Also known as: prior restraint · prior restraint doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A governmental restriction on expression imposed before the expression occurs. Such restraints carry a heavy presumption of invalidity under the First Amendment. They may be upheld only when the government demonstrates a special societal harm such as a serious threat to national security.
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Pamela Phillips prepared an article based on leaked factory logs that detailed shipping schedules for armored vehicles headed to an overseas conflict zone during active hostilities. The government petitioned the court to enjoin release of the article. The court granted the injunction after finding that publication would create the precise type of direct national security harm that justifies restraint.
Patrick Phan applied for a permit to display a cross on public property as part of a protest against a city ordinance. City officials denied the permit after reviewing the proposed message for its viewpoint. The denial operated as an unconstitutional prior restraint because it gave officials unbridled discretion to suppress disfavored speech.
Pavel Petrov sought a court order to stop a newspaper from publishing an article that he claimed would harm his reputation. The court refused the order because no prior finding of falsity had been made. The requested injunction would have constituted an impermissible prior restraint on protected speech.
Philip Powell, a newspaper editor, prepared to publish classified documents detailing government decision-making during an ongoing military conflict. The government sought an injunction claiming harm to national security. The court denied the injunction because the government failed to meet its heavy burden of proving the requisite special harm.
Patricia Patel, a reporter, planned to publish details from a criminal pretrial hearing. The trial judge issued an order barring publication to protect the defendant's fair-trial rights. The order was struck down because less restrictive measures such as venue change had not been shown inadequate.
Preston Pratt operated a radio station that aired a monologue containing explicit language. The FCC imposed sanctions and required prior review of future programming. The sanctions were upheld because broadcast media receive narrower protection and the regulation targeted indecent content rather than imposing a classic prior restraint.
Prior restraints prevent speech before it occurs while subsequent punishment imposes liability after publication. The First Amendment imposes a heavier presumption against prior restraints because they suppress expression before the public can evaluate it.
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A court may issue a prior restraint only when the government demonstrates a special societal harm such as a serious threat to national security during wartime. The government bears a heavy burden and must show that no less restrictive alternative exists.
…sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers. The Court found the State's interest insufficient to justify the restrictive effect of the statute. The burden imposed by §…
…195 U. S. 65, 69 (1904). From him they learned that the major means of accomplishing free speech and press was to prevent prior restraints, the publisher later being subject to legal action if his publication was injurious. 4 W. Blackstone, Commentaries 150-153. [^maj-15]: See also Meiklejohn, The First Amendment Is An…
…of a contested restriction of speech also informs our evaluation of its constitutionality. Thus, for example, "[a]ny system of prior restraints
…no more than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation; and so always that he does not thereby disturb the public peace, or attempt to subvert…
…in this case. See supra, at 560. We have observed that commercial speech is such a sturdy brand of expression that traditional
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Licensing schemes constitute prior restraints when officials have broad discretion to grant or deny permits without precise objective criteria. Such schemes are invalid on their face because they risk content or viewpoint discrimination.
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Any prior restraint system must place the burden on the censor to prove the speech is unprotected, require prompt judicial review, and limit any restraint before final judicial determination to preserving the status quo for a brief period.
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A permanent injunction entered after a full trial may still function as a prior restraint if it prevents future speech. The order must satisfy the same heavy justification requirements that apply to any prior restraint.
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