Freedom of the press - Next Generation Bar Exam

1. How are prior restraints on publication treated?

   They bear a heavy presumption against constitutional validity. In the Pentagon Papers case, the government could not meet its heavy burden to enjoin publication.

2. Under Gertz v. Robert Welch, what fault must a private-figure plaintiff prove in a defamation case involving a matter of public concern?

   At least negligence, as the state chooses. Presumed or punitive damages in such a case require proof of actual malice.

3. Why may the government regulate broadcast media more extensively than print media?

   The scarcity of broadcast frequencies. Red Lion Broadcasting v. FCC upheld broadcast-specific regulation on this basis.

4. Under Minneapolis Star v. Minnesota Commissioner of Revenue, what is the status of a tax that singles out the press or a few publications?

   It is presumptively invalid. Differential taxation threatens press independence unless it serves a compelling interest.

5. What special right of access to information does the press have compared with the public?

   Only the access available to the public generally. The press may gather news by lawful means but has no greater constitutional right of access.

6. A trial court orders a newspaper not to publish lawfully obtained information about a pending criminal trial. Under Nebraska Press Association v. Stuart, what is the status of the order?

   It is an unconstitutional prior restraint unless the heavy burden to justify it is met. Courts must first consider alternatives such as change of venue, voir dire, and jury instructions.

7. Under Branzburg v. Hayes, what First Amendment privilege do reporters have to refuse grand jury subpoenas about confidential sources?

   They have no such privilege and must respond to good-faith grand jury subpoenas like other citizens. Many states and some courts recognize statutory or common-law shield protections.

8. Under Richmond Newspapers v. Virginia, what right do the public and the press have regarding criminal trials?

   A right to attend them. Closure requires an overriding interest supported by findings and narrowly tailored relief.

9. Under Smith v. Daily Mail and Florida Star v. B.J.F., when may a state punish publication of truthful, lawfully obtained information about a matter of public significance?

   Only when necessary to further a state interest of the highest order. The government ordinarily must safeguard information itself rather than punish the press for publishing it.

10. Under Cohen v. Cowles Media, how do generally applicable laws apply to the press?

    They apply to the press like anyone else. Enforcing a generally applicable promissory-estoppel claim against a newspaper did not violate the First Amendment.

11. Under New York Times v. Sullivan, what must a public official prove to recover for defamation?

    Actual malice: knowledge of falsity or reckless disregard for the truth, by clear and convincing evidence. The rule also applies to public figures.

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