Prior Restraint

What if you broke a sibling's toy and could prevent the information from getting to your parents so that you never get in trouble? That's the idea behind prior restraint: sometimes governments or people in power don't want information to get out to the public. By invoking the doctrine of prior restraint, they can make information, speech, or publications prohibited before they even get out to the public. For the most part, the Supreme Court has ruled against prior restraint, arguing that it violates the First Amendment - but there are a few key exceptions that we'll talk about below!

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Table of contents

    Prior Restraint Definition

    Prior restraint is a form of government censorship. Historically, it refers to when the government reviews printed materials before they're published (thus the term prior restraint, because it is restraining undesirable speech before it even happens). Today it can mean a number of different things, such as injunctions and gag orders.

    An injunction is an order from a judge requiring someone to do something. In this case, it would be a judge ordering someone to stop printing or publishing something.

    A gag order is another type of order from a judge, but it specifically refers to preventing a person or entity from disclosing information to the public.

    Prior Restraint KPFA Gag Order Protest Poster StudySmarterFigure 1: A poster protesting a gag order that was put on KPFA, an independent radio station, in the 1970s. Source: Library of Congress

    Doctrine of Prior Restraint

    The roots of prior restraint in the American government go all the way back to the medieval period in Europe!

    Government censorship became a bigger issue in the 15th century with the invention of the printing press. The printing press was more than just a quicker way to make and sell books: it meant that thoughts, ideas, and knowledge could be accessed and spread more easily. While this improved literacy and human knowledge tremendously, it could spell trouble for people in power who didn't want negative ideas to be spread about them.

    Why is the spread of ideas so important? Imagine you're a serf working the land of a medieval lord. He taxes you heavily while profiting off your labor. You assume this is just the way it is, so you keep your head down and keep working. But what if a region several hundred miles away revolted against their nobles and negotiated better pay and living conditions? Before the printing press, it would have been difficult or impossible for a regular peasant to hear of it (or be inspired to try the same thing). With the invention of the printing press, people could print flyers and pamphlets to spread those ideas. The nobles would also have an incentive to suppress those publications since it could threaten their wealth.

    This idea gained new footing during the reign of King Henry VIII of England. In 1538, King Henry imposed a new rule requiring all books to be reviewed and approved by the Privy Council before they could be published. The requirement was very unpopular and people grew resentful.

    His daughter, Queen Mary I, shifted to issuing an exclusive charter to one company that was in line with the royal wishes. Her aim was to suppress the Protestant Reformation. Just a few years later, her sister, Queen Elizabeth I, used the same method to suppress Catholicism. Until 1694, England required journalists to register for a license with the state, which provided government oversight to "prevent the frequent abuses in printing seditious treasonable and unlicensed books and pamphlets."1

    First Amendment and Prior Restraint

    Because America was first colonized by the British, many British laws inspired the creation of American ones. This includes the idea of prior restraint. But the American colonists had revolted against England because of what they felt were excessive taxes and violations of their individual rights.

    They codified some of these rights to prevent the government from becoming too powerful or oppressive. The Bill of Rights (which was added to the Constitution in 1791) included two very important freedoms in the First Amendment: Freedom of Speech and Freedom of the Press. The text reads like this (emphasis added):

    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.

    Freedom of Speech has been expanded to include freedom of expression and symbolic speech. This means that forms of communication that don't strictly use words are also protected. This includes wearing symbols (for example, wearing a black armband with peace sign to protest the Vietnam War - see Tinker v. Des Moines) and forms of protest like flag burning (see Flag Protection Act of 1989).

    Prior Restraint KPFA First Amendment written on the Newseum building StudySmarterFigure 2: The text of the First Amendment printed on the Newseum building in Washington, D.C. Source: dbking, Wikimedia Commons, CC-BY-2.0

    Freedom of the Press means that the government can't interfere with journalism or people who print the news. Throughout the 18th century in the colonies, a robust system of newspapers popped up, with many of them using satirical attacks to make political points. The framers of the Constitution wanted to protect the spread of information from government meddling, so they included freedom of the press in the Constitution.

    Prior Restraint Examples

    Despite the protections for freedom of speech and freedom of the press in the Constitution, the American government has, at times, instituted some policies that reflect prior restraint doctrine.

    Just a few short years after the passage of the Constitution in 1789, Congress passed a new law called the Sedition Act. The Act made it illegal to "print, utter, or publish...any false, scandalous, and malicious writing" about the government. It was immediately unpopular and harshly criticized as a violation of Freedom of Speech.

    Proponents of the Act argued that it was necessary for national security, as relations between the United States and France were deteriorating and there was the potential for war. Today, historians believe that the Act was designed by the party in power (the Federalists) to suppress the opposition party (the Democrat-Republicans).

    Prior Restraint Court Cases

    The Supreme Court has, by and large, protected freedom of speech and freedom of the press over government interests. The two most important cases in this area are Near v. Minnesota and New York Times v. United States.

    Near v. Minnesota (1931)

    A man named Jay Near published an article in a Minneapolis newspaper claiming public officials were involved with gangsters, including gambling, bootlegging, and racketeering. They accused law enforcement of not properly enforcing the law against these activities. One of the men accused filed an action to stop the publication, saying that the newspaper violated the Minnesota law against malicious, scandalous, or inflammatory language. When the state court upheld the ruling, the newspaper took it to the Supreme Court, arguing that the law was unconstitutional.

    The Supreme Court sided with the newspaper in a 5-4 decision. They defined freedom of the press as "laying no prior restraints upon publications."2 According to the Supreme Court, the law was "the essence of censorship."3

    The ruling established three important things:

    1. The "gag law" was unconstitutional.
    2. The freedom of the press protections in the First Amendment apply to state governments, not just the federal government.
    3. A Supreme Court doctrine opposing prior restraint.

    New York Times v. United States (1971)

    Several decades later, the Vietnam War was extremely unpopular in the United States.

    In 1971, a government employee shared classified documents about the war with New York Times. The documents came to be called the "Pentagon Papers," and they painted a negative picture of the government's incompetence and corruption in carrying out the war.

    President Nixon obtained a restraining order to prevent the papers from being published, invoking prior restraint and arguing that they represented a threat to national security. The newspaper filed a lawsuit, arguing that the administration's actions violated the right to freedom of the press.

    The Supreme Court sided with the New York Times in a 6-3 decision. They started off by noting that any use of prior restraint bears a "heavy presumption against its constitutional validity." Additionally, the vague idea of "security" wasn't sufficient "to abrogate the fundamental law embodied in the First Amendment."4 However, the six justices differed in their reasoning behind the opinion: some thought that there should be some allowances for prior restraint, while others said that the Constitution simply didn't allow the Supreme Court to give censorship power to the president.

    Exceptions to Prior Restraint

    In some cases, prior restraint has been protected.

    Wartime Censorship/National Security

    The government often has stricter rules around freedom of speech when it comes to national security during wartimes. For example, during World War I, Congress passed the Espionage Act of 1917. It prohibited sharing information related to national defense in any way. It also imposed penalties on anyone who interfered with the process of drafting or recruiting soldiers. In the 1919 case of Schenk v. United States, which centered on someone who was printing pamphlets encouraging people to dodge the draft, the Supreme Court ruled that individual rights may have to take a back seat to national security during times of war.

    Prior Restraint Political Cartoon Sedition Act 1918 Wartime Prior Restraint StudySmarterFigure 3: A political cartoon protesting the Sedition Act passed during World War I. In this image, Uncle Sam represents the government capturing characters named "spy" "traitor" and "German money." Source: Library of Congress

    Preserving a Fair Trial

    Courts are also permitted to withhold or prevent information from getting to the media if it could interfere with a fair trial. This can happen if media coverage of an incident influences the opinion of the jury. It can also harm victims who don't want their information to be public.

    In Nebraska Press Association v. Stewart (1976), the Supreme Court ruled against a lower court's attempt to use prior restraint to prevent information about a case from being published. A gag order was issued to prevent media coverage because the judge feared that it could make it impossible to find an impartial, unbiased jury. The Supreme Court noted that it can be difficult to balance the constitutional rights to a fair trial alongside freedom of the press, but that freedom of the press should generally take precedence. They recommended several other measures for the court to take to reduce the impact on jurors while still protecting freedom of the press.

    Prior Restraint - Key takeaways

    • Prior restraint is a type of government censorship. It happens when the government prevents information or speech from going public before it even happens.
    • The roots of prior restraint in the United States go back to medieval England, when kings and queens censored the press.
    • Prior restraint has been criticized as violating freedom of speech and freedom of the press.
    • Some landmark Supreme Court cases have supported freedom of the press over prior restraint.
    • While it is difficult for the government to prove that prior restraint is necessary, there are some cases where it is allowed, especially when it comes to national security and ensuring a fair trial.

    References

    1. Licensing of the Press Act, 1662
    2. William Blackstone, Majority Opinion, Near v. Minnesota, 1931
    3. Charles Evan Hughes, Majority Opinion, Near v. Minnesota, 1931
    4. Majority Opinion, New York Times v. United States, 1971
    Frequently Asked Questions about Prior Restraint

    What is prior restraint?

    Prior restraint is a type of government censorship where the government prevents information from being published before it even happens.

    When is prior restraint allowed?

    Prior restraint is permitted more often during wartime for purposes of national security, as well as for preserving fair and just trials. 

    How has the Supreme Court usually dealt with prior restraint cases?

    The Supreme Court typically favors freedom of the press and freedom of speech over prior restraint. However, they haved ruled in its favor at certain times.

    What are the issues of prior restraint and press confidentiality?

    National security and confidentiality can be difficult to balance with the need for transparency in the press. 

    Why is prior restraint important?

    Prior restraint is important because of its historical roots and the role it plays in government censorship. 

    Test your knowledge with multiple choice flashcards

    Prior restraint is a form of government _____

    The word "prior" in prior restraint refers to

    A gag order is when the court orders someone not to

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