prior restraint

Prior restraint is any attempt by government to prevent the expression of ideas prior to publication. As interpreted by the U.S. Supreme Court, the First Amendment to the U.S. Constitution prohibits prior restraint over the press as an unlawful form of censorship in all but the most extreme circumstances. Constitutionally guaranteed freedom from prior restraint does not protect publishers from censure for publishing libelous, obscene, or otherwise illegal content; it merely protects their right to publish before being punished. This entry looks at pivotal court rulings that have shaped the understanding of prior restraint in the United States.

The rule against prior restraint derives from the English common law principle that liberty of the press is essential to a free state. Most constitutional scholars agree that the authors of the First Amendment intended to codify English common law’s understanding of press freedom. However, U.S. courts paid scant attention to this aspect of the First Amendment until the early 20th century.

It was not until Near v. Minnesota (1931) that the Supreme Court definitively found prior restraint to be a violation of the First Amendment. In Near, the Court considered the constitutionality of a Minnesota public nuisance statute that allowed authorities to shut down scandalous and defamatory periodicals. Local Minneapolis prosecutors had invoked the law to suppress a sensational, anti-Semitic tabloid, The Saturday Press, which had been relentlessly attacking city officials as corrupt and in league with Jewish mobsters. Although the Minnesota Supreme Court twice upheld the legality of the public nuisance statute and its use in shutting down The Saturday Press, the U.S. Supreme Court struck it down. In the majority opinion written by Chief Justice Charles Evans Hughes, the Court reasoned that “the fact that the liberty of the press may be abused . . . does not make any less necessary the immunity from previous restraint.” The court also noted that “a more serious public evil would be caused by authority to prevent publication.”

Nonetheless, the Court’s opinion in Near acknowledged that prior restraint might be justified in certain exceptional cases. For instance, the ruling recognized that the government’s need to protect national security might require it to prevent publication of the number and location of troops and that “the primary requirements of decency” might require censorship of obscene publications.

In subsequent cases, the Supreme Court reaffirmed its basic findings in Near. In the notorious Pentagon Papers case of 1971, New York Times Co. v. United States, the Court held that the government could not prevent The New York Times and The Washington Post from printing stories based on a classified history of U.S. involvement in the Vietnam War, the so-called Pentagon Papers, even though this document had been leaked to the papers illegally by whistleblower Daniel Ellsberg. Despite the Nixon administration’s claim that publicizing the information contained in the secret history would damage national security, the justices voted 6–3 to reverse a lower court injunction that had temporarily blocked publication of the stories.

In 1979, the U.S. government again invoked national security in an attempt to stop Progressive Magazine from printing an article explaining how to manufacture a hydrogen bomb using information gleaned entirely from the public record. Authorities from the U.S. Department of Energy were successful in obtaining a temporary restraining order and later were granted a preliminary injunction from a federal court on the grounds that publication of the article would accelerate the proliferation of nuclear weapons. Yet, before the magazine’s appeal—United States v. Progressive, Inc. (1979)—could be heard, a different periodical printed an article containing much of the same information and, as a result, the government withdrew its case as moot.

The courts have occasionally ruled that prior restraint over news coverage of criminal proceedings is permissible in order to protect a defendant’s Sixth Amendment right to a fair trial. For example, in Cable News Network v. Noriega (1990), the Supreme Court declined to vacate a lower court’s order preventing the broadcasting of taped recordings of conversations between deposed Panamanian leader Manuel Noriega and his attorney in which they discussed details of his impending trial on drug trafficking charges. Typically, though, restrictions on pretrial publicity must be narrowly tailored and must not unduly interfere with the press’s ability to inform the public about the proceedings.

The rule against prior restraint does not apply to nonprint media in the same way it does to published material. For much of its early history, film was denied First Amendment protection. In the landmark case Mutual Film Corporation v. Industrial Commission of OhioMutual Film Corporation v. Industrial Commission of Ohio (1915), the Supreme Court upheld an Ohio statute requiring that all films shown in the state first be reviewed by a board of censors. In the Court’s view, such prior restraint was acceptable because motion pictures were not “organs of public opinion” like newspapers but instead a “business, pure and simple,” and one with a capacity for evil. The Mutual decision encouraged the spread of state and local film censorship boards and helped drive Hollywood to adopt its own scheme of self-censorship, the Motion Picture Production Code of 1930, popularly known as the Hays Code.

It was not until the 1952 case Joseph Burstyn, Inc. v. Wilson that the Court finally recognized motion pictures as a medium entitled to the same free speech protections as newspapers or books. Burstyn concerned a short film directed by Roberto Rossellini called The Miracle (1948) that had been banned in New York as sacrilegious. The Court ruled that the ban was a violation of both the prohibition on prior restraint and the separation of church and state. In the 15 years after Burstyn, the vast majority of state and local film censorship boards were disbanded.

Broadcast media continue to enjoy less First Amendment protection than print media. Because radio and television broadcasters rely on a scarce public resource—the electromagnetic spectrum—the government requires that broadcasting stations be licensed and also requires that they operate in the “public interest, convenience, and necessity.” While not censorship per se, licensing of broadcasters is a form of prior restraint.

Moreover, in Federal Communications Commission v. Pacifica Foundation (1978), the Supreme Court affirmed the power of the Federal Communications Commission (FCC) to prohibit daytime broadcast of George Carlin’s expletive-laden Filthy Words monologue, judging it as indecent. The Court held that the FCC’s actions were justified because of the government’s interest in protecting children from offensive material and because broadcast media are “uniquely pervasive” and also “uniquely accessible” to children. However, the Supreme Court’s views on this issue changed over the years. In 2012, the Court refused to review a lower court’s ruling nullifying a $550,000 fine imposed on the CBS television network by the FCC for a fleeting image of Janet Jackson’s exposed breast that occurred during the network’s broadcast of the 2004 Super Bowl halftime show.

The original version of this article was published by SAGE Publications in The SAGE Encyclopedia of Journalism.