Prior Restraint

Prior Restraint Supreme Court decisions over the past seventy‐five years clearly support the presumption of the unconstitutionality of prior restraint—an attempt by the government to prevent speech or expression of ideas in advance of expression of publication. The Court has held that in light of the First Amendment, the government bears a heavy burden of proof before any such action may be imposed. The right of expression is not absolute, however, and the proper remedy for improper speech (for example, defamation) is subsequent punishment.

In the American view, prior restrain has been equated with censorship. Constitutional historians are nearly unanimous in their conclusion that the framers of the First Amendment intended to codify the English common law as taught by Sir William Blackstone, which banned all prior restraints such as licensing or censorship.

In Near v. Minnesota (1931), the Court heard a case involving a “public nuisance statute” designed to prevent the publication of a scandalous weekly newspaper. The Court held that with only limited exceptions, any such injunction against publication constitutes prior restraint.

The Supreme Court again struck down prior restraints in New York Times Co. v. United States (1971) when it refused to permit the government to halt news coverage of a classified forty‐seven volume study of the history of the Vietnam conflict, a study commonly referred to as the “Pentagon Papers.” The Court held that despite a claim that publication would threaten national security, the government had not met the heavy burden of proof in this particular case. However, the Court did not rule out subsequent punishment in the case or possible constitutional prior restraint in a future case.

In CNN v. Noriega (1990), the Court refused to hear a prior restraint case in which a lower court upheld a contempt citation against CNN for broadcasting information regarding the federal drug trafficking case against former Panamanian leader Manual Noriega. The lower court balanced First Amendment rights with Sixth Amendment rights, and Noriega's Sixth Amendment right to a fair trial with an impartial jury prevailed. However, the lower court's holding was limited to the specific convoluted events in Noriega, and no inferences regarding possible future decisions by the Supreme Court should be based on the Court's failure to act in this case.

See also Pretrial Publicity and the Gag Rule; Speech and the Press.

S. L. Alexander

;replacing article by

Patrick M. Garry