Prior Restraints on Speech

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has recognized that “liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.” 1 Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities.2 The great struggle for liberty of the press was for the right to publish without a license what for a long time could be published only with a license.3 Given this history, the Supreme Court reviews “[a]ny system of prior restraints of expression” with “a heavy presumption against its constitutional validity.” 4 To state this another way, the government “carries a heavy burden of showing justification for the imposition of such a restraint.” 5

The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson, in which a 5-4 majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an “obscene, lewd and lascivious” or a “malicious, scandalous and defamatory” issue.6 An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters.7 Although the dissenters maintained that the injunction constituted no prior restraint, because that doctrine applied to prohibitions of publication without advance approval of an executive official,8 the majority deemed it “the essence of censorship” that, in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge.9 Recognizing that liberty of the press to scrutinize closely the conduct of public affairs was essential, Chief Justice Charles Hughes stated: “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.” 10 The Court, however, did not explore the kinds of restrictions to which the term “prior restraint” would apply other than to assert that prior restraint would only be permissible in “exceptional cases.” 11

The Supreme Court has written that “[t]he special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment.” 12 The prohibition on prior restraint, thus, essentially limits restraints until a final judicial determination is made that the First Amendment does not protect the restricted speech. For example, it limits temporary restraining orders and preliminary injunctions pending final judgments rather than permanent injunctions following final judgments that the First Amendment does not protect the restricted speech.13

In a number of cases during the mid-1900s, the Court invoked the doctrine of prior restraint to strike down restrictions on First Amendment rights, including a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them.14 The doctrine that generally emerged from these early cases was that permit systems and prior licensing are constitutionally valid so long as the issuing official’s discretion was limited to questions of time, place, and manner.15 In a 1965 opinion, Freedman v. Maryland, the Supreme Court clarified that in the noncriminal context, a prior restraint may be upheld only if it contains certain procedural safeguards.16 First, the burden must be on the government to prove that the speech is unprotected.17 Second, the restraint may not “be administered in a manner which would lend an effect of finality to the censor’s determination whether [speech] constitutes protected expression.” 18 To meet this second requirement, a statute or “authoritative judicial construction” must ensure “that the censor will, within a specified brief period, either issue a license or go to court to restrain” the speech.19 Content-neutral time, place, and manner regulations do not have to satisfy the procedural safeguards of Freedman—although pursuant to those early cases, they still must “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.” 20

The Court has also encountered the doctrine in the national security area, for example, when the government attempted to enjoin press publication of classified documents pertaining to the Vietnam War21 and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that, in some circumstances, prior restraint of publication would be constitutional.22

Confronting a claimed conflict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant.23 Though agreed as to the result, the Justices were divided as to whether “gag orders” were ever permissible and if so what the standards for imposing them were. The majority opinion used a now-discredited formulation of the “clear and present danger” test and considered as factors in any decision on the imposition of a restraint upon press reporters “(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.” 24 Though the Court found that one seeking a restraining order must meet “the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied,” it refused to “rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.” 25 On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart, the Court determined that such orders protecting parties from abuses of discovery require “no heightened First Amendment scrutiny.” 26

1: Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).
2: 3 Joseph Story, Commentaries on the Constitution of the United States § 1876 (1833).
3: Lovell v. Griffin, 303 U.S. 444, 451 (1938); Near, 283 U.S. at 713.
4: Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963).
5: Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
6: Near, 283 U.S. at 702, 723.
7: Id. at 704.
8: Id. at 733–36 (Butler, J., dissenting).
9: Id. at 713 (majority opinion).
10: Id. at 720 (emphasis added).
11: Id. at 716.
12: Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels., 413 U.S. 376, 390 (1973); see also Vance v. Univ. Amusement Co., 445 U.S. 308, 315–16 (1980) ( “[T]he burden of supporting an injunction against a future exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication.” ).
13: See Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 169–71 (1998).
14: E.g., Lovell v. Griffin, 303 U.S. 444 (1938); Cantwell v. Connecticut, 310 U.S. 296 (1940); Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268 (1951); Staub v. City of Baxley, 355 U.S. 313 (1958). For other applications, see Grosjean v. American Press Co., 297 U.S. 233 (1936); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944). Some of these cases involved both free speech and free exercise rights. See Amdt1.4.3.1 Laws Neutral to Religious Practice during the 1940s and 1950s.
15: Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New Hampshire, 345 U.S. 395 (1953). In Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968), the Court held invalid the issuance of an ex parte injunction to restrain the holding of a protest meeting. The Carroll Court held that usually notice must be given the parties to be restrained and an opportunity for them to rebut the contentions presented to justify the sought-for restraint. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Court held invalid as a prior restraint an injunction preventing the petitioners from distributing 18,000 pamphlets attacking respondent’s alleged “blockbusting” real estate activities; he was held not to have borne the “heavy burden” of justifying the restraint. The Court stated: “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy . . . is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.” Id. at 419–20. See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property is facially invalid as prior restraint).
16: Freedman v. Maryland, 380 U.S. 51, 58 (1965).
17: Id.
18: Id.
19: Id. at 59. The Court further explained that “[a]ny restraint imposed in advance of a final judicial determination on the merits must . . . be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution,” and “the procedure must . . . assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.” Id. at 59. The necessity of immediate appellate review of orders restraining the exercise of First Amendment rights was strongly emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977), and seems to explain the Court’s action in Philadelphia Newspapers v. Jerome, 434 U.S. 241 (1978). But see Moreland v. Sprecher, 443 U.S. 709 (1979) (party can relinquish right to expedited review through failure to properly request it).
20: Thomas v. Chi. Park Dist., 534 U.S. 316, 322–23 (2002).
21: New York Times Co. v. United States, 403 U.S. 713 (1971). The vote was 6-3, with Justices Hugo Black, William O. Douglas, William Brennan, Potter Stewart, Byron White, and Thurgood Marshall in the majority and Chief Justice Warren Burger and Justices John Harlan and Harry Blackmun in the minority. Each Justice issued an opinion.
22: The three dissenters thought such restraint appropriate in this case. Id. at 748, 752, 759. Justice Potter Stewart thought restraint would be proper if disclosure “will surely result in direct, immediate, and irreparable damage to our Nation or its people,” id. at 730, while Justice Byron White did not endorse any specific phrasing of a standard. Id. at 730–33. Justice William Brennan would preclude even interim restraint except upon “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” Id. at 712–13. With respect to the right of the Central Intelligence Agency to prepublication review of the writings of former agents and its enforcement through contractual relationships, see Snepp v. United States, 444 U.S. 507 (1980); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975), cert. denied, 421 U.S. 992 (1975); United States v. Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).
23: Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).
24: Id. at 562 (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950), aff’d, 341 U.S. 494, 510 (1951)). Applying the tests, the Court agreed that (a) there was intense and pervasive pretrial publicity and more could be expected, but that (b) the lower courts had made little effort to assess the prospects of other methods of preventing or mitigating the effects of such publicity and that (c) in any event the restraining order was unlikely to have the desired effect of protecting the defendant’s rights. Id. at 562–67. For more information on the Court’s movement away from the clear-and-present danger standard, see Amdt1.7.5.3 Incitement Movement from Clear and Present Danger Test.
25: Nebraska Press Ass’n, 427 U.S. at 569–70. The Court distinguished between reporting on judicial proceedings held in public and reporting of information gained from other sources, but found that a heavy burden must be met to secure a prior restraint on either. Id. at 570. See also Oklahoma Publ’g Co. v. Dist. Ct., 430 U.S. 308 (1977) (setting aside injunction restraining news media from publishing name of juvenile involved in pending proceeding when name has been learned at open detention hearing that could have been closed but was not); Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979).
26: 467 U.S. 20, 36 (1984). The decision was unanimous, all other Justices joining Justice Lewis Powell’s opinion for the Court, but Justices William Brennan and Thurgood Marshall noting additionally that under the facts of the case important interests in privacy and religious freedom were being protected. Id. at 37, 38.