Re: [Leica] Re: Photo Vultures (didtoday,getalife) [no Leica]

["Bryan Caldwell" <bcaldwell@softcom.net>]

Eric,

I can assure you that prior restraint is a rather complex area of
constitutional law. A statement like "prior restraint is unconstitutional"
is simply not correct. Under most circumstances, a news-gathering
photojournalist is constitutionally protect from government prior
restraints, but by no means always. And there are many different types of
prior restraint.

The term "prior restraint" means shutting off speech at its source. It can
take many forms. Permit and licensing requirements, film censorship,
restrictions on advertising, denial of a passport to someone who wants to
lecture abroad, obscenity laws which close a photographic museum exhibit
before it has opened to the public - all of these are prior restraints
which, under certain circumstances have been upheld by the courts. Even
print journalism is not completely protected. In the famous case of United
States v. Progressive, Inc., the Progressive magazine was effectively
subjected to prior restraint prohibiting it from printing information on the
contrsuction of the H-bomb even though the government conceded that most of
the information was declassified or came from the public domain. Look at the
restrictions placed on news gathering during the Gulf War and on other
recent U.S. military actions.

Commercial speech is also often subjected to prior restraint. Look at what
has been done to tobacco advertising. Film censorship is also an area where
prior restraints often occur. If the proper procedures are followed, a
community can ban the showing of a film before it has occurred - a clear-cut
example of prior restraint. Gag orders in a criminal trial are another
example.

There is also a related legal doctrine called the collateral bar rule.
Although somewhat questioned by the current U.S. Supreme Court, this rule
holds that (again, under certain circumstances) an injunction (which is a
prior restraint) may have to be obeyed and challenged at a later date even
if erroneously issued because it is a court order (I'm simplifying a little
bit here). Under this rule and under applicable circumstances, a journalist
(or anyone else) can be punished for disobeying an injunction that
ultimately is held unconstitutional.

I apologize for getting a little long-winded and slightly off topic here
(and perhaps boring the non-U.S. members of the LUG), but this is a
complicated subject and it is very misleading to try and deal with it in a
single sentence. I'd be happy to continue the discussion privately.

Bryan


- ----- Original Message -----
From: Eric Welch <ewelch@ponyexpress.net>
To: <leica-users@mejac.palo-alto.ca.us>; <leica-users@mejac.palo-alto.ca.us>
Sent: Friday, September 24, 1999 10:45 AM
Subject: Re: [Leica] Re: Photo Vultures (didtoday,getalife) [no Leica]


> At 12:14 PM 9/22/99 -0700, Bryan Caldwell wrote:
> >There are certain subjects which do not have any First Amendment
protection
> >and may be subject to prior restraint. There are other areas where prior
> >restraint on publication has been upheld by the courts and areas where
> >constitutional scholars suspect that it might be upheld.
> >
> >Usually found unconstitutional? Yes. Per se unconstitutional? No.
>
> Richard Nixon, to his chagrin, found it impossible to apply. He lost. No
> prior restraint for him. Though prior restraint can be assumed in the case
> of child porn, because the first amendment is not absolute, for the
average
> everyday photographer working on the street, prior restraint is
> unconstitutional.
>
> Eric Welch
> St. Joseph, MO
>
> http://www.ponyexpress.net/~ewelch
>
> It's about time we started to take photography seriously and treat it as a
> hobby. - Eliott Erwitt
>