Prior Restraint

By Douglas E. Lee, Special to the First Amendment Center Online

September 13, 2002

Perhaps no First Amendment right is more secure than the news media’s right to publish information free from government censorship. While public officials frequently wish they could prevent newspapers, magazines and broadcast stations from publishing sensitive or embarrassing information, their ability to censor the media is extremely limited. These limits on prior restraint (as such censorship is also known) have been firmly in place for more than 70 years.

In 1931, the U.S. Supreme Court heard an appeal brought by the publisher of a small Minneapolis newspaper that had published several articles alleging that law enforcement officials were turning a blind eye toward local organized crime. The county attorney sought to prohibit further publication of the newspaper, citing a state statute that outlawed “malicious, scandalous and defamatory” periodicals. In Near v. State of Minnesota, the Court held that the statute constituted an unlawful prior restraint. Under the First Amendment, the Court said, publication of information, no matter how scandalous, can be prevented only in “exceptional cases,” such as to protect the recruiting or transporting of troops in a time of war or to prevent the distribution of obscenity.

The relationship between prior restraint and national security was tested in 1971, when the government attempted to prevent The New York Times and The Washington Post from publishing the Pentagon Papers, a classified study of U.S. decision-making in Vietnam. In New York Times Co. v. United States, the U.S. Supreme Court again protected the news media’s right to publish, even though most of the justices believed that publication of the study would adversely affect the nation’s interests. These adverse effects, however, were insufficient to justify prior restraint, they concluded. As Justice Potter Stewart summarized the law in his concurring opinion, prior restraint is permitted only when publication “will surely result in direct, immediate, and irreparable damage to our Nation or its people.”

Prior restraints have arisen — and been struck down — in several contexts. Special taxes on newspaper paper and ink have been held to be unconstitutional, pre-dissemination burdens on speech. Ordinances banning news racks have met the same fate. Many other permit and licensing requirements also have been invalidated for unduly inhibiting speech.

Using prior-restraint analysis, courts also have rejected government attempts to criminalize the dissemination of certain information. In Landmark Communications v. Virginia, for example, the U.S. Supreme Court in 1978 held that a Virginia newspaper that accurately reported on a pending investigation of a state judge could not be prosecuted under a state law prohibiting anyone from divulging information about such investigations. According to the Court, the state’s interest in protecting the reputation of judges was insufficient to justify the punishment of accurately reported information.

Many courts, however, have indicated that the protection from prior restraint does not immunize publishers from criminal or civil penalties that might result from publication. In the Pentagon Papers case, in fact, some of the justices encouraged the government to criminally charge the newspapers after the publication. In other cases, judges denying requests for prior restraints have cautioned that the publication of the information at issue could expose the publisher to liability for libel, invasion of privacy or violations of trade-secret laws.

Special rules have developed regarding gag orders and other prior restraints ordered in ongoing judicial proceedings. (See Gag Orders topic in this section.) In general, prior restraints are easier to obtain in these circumstances, primarily because trial judges can limit the news media’s First Amendment rights when necessary to ensure a fair trial.