1. CONSTITUTIONAL LAW ESSAY #1
WEBINAR ESSAY SERIES
CONSTITUTIONAL LAW ESSAY #1
MODEL ANSWER
Hyde, an escapee from a mental hospital for the criminally insane, kidnapped Vic, a prominent citizen of Gotham. In a message to the Gotham police, Hyde warned that he would kill Vic if (a) Hyde's identity as the kidnapper was divulged to the public or (b) The Press, Gotham's leading local newspaper, failed to publish - prominently and in its entirety Hyde's political "Manifesto," an incoherent essay of over 20,000 words, within 48 hours. Hyde's message was somehow leaked to a reporter of The Press at police headquarters.
Asserting that journalistic integrity was at stake and that the cost would be exorbitant, The Press rejected an urgent request from the Gotham police chief for compliance with Hyde's demands. Vic's family immediately filed an injunctive action in state court against The Press, obtaining an ex parte temporary injunction prohib­iting The Press from publishing Hyde's identity as the kidnapper and mandating it to publish Hyde's full "Manifesto" in a main edition of The Press within 48 hours. Publishing the "Manifesto" in accordance with the temporary injunction will cost The Press over $175,000 in lost advertising revenue and overtime wages.
The Press has timely moved to dissolve the temporary injunction on the grounds that it violates rights guaranteed by the First Amendment and by the "Takings Clause" of the Fifth Amendment to the U.S. Constitution.
1. What arguments can The Press reasonably make in support of the motion to dissolve the injunction, and how should the court rule? Discuss.
2. May The Press ignore the temporary injunction without incurring liability for contempt? Discuss.

2. 1. What arguments can The Press reasonably make in support of the motion to dissolve the injunction, and how should the court rule? Discuss.
JUSTICABILITY. It appears as though Press filed their response to the restraining order in state courts. Normally, Constitutional claims are heard in federal district court, under Article III, section 2, and require a case or controversy. However, under the context of Federalism, state courts may hear and decide federal Constitutional claims. Therefore, this claim is proper.
STANDING.
Standing of a plaintiff requires: injury in fact, causation, individuation, and redressiblity.
Here, Press has standing because they have been required to refrain from doing their jobs under the First Amendment freedom of the press, and expression, which is a cogniziable Constitutional injury. Further, they may undergo significant economic injury in the near future, due to lost advertising and overtime wages. Thus, may also suffer imminent injury. The cause of the abrogation is the state court, the claim is individuated to Press, and it is capable of being redressed by the court through a reversal of their original decisions. Therefore, Press has standing.
Further, the original temporary restraining order, was issue in an ex parte fashion, which indicates that Press should be given a timely opportunity to contest the court order.
GOVERNMENTAL POWERS / IMMUNITY. Under the 10th Amendment, states have broad police powers to regulate for the health, safety, and general welfare of the populace. Here, a proper court of the state rendered a decision, which is a proper use of the police power of the state. There are no immunity issues.
STATE ACTION. The potential abrogation of plaintiff's rights must occur through state / governmental activity. The injunction was sought by individuals, and not the government, through the family of Vic. However, the injunction was issued by the state court, and thus the state court decision establishes state action.
TAKINGS CLAUSE / FIFTH AMENDMENT.
Pursuant to the Fifth Amendment's takings clause, the government may take private property for what the government reasonable believes is a public purpose, as long as the government provides just compensation to the owner of the private property. A compensable taking may occur through a confiscation, a physical occupation, or though a regulation that denies to the owner all reasonable economic use of their land. In order to determine whether a compensable taking has occurred, the court will consider the economic impact of the regulation on the plaintiff, the extent to which the regulation has interfered with distinct investment backed expectations, and the character of the government action.
TAKING FOR A PUBLIC USE. The court action in this event was commenced by private people, Vic's family. Therefore, it appears at first glance as though there is no public use taking. However, the publication of Hyde's manifesto would serve to effectuate a broad public purpose, in preventing the killing of a citizen, and is assisting the police in keep the order. The justification for a taking must occur only through action which a government reasonably believes is furthering the public interest, which is a low standard, that is met by protecting a citizen. Further, Press serves to lose $175K in advertising and wages, due to the compliance with the court order, which is a substantial amount of property. Therefore, there has been a public taking for a public use.
JUST COMPENSATION. Press would be entitled to reasonable compensation for its' expenses incurred if it were forced to publish the manifesto, and should be compensated at a fair rate after the numbers are more fully established.

3. FREEDOM OF THE PRESS, FIRST AMENDMENT
FREEDOM OF THE PRESS, FIRST AMENDMENT. Freedom of the press is guaranteed under the First Amendment to the U.S. Constitution. The press may normally neither be forced to print or be precluded from printing, whatever the press decides to print or publish, but the press in given no additional rights than are given to individuals. Here, Press is forbidden from publishing the name of Hyde, and is forced to publish Hyde's manifesto.
NON-PROTECTED SPEECH. Non-protected speech is given no Constitutional protection. Therefore, defamatory speech, speech that incites, and the like, are not given protection under the First Amendment. Here, however, the type of speech that Press is engaged in is not the issue, rather, the issue relates to a prior restraints on the ability of Press to decide what they should publish.
HYDE'S NAME.
PRIOR RESTRAINTS. A prior restraint against speech occurs where the government restricts free speech in advance of publication. Prior restraints are not looked upon favorably by courts, inasmuch as they tend to have a chilling effect on freedom of speech.
The challenge of a court order that suppresses speech is given a strict scrutiny review. Therefore, Press must show that the government has not met their burden of proving that their action to force Press not to publish Hyde's name is necessary to forward a compelling government interest, and that there are no less restrictive alternatives.
There is no argument that the life of every citizen is important, even compelling. Vic may be killed if Hyde's instruction to keep his name secret is not followed. Other lives could be lost later, if Hyde is not found. Therefore, the public itself, may be under threat. However, all options must be explored, so that less restrictive alternatives may be used where available. Here, the police may have numerous options available to them to subdue and capture Hyde. The court action was ex parte, between Vic's family and the court, and it does not appear as though the police were involved in the original decision. It is possible that the police have viable alternatives that could be employed to subdue and capture Hyde without infringing on the Press' first amendment rights. Criminals often issue threats, and responding to the threats is the business of the police in most circumstances, and not the business of courts. The prior restraint will not hold Constitutional muster, and will be overturned.
HYDE'S MANIFESTO.
FREEDOM OF SPEECH. The First Amendment protects the ability both to speak, and not to speak. Here, Press is being forced to publish Hyde's manifesto, which will impinge on their freedom not to speak. Inasmuch as this is a content-based regulation, and Press must publish what the court says to publish, Press will assert that the court's action should be reviewed under strict scrutiny, and the court must have had a compelling governmental interest, which it met through necessary means, with no less restrictive alternatives.
Hyde issued a demand that his manifesto be published by Press. Hyde is an escapee from a mental hospital for the criminally insane. It is likely that he is suffering some mental delusions, that will not be mollified by publishing his manifesto. Additionally, the police could intervene, and make it look as though the manifesto were published, without distributing the manifesto to the entire public. While saving the life of a citizen may be compelling, the necessary means to ends fit is not very tight, here. The police should be consulted, in order to determine if the action is necessary. However, at first glance, it appears as though subjugation to the wishes of an insane person, may serve to inflame an already incendiary situation, rather than resulting in the apprehension of a felon. On balance, the forced publication of the manifesto will not meet Constitutional muster.

4. 2. May The Press ignore the temporary injunction without incurring liability for contempt? Discuss.
COLLATERAL BAR RULE. A defendant is Collaterally Barred from asserting the invalidity of an injunction at a contempt hearing. A court order must be complied with, even if the person ordered by the court believes that the court order is invalid, thus serving the public policy of encouraging adherence to court rulings. Such a person must wait until such time as the court lifts its order, or an appellate court reverses the original order, before they are allowed to take action contrary to the court order. However, a party that acts in contravention of such an order, will be deemed as in contempt of court, and will receive sanctions for their activity.
Here, if Press violates the court order, the court may hold Press in contempt of court. Therefore, Press should comply with the order, and endeavor to have the order overturned at a later date.