Also known as:prior restraint doctrine · prior restraint
Written by attorneys · grounded in primary & secondary sources — see below
A governmental prohibition against speech or publication before it takes place. Such restraints carry a heavy presumption of invalidity under the First Amendment. They may be sustained only when the government demonstrates that publication would cause grave and imminent harm of the highest order, such as disclosure of critical military information during wartime.
Sources & Authorities
How it applies
Common Examples
2
Military Logistics Disclosure Request
Darius Dixon, editor of a defense newsletter, obtained leaked coordinates and schedules for naval supply ships during an active deployment. State port officials petitioned a court for an order barring publication, submitting evidence that release would expose vessels to immediate targeting. The court denied the order after finding the government had not carried its burden of proving an imminent national security catastrophe beyond the narrow exceptions recognized for prior restraints.
Defamation Injunction Attempt
Dawson Steel sought a court order to stop a trade journal from printing an article accusing the company of falsifying safety records. The journal had not yet published the piece and no prior adjudication of falsity had occurred. The court refused the injunction, holding that the requested restraint on speech would violate constitutional limits even though the statements might later support a tort claim.
Put it into practice
Test Yourself
10
Practice Questions5
· 7 primary sources
Select any source to read its text and confirm it supports the definition.
Cases
Restatements
Study Supplements
Common questions
Frequently Asked
4
What burden must the government meet to justify a prior restraint?+
The government must demonstrate that publication would cause a grave and imminent harm of the highest order, such as disclosure of critical military information during wartime. Ordinary assertions of possible harm or increased risk are insufficient. The presumption against prior restraints is heavy and exceptions remain narrow.
Supporting sources
Does the doctrine apply to injunctions sought in private tort actions?+
Yes. An injunction against allegedly defamatory or privacy-invading speech may constitute an impermissible prior restraint even when the underlying conduct would support tort liability. Courts must consider First Amendment limits before granting such relief, particularly absent a prior finding that the statements are false.
Supporting sources
When may a licensing scheme for speech constitute a prior restraint?+
A licensing scheme constitutes a prior restraint when it vests unbridled discretion in officials without clear, objective standards. Such schemes create an unacceptable risk of content-based censorship and are unconstitutional under the First Amendment.
Supporting sources
Does post-conviction forfeiture of speech-related materials qualify as a prior restraint?+
No. Forfeiture imposed as punishment for past criminal conduct after conviction is not treated as a prior restraint on future speech. The doctrine targets advance suppression rather than penalties following adjudication of illegality.
Supporting sources
Constitutional LawIndividual rights · First Amendment freedoms: the free-speech clauseNEXTGENFoundational