Prior Restraint and the First Amendment

In 1791, America formally adopted the first ten amendments to the Constitution, known as the Bill of Rights, marking a significant moment in its history. The Bill of Rights, drafted by James Madison, was designed to restrict government power and protect individual freedoms through the precise language of the amendments.

The First Amendment reflects these democratic ideals and reads, in relevant part, “Congress shall make no law…abridging the freedom of speech, or of the press…"

This means Congress may not infringe upon these rights to free speech and a free press. The First Amendment protects them.

The U.S. Supreme Court has interpreted the First Amendment to mean this limitation on federal lawmaking extends to the states and government action of any kind (at any level) restricting these freedoms. In other words, government infringement upon our rights to free speech and a free press may take many forms, including:

• State laws

• District court injunctions

• Local ordinances

• Federal regulatory schemes

• State agency action

When analyzing these restrictions, we often refer to them broadly as state action or government action.

The Court has also clarified that speech protected by the First Amendment includes conduct and expression. For example, parades, messaging on a t-shirt, and refusal to salute the American flag are all forms of speech protected by the First Amendment.

Not all restrictions on speech and the press violate the First Amendment. If a law regulating speech, for example, is consistent with the First Amendment, then it doesn’t infringe upon it. In other words, it may be a permissible restriction on speech. To make these determinations, the Supreme Court has established judicial precedent that provides some guidance.

What Is Prior Restraint?

Claims that a restriction violates our First Amendment rights can be based on several legal theories. One such theory is the doctrine of prior restraint. Generally speaking, prior restraint refers to government restrictions on speech or expressions before they’re expressed or published.

Therefore, a prior restraint can be present if the state prohibits certain communications before they’re expressed or requires government approval before speaking or publication.

Prior restraint most commonly pertains to published materials, but it can apply to any expression.

Some examples of prior restraint include:

• A law prohibiting the publication of certain information

• An injunction restricting someone from speaking about a particular topic

• A regulatory scheme that mandates pre-publication government approval of communications  

Although not all prior restraints violate the First Amendment, they are considered particularly dangerous because they mirror the type of government censorship the Bill of Rights sought to avoid.

How Has the Supreme Court Dealt with Prior Restraint Cases?

In Nebraska Press Association v. Stuart, the Supreme Court deemed prior restraint on speech to be “the most serious and the least tolerable infringement on First Amendment rights.” As a result, they are generally prohibited.

The Supreme Court has acknowledged that there are certain industries and businesses the state has an interest in licensing for regulatory purposes that have nothing to do with the suppression of free speech, like safety and health. Therefore, prior restraints aren’t considered automatically unconstitutional.

However, as the Court established in Bantam Books, Inc. v. Sullivan, any system of prior restraints is subject to a “heavy presumption” of invalidity. Consequently, the government bears a considerable burden of demonstrating that imposing a prior restraint is justifiable.

We discuss more Supreme Court decisions related to prior restraint below.

Near v. Minnesota

In 1931, the Court established the doctrine of prior restraint in the landmark case Near v. Minnesota. The Near Court dealt with a state nuisance law that prohibited “malicious, scandalous and defamatory” content in publications. The law allowed the state to issue injunctions for violations to prevent the future publication of such content.

A local newspaper published articles attacking the integrity of several city officials and accusing them of ties with local gangsters. The state court then issued a permanent injunction preventing the future publication of that paper.

Chief Justice Hughes explained that the very meaning of a free press is the absence of prior restraints on publications. Minnesota’s statutory scheme, therefore, was “the essence of censorship.” Because the law constituted a prior restraint, Hughes continued, it infringed upon the First Amendment’s freedom of the press.

In setting forth this new doctrine of prior restraint, the Court also recognized “exceptional cases” in which prior restraint was permissible, including:

• Obscenity

• Incitements to violence

• Wartime

Lovell v. City of Griffin

Seven years later, the Court addressed the constitutionality of a Georgia city ordinance in Lovell v. City of Griffin. The local law required the city manager’s prior approval for the distribution of literature.

This type of license law, where permission must be obtained from a local authority to do something, stems from the old British licensing system. Until 1695, publishers needed a license to publish anything, and nothing could be published without state or church approval.

In Lovell, the Court unanimously determined that the license requirement was an unconstitutional prior restraint. The Court explained the ordinance was invalid because “it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship.” After all, the fight for a free press was historically rooted in a fight for the right to publish without a license.

Freedman v. Maryland

In Freedman v. Maryland, the Court tackled movie censorship in the form of a licensing scheme. Specifically, Maryland law required prior approval of films by a censorship board before they could be shown in the state.

The Court determined the licensing scheme was an unconstitutional prior restraint because there was no recourse available to film exhibitors and distributors other than litigation. The law lacked an opportunity for timely and impartial review of censorship determinations. As a result, it didn’t adequately protect against improper restrictions on protected expression.

The Court held the licensing scheme impermissibly infringed upon the First Amendment rights of the film professionals. It further established a three-pronged procedural standard for prior restraints to ensure adequate safeguards:

1. The government entity seeking to impose the prior restraint on speech must bear the burden of proof in court.

2. The prior restraint may only be imposed for a “specified brief period.” The status quo must be maintained for this period.

3. Prompt judicial review of restraint decisions must be available.

Licensing schemes must satisfy this standard to avoid being considered invalid prior restraints. This constitutional standard has been utilized in several subsequent cases to evaluate the validity of prior restraint licensing schemes.

New York Times Co. v. United States

New York Times Co. v. United States marked another landmark prior restraint decision by the Supreme Court. In this case, commonly referred to as the Pentagon Papers case, the New York Times and the Washington Post obtained leaked copies of classified government study papers. These “Pentagon Papers” contained sensitive information and secrets about America’s involvement with Vietnam and the Vietnam War.

The Nixon administration sought an injunction to block the publication of the leaked papers. It cited national security concerns as the reason for the prior restraint. The Court determined the administration fell short of establishing that the national security concerns associated with publishing the leaked material outweighed the papers’ First Amendment rights.

In a 6-3 decision, the Court held that the Nixon administration didn’t meet its burden of overcoming the heavy presumption of constitutional invalidity. The per curiam opinion, however, didn’t define this burden, and each Justice wrote their own opinion. Justice Brennan referred to the now-discredited clear-and-present-danger test in his concurring opinion.

Justice White’s concurring opinion cautioned against assigning the executive branch power to censor without legislative authorization. Justices Black and Douglas also wrote concurring opinions rejecting all prior restraints on the press. They emphasized the importance of an unrestrained press in exposing government deception.

Chief Justice Burger and Justices Blackmun and Harlan wrote separate dissenting opinions. Notwithstanding, this case is widely regarded as a free-press win against government censorship.

Nebraska Press Association v. Stuart

In Nebraska Press Association v. Stuart, the Court addressed the constitutionality of a prior restraint in the form of a gag order. Specifically, a trial judge ordered an injunction prohibiting the publication of information that could potentially prejudice an upcoming trial. He issued the gag order to protect the criminal defendant’s Sixth Amendment right to a fair trial in a highly sensationalized murder case.

However, the Court determined that this prior restraint violated the First Amendment because less restrictive means to ensure the defendant’s right to a fair trial were available. These alternatives included a venue change and a trial delay, amongst other options that didn’t restrict a free press.   

Smith v. Daily Mail Publishing Co.

In 1979, the Court decided Smith v. Daily Mail Publishing Co. In this case, the Court addressed the constitutionality of a West Virginia law. The state law criminalized press publication of a juvenile offender’s name without a juvenile court order. The Court unanimously held the law to be an unconstitutional prior restraint. It explained that the press can’t be penalized for publishing truthful information that it lawfully obtained.

The First Amendment’s free speech and free press protections continue to play an important role in sustaining our democracy. The marketplace of ideas demands public discourse and an unrestrained media to address topics of public concern. As a result, the courts seldom uphold prior restraints on speech. However, the digital age presents us with some challenges surrounding online publications and social media that may redefine or reinforce the contours of this body of law.