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PRIOR RESTRAINT AND CENSORSHIP

History has rooted in our constitutional tradition of freedom of expression the strongest aversion to official censorship. We have learned from the English rejection of press licensing and from our own experiences that the psychology of censors tends to drive them to excess, that censors have a stake in finding things to suppress, and that—in systems of wholesale review before publication—doubt tends to produce suppression. American law tolerated motion picture censorship for a time, but only because movies were not thought to be "the press" in first amendment terms. Censorship of the movies is now virtually dead, smothered by stringent procedural requirements imposed by unsympathetic courts, by the voluntary rating system, and, most of all, by public distaste for the absurdities of censorship in operation.

American law has tolerated requirements of prior official approval of expression in several important areas, however. No one may broadcast without a license, and the government issues licenses without charge to those it believes will serve the "public interest." Licensing is also grudgingly tolerated—because of the desirability of giving notice and of avoiding conflicts or other disruptions of the normal functions of public places—in the regulation of parades, demonstrations, leafleting, and other expressive activities in public places. But the courts have taken pains to eliminate administrative discretion that would allow officials to censor public forum expression because they do not approve its message.

Notwithstanding these areas where censorship has been permitted, the clearest principle of First Amendment law is that the least tolerable form of official regulation of expression is a requirement of prior official approval for publication. It is easy to see the suffocating tendency of prior restraints where all expression—whether or not ultimately deemed protected by the First Amendment for publication—must be submitted for clearance before it may be disseminated. The harder question of First Amendment theory has been whether advance prohibitions on expression in specific cases should be discredited by our historical aversion to censorship. The question has arisen most frequently in the context of judicial injunctions against publication. Even though injunctions do not involve many of the worst vices of wholesale licensing and censorship, the Supreme court has tarred them with the brush of "prior restraint."

The seminal case was near v. minnesota (1931), handed down by a closely divided Court but never questioned since. A state statute provided for injunctions against any "malicious, scandalous, and defamatory newspaper," and a state judge had enjoined a scandal sheet from publishing anything scandalous in the future. The Minnesota scheme did not require advance approval of all publications, but came into play only after a publication had been found scandalous, and then only to prevent further similar publications. Nevertheless, the majority of the Justices concluded that to enjoin future editions under such vague standards in effect put the newspaper under judicial censorship. Chief Justice charles evans hughes's historic opinion made clear, however, that the First Amendment's bar against prior restraint was not absolute. Various exceptional instances would justify prior restraints, including this pregnant one: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops."

It was forty years before the scope of the troop ship exception was tested. The Pentagon Papers decision of 1971, new york times co. v. united states, reaffirmed that judicial injunctions are considered prior restraints and are tolerated only in the most compelling circumstances. This principle barred an injunction against publication of a classified history of the government's decisions in the Vietnam war, although—unlike Near—the government had sought to enjoin only readily identifiable material, not unidentified similar publications in the future. Ten different opinions discussed the problem of injunctions in national security cases, and the only proposition commanding a majority was the unexplained conclusion that the government had not justified injunctive relief.

The central theme sounded in the opinions of the six majority Justices was reluctance to act in such difficult circumstances without guidance from Congress. Accepting the premise that there was no statutory authority for an injunction, several considerations support the Court's refusal to forge new rules concerning the disclosure of national secrets. First, the Court's tools are inadequate for the task; ad hoc evaluations of executive claims of risk are not easily balanced against the First Amendment's language and judicial interpretation. Second, dissemination of secret information often arises in the context of heated disagreements about the proper direction of national policy. One's assessment of the disclosure's impact on security will depend on one's reaction to the policy. Third, it would be particularly unsatisfactory to build a judge-made system of rules in an area where much litigation must be done in camera. Thus, general rules about specific categories of defense-related information cannot be fashioned by courts. The best hope in a nuclear age for accommodating the needs of secrecy and the public's right to know lies in the legislative process where, removed from pressures of adjudicting particular cases, general rules can be fashioned. The courts' proper role in this area is to review legislation, not try to devise rules of secrecy case by case.

Chilling this victory for freedom of the press were admonitions, loosely endorsed by four Justices, that the espionage statutes might support criminal sanctions against the New York Times and its reporters. No journalists were indicted, but the prosecutions of Daniel Ellsberg and Anthony Russo rested on a view of several statutes that would reach the press by punishing news-gathering activities necessarily incident to publication. Since the dismissal of these cases for reasons irrelevant to these issues, the extent of possible criminal liability for publishing national security secrets remains unclear.

The Pentagon Papers case underlines how little the United States has relied on law to control press coverage of national defense and foreign policy matters. For most of our history the press has rarely tested the limits of its rights to publish. Secrets were kept because people in and out of government with access to military and diplomatic secrets shared basic assumptions about national aims. The Vietnam war changed all that. The Pentagon Papers dispute marked the passing of an era in which journalists could be counted on to work within understood limits of discretion in handling secret information.

The third major decision striking down a judicial order not to publish involved neither national security nor scandal but the right of a criminal defendant to a fair trial. A state court enjoined publication of an accused's confession and some other incriminating material on the ground that if prospective jurors learned about it they might be incapable of impartiality. In nebraska press association v. stuart (1976) the Supreme Court decided that the potential prejudice was speculative, and it rejected enjoining publication on speculation. The majority opinion examined the evidence to determine the nature and extent of pretrial publicity, the effectiveness of other measures in mitigating prejudice, and the effectiveness of a prior restraint in reducing the dangers. This opinion determined that the impact of pretrial publicity was necessarily speculative, that alternative measures short of prior restraint had not been considered by the lower courts, and that prior restraint would not significantly reduce the dangers presented.

On one issue of considerable importance, the Court seemed to be in full agreement. The opinions endorsed controls on parties, lawyers, witnesses, and law enforcement personnel as sources of information for journalists. These gag orders have been controversial among many journalists and publishers who think the First Amendment should guarantee the right to gather news. Although freeing the press from direct control by limiting prior restraint, the Court approved an indirect method of reaching the same result, guaranteeing that the press print no prejudicial publicity, by approving direct controls on sources of prejudicial information. The Court has subsequently held that pretrial motions may be closed to the public and the press with the consent of the prosecutor and the accused but over the objection of the press, in gannett co. v. depasquale (1979). This case involved access to judicial proceedings, not prior restraints on the press, and was decided largely on Sixth Amendment grounds. The Court reached the opposite result with respect to trials in richmond newspapers v. virginia (1980), but acknowledged that the right of access to trials is not absolute.

These decisions and others have firmly established that the First Amendment tolerates virtually no prior restraints. This doctrine is one of the central principles of our law of freedom of the press. On the surface, the doctrine concerns only the form of controls on expression. It bars controls prior to publication, even if imposition of criminal or civil liability following publication would be constitutional. But, as with most limitations of form, the prior restraint doctrine has important substantive consequences. Perhaps the most important of these consequences is that the doctrine is presumably an absolute bar to any wholesale system of administrative licensing or censorship of the press, which is the most repellent form of government suppression of expression. Second, the prior restraint doctrine removes most of the opportunities for official control of those types of expression for which general rules of control are difficult to formulate. The message of the prior restraint doctrine is that if you cannot control expression pursuant to general legislative standards, you cannot control it at all—or nearly at all, as the Pentagon Papers decision suggests, by suggesting an exception allowing an injunction in a truly compelling case of national security. A third effect of the doctrine is that by transferring questions of control over expression from the judiciary to the legislatures, it provides an enormously beneficial protection for the politically powerful mass media, if not for other elements of society with strong First Amendment interests but weaker influence in the legislative process.

Although the Supreme Court has exceeded its historical warrant in subjecting judicial injunctions to the full burden of our law's traditional aversion to prior restraints, there are sound reasons for viewing all prior controls—not only wholesale licensing and censorship—as dangerous to free expression. Generally it is administratively easier to prevent expression in advance than to punish it after the fact. The inertia of public officials in responding to a fait accompli, the chance to look at whether expression has actually caused harm rather than speculate about the matter, public support for the speaker, and the interposition of juries and other procedural safeguards of the usual criminal or civil process all tend to reinforce tolerance when expression can only be dealt with by subsequent punishment. Moreover, all prior restraint systems, including injunctions, tend to divert attention from the central question of whether expression is protected to the subsidiary problem of promoting the effectiveness of the prior restraint system. Once a prior restraint is issued, the authority and prestige of the restraining agent are at stake. If it is disobeyed, the legality of the expression takes a back seat to the enforcement of obedience to the prior restraint process. Moreover, the time it takes a prior restraint process to decide produces a systematic delay of expression. On the other hand, where law must wait to move against expression after it has been published, time is on the side of freedom. All in all, even such prior restraints as judicial injunctions—which are more discriminating than wholesale censorship—tend toward irresponsible administration and an exaggerated assessment of the dangers of free expression.

Benno C. Schmidt, Jr.
(1986)

Bibliography

Blasi, Vincent 1981 Toward a Theory of Prior Restraint: The Central Linkage. Minnesota Law Review 66:11.

Emerson, Thomas 1955 The Doctrine of Prior Restraint Law and Contemporary Problems 20:648.

Schmidt, Benno C., Jr. 1977 Nebraska Press Association: An Expansion of Freedom and Contraction of Theory. Stanford Law Review 29:431.

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Prior Restraint and Censorship

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