Prior restraint Summary

  • Last updated on November 11, 2022

The banning or restriction of printed materials before they are published.

Reacting to an environment in Great Britain in which both church and state exercised frequent prior restraints, the framers of the U.S. Bill of Rights gave freedom of the press a prominent place in the First Amendment.First Amendment Press freedom, however, sometimes conflicts with other constitutionally protected rights and interests, including individual privacy, the right to a fair trial, and national security. Although the Supreme Court continually upheld the right of the press to publish without prior restraint in individual cases, it generally allowed that such restraint might be permissible in extreme circumstances.

The first Court case on prior restraint was Near v. Minnesota[case]Near v. Minnesota[Near v. Minnesota] (1931), in which the Court ruled that a state could not prohibit publication of material it considered offensive, scandalous, or defamatory. In Grosjean v. American Press Co.[case]Grosjean v. American Press Co.[Grosjean v. American Press Co.] (1936), the Court deemed the use of excessive taxation to stifle the press a form of prior restraint and therefore unacceptable. The issue of pretrial publicityPretrial publicity and gag rule was taken up in Nebraska Press Association v. Stuart[case]Nebraska Press Association v. Stuart[Nebraska Press Association v. Stuart] (1976). In this case, the Court ruled that newspapers had a right to publish even when publication might influence public opinion and therefore interfere with the impartiality of a trial. Perhaps the most well-known case involving prior restraint was New York Times Co. v. United States[case]New York Times Co. v. United States[New York Times Co. v. United States] (1971). The case, which allowed for the publication of articles based on the classified Pentagon Papers, has been viewed by many civil libertarians as among the most significant victories for press freedom.

As the impact of broadcast media increased in the twentieth century, freedoms originally applied to the press were extended to cover radio and television. Included in this coverage was the guarantee that broadcast licenses are granted on politically neutral grounds and that the so-called “fairness doctrine” ensures those with opposing viewpoints are given air time to respond to editorials. Eventually computer-based communications were also covered. In Reno v. American Civil Liberties Union[case]Reno v. American Civil Liberties Union[Reno v. American Civil Liberties Union] (1996), the Court deemed unconstitutional the federal Communications Decency Act of 1996, which sought to restrict Internet dissemination of “indecent” materials.

Freedom to publish does not protect the publisher from subsequent sanctions and prosecution. Some successful postpublication libel suits resulted in restrictions on the publication of further materials, and a number of trial verdicts were overturned as a result of pretrial publicity. The Court, however, maintained that prior restraint represents a greater danger than these results. Restrictions on prior restraint apply only to those forms of speech protected under the First Amendment. Prior restraint has therefore been deemed permissible in cases involving obscenity, severe risk to national security, the advocating of certain illegal acts, and invasions of personal privacy.

Further Reading
  • Biskupic, Joan, and Elder Witt. The Supreme Court and Individual Rights. 3d ed. Washington, D.C.: Congressional Quarterly, 1997.
  • Cushman, Robert Fairchild, with Susan Koniak. Cases in Civil Liberties. 6th ed. Englewood Cliffs, N.J.: Prentice-Hall, 1994.

Censorship

First Amendment

First Amendment balancing

Near v. Minnesota

Nebraska Press Association v. Stuart

New York Times Co. v. United States

Pretrial publicity and gag rule

Speech and press, freedom of

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