PRIOR RESTRAINT
A prior restraint is a legal action designed to stop communication. Such controls are distinguished from penalties imposed after the communication has reached others.
In either case a restriction exists, but not allowing expression in the first place is usually considered a more serious
denial of freedom. The right to speak and to publish has
been regarded as necessary for self-fulfillment, self-government, the resolution of conflict, and the advancement
of knowledge. Such Enlightenment values are reflected in
the nation’s founding documents and in the First Amendment in particular. Media organizations are therefore free to make their own decisions about content as long as some
exception such as copyright infringement does not apply.
The Supreme Court of the United States has stated that
prior restraint is unconstitutional as a general rule.
Intentions and Interpretations
Government suppression had a long and inglorious history before the ratification of the First Amendment in 1791.
English officials tried to stamp out dissent with laws, censors, and printing monopolies until losing the most general
powers for prepublication constraints in the nation’s seventeenth-century political upheavals. Colonists, however, still
faced occasional attempts to impose prior restraint in the
eighteenth century. In 1723, for instance, the Massachusetts
legislature ordered the feisty Boston printer James Franklin to submit to censorship, but he did not cooperate and a
grand jury refused to indict him. In 1765 Parliament tried to
require that American newspapers not be published without
paying a stamp tax, but the law proved difficult to enforce
and was rescinded in the wake of violent protests.
By the time the Constitutional Convention met in 1787,
protecting the right of expression remained a priority. Many
in the founding generation, after all, had been outspoken
revolutionaries and wanted to preserve for posterity the
freedom they had used. Most of the states had constitutional language that described the liberty as unlimited or
inviolable. The words placed in the federal Constitution
appeared to be an absolute ban on government interference
with what the people chose to say or write. Article I, Section 8, says that Congress has the power to make “all laws”
for the federal government and the First Amendment says
that Congress shall make “no law” abridging freedom of
speech or of the press.
Before long, Federalists in Congress passed the Sedition
Act of 1798 that outlawed false, scandalous, and malicious
statements about Congress, the president, and the federal
government. The Sedition Act was a temporary measure
ostensibly passed because war with France was anticipated.
The Federalists, who were pro-British and who were trying
to hold on to power as the Jeffersonian Republicans (who
were pro-French) were gaining strength, used the statute to
arrest opposition party journalists. Republicans argued that
the law being used against them was obviously unconstitutional, but Federalists cited a definition used in Sir William
Blackstone’s Commentaries on the Laws of England (1765–
1769). Liberty of the press, the English jurist wrote, meant
only freedom from prior restraint, not a right for licentious
statements that are unlawful because they are dangerous,
offensive, or have a pernicious tendency.
The Sedition Act expired in 1801 when Thomas Jefferson became president, but the debate about the original
meaning of the press clause of the First Amendment has
continued ever since. Although the oligarchic Blackstone
did not accept popular sovereignty, the separation of church
and state, and other fundamental features of the United
States Constitution, some have assumed that his pronouncement rejecting prior restraint while accepting subsequent
punishment was widely accepted. Others have turned to
statements by James Madison, Alexander Hamilton, and
other Americans to argue that the founders created a limited government without any power over the press.
The eighteenth-century conclusion about prior restraints
did not prevent them from appearing later when rationales
for suppression were considered sufficient. Relying on
national security arguments, the military has frequently
imposed censorship of war coverage and Congress has
sometimes passed laws such as the Intelligence Identities
Protection Act of 1982 that forbids unauthorized disclosures identifying spies and their sources. Another reason
for controls is to maintain order. School officials who have
a qualified authority to limit student expression and civil
authorities can put narrow, content-neutral “time, place,
and manner” restrictions on expressive activities such as a
protest if a substantial state interest is involved.
Prior restraints are nevertheless ordinarily unconstitutional. In contrast to many other countries, for instance, the
American legal system typically allows the news media to
present stories that might affect the outcome of court proceedings. Laws that apply taxes only to the press or that limit
the distribution of publications can be challenged as a form
of censorship. Material such as obscenity or false advertising, however, can be deemed outside of First Amendment
protection and be stopped by an injunction. A right to publish can also be lost if an employee signs a contract not to
reveal information.
Major Cases
The Supreme Court’s most important pronouncements on
prior restraint illustrate the difficulty of reaching a legal
consensus when freedom of expression is pitted against
fundamental principles. A democracy cannot function
without liberty of the press and government is not supposed
to silence the people if they are sovereign, but officials are
often willing to balance even the most essential and compelling rights against prudential and perhaps personal or
political considerations.
The legal thought of the nineteenth and early twentieth
centuries frequently followed Blackstone’s definition of free
expression. Constitutional press guarantees, the Supreme
Court said in Patterson v. Colorado [205 U.S. 454 (1907)],
were mainly to prohibit prior restraints and did not prevent
subsequent punishment for statements deemed contrary
to the public welfare. The views of the justices, however,
became more complicated once scholars challenged their
understanding of the press clause and difficult cases arose.
In Near v. Minnesota [283 U.S. 697 (1931)], the Supreme
Court issued a 5–4 ruling against a state statute allowing
the use of injunctions to stop the publication of malicious,
scandalous, or defamatory newspapers that were considered a public nuisance. The majority opinion by Chief Justice Charles Evan Hughes quoted Blackstone and Madison
rejecting prior restraint, but left off the end of Madison’s
sentence that said the nation had also made the press exempt
from subsequent penalties. The opinion said that the chief purpose of the press clause was to prevent prior restraints
and found Minnesota’s “gag law” unconstitutional.
The Near ruling has been hailed as a victory for freedom
of expression and cited in later cases, but Hughes backed
away from the bedrock belief that the Constitution’s protection against prior restraint is absolute. The chief justice said
in dicta that prior restraint could be used to stop interference
with a war effort, obscenity, and incitements to violence or
the overthrow of government. Hughes and his fellow justices, who had lived through a world war and much radical
political strife, were not as willing to trust the marketplace
of ideas as the founding generation.
The Supreme Court revisited the issue of prior restraint
forty years later in allowing publication of the Pentagon
Papers, a classified history of the Vietnam War that was
leaked to the press. The government argued that the First
Amendment did not prohibit stopping information that
would cause grave harm, but had difficulty specifying any
serious consequences. The press brief questioned both the
necessity for a restraint and the authority one would be
based upon.
The 6–3 decision came in a brief, unsigned opinion simply stating that officials had not met the heavy burden of justifying a prior restraint. Yet, the case, New York Times Co. v.
United States [403 U.S. 713 (1971)], did not completely rule
out future prior restraints for national security reasons. Each
of the nine justices wrote an opinion. Some seemed disposed
to accept the government’s national security contentions and
authority, some appeared willing to consider a prior restraint
in some circumstances, and some could see no possibility of
officials obtaining such power. In his opinion, his last before
his death, the First Amendment absolutist Hugo Black wrote
that real security came from the free expression the founders
had guaranteed and that the government was using assertions of vague presidential powers without even attempting
to rely on a law passed by Congress.
Officials had a federal statute to use in United States v.
The Progressive [467 F. Supp. 990 (1979)]. A federal district court judge cited the Atomic Energy Act of 1954, a law
prohibiting disclosure of nuclear weapon data, in issuing an
injunction to stop the publication of a magazine article on
the physics of the hydrogen bomb. The author of the article
wanted to show that nuclear secrecy was a myth and was
used to suppress inquiry on weapons production problems
that were being covered up. After other journalists showed
that facts involved were available elsewhere and the government encountered skeptical questioning during the oral
arguments before an appeals court, the case was dropped
and the article was published. The Progressive case demonstrated just how difficult it is to contain information even
when the government would like to have it suppressed.
Further Reading
Atomic Energy Act, Pub. L. No. 83-703 (1954).
Friendly, Fred W. Minnesota Rag: The Dramatic Story of the
Landmark Supreme Court Case That Gave New Meaning to
Freedom of the Press. New York: Random House, 1981.
Intelligence Identities Protection Act, Pub. L. No. 97-200 (1982).
Morland, Howard. The Secret That Exploded. New York: Random House, 1981.
Rudenstine, David. The Day the Presses Stopped: A History of
the Pentagon Papers Case. Berkeley: University of California Press. 1996.
Smith, Jeffery A. Printers and Press Freedom: The Ideology of
Early American Journalism. New York: Oxford University
Press, 1988.
——. War and Press Freedom: The Problem of Prerogative
Power. New York: Oxford University Press, 1999.
Jeffery A. Smith