Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P28 ppsx

by a landslide in 1936 over the Republican nominee, Alfred M. Landon. One significant reason for Roosevelt’s con- siderable popularity was the passage of the SOCIAL SECURITY ACT OF 1935 (42 U.S.C.A. § 301 et seq.)—the first piece of legislation in the history of the United States to address social WELFARE. The legislation provided people over the age of 65 with a monthly pension from the federal government. It also contained provisions for unemployment insurance and for aid to chil- dren. Although this form of government charity also had its critics, Roosevelt was pleased with it because it was proof that he had not forgotten the common citizen. The early successes of the New Deal created a boldness that eventually led to its demise. By the mid 1930s, the U.S. SUPREME COURT began to strike down New Deal legislation as uncon- stitutional exercises of congressional power. In Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935), for example, the Court struck down the heart of Roosevelt’s New Deal legislation, the NIRA. The Schechter brothers were wholesale kosher poultry distributors who did business within the state of New York. They were convicted of violating the Live Poultry Code, including wage- and-hour violations. The Court unanimously held that the federal government could only control trade between states, not trade within one state. Eve n liberal justices on the Court who had supported previous New Deal legislation found the challenged provisions unconstitu- tional. The following year, the Court struck down the Bituminous Coal Conservation Act of 1935, ch. 824, 49 Stat. 991, because its enactment was not based upon a power that Congress possessed under the Constitution. Carter v. Carter Coal Co., 298 U.S. 238, 56 S. Ct. 855, 80 L. Ed. 1160 (1936). Many legal actions against other New Deal legislation were piling up, and in 1937, Roosevelt proposed a restructuring of the High Court through the addition of a new justice to the Court for each justice over the age of 70. At the time of this propos al, six of the nine justices were over the age of 70, including Chief Justice CHARLES EVANS HUGHES and associate justices WILLIS VAN DEVANTER, JAMES MCREYNOLDS, LOUIS BRANDEIS , GEORGE SUTHERLAND, and PIERCE BUTLER. Roosevelt tried to place a nonpolitical spin on his proposal, citing instances w here changes to the composition of the Court had been made before, as well as the heavy workload for nine justices, but he could not disguise his blatant attempt to pack the Court with liberal justices who would see things his way. Roosevelt refused to concede, which resulted in months of Senate debates that cost him many supporters. Rather than exploding, the controversy retreated as the Court began supporting many pieces of New Deal legislation. In NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937), the Court upheld the constitutionality of the National Labor Rela- tions Act, which was purportedly based upon the COMMERCE CLAUSE of the Constitution. Prior to Jones & Laughlin Steel Corp., Van Devanter resigned from the Court and was replaced by HUGO BLACK. The Court’s structure changed dramatically over the eight years following the decision, as the majority of justices retired or resigned from the court, including the follow- ing: Sutherland (1938); BENJAMIN CARDOZO (1938); Brandeis (1939); Butler (1939); Hughes (1941); McReynolds (1941); HARLAN STONE (1941); and Roberts (1945). Although, in the end, the makeup of the Court was just as Roosevelt wanted, he suffered losses in support and confidence that he never regained. Many people felt that the New Deal legislation had granted labor too much power, and they were resentful of the unionization efforts, which led to strikes that were often violent. Finally, the unemployment rate from late 1937 to mid 1938 soared from five million to eleven million. Roosevelt and his vision for a New Deal lost congressional support. No further reform legislation was passed during Roosevelt’s time in the White House. Although the country was much better off than it had been w hen he took office in 1932, the Great Depression continued. It ended not by legisla- tion, but by the coming of WORLD WAR II. The political machine of the New Deal and its dominant social policy continued for decade s after the last piece of its legislation was passed. Although its demise can not be traced to one single event, by the time RONALD REAGAN was elected president in 1980 the era of the New Deal was effectively over. Many have drawn comparisons between the New Deal and President BARACK OBAMA’s attempts to stimulate a weak economy in the late 2000s. Beginning in 2006, many believed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 258 NEW DEAL the decline in U.S. housing prices and corre- sponding subprime mortgage crisis to be the cause of banks suffering major adverse con- sequences, including many bank failures. Government-issued bailout funds were pro- vided to ban ks in conjunction with other measures designed to stimulate the weak economy and restore liquidity to the financial markets. As of July 2009, many referred to the period of economic instability as the worst financial crisis since the Great Depression. FURTHER READINGS Beinart, Peter. The New New Deal: What Barack Obama Can Learn From F.D.R. and What the Democrats Need to Do. Time Magazine, Nov. 24, 2008. Flynn, Kathryn, and Polese, Richard. 2008. The New Deal: A 75th Anniversary Celebration. Layton, Utah: Gibbs Smith. Fraser, Steve, and Gary Gerstle. 1989. The Rise and Fall of the New Deal Order. Princeton, N.J.: Princeton Univ. Press. Freedman, Russell. 1990. Franklin Delano Roosevelt. New York: Clarion Books. Schraff, Anne E. 1990. The Great Depression and the New Deal. New York: Watts. Stewart, Gail B. 1993. The New Deal. New York: New Discovery Books. CROSS REFERENCES Banks and Banking; Labor Law; Labor Union; National Recovery Administration; Schechter Poultry Corp. v. United States; Social Security; Welfare. NEW PARTY The New Party is a grassroots progressive political organization that focuses on local elections and uses the concept of multiple-party nomination or fusion to build coalitions with other like-minded organizations and political parties. Despite a major setback from a 1997 U.S. SUPREME COURT decision that held that states are not required to permit fusion, the New Party, which uses the slogan “Building a New Majority from the Ground Up,” won 300 of the first 400 races it entered between 1992 and 2002. Frustrated with what they saw as only minor distinctions between the Democratic and Re- publican parties as well as a lack of commitment by the majority parties to the concepts of democracy and corporate accountability, a group of trade union members, low-income community activists, environmentalists, minor- ity voters, and other supporters started the New Party in New York in 1992. Fueled by a vision based on recognition of the moral equality of each person, the New Party sought to build a multi-ethnic party of activists dedicated to taking back the reins of democracy from an increasingly powerful alliance of corporations and corporate media that had come to domi- nate the U.S. political system. The organization established a series of New Party principles, including full public financing of elections and universal voter registration; establishment of the right to democratic self- organization for workers, consumers, and others; a children’s BILL OF RIGHTS; community control and equitable funding for schools; a safe and secure community environment; a prohibition of DISCRIMINATION based on race, gender, age, country of origin, and sexual orientation; and the safeguarding of civil liberties, reproductive rights, and the right to privacy. Economic principles include a PROGRESSIVE TAX system, creation of a sustainable economy that includes protection of the environment, full employment and a guaranteed minimum income for all adults, a reduction in defense spending, and progressive international trade practices. The organization started in 1992 with a strategy of selecting local contests and building alliances with other small progressive parties. In the view of New Party organizers, the current winner-take-all system for political elections has stifled debate that would otherwise include minor party candidates. This system has also restrained the development of alternative politi- cal parties because many voters are hesitate to vote for a candidate who seems to have little or no chance of winning. The New Party espouses the concept of fusion in order to grow its political base. In politics fusion means the practice of permitting political parties to allow the name of another party’s candidate to be placed on the ballot line. In fusion races the votes a candidate receives on all ballot lines are totaled and the cand idate with the most votes would be declared the winner. Fusion was popular in the 1800s. A well- known instance occurred when presidential candidate WILLIAM JENNINGS BRYAN was nominated by both the Democrats and the Populist People’s Party in 1896. The increasing popular- ity of fusion came to be viewed as a threat by the major parties, and many state legislatures began to pass statutes to prohibit it. Between 1896 and 1907 fusion was banned in 18 states. In 2001 fusion was legal in eight states: Connecticut, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NEW PARTY 259 Delaware, Mississippi, New York, South Car- olina, South Dakota, Utah, and Vermont. In 1994 the Twin Cities chapter of the New Party nominated Andy Dawkins, a Democratic INCUMBENT legislator who was running for reelection. Dawkins agreed to the fusion nomi- nation and there was no objection from the state DEMOCRATIC PARTY. However, the state of Min- nesota objected and the New Party sued. The district court dismissed the case, but it was reversed on appeal by the Eighth Circuit Court of Appeals, which held that the state ban on fusion imposed a severe burden on the New Party’s freedom of association by not allowing it to nominate the candidate it had selected. The Eighth Circuit’s decision was reversed by the U.S. Supreme Cour t in Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997), which held, in a 6-3 decision, that the FIRST AMENDMENT does not require states to permit fusion voting. This decision was disappointing to the New Party and other minor parties that had hoped to use fusion throughout the country to leverage the voting power of their supporters. Members of the New Party vowed to move forward with their agenda of running candidates for local level elections, including school boards and city councils, mayoral races, and state assemblies. The organization also pursued a long-term strategy for changing state election laws to permit fusion voting. However, by the late 1990s, the party was defunct. Nonetheless, advocates of fusion persevered. In 2007 legislators in four states introduced legislation to re-establish fusion voting. Legisla- tion was introduced in Connecticut, Maine, New Mexico and Oregon. Connecticut enacted a law that year that established a full fusion voting system across the state but the other three states had failed to pass legislation by 2009. FURTHER READING New Party Website. Available online at www.newparty.org (accessed July 9, 2009). CROSS REFERENCE Third Party. NEW YORK CONSTITUTION OF 1777 The first constitution of the state of New York was adopted on Sunday, April 20, 1777, at Kingston, New York, by a convention of delegates empowered by the people of the colony to establish a state government. It marks the birth of the state of New York. The constitution was not submitted to the people for ratification, but it became effective immedi- ately upon its adoption by the convention. The New York Constitution of 1777 was framed amidst the chaos of the Revolutionary War. Three men were instrumental in drafting the constitution: JOHN JAY , ROBERT R. LIVINGSTON, and Gouverneur Morris. All three were affluent young men (ages 30, 29, 24, respectively, at the time of their appointments) with little experi- ence in public affairs. John Jay is generally credited as being the primary author of the constitution. The first constitution faithfully adhered in many respects to the English constitutional system of gover nment. Some delegates, how- ever, were incensed upon discerning minor deviations from ENGLISH LAW in the proposed constitution. The patte rning of the New York Constitution of 1777 after the English govern- mental prototype was not actually inconsistent with the objectives of the Revolutionary War. Even though there were structural similarities between the system of government set forth in the New York Constitution of 1777 and the English system, the impact of the laws upon the lives of the people of New York and their British counterparts was different, due to the abandonment by America of the class system of government that prevailed in England. The oppressiveness of English rule was eradicated, but the valid fundamental legal principles were retained. The English constitutional system of government was applied to the extent that its principles conformed to the concept of a republi- can form of government. The reliance upon the English system was also attributable to the inexperience of the draftsmen, who felt comfortable with the basic precepts and established traditions of English law. Even they realized, however, that some changes were essential. The people of New York were permitted to choose the chief executive instead of having sovereign authority do so on their behalf. It also was deemed necessary to alter the parliamentary system, and as a result, the House of Lords and the Colonial Council were transformed into the state senate. On April 20, the entire proposed constitution was presented, and, after several inconsequential GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 260 NEW YORK CONSTITUTION OF 1777 revisions and some major ones, it was read and adopted by a vote of 32–1. John Jay was not present for the adoption of the constitution, since he had been called away as a result of his mother’s death on April 17. He had wanted to include certain amendments to the constitution, and he expressed dismay over what he perceived to be its rather hasty adoption. The fact that less than one-third of the entire convention attended the discussions of the constitution w as attributable to compelling personal reasons and the exigencies of the Revolutionary War. The turmoil created by the latter factor explains why the constitution was adopted on a Sunday; the delegates convened whenever possible, irrespec- tive of weekend dates. The New York Constitution of 1777 was a relatively brief document that covered only a few topics. Some significant provisions, parti- cularly those pertaining to the Council of Revision and the Council of Appointment, were added while the constitution was being evalu- ated by the convention. The resolutions adopted by the Third Pro- vincial Congress, providing for the election of the convention, and t h e D eclarat ion o f Indepen- dence, which has been set out in its entirety, comprise the preliminary segment. The body of the constitution contains forty-five brief sections, which were labeled “articles” at t hat time. The powers granted to the new government are expressed in rather austere language. The framers retained the essential nature of the colonial government but removed its royal features. The judicial system of the colony and the local governments generally rema ined unalte red. The constitution delineates new executive and legislative branches, administrative author- ity, and abstract rights, which are few in number and concise, including, but not limited to, VOTING RIGHTS, freedom of religion, and the right of trial by jury. Although the constitution created the legislative, executive, and judicial branches of government, the framers combined their functions due to their ignorance of the concept, significance, and ramifications of the SEPARATION OF POWERS. In addition to lawmaking power, they vested the legislature with executive authority through the Council of Appointment, which consisted of four senators selected annually by the assembly. The higher courts were granted authority over legislation through the Council of Revision, comprised by the judges of the supreme court, the chancellor, and the governor. As a result, the governor’s power was severely circumscribed. Since he was under the control of the Council of Appoint- ment, the governor was divested of the res- ponsibility for official appointments. He also was deprived of unabridged VETO power, because the judges of the Council of Revision could overrule him. The constitution has a few provisions per- taining to the separate powers of the senate and assembly, including the power of the assembly to issue ARTICLES OF IMPEACHMENT and to choose the members of the Council of Appointment. The legislature was authorized to elect the state treasurer, administer contracts with Indians, and to naturalize ALIENS. The U.S. Constitu tion, however, eventually preempted this right of naturalization. The legislature was proscribed from enacting bills of attainder, and from creating any courts, except common law courts. The constitution fixed the terms of judicial officers and provided for the election of state and local official s. Article 35 continued the English statutory and COMMON LAW, and colonial legislation, to the extent they were applicable under the new form of govern ment. Miscella- neous provisions established a state militia, ratified English grants, and barred the clergy from holding office. The state made tremendous progress as a result of this constitution, in spite of its inherent limitations. Its system of JURISPRUDENCE evolved and expanded. The constitution established the university and the common school, and col- leges, academies, and libraries were nurtured. It provided for the administration of assistance to the indigent. A system of taxation was formu- lated, political subdivisions were created, and the statutory law was frequently revised. The constitution also prompted the drafting of a plan for the construction of the canals. The New York Constitution of 1777 was an extremely valuable document, and its fundamental prin- ciples became prompted in subsequent consti- tutions. It remained in effect until it was superseded by the Constitution of 1821. NEW YORK TIMES CO. V. SULLIVAN A LANDMARK U.S. SUPREME COURT case, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), extended the FIRST AMENDMENT ’s guarantee of free speech to LIBEL cases brought by public officials. The Supreme GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NEW YORK TIMES CO. V. SULLIVAN 261 Court sought to encourage public debate by changing the rules involving libel that had previously been the province of state law and STATE COURTS. New York Times v. Sullivan grew out of events occurring during the 1960s CIVIL RIGHTS movement in Alabama. In 1960 MARTIN LUTHER KING JR . and other CIVIL RIGHTS leaders conducted protests against SEGREGATION in Montgomery, Alabama. Their efforts met fierce resistance from Montgomery public officials. Civil rights leaders placed a full-page advertisement in the New York Times seeking contributions for civil rights causes in the South. Signed by 64 prominent leaders in public affairs, religion, trade unions, and the performing arts, the advertisement, entitled “Heed Their Rising Voices,” stated that thousands of southern African American students were engaging in nonviolent demonstrations in positive affirma- tion of the right to live in human dignity. The ad went on to charge that these demonstrations had been met with a “wave of terror” by state and local governments. Alleged events that backed up this charge were described, but no particular public official was named. L. B. Sullivan, the Montgomery city com- missioner responsible for supervising the city police department, filed a libel suit against four African American clergyman and the New York Times in Alabama state court. Sullivan alleged that the advertisement implicitly libeled him. Libel is a civil TORT and consists of injuring someone’s reputation by reporting falsehoods about that person. At trial Sullivan proved that the advertise- ment contained a number of minor inaccuracies about described incidents. The jury had to determine whether the statements in the advertisement were “of and concerning” Com- missioner Sullivan. The judge instructed the jury that under Alabama law, if the statements were found LIBELOUS, falsity and malice were presumed, and damages could be awarded without direct proof of financial loss. The jury concluded that the statements did concern Sullivan and awarded him $500,000 for injuries to his reputation and profession. The U.S. Supreme Court reversed, holding that the RULE OF LAW applied by Alabama violated the First Amendment. Justice WILLIAM J . BRENNAN JR., in his majority opinion, placed the legal issu es in the context of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Brennan maintained that erroneous statements are inevitable in free debate and must be protected if freedom of expression is to have the “breathing space” it needs to survive. The advertisement was squarely a public expression and protest, and fell within consti- tutional protection. Neither the allegedly de- famatory content of the ad, nor the falsity of some of its factual statements, nor the NEGLI- GENCE of anyone in preparing or publishing it forfeited this protection. Brennan dismissed the idea that courts were free to conclude that libelous statements were made “of and con- cerning” a particular person when the state- ments on their face did not make even an oblique reference to the individual. Brennan stated that there is “no legal alchemy” by which a court constitutionally can establish that “an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.” Brennan then set out the rule that reshaped libel law. A public official could recover in a libel action only if and when a court found that the libelous statement about the official was made with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” As long as the press has an “absence of malice,” public officials are barred from recovering damages for the publication of false statements about them. In separate concurring opinions, Justices HUGO L. BLACK and WILLIAM O. DOUGLAS differed with Justice Brennan over whether the press should ever be held liable in DEFAMATION of public officials. They concluded that the First Amendment provided an absolute IMMUNITY for criticism of the way public officials do their public duty. Anything less than absolute immunity encourages “deadly danger” to a free press by state libel laws that harass, punish, and ultimately destroy critics. New York Times remains one of the most frequently cited Supreme Court cases of all time. Thousands of cases and thousands of articles have cited the decision. Some critics GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 262 NEW YORK TIMES CO. V. SULLIVAN argued that Black and Douglas were right. The “reckless disregard” requirement has allowed highly intrusive inquiries into the reportorial and editorial processes of the mass media. In addition, the “chilling effect” of libel suits has not been diminished because of the case. If a jury finds reckless disregard, it can award large damage awards against the press. Other critics of the decision believe it affords too much protection to the press. Public officials unfairly libeled by the press rarely file libel suits because of the difficulty of proving actual malice. This prevents them from estab- lishing in a court of law the falsity of the statements at issue. Notwithstanding these criticisms, the Su- preme Court has not reconsidered its decision in New York Times. Lower courts continue to look to the case and its progeny as the starting point for their analysis of libel. For instance, in Fiacco v. Sigma Alpha Epsilon Fraternity, 528 F.3d 94 (1st Cir. 2008), the First Circuit Court of Appeals began its analysis of the actual malice standard by referring to New York Times. Like many courts, though, the First Circuit has developed its own doctrine about the case’s essential components, including the determina- tion of whether the case applies to certain public officials. FURTHER READINGS Farber, Daniel A. 2003. The First Amendment. New York: Foundation Press. Fireside, Harvey. 1999. New York Times v. Sullivan: Affirming Freedom of the Press. Springfield, NJ: Enslow. Kane, Thomas. 1999. “Malice, Lies, and Videotape: Revisit- ing New York Times v. Sullivan in the Modern Age of Political Campaigns.” Rutgers Law Journal 30 (spring). Whitten, Kristian D. 2002. “The Economics of Actual Malice: A Proposal for Legislative Change to the Rule of New York Times v. Sullivan.” Cumberland Law Review 32 (spring). CROSS REFERENCES Freedom of Speech; Freedom of the Press; Libel and Slander; New York Times Co. v. Sullivan (Appendix, Milestone Case). NEW YORK TIMES CO. V. UNITED STATES New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971) ( PER CURIAM ) concerned the government’s attempt to prohibit the New York Times and the Washing- ton Post from publishing portions of a secret government study on the VIETNAM WAR. The documents in the study became known as the Pentagon Papers, and the Supreme Court’s case is often referred to as the Pentagon Papers case. The United States contended that publication of the Pentagon Papers could prolong the Vietnam War and hinder efforts to return U.S. prisoners held in Vietnam. The Times and the Post claimed that the government was engaging in CENSORSHIP. Thus, the case pitted the rights of the newspapers under the FIRST AMENDMENT against the duty of the EXECUTIVE BRANCH to protect the nation. The case drew significant national attention as it went through the judicial system, and the public wondered what the Pentagon Papers contained. The Pentagon Papers case addressed whether a PRIOR RESTRAINT on the press can be justified under the First Amendment. A “prior restraint” is the imposition of a restraint on the publica- tion of information before the information is published. There are two basic types of prior restraints. One consists of a government order or court INJUNCTION that prohibits a person from communicating certain information. The other basic type of prior restraint occurs when a license or permit is required before a parti- cular type of expression may be used. New York Times v. United States involved the first type of prior restraint, because the government sought a court injunction prohibiting the newspapers from publishing portions of the Pentagon Papers. Other than the Pentagon Papers case, the most important Supreme Court case discussing prior restraints is NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), which held that under the First Amendment, prior restraints on free speech are justified only in “exceptional cases,” such as when the information to be published would include “the sailing dates of transports or the number and location of troops.” In the Pentagon Papers case, a divided Supreme Court refused to enjoin publication of the Pentagon Papers. The decision contained a separate opinion from each of the nine justices. The case emphasized the First Amend- ment’s strong presumption against any prior restraint on free speech. The justices’ reasons for their decisions varied widely. Two justices believed that any prior restraint on the press amounts to censorship in clear violation of the First Amendment, whereas three justices be- lieved that publication of the Pentagon Papers should have been delayed until the courts had GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NEW YORK TIMES CO. V. UNITED STATES 263 more time to evaluate the impact of publication on national security. Because the case sped through the judicial system, and the justices’ opinions var ied widely, it does not provide a clear statement of First Amendment law on prior restraint. For example, the Court failed to specify when, if ever, a prior restraint on the press might be allowed. The case is of great significance, however, as a statement that a prior restraint on the FREEDOM OF SPEECH is almost never justified. From June 12 to 14, 1971, the New York Times published a series of articles about the origins of the Vietnam War. The articles were based on a 47-volume DEFENSE DEPARTMENT study covering the years 1945 to 1968. Daniel Ellsberg, a former Defense Department analyst, leaked the study to the Times. Although the study contained only information regarding events that occurred before 1968, the government con- tended that the study contained “secret” and “top secret” information. Further, the govern- ment alleged that publication of the informa- tion could prolong the Vietnam War and threaten the safe return of U.S. prisoners of war. On June 15, 1971, the government sued in federal district court in New York, seeking an injunction prohibiting the Times from continu- ing to publish i nformation from the Pentagon Papers. Soon after, the Washington Post began publishing material from the study. Accord- ingly, the government sought a similar injunc- tion against the Post in the District of Columbia. The actions against the Times and the Post were rushed through the co urts because of the unique national importance of the issues and the widespread national public attention the cases were receiving. Although the federal district courts both refused to issue a permanent injunc- tion against publication of the Pentagon Papers, publication was temporarily enjoined pending appeals by the United States. Less than two weeks after the Times published its first articles, the Supreme Court heard arguments on the cases, and five days later, on June 30, 1971, it issued its decision. The Supreme Court decided on a 6–3 vote that a prior restraint could not be imposed on publication of the Pentagon Papers. The per curiam opinion noted that the government “carries a heavy burden of showing justification for the imposition of such a restraint” and stated that the government had failed to meet that burden. The brief opinion reflected the widely varying views of the nine justices. The Court could not agree on a precise standard for determining when the government may impose a prior restraint on free speech or even whether the government could ever impose a prior restraint. In concurring opinions, Justices HUGO L. BLACK and WILLIAM O. DOUGLAS both stated, in very strong language, that prior restraints on the freedom of expression are never justified, no matter what the circumstances. Black, com- menting on the government’s argument that prior restraints might be justified in certain circumstances, stated, “I can imagine no greater perversion of history 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.” Black and Douglas both believed that “every moment’s CONTINUANCE of the injunctions amounts to a flagrant, indefensible, and continuing viola- tion of the First Amendment.” The other four justices who concurred in the judgment, Justices WILLIAM J. BRENNAN JR., POTTER STEWART, BYRON R. WHITE, and THURGOOD MARSHALL , each believed that the government could impose a prior restraint in certain extr a- ordinary circumstances, such as where the publication of information could endanger U.S. soldiers, but that those circumstances were not present in the Pentagon Papers case. Stewart was the only justice who offered a standard for determining when a prior restraint could be imposed, stating that a prior restraint would be appropriate only where publication “will surely result in direct, immediate, and irreparable damage to our Nation or its people.” White, while agreeing that the circumstances did not warrant a prior restraint on the publication of the Pentagon Papers, opined that the news- papers might be criminally liable under ESPIO- NAGE laws if they published sensitive national secrets. Marshall based his argument on the SEPARATION OF POWERS of the three branches of the government. He believed that, because Con- gress had declined to pass a statute authorizing the courts to enjoin publication of sensitive national secrets, the Supreme Court lacked authority to enjoin publication of the Pentagon Papers. Chief Justice WARREN E. BURGER, Justices JOHN MARSHALL HARLAN, and HARRY A. BLACKMUN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 264 NEW YORK TIMES CO. V. UNITED STATES dissented, all strongly objecting to the “un- seemly haste” with which the courts had heard and decided the case. Harlan stated, “With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases.” Blackmun commented: [T]his, in my opinion, is not the way to try a lawsuit of this magnitude and asserted importance. It is not the way for federal courts to adjudicate, and be required to adjudicate, issues that allegedly concern the Nation’s vital welfare. The country would be none the worse off were the cases tried quickly to be sure, but in the customary and properly deliberative manner. The dissenting justices thu s believed that the publication of the Pentagon Papers should have been enjoined until the courts had ade- quate time to evaluate carefully the legal issues and the impact of publication of the documents on the interests of the United States. The decision was hailed as a great victory for advocates of FREEDOM OF THE PRESS. For the first time in the nation’s history, the government had succeeded, if only durin g the appeals of the case, in precluding the press from publishing news in its possession. At least in the circum- stances presented by the case, however, the Supreme Court held that such a prior restraint on freedom of speech violates the First Amendment. The practical effect of the deci- sion, which carefully avoided any mention of the contents of the Pentagon Papers, was far less dramatic than suggested by the attention it received. The newspapers never did publish the portions of the Pentagon Papers that the government claimed were the most sensitive. In addition, further publication of the Pentagon Papers by newspap ers around the country did not attract a great deal of attention or significantly affect the United States’ policy on Vietnam. The Pentagon Papers case remains, however, an important precedent in support of freedom of the press under the First Amendment. FURTHER READINGS Glendon, William R. 1993. “Fifteen Days in June That Shook the First Amendment: A First Person Account of the Pentagon Papers Case.” New York State Bar Journal 65 (November). Godofsky, Stanley, and Howard M. Rogatnick. 1988. “Prior Restraints: The Pentagon Papers Case Revisited.” Cumberland Law Review 18 (spring). Gora, Joel M. 1998. “The Pentagon Papers Case and the Path Not Taken: A Personal Memoir on the First Amendment and the Separation of Powers.” Cardozo Law Review 19 (March). Practicing Law Institute (PLI). 1996. The Pentagon Papers: Excerpts from the Record, by William R. Glendon. Patents, Copyrights, Trademarks, and Literary Property Course Handbook series, PLI order no. G4-3963. Rosen, James. 2008. The Strong Man: John Mitchell and the Secrets of Watergate. New York: Doubleday. Rudenstine, David. 1998. The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley: University of California Press. Salisbury, Harrison E. 1980. Without Fear or Favor: The New York Times and Its Times. New York: Times Books. Seymour, Whitney North, Jr. 1994. “Press Paranoia— Delusions of Persecution in the Pentagon Papers Case.” New York State Bar Journal 66 (February). CROSS REFERENCES Executive Branch; First Amendment; Freedom of Speech; Precedent; Prior Restraint. NEWS REPORTER’S PRIVILEGE See EVIDENCE. v NEWTON, HUEY PERCY Huey Percy Newton was a cofounder and leader of the BLACK PANTHER PARTY FOR SELF-DEFENSE,a group formed in 1966 in Oakland to organize African Americans against police brutality and racism. Convicted or charged with several murders and assaults during his life, Newton was shot and killed in 1989 in the same poor Oakland neighborhood where he had begun mobilizing African Americans to arm them- selves in SELF-DEFENSE more than twenty years earlier. Newton was born on February 17, 1942, in New Orleans, the son of a sharecropper who was once nearly lynched for talking back to his white bosses. When Newto n was one year old, his family moved to Oakland. By the time he was 14, Newton had been arrested for gun possession. He was illiterate when he graduated from high school, but he taught himself to read before attending Merritt College in Oakland and the San Francisco School of Law. In 1966 while at Merritt he met BOBBY SEALE, with whom he formed the Black Panther Party for Self- Defense in response to Malcolm X’s call to African Americans to take up arms to defend themselves against the police. The armed and uniformed Panthers patrolled Oakland streets, interrupting arrests and other police activ ities when they believed that African Americans were being mistreated. I SUGGESTED THAT WE USE THE PANTHER AS OUR SYMBOL [ BECAUSE] THE PANTHER IS A FIERCE ANIMAL , BUT HE WILL NOT ATTACK UNTIL HE IS BACKED INTO A CORNER ; THEN HE WILL STRIKE OUT . —HUEY NEWTON GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NEWTON, HUEY PERCY 265 Newton was designated minister of defense and was a spokesperson for the party. The party drew national attention in May 1967, when six armed Panthers and about 20 supporters burst into the California Assembly at Sacramento to protest its plan to ban possession of loaded firearms within city limits. Though Newton did not participate in that event, the Oakland police increased their surveillance on him and his fellow Panthers. On October 28, 1967, a scuffle during a routine traffic check escalated into a gun battle that left Newton with a bullet wound in his stomach, one police officer dead, and another wounded. Newton was convicted in 1968 of voluntary MANSLAUGHTER, but the California Court of Appeals overturned the conviction in 1970 because of the omission of key jury instructions. Newton’s second and third trials ended in hung juries, and the charges were dismissed in 1972. Newton’s political agenda for the Black Panthers had moved beyond issues of police brutality to a Marxist revolutionary call for change in U.S. society. Newton called for the release of all African Americans from jail and for the payment of compensation to African Americans for centuries of economic exploita- tion by white America. When Newton was released from prison in 1972 following his successful appeal of the manslaughter charge, Black Panther Party mem- bership in forty-five cities had fallen to fewer than one thousand people. J. EDGAR HOOVER, head of the FEDERAL BUREAU OF INVESTIGATION (FBI), had targeted the Panthers as a dangerous, politically subversive group. The FBI used informants and fake documents and letters to undermine the party. Panthers in many cities were subjected to local police harassment as well. In addition, Newton became embroiled in a dispute over the direction of the party with ELDRIDGE CLEAVER, the party’s minister of information. By the mid-1970s, the Black Panthe rs had abandoned their violent image and had begun community service programs, including free health clinics, a children’s breakfast program, Huey Percy Newton 1942–1989 ❖ ❖ ◆ 1942 Born, New Orleans, La. ◆◆ 1945 Family moved to Oakland, Calif. 1989 Sentenced to 6 months for stealing; killed in front of his Oakland, Calif., house 1964 Convicted of assault with a deadly weapon 1961–73 Vietnam War 1939–45 World War II 1980 Earned Ph.D. from University of California at Santa Cruz 1950–53 Korean War ▼▼ ▼▼ 19751975 20002000 19501950 1974 Fled to Cuba to avoid murder charge ◆ ◆◆ 1968 Convicted of voluntary manslaughter 1966 Founded the Black Panther Party for Self-Defense with Bobby Seale ◆ 1967 Black Panthers burst into California Assembly to protest ban on loaded firearms possession; traffic stop led to gun battle in which Newton was wounded and a policeman killed ◆ 1970 California Court of Appeals overturned conviction ◆ 1977 Returned to U.S. to face trial; two trials ended in hung juries 1985 Charged with additional weapons violations ◆ Huey Newton. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 266 NEWTON, HUEY PERCY and drug abuse counseling. By the early 1980s, however, the Black Panthers had effectively disbanded. Newton’s role in the Black Panthers gradu- ally diminished in the 1970s, as he had to contend with new criminal charges. In 1974 he was charged with murdering a 17-year-old girl and later with pistol-wh ipping a tailor. He fled to Cuba to avoid prosec ution but returned in 1977. His two murder trials ended in hung juries, and the assault case was dropped when the tailor refused to testify. Newton was found guilty in 1978 of being an ex-felon in possession of a handgun and was found guilty of a second count of the same charge in 1979. During this period he worked on the completion of his doctoral dissertation at the University of California at Santa Cruz. He was awarded a Ph.D. degree in 1980 for his work, “War Against the Panthers: A Study of Repres- sion in America.” After lengthy appeals Newton was sentenced in 1981. He was charged with additional weapons violations in 1985 but was acquitted by a jury in 1986. After being paroled on the earlier weapons charges, he was returned to prison twice for violation of PAROLE following arrests for possession of narcotics paraphernalia and failure to submit to required drug testing. Newton’s downward spiral continued. In March 1989 he was sentenced to six months in jail after PLEADING no contest to a charge of cashing for his own use a $15,000 state aid check earmarked for the Oakland Community School, w hich the Black Panther party operated. The school had been closed in 1982 in the face of allegations that federal and state funds had been misused. Newton was found shot dead on an Oakland street on August 22, 1989. FURTHER READINGS Jeffries, Judson L. 2002. Huey P. Newton: The Radical Theorist. Jackson: Univ. Press of Mississippi. Newton, Huey P. 2000. War Against the Panthers: A Study of Repression in America. New York: Harlem River. PBS. 2002. “A Huey P. Newton Story.” Available online at http://www.pbs.org/hueypnewton (accessed August 17, 2009). Pearson, Hugh. 1995. The Shadow of the Panther: Huey Newton and the Price of Black Power in America. New York: Da Capo. NEXT FRIEND An individual who acts on behalf of another individual who does not have the legal capacity to act on his or her own behalf. The individual in whose name a minor’slawsuit is brought, or who appears in court to represent such minor’s interest. The French term prochein ami has been used to designate such an individual, but the term guardian ad litem is more commonly used. At COMMON LAW,whenanindividualwas unable to look after his or her own interests or manage his or her lawsuit, the court would appoint a person to represent that individual’s legal interests. This person was called a next friend, which is derived from the French term prochein ami. Individuals requiring a next friend included minors, persons who were mentally ill or mentally retarded, infirm or senile persons, and others whose disabilities prevented them from managing their affairs. One notable use of next-friend status was during the many suits brought by Guanta- namo Bay detainees prior to the enactment of the M ilitary Commissions A ct of 2 006. The THIRD PARTY petitioner seeking next- friend status is required to provide a reasonable, adequate explanation to the court why the real party in interest cannot appear in court on their own behalf. These reasons may include a person’s minor status, language barriers, mental impairment, physical impairment, illiteracy, geographic remoteness from the court or counsel, their inability to act with the capacity needed to act with the dispatch to file the requisite papers, or varying other conditions that render the detainee’s own actions involuntary. State statutes now set the qualifications and duties of a person who acts as a next friend, but these laws more commonly designate this person a guardian ad litem, or a court-appointed special advocate. Regardless of the designation, this person’s responsibilities are now confined to representing a minor or incompetent person in a lawsuit or court proceeding. At common law, a next friend represented a PLAINTIFF, whereas a guardian ad litem represented a DEFENDANT. This distinction has been removed in modern law. A next friend is not a party to a lawsuit but an officer of the court. When the lawsuit is concluded, the next friend’s duty ends. The next friend has no right to control the property of the person he or she represents or to assume CUSTODY of that person. These rights may be given to a person designated by a court as a minor’s or incompetent person’s guardian. Guardians ad litem are commonly used in family and juvenile courts, where the best interests of the child require an independent, neutral person to safeguard the child’srights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NEXT FRIEND 267 . CONSTITUTION OF 177 7 The first constitution of the state of New York was adopted on Sunday, April 20, 177 7, at Kingston, New York, by a convention of delegates empowered by the people of the colony. ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 260 NEW YORK CONSTITUTION OF 177 7 revisions and some major ones, it was read and adopted by a vote of 32–1. John Jay was not present for the adoption of the. Connecticut, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION NEW PARTY 259 Delaware, Mississippi, New York, South Car- olina, South Dakota, Utah, and Vermont. In 1994 the Twin Cities chapter of the