Malcolm Rivera
Prior restraint is a form of censorship imposed by a government or institution that prohibits particular instances of expression by preventing them from being heard or distributed. It is considered a violation of the First Amendment, which protects freedom of speech and freedom of the press. While prior restraint is usually prohibited, there have been exceptional cases where it has been deemed permissible by the courts, such as in the interest of national security or to control obscenity. The courts have also established a three-pronged procedural standard for prior restraints to ensure adequate safeguards, placing the burden of proof on the government entity seeking to impose the restraint. The constitutionality of prior restraint remains a complex and evolving issue, with no cohesive doctrine, and it continues to be a subject of legal debate and scrutiny.
| Characteristics | Values |
|---|---|
| Definition | Prior restraint is a form of censorship that allows the government to review the content of printed materials and prevent their publication. |
| Legal status | The First Amendment prohibits prior restraint, but it does not protect publishers from prosecution for the content of their materials. |
| Court rulings | In Near v. Minnesota (1931), the Supreme Court ruled that prior restraint is unconstitutional, except in extremely limited circumstances. In New York Times Co. v. United States (1971), the Supreme Court ruled that newspapers could publish classified information under the no prior restraint doctrine. |
| Justifications | Justifications for prior restraint include national security, protecting victims of involuntary pornography or rape, and preserving the integrity of judicial proceedings. |
| Criticism | Prior restraint is considered oppressive as it prevents restricted material from being heard or distributed. It is also seen as detrimental to democracy. |
Explore related products
What You'll Learn
Prior restraint and the First Amendment
Prior restraint, also known as prior censorship or pre-publication censorship, is a form of censorship imposed by a government or institution that prohibits particular instances of expression. It is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents restricted material from being heard or distributed. The First Amendment, which guarantees freedom of speech and freedom of the press, is frequently at odds with the practice of prior restraint.
The First Amendment sets a high bar for limiting speech, and prior restraints on expression are generally presumed to be unconstitutional. The government must demonstrate a compelling interest and that the restriction is narrowly tailored to achieve that interest. Courts have held that prior restraints are only allowed in limited circumstances, such as when the speech falls into a "low-value" category with no First Amendment protection, like obscenity, or when the speech could cause irreversible harm and no after-the-fact punishment can offer protection.
In the United States, the Supreme Court has played a significant role in interpreting the First Amendment and addressing prior restraint. In the landmark case Near v. Minnesota, the Court struck down a state law that authorized the permanent injunction of future violations by any newspaper found to have published obscene or defamatory content. The Court held that the law infringed upon the First Amendment's freedom of the press, characterizing it as the essence of censorship. This decision established a precedent for protecting the liberty of the press and set a high standard for justifying prior restraints.
Despite the strong presumption against prior restraint, there have been exceptional cases where the Supreme Court has recognized its permissibility. For instance, in Hazelwood School District v. Kuhlmeier, the Court held that educators have a higher degree of control over student-run newspapers in public schools compared to government control over professional newspapers. Additionally, in Schenck v. United States, the Court acknowledged the possibility of prior restraints during times of war or national security concerns.
While prior restraint remains a contentious issue, the emergence of the digital age and the proliferation of online publications and social media platforms have introduced new challenges and considerations for interpreting the First Amendment and applying the doctrine of prior restraint.
Founding Fathers' Motivation Behind the Constitution
You may want to see also
Prior restraint in the US
Prior restraint is a form of censorship that allows the government to review the content of printed materials and prevent their publication. It is generally considered a violation of the First Amendment, which protects freedom of speech and freedom of the press. The Founding Fathers created the First Amendment to ensure that the type of prior restraint that existed in Britain in the 1500s—which required printers to obtain licenses to control what was published—would not occur in the US.
The Supreme Court has indicated that the Constitution establishes a strong presumption against prior restraints. In Near v. Minnesota (1931), the Supreme Court struck down the Minnesota Public Nuisance Abatement Law, which barred the publication of malicious or defamatory materials, as unconstitutional governmental censorship of media publications. The Court in Near, however, left open the possibility of prior restraints in exceptional cases, such as national security, control of obscenity, and the like. In Schenck v. United States, the Court wrote that when a nation is at war, certain things may be such a hindrance to its effort that their utterance will not be endured for as long as the war lasts, and no Court could regard them as protected by any constitutional right.
Subsequent cases have further illuminated the doctrine of prior restraint. In New York Times Co. v. United States (1971), also known as the Pentagon Papers case, the Supreme Court ruled that despite the sensitive nature of the information, the newspapers could still publish it under the no prior restraint doctrine. The Court determined that the Nixon administration did not meet its burden of overcoming the heavy presumption of constitutional invalidity. In Smith v. Daily Mail Publishing Co. (1979), the Court held that a West Virginia law criminalizing press publication of a juvenile offender's name without a juvenile court order was an unconstitutional prior restraint, as the press cannot be penalized for publishing truthful information that it lawfully obtained.
While prior restraint is generally unconstitutional, there are limited circumstances in which it may be allowed. These include speech that is of low value, such as obscenity, and speakers who have less First Amendment protection, like public school students working on a school-sponsored publication.
Harvard Medical School's Guide to a Healthy Diet
You may want to see also
Prior restraint in the UK
Prior restraint, also known as prior censorship or pre-publication censorship, is a form of censorship imposed, typically by a government or institution, that prohibits particular instances of expression. It is often deemed a particularly oppressive form of censorship as it prevents restricted material from being heard or distributed at all.
In the UK, the concept of freedom of speech and the press has been extended to protect honest error or truth, even if published for questionable reasons. This is a development of the common legal understanding at the time the US Constitution was adopted, which held that freedom of the press meant immunity from previous restraints or censorship.
The English licensing system, which expired in 1695, required all printing presses and printers to be licensed, with nothing able to be published without prior approval from the state or church authorities. The struggle for liberty of the press was for the right to publish without a license.
In the case of Patterson v. Colorado, the Court wrote that the main purpose of constitutional provisions was "to prevent all such previous restraints upon publications as had been practiced by other governments," indicating that subsequent punishment for publications deemed contrary to the public welfare was acceptable.
The UK shares a legal tradition with the US and other countries, and prior restraint is forbidden in the US and some other countries by their respective constitutions. However, the UK does not have a codified constitution, and while it does have a bill of rights, it does not include freedom of speech. Instead, the UK relies on common law and judicial precedent to protect freedom of expression.
Therefore, while prior restraint may be unconstitutional in countries with a written constitution guaranteeing freedom of speech, the UK's uncodified constitution and lack of an explicit freedom of speech provision make it difficult to determine whether prior restraint would be considered unconstitutional in the UK context.
Private Businesses: Constitutional Rights and Obligations?
You may want to see also
Explore related products
Prior restraint and freedom of speech
Prior restraint, also known as prior censorship or pre-publication censorship, is a form of censorship imposed by a government or institution that prohibits particular instances of expression. It is often considered a particularly oppressive form of censorship as it prevents restricted material from being heard or distributed at all. The Founding Fathers created the First Amendment to ensure that prior restraint would not occur in the United States.
The First Amendment sets a high bar for limiting speech and demands that all non-harmful speech be allowed. The government must demonstrate that any law, regulation, or punishment directed at an individual's speech must directly prevent a specific harm. For example, in Smith v. Daily Mail Publishing Co., the Court held that the press cannot be penalized for publishing truthful information that it lawfully obtained.
However, prior restraint is not always unconstitutional. The Court in Near v. Minnesota left open the possibility of prior restraints for exceptional purposes, such as national security, control of obscenity, and public welfare. In such cases, the government must bear the burden of showing the restraint's constitutionality. The Court also established a three-pronged procedural standard for prior restraints to ensure adequate safeguards: the government entity seeking to impose the restraint must bear the burden of proof in court; the restraint may only be imposed for a brief period; and prompt judicial review of restraint decisions must be available.
While prior restraint is generally considered a violation of free speech, there are certain circumstances in which it may be deemed necessary, such as in cases of national security or to prevent irreversible harm. The Supreme Court has held that the prohibition on prior restraint is a limitation on restraints until a final judicial determination that the restricted speech is not protected by the First Amendment.
The Veto Power: Understanding Legislative Branch's Authority
You may want to see also
Prior restraint and freedom of the press
Prior restraint is a form of censorship that allows the government to review the content of printed materials and prevent their publication. It is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents restricted material from being heard or distributed at all. In some countries, like the United States and Argentina, prior restraint by the government is forbidden by their respective constitutions.
The First Amendment of the US Constitution guarantees freedom of speech and freedom of the press. It states that "Congress shall make no law [...] abridging the freedom of speech, or of the press". The Supreme Court has indicated that the Constitution establishes a strong presumption against prior restraints. The founding fathers viewed the practice of prior restraint as detrimental to democracy.
In the case of Near v. Minnesota (1931), the Supreme Court ruled against a law that barred the publication of malicious or defamatory materials. The Court deemed the law "the essence of censorship" and overturned the gag order, reinforcing the no prior restraint doctrine. The Court, however, left open the possibility of prior restraints in exceptional cases, such as national security or control of obscenity.
In another case, Smith v. Daily Mail Publishing Co. (1979), the Court addressed the constitutionality of a West Virginia law that 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, emphasizing that the press cannot be penalized for publishing truthful information that it obtained lawfully.
The digital age presents challenges surrounding online publications and social media that may impact the contours of the law concerning prior restraint and freedom of the press.
Understanding San Francisco's 2-Unit Dwelling Definition
You may want to see also
Frequently asked questions
Prior restraint is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression. It is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all.
Examples of prior restraint include:
- A state law requiring government review and approval of pamphlets, flyers, or posted signs before they are distributed.
- A city ordinance requiring a permit to speak in public or organize a protest.
- A judge’s order (or “injunction”) preventing publication of a news article.
- Requiring a license to publish a book, newspaper, or magazine.
Prior restraints infringing First Amendment rights to free speech and a free press are usually prohibited. However, the Supreme Court has recognized "exceptional cases" in which prior restraint is permissible, such as when there is a demonstrated inevitable, direct, and immediate danger to the nation or in the case of national security.
In the case of Hazelwood School District v. Kuhlmeier, the Supreme Court held that public school officials were entitled to a higher degree of control over a student-run newspaper than a government would have over a professional newspaper. The Court unanimously deemed this control as unconstitutional prior restraint.
The English licensing system, which expired in 1695, required all printing presses and printers to be licensed, and nothing could be published without prior approval of the state or church authorities. The Founding Fathers created the First Amendment to ensure that this type of prior restraint did not return.
![Constitutional Law: Cases in Context [Connected eBook with Study Center] (Aspen Casebook Series)](https://m.media-amazon.com/images/I/61EiA9gIIGL._AC_UY218_.jpg)
