Prior Restraint Research Articles

The Brave New World of Research Surveillance

Institutional review boards (IRBs) were created to review biomedical and psychological research involving demonstrable risk to human participants. During the past half decade, however, many campus IRBs have begun to review humanities and social science research, thereby substantially expanding their mission and effectively imposing on faculty moral and ethical standards inappropriate to historical research. Moreover, IRBs have traditionally reviewed research plans, not potential publications. But the only way for IRBs to guarantee adherence to their standards for human conduct campus wide would be to exercise prior restraint on publication. That would seriously undermine academic freedom.

Potential legal challenges to the application of the Children’s Internet Protection Act (CIPA) in public libraries: Strategies and issues

When the United States Supreme Court upheld the constitutionality of the Children’s Internet Protection Act (CIPA), the ruling was limited to issues of whether the statute, as written, was an unconstitutional limitation of freedom of speech. In holding that the wording of the law did not present an unconstitutional limitation on the exercise of free speech, the Supreme Court did not address the constitutionality of the application of the law. Two of the Justices who concurred that CIPA was legal on its face, in fact, suggested the possibility of future legal challenges to CIPA as it is applied in public libraries. This paper discusses potential problems related to the implementation of CIPA that could affect the exercise of free speech in public libraries. It also suggests possible legal challenges to the application of the law that could be made using established First Amendment jurisprudence. The legal issues that might be used to challenge the Court’s decision include least restrictive alternative, vagueness, overbreadth, request policies, prior restraints, public forum, and limitations on political speech. The discussion of each legal issue offers an approach that could be taken in formulating and raising a legal challenge to the application of CIPA.

Annoying, intrusive, … and constitutional: telemarketing and the national Do‐Not‐Call Registry

The recent adoption by the US Federal Trade Commission of the national Do‐Not‐Call Registry prohibiting most telemarketers from contacting individuals once their number is added to the listing is a threat to the US domestic telemarketing industry. Analysis of US federal law suggests that the national registry is likely an unconstitutional exercise of administrative power. To be legal, governmental prior restraints on commercial speech must pass the four‐part Central Hudson test adopted by the US Supreme Court. The Do‐Not‐Call Registry fails parts three and four of the test and probably part two as well. There is an insufficient fit between the stated governmental purpose of the regulation and its operation. Moreover, balancing the benefits from the registry against the harm it inflicts further militates against its constitutionality. International and public relations implications are explored and discussed.

The Internet and the Narrow Tailoring Dilemma for “Asian” Democracies

The Internet has become a medium for contentious political journalism in Malaysia and Singapore, two countries known for their enthusiastic adoption of information technologies as well as their illiberal controls on political expression. These alternative sites inhabit a regulatory gap within an otherwise closed media system. Internet laws in these two settings provide a degree of freedom that is significantly greater than experienced in print and broadcast media. This article tries to explain this anomaly. It argues that the Internet’s perceived economic value dominated the authorities’ policy formulation, subordinating the goal of political control that historically shaped media policy. When dealing with print and broadcast media, the authorities had been able to tailor their political interventions narrowly, such that these actions did not smother their economic priorities. In contrast, the Internet was not as amenable to narrow tailoring. The two governments decided to tolerate a lesser degree of political control than that to which they were accustomed. While the governments maintained the prerogative to mete out after-the-fact punishments against any offending Internet publication, they were less capable of imposing prior restraints or encouraging self-censorship-their more routine forms of media control. It is not argued that the resulting advantage for radical journalism was either absolute or permanent, only that it presented a sufficiently attractive opportunity for action.

No-Citation Rules as a Prior Restraint on Attorney Speech

No-Citation Rules as a Prior Restraint on Attorney Speech

Government Regulation vs. The Free Society

Over the years I have been persistent in my criticism of petty tyrannies such as government regulation of business, government licensing of professions, and so on.1 My central objection is that they all involve prior restraint, the coercive intervention in people's conduct that does not have anything to do with defending individual rights, the only goal that justifies the use of force in human affairs. Very recently, and finally, someone in mainstream circles has chosen to address my argument. Edward Soule, of Georgetown University's McDonough School of Business, wrote a book, Morality and Markets, The Ethics of Government Regulation, in which he spends some time addressing the essentially libertarian, natural rights case I have made against this widespread practice. It is a very respectful, civilized criticism the tone of which is unobjectionable. Given that the position I have defended is quite radical, some would even call it extreme, I am very pleased that someone of such distinction as Soule has chosen to address it. Let me now get to the substance of Soule's critique. First of all, he argues against the libertarian argument against regulation I put forth by claiming that ifit were consistently applied, such a very practical institution as central banking would have to be abolished. As he puts it,

Increased anxiety-related behavior in mice deficient for metabotropic glutamate 8 (mGlu8) receptor

Pre-synaptic metabotropic glutamate (mGlu) receptors modulate neuronal excitability by controlling glutamate and gamma-aminobutyric acid (GABA) release. The mGlu8 receptor is predominantly found in pre-synaptic terminals and its expression is highly restricted. To study the role of this receptor, mGlu8 receptor-deficient mice were generated. Here we report that naïve mGlu8 receptor-deficient mice showed increased anxiety-related behavior in the elevated plus maze in low illumination conditions (red light). Open arm avoidance and risk assessment behavior were both significantly increased in mutant mice. Increased stressfulness of the testing conditions abolished this behavioral difference. Fluorescent light or prior restraint stress decreased the open arm activity of wild-type mice, while the open arm activity of mutant mice was essentially unaffected, leading to similar values in both strains. The total number of arm entries or closed arm entries was not significantly different between strains, indicating that the lack of mGlu8 receptor does not affect locomotor activity. No gross behavioral changes, or changes in the function of the autonomic nervous system or somatomotor systems were observed in mutant mice. Moreover, no significant differences in seizure susceptibility were detected between strains. Our results suggest that mGlu8 receptor may play a role in responses to novel stressful environment.

Symposium: Compliance or Concern? Institutional Review Boards in Journalism and Mass Communication Education

Introduction Are the very principles of freedom of expression and the First Amendment that underlie much of the scholarship in journalism and mass communication education placed at risk by federal regulations that require prior approval of research designs? Four senior scholars deliberate on the rationale, contradictions, ethics, and First Amendment issues generated by compliance with federal research regulations. * * Editor's Note: A panel focused on IRBs is scheduled for the 2002 AEJMC Annual Convention. Institutional Review Boards and Prior Restraint, Friday, August 9,5:00 to 6:30 p.m. Panelists: Margaret Blanchard, University of North Carolina, Chapel Hill; Mary Ann Ferguson, University of Florida; Annie Lang, Indiana University, Bloomington; Glenn Leshner, University of Missouri. Moderator, Erik Bucy, Indiana University. Brandon Hunt and Can dice A. Yekel Moving from Compliance to Concern In 1974, the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research was established, and Congress passed the National Research Act. These were the first regulations in the United States protecting the rights and welfare of research participants and establishing the institutional review board (IRB) as a mechanism to protect human participants involved in research. According to Title 45 Code of Federal Regulations (CFR) Part 46.102(d), research is defined as a systematic investigation designed to develop or contribute to generalizable knowledge.1 The primary purpose of the IRB is to protect the rights and welfare of research participants in several ways. First, it protects people's privacy by ensuring that information about research participants is safeguarded. Second, it protects research participants by ensuring that researchers make informed consent about participating in research. Finally, it protects research participants by reviewing research studies before they begin to minimize the potential for harm to participants. The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research, written in 1979 to address the legislation mentioned above, addresses three basic principles: respect for persons, beneficence, and justice.2 Respect for persons includes the notion that research participants should be treated as autonomous agents who have free will and that people who have diminished autonomy (e.g., children, people with psychiatric disabilities, people who are incarcerated) should be protected. This means that participants enter into the research voluntarily and that they have informed choice. Beneficence means that researchers, regardless of their field of study, will do no harm to participants and that they will maximize the possible benefits and minimize possible harm that could occur as a result of being involved in the research study. In terms of justice, researchers will treat all participants equally. Related to these three principles are the issues of informed consent, assessment of risks and benefits, and selection of participants. Informed consent is often times viewed as a single snapshot in time rather than a process that goes beyond a signature on a consent form. All people who participate in research studies have the right to make an informed decision about what could potentially happen to them if they participate in a research study. Information about the study should be presented to potential participants in a manner that clearly states what will happen during the study in a way they can comprehend. Informed consent also means making sure that potential participants know that their participation is completely voluntary and that they can cease their participation at any time. Providing this information empowers participants by giving them enough knowledge to make an informed decision. The role of the IRB, and that of the researchers themselves, is to assess the potential risks and benefits of the research study, particularly whether the potential risks to participants can be justified in some way. …

Prior Restraints and Intellectual Property: The Clash Between Intellectual Property and the First Amendment From an Economic Perspective

Intellectual property is under attack. In 1999, in Ford Motor Co. v. Lane, a federal district court judge denied a preliminary injunction to prevent disclosure of a trade secret on the grounds such an injunction would be a prior restraint in violation of the First Amendment. More recently, this same argument prevailed in DVD Copy Control Assoc. v. Bunner, 113 Cal. Rptr. 2d 338 (Ca. Ct. App. 2001). (On February 20, 2002, the California Supreme Court granted the petition to review Bunner (see 2002 Cal. LEXIS 614)). The use of preliminary relief to protect intellectual property has a long history. It is especially necessary to protect volatile intellectual property such as trade secrets since such property ceases to exist once it is disclosed to the public. Such relief has typically been utilized by courts to protect trade secrets with little discussion; additionally, such relief is authorized by the Uniform Trade Secrets Act. Nevertheless, a legitimate argument can be made that such preliminary relief may impinge upon First Amendment rights. Several well-known commentators have written in support of prohibiting preliminary injunctions to protect trade secrets and intellectual property generally. This article explores the interaction of the First Amendment and the need to protect intellectual property via preliminary relief. It starts with the proposition that freedom of speech and private property rights are equally important fundamental rights. It then explores the underlying policies of freedom of speech and the recognition of private property, which includes recognizing intellectual property as a form of private property. The article reaches different conclusions depending upon the type of intellectual property involved. However, it provides an argument that both Ford and Bunner, discussed above, are incorrectly decided with regard to trade secrets.

Freedom(S) of the Press in Latin America

This study documents the emergence of the societal right to freedom of the press in the international human rights law of Latin America. Relying on legal research and analysis methodology, this article examines cases from the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights that address press freedom vis-a-vis prior restraints, desacato laws, violent attacks on journalists and mandatory colegio membership for journalists. The study concludes that the societal right to a free press, like the individual right, is a guarantee against governmental intrusion in the free flow of information and ideas necessary in a democracy.

Advocacy, Activism, and Controversial Art: Lessons from Charlotte

In March of 1996, conservative members of the cultural, political, and religious communities in North Carolina threatened Charlotte Repertory Theatre's production of Tony Kushner's Pulitzer Prize-winning epic Angels in America with closure. When issued a "cease and desist" letter by its own landlord on the day of the first performance, Charlotte Rep successfully took to the courts. The theatre obtained a temporary restraining order--later made into a permanent injunction--by citing legal issues of prior restraint, imminent threats to its livelihood, and the potential violation of its First Amendment rights. The legal victory was followed by a political defeat when the local county commission, in a historic 5-to-4 vote, eliminated $2.5 million in public funding of the arts. A subsequent two-year advocacy effort resulted in the ouster of all but one of the elected officials who voted against the arts and the full restoration of funding, with an additional $500,000 increase. Charlotte Rep's Managing Director, Keith Martin, reflects on these tumultuous events. 1

Antidiscrimination Laws and the First Amendment

The Supreme Court's decision last term in Boy Scouts of America v. Dale holding that the Boy Scouts had a First Amendment expressive association right to exclude a gay adult scoutmaster is one of the most significant, and positive, recent developments in civil liberties jurisprudence. When conflicts between antidiscrimination laws and First Amendment rights first arose in the 1970s, courts simply refused to acknowledge that antidiscrimination laws sometimes trespassed on constitutional rights. The Supreme Court finally acknowledged in the 1980s that antidiscrimination laws could potentially impinge on First Amendment rights. Instead of enforcing those rights, however, the Court either denied that the First Amendment was implicated in any particular case, or applied a toothless test that in effect exempted antidiscrimination laws from the strictures of the First Amendment. Lower courts seized and expanded upon these decisions to the point where antidiscrimination laws gradually became a significant menace to freedom of speech, freedom of expressive association, and religious freedom. For example, courts held that an injunction creating a prior restraint on speech was appropriate in a hostile environment case; that a Black separatist organization could be compelled to admit whites to its meetings; and that the government could force a Catholic university to fund student organizations that engaged in political and social advocacy contrary to Catholic doctrine. Dale has significantly reduced the threat antidiscrimination laws once posed to constitutionally-protected civil liberties. Although Dale was a 5-4 decision, with the conservative Justices in the majority, all nine Justices seemed to agree that the First Amendment must be enforced even when the implementation of antidiscrimination laws is at stake. Despite lip service paid to precedents applying the compelling interest test to overcome First Amendment restrictions on antidiscrimination laws, neither side discussed whether the government has a compelling interest in eradicating discrimination against homosexuals. Dale suggests the Court has reached a consensus that defendants charged with violating antidiscrimination laws are generally entitled to the same full First Amendment protection as defendants charged with violating other important laws. Antidiscrimination laws, then, have been constitutionally normalized.

When the Nazis came to Skokie: freedom for speech we hate

In the Chicago suburb of Skokie, one out of every six Jewish citizens in the late 1970s was a survivor or was directly related to a survivor of the Holocaust. These victims of terror had resettled in America expecting to lead peaceful lives free from persecution. But their safe haven was shattered when a neo-Nazi group announced its intention to parade there in 1977. Philippa Strum's dramatic retelling of the events in Skokie (and in the courts) shows why the case ignited such enormous controversy and challenged our understanding of and commitment to First Amendment values. The debate was clear-cut: American Nazis claimed the right of free speech while their Jewish targets claimed the right to live without intimidation. The town, arguing that the march would assault the sensibilities of its citizens and spark violence, managed to win a court injunction against the marchers. In response, the American Civil Liberties Union took the case and successfully defended the Nazis' right to free speech. Skokie had all the elements of a difficult case: a clash of absolutes, prior restraint of speech, and heated public sentiment. In recreating it, Strum presents a detailed account and analysis of the legal proceedings as well as finely delineated portraits of the protagonists: Frank Collin, National Socialist Party of America leader and the son of a Jewish Holocaust survivor; Skokie community leader Sol Goldstein, a Holocaust survivor who planned a counterdemonstration against the Nazis; Skokie mayor Albert Smith, who wanted only to protect his townspeople; and ACLU attorney David Goldberger, caught in the ironic position of being a Jew defending the rights of Nazis against fellow Jews. While the ACLU did win the case, it was a costly victory-30,000 of its members left the organization. And in the end, ironically, the Nazis never did march in Skokie. Forcefully argued, Strum's book shows that freedom of speech must be defended even when the beneficiaries of that defense are far from admirable individuals. It raises both constitutional and moral issues critical to our understanding of free speech and carries important lessons for current controversies over hate speech on college campuses, inviting readers to think more carefully about what the First Amendment really means.

Behavioral responses to stress are intact in CRF-deficient mice

Corticotropin-releasing factor (CRF) has been implicated in endocrine and behavioral responses associated with stress. We have now studied the behavior of mice lacking the CRF gene (CRFko), comparing them to wild-type (WT) mice. Behaviors were observed in untreated mice, as well as following restraint or intraperitoneal administration of mouse interleukin-1β (mIL-1β). In the multicompartment chamber (MCC), the behaviors of CRFko and WT mice were very similar, and prior restraint and IL-1β induced similar decreases in stimulus-contact times in both genotypes. In the elevated plus maze (EPM), restraint decreased the number of open arm entries but the behavior of both genotypes was very similar. In the open field (OF), the changes in locomotor activity in response to restraint were similar in both genotypes, although CRFko mice displayed slightly increased locomotor activity compared to WT mice. In both the MCC and the EPM, grooming behavior was increased by restraint, and was higher in the CRFko than in the WT mice. Compared to WT mice, CRFko mice had lower basal plasma concentrations of corticosterone which did not increase significantly following footshock. Thus, CRFko mice showed a clear dichotomy; the stress-related activation of the hypothalamo-pituitary-adrenal (HPA) axis was absent, whereas the stress-related behavioral responses thought to be mediated by brain CRF were unaffected. These results suggest that when mice develop in the absence of CRF, another factor (or factors) assumes the behavioral functions normally ascribed to brain CRF, but not activation of the HPA axis. Alternatively, the natural modulator of behavior may not be CRF, but some other molecule that can act on receptors sensitive to CRF. Thus, redundant CNS mechanisms appear to be involved in stress-related behaviors.

First Amendment influence in argentine republic law and jurisprudence

The First Amendment to the United States Constitution has influenced the development of freedom of expression in a number of countries, including the Argentine Republic. This article focuses on law as it came to affect mass media beginning with assumptions from the 16th century, when Argentina was under Spanish domination, and continues through the 1853–60 constitutional conventions that marked the initiation of First Amendment influence in Argentine law and jurisprudence. The article explains how the de facto governments that ruled Argentina from 1862 to 1983 gave direction to law and court decisions affecting the mass media, including film censorship, press penal responsibility, prior restraint, state of siege and the right to reply. The article concludes by analyzing how these laws and court decisions have influenced media and Argentine society, especially in fostering self‐censorship.

A self-assembling neural network for modeling polymers

A central problem in modeling protein and other polymer structures is the generation of self‐avoiding chains which obey a priori distance restraint information which could include a folding potential function. This problem is usually addressed with a lattice model or a torsion space model of the polymer. Exhaustive searches in these spaces are of necessity exponentially complex. A new computer algorithm for modeling polymers and polymeric systems is described. This algorithm is a randomized algorithm based on a self‐assembling or Kohonen neural network. Given a defined chain topology, a defined spatial extent, and a prior probability distribution, it finds a set of coordinates which reproduce these properties. The convergence rate of the algorithm is linear with respect to the number of distance terms included. Modifications to the standard Kohonen algorithm to include a defined spatial metric, and a modified update rule improve the convergence of the standard algorithm and result in a highly efficient algorithm for building polymer models which are self avoiding and consistent with prior probability information and interatomic distance restraints.

Freedom of Speech and Injunctions in Intellectual Property Cases

Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Never mind that a libel may inflict truly irreparable harm on you: The most you can hope for is damages, or perhaps a permanent injunction after final adjudication -- not preliminary relief.And yet in copyright and other intellectual property cases, preliminary injunctions are routine. We argue that the prior restraint doctrine has something to say about that, too. Though copyright law (like libel and obscenity law), is a constitutionally permissible speech restriction, the Amendment Due Process rule against prior restraints applies even to such permissible restrictions.We argue that preliminary injunctions in copyright cases are generally unconstitutional; the one exception is cases where there's no controversy over substantial similarity of expression or fair use (for instance, where the question turns only on whether defendant had the requisite license). We also argue the same about right of publicity cases, trademark cases, and trade secret cases, except possibly cases (such as many trademark cases) that involve commercial advertising. We believe this conclusion is dictated by the Court's prior restraint doctrine, and also makes good First Amendment policy sense.

Freedom of Speech and Injunctions in Intellectual Property Cases

Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Never mind that a libel may inflict truly irreparable harm on you: The most you can hope for is damages, or perhaps a permanent injunction after final adjudication -- not preliminary relief.And yet in copyright and other intellectual property cases, preliminary injunctions are routine. We argue that the prior restraint doctrine has something to say about that, too. Though copyright law (like libel and obscenity law), is a constitutionally permissible speech restriction, the Amendment Due Process rule against prior restraints applies even to such permissible restrictions.We argue that preliminary injunctions in copyright cases are generally unconstitutional; the one exception is cases where there's no controversy over substantial similarity of expression or fair use (for instance, where the question turns only on whether defendant had the requisite license). We also argue the same about right of publicity cases, trademark cases, and trade secret cases, except possibly cases (such as many trademark cases) that involve commercial advertising. We believe this conclusion is dictated by the Court's prior restraint doctrine, and also makes good First Amendment policy sense.

Creatine kinase elevations and aggressive behavior in hospitalized forensic patients.

The relationship between creatine kinase (CK) and aggressive behavior was tested in 195 males consecutively admitted to a forensic hospital. Among patients receiving antipsychotic medication, the most violent patients had higher CK levels than less violent patients. This was not the case in patients who did not receive antipsychotic medication. CK levels were not influenced by age, ethnicity, or clinical diagnosis. CK levels were however influenced by prior assaultiveness and restraints. When these two factors were controlled for, CK levels remained strongly associated with subsequent violence. CK appears to be a potential predictor of violent behavior. It has the advantage of easy availability in comparison to other biological markers of aggression (e.g., 5-HIAA). Prospective studies are needed to confirm the validity of this biobehavioral association.

Preparing Scholastic Press Advisers for Roles after Hazelwood Decision

Supreme Court in Hazelwood v. Kuhlmeier (1988) allowed school officials to set journalistic standards higher than those demanded by some newspaper publishers ... in the 'real' world (at 272) and to exercise prior restraint on publications that are not open forums by policy or practice if the action reasonably related to legitimate pedagogical concerns (at 273). Eveslage (1995) noted that the decision essentially challenged publications advisers to teach rights and responsibilities, but implied the direction to take when it identified professionalism as the (p. 3). question of what publication advisers are teaching about student rights and professionalism of the scholastic press of importance to college educators, who are responsible for preparing students to become knowledgeable school journalism teachers and advisers. Public forum Justice Byron White used a public forum analysis from Cornelius v. NAACP Legal Defense and Education Fund (1985) and Perry Education Association v. Perry Local Educators' Association (1983) as the basis of his majority opinion in Hazelwood v. Kuhlmeier. Traditional forums are those that have long been open to all expression. Limited forums are created by government designation of a place or channel of communication for use by the at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects, and the government must open a non-traditional forum for discourse (Cornelius at 802). At both traditional and limited forums, government restrictions must be narrowly drawn and serve a compelling state interest. Reasonable time, place, and manner restrictions are allowed if they are content-neutral and narrowly drawn and leave open alternative channels of communication (Perry at 45-46). A non-public forum one that is not by tradition or designation a forum for communication, and any government regulation in a non-public forum must be only reasonable in light of the purpose served by the forum and are viewpoint neutral (Cornelius at 806). Hazelwood majority determined that schools are not traditional forums and that the Hazelwood East Spectrum was not a limited forum in practice. It stated: The government does not create a forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for discourse (Hazelwood at 267, quoting Cornelius, 1985, at 802). However, when the forum rationale had previously been used by courts in regard to a student publication (see Zucker v. Panitz, 1969, and Gambino v. Fairfax County School Board, 1977), the newspapers were found to be limited forums for student expression. Justice William Brennan, author of the minority position in Hazelwood, stated that the school's control over the content of school-sponsored publications should be limited. He concluded that an earlier Supreme Court case, Tinker v. Des Moines Independent Community School District (1969), should be the standard for scholastic press freedom cases. Prior to Hazelwood, the Tinkerstandard was the `compelling reason' by which their (school officials') censoring actions would be measured (SPLC, 1994, p. 36). Tinker stated that restrictions can be put on student speech only if the speech materially disrupts classwork or involves substantial disorder or invasion of the rights of others (Tinker at 513). Until Hazelwood, courts had not ruled on whether prior restraint of scholastic publications for other types of content, such as libel and obscenity, was permissible (SPLC, 1985, p. 23). Though Brennan stated that the Court was deviating from precedent, he agreed with the Hazelwood majority that an educator may constitutionally censor material that ungrammatical, poorly written, inadequately researched, biased or prejudiced or material that does not meet high standards for . …