Prior Restraint

Government prohibition of speech in advance of publication.

One of the fundamental rights guaranteed by the FIRST AMENDMENT to the U.S. Constitution is the freedom from prior restraint. Derived from English COMMON LAW, the rule against prior restraint prohibits government from banning expression of ideas prior to their publication. The rule against prior restraint is based on the principle that FREEDOM OF THE PRESS is essential to a free society. Attempts by government to obtain a prior restraint have largely been unsuccessful.

The rule against prior restraint was undisputed for much of U.S. history. The landmark case of NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), finally settled the issue, with the U.S. Supreme Court finding that the First Amendment imposed a heavy presumption against the validity of a prior restraint.

In Near, the Court struck down a Minnesota state law that permitted public officials to seek an INJUNCTION to stop publication of any "malicious, scandalous and defamatory newspaper, magazine, or other periodical." The statute was used to suppress publication of a small Minneapolis newspaper, the Saturday Press, which had crudely maligned local police and political officials, often in anti-Semitic terms. The law provided that once a newspaper was enjoined, further publication was punishable as CONTEMPT of court.

Chief Justice CHARLES EVANS HUGHES, in his majority opinion, called the law "the essence of censorship" and declared it unconstitutional. With its decision, the Court incorporated the First Amendment freedom of the press into the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT. This incorporation made freedom of the press fully applicable to the states.

Though Hughes agreed that a rule against prior restraint was needed, he acknowledged that this restriction was not absolute. The rule would not, for example, prevent government in time of war from prohibiting publication of "the sailing dates of transports or the number and location of troops." Threats to national security interests are almost certain to prevail over freedom of the press, but it has proved difficult to invoke the "national security" justification.

This was illustrated in the Pentagon Papers case of 1971 (NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822). President RICHARD NIXON's administration sought to prevent the New York Times and the Washington Post from publishing excerpts from a classified study (the Pentagon Papers) on the history of U.S. involvement in Vietnam, arguing that publication would hurt national security interests. The Supreme Court, by a 6–3 vote, held that the government's efforts to block publication amounted to an unconstitutional prior restraint.

The national security exception failed again in a 1979 case dealing with the publication of a magazine article that purported to explain the process for making a hydrogen bomb (United States v. Progressive, Inc., 467 F. Supp. 990 [W.D. Wis. 1979]). The federal government obtained a preliminary injunction against The Progressive, stopping publication of the article until a hearing on a permanent injunction could be held. Before the hearing, however, another publication printed a similar article. The government then dropped its lawsuit, and the magazine published the original article.

Prior restraint issues have arisen over prejudicial PRETRIAL PUBLICITY in sensational criminal proceedings. The defendant's right to a fair trial by an unbiased jury must be considered as well as freedom of the press. In exceptional circumstances, a court may depart from prior restraint doctrine by restricting news coverage of a criminal case. These restrictions must be narrowly tailored, and they must not unduly restrict the right of the press to inform the public. The U.S. Supreme Court, in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), made clear, however, that these restrictions are severely limited. The Court invalidated a GAG ORDER issued by a state trial judge that forbade the publishing or broadcasting of any confessions, admissions, or facts that strongly implicated the defendant charged with a grisly mass murder.

The rule against prior restraint does not apply to the publication of student-operated school newspapers. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988), the Supreme Court upheld a public school principal's decision to remove certain controversial material from the school newspaper. The principal based his decision on fears that the articles on teen pregnancy and DIVORCE would allow students to identify classmates who had encountered such difficulties. Justice BYRON R. WHITE ruled that educators did not "offend the First Amendment by exercising editorial control … so long as their actions are reasonably related to legitimate pedagogical concerns."

Prior restraint issues have also appeared in cases involving the picketing of clinics where ABORTIONS are performed. In Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Supreme Court upheld a Colorado law that required anti-abortion demonstrators to stay at least eight feet away from anyone entering or leaving medical facilities. The protesters had argued that this restriction was a prior restraint on their First Amendment right to express their views on abortion. Justice JOHN PAUL STEVENS stated that prior restraint related to restrictions "imposed by official censorship." The Colorado law only applied if the "pedestrian does not consent to the approach." Therefore, the private individual, not the government, exercise the right not to hear the protesters views in close proximity. The protesters were free to display signs that could be seen eight feet away from the person entering or leaving the clinic.