In this case, a journalist was convicted of threatening to disseminate nude photographs of a woman who rejected his romantic advances. One part of the sentence was that the defendant must seek approval from the district court if he wants to publish anything about the female victim. Does this part of the sentence violate the First Amendment?
The case is United States v. Farooq, issued on January 30. The woman is referred to as Jane Doe in the opinion. After Doe rejected Farooq's advances, he somehow got ahold of nude photos of her without her consent. He threatened to publish the photos in retaliation. This threat was especially problematic because Doe isfrom a conservative Paskistani community where women may be harmed or killed if they bring dishonor on their families. Farooq was arrested in Brooklyn over this and found guilty of extortion. He challenges a portion of the sentence that requires him to get permission from the court if he wants to publish anything about Doe in the future.
Were this any other case, this prior restraint would be struck down by the Court of Appeals so fast it would make your head spin. Courts cannot restrict your speech in advance. But this is a criminal case involving serious charges against the defendant. The government can enforce a prior restraint for compelling reasons, and if the restraint is narrowly tailored to that compelling interest.
Not every First Amendment restriction in a criminal case is upheld. Even convicts have some constitutional rights. The Second Circuit (Kearse, Menashi and Park) cites a few cases to illustrate this point. "We have thus vacated overly broad conditions of supervised release implicating First Amendment rights. In one case, the Court rejected as unconstitutional a condition of supervised release prohibiting defendant from engaging in internet speech “that promotes or endorses violence, unlawful activity, or any groups that espouse such ideas.” But another case upheld as constitutional a condition prohibiting association with groups advocating noncompliance with tax laws.
This case involves a narrowly-tailored speech restriction that satisfies a compelling interest, as it relates directly to the defendant's crime, the defendant was found to have violate court orders in this case,and the speech restriction relates only to the victim in this case and not defendant's speech in general.