for the conduct of the foreign affairs and for the security of the Nation is so basic that the President is entitled to an injunction against publication of a newspaper story whenever he can convince a court that the information to be revealed threatens "grave and irreparable" injury to the public interest; 2 and the injunction should issue whether or not the material to be published is classified, whether or not publication would be lawful under relevant criminal statutes enacted by Congress, and regardless of the circumstances by which the newspaper came into possession of the information.

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Justice Black wrote a rather insightful piece about why the court ruled against injunction. I've included it here as it captured the full essence of the significance of this case, as well as the role of the courts in acting as check and balances.

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.

I adhere to the view that the Government's case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe [403 U.S. 713, 715] that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. 1 They especially feared that the [403 U.S. 713, 716] new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." 2 (Emphasis added.) The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men [403 U.S. 713, 717] that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press . . . ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

Recognition of Bloggers/New Media as Journalists

The Department of Justice, most of the judicial circuits, and 40 states recognize reporter's privilege, or the ability to not be compelled to release their sources, and there have been efforts to pass a federal shield law However, the specific definition of who and who is not a journalist remains undecided.

The issue is if bloggers, freelance journalists, and other individuals writing for non-traditional media qualifies for Freedom of Press remains unanswered on a federal level. As of this writing, I'm unaware of any federal cases in determining the legal status, however, the issue has been argued twice in New Hampshire, and in Oregon with different verdicts. As states have the ability to provide stronger first amendment protections beyond those in the US Constitution, and those provided by the federal government, these cases provide strong arguments for (or against) incorporation in their respective states.

The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. (2010 - New Hampshire)

• Decided In: New Hampshire Supreme Court
• Binding: Courts in New Hampshire
• Holding: Shield laws apply to online publications
• Wikipedia Summary: https://en.wikipedia.org/wiki/The_Mortgage_Specialists,_Inc._v._Implode-Explode_Heavy_Industries,_Inc.#Reaction
• Judgement (original text): http://www.courts.state.nh.us/supreme/opinions/2010/2010041mortg.pdf

Obsidian Finance Group, LLC v. Cox (2011 - Federal/Oregon)

• Decided In: United States District Court for the District of Oregon
• Binding: State of Oregon (Appealate Division - Ninth Circuit)
• Holding: Cox denied media shield protections under the bias of "not a journalist"
• Wikipedia Summary: https://en.wikipedia.org/wiki/Obsidian_Finance_Group,_LLC_v._Cox
• Judgement (original text): http://ia700403.us.archive.org/9/items/gov.uscourts.ord.101036/gov.uscourts.ord.101036.123.0.pdf

NOTE: This case is being appealed and working its way through the courts system. As of right now, until the appealate court has ruled, this judgement is only binding on the state of Oregon. If appeals fail, the judgement will be valid across the Ninth Circuit unless SCOTUS accepts a writ of certiorari

References

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