Prior Restraint

Doctrine of Prior Restraint

The roots of prior restraint in the American government go all the way back to the medieval period in Europe!

Government censorship became a bigger issue in the 15th century with the invention of the printing press. The printing press was more than just a quicker way to make and sell books: it meant that thoughts, ideas, and knowledge could be accessed and spread more easily. While this improved literacy and human knowledge tremendously, it could spell trouble for people in power who didn't want negative ideas to be spread about them.

This idea gained new footing during the reign of King Henry VIII of England. In 1538, King Henry imposed a new rule requiring all books to be reviewed and approved by the Privy Council before they could be published. The requirement was very unpopular and people grew resentful.

His daughter, Queen Mary I, shifted to issuing an exclusive charter to one company that was in line with the royal wishes. Her aim was to suppress the Protestant Reformation. Just a few years later, her sister, Queen Elizabeth I, used the same method to suppress Catholicism. Until 1694, England required journalists to register for a license with the state, which provided government oversight to "prevent the frequent abuses in printing seditious treasonable and unlicensed books and pamphlets."¹

First Amendment and Prior Restraint

Because America was first colonized by the British, many British laws inspired the creation of American ones. This includes the idea of prior restraint. But the American colonists had revolted against England because of what they felt were excessive taxes and violations of their individual rights.

They codified some of these rights to prevent the government from becoming too powerful or oppressive. The Bill of Rights (which was added to the Constitution in 1791) included two very important freedoms in the First Amendment: Freedom of Speech and Freedom of the Press. The text reads like this (emphasis added):

Freedom of Speech has been expanded to include freedom of expression and symbolic speech. This means that forms of communication that don't strictly use words are also protected. This includes wearing symbols (for example, wearing a black armband with peace sign to protest the Vietnam War - see Tinker v. Des Moines) and forms of protest like flag burning (see Flag Protection Act of 1989).

Figure 2: The text of the First Amendment printed on the Newseum building in Washington, D.C. Source: dbking, Wikimedia Commons, CC-BY-2.0

Freedom of the Press means that the government can't interfere with journalism or people who print the news. Throughout the 18th century in the colonies, a robust system of newspapers popped up, with many of them using satirical attacks to make political points. The framers of the Constitution wanted to protect the spread of information from government meddling, so they included freedom of the press in the Constitution.

Prior Restraint Examples

Despite the protections for freedom of speech and freedom of the press in the Constitution, the American government has, at times, instituted some policies that reflect prior restraint doctrine.

Just a few short years after the passage of the Constitution in 1789, Congress passed a new law called the Sedition Act. The Act made it illegal to "print, utter, or publish...any false, scandalous, and malicious writing" about the government. It was immediately unpopular and harshly criticized as a violation of Freedom of Speech.

Proponents of the Act argued that it was necessary for national security, as relations between the United States and France were deteriorating and there was the potential for war. Today, historians believe that the Act was designed by the party in power (the Federalists) to suppress the opposition party (the Democrat-Republicans).

Prior Restraint Court Cases

The Supreme Court has, by and large, protected freedom of speech and freedom of the press over government interests. The two most important cases in this area are Near v. Minnesota and New York Times v. United States.

Near v. Minnesota (1931)

A man named Jay Near published an article in a Minneapolis newspaper claiming public officials were involved with gangsters, including gambling, bootlegging, and racketeering. They accused law enforcement of not properly enforcing the law against these activities. One of the men accused filed an action to stop the publication, saying that the newspaper violated the Minnesota law against malicious, scandalous, or inflammatory language. When the state court upheld the ruling, the newspaper took it to the Supreme Court, arguing that the law was unconstitutional.

The Supreme Court sided with the newspaper in a 5-4 decision. They defined freedom of the press as "laying no prior restraints upon publications."² According to the Supreme Court, the law was "the essence of censorship."³

The ruling established three important things:

1. The "gag law" was unconstitutional.
2. The freedom of the press protections in the First Amendment apply to state governments, not just the federal government.
3. A Supreme Court doctrine opposing prior restraint.

New York Times v. United States (1971)

Several decades later, the Vietnam War was extremely unpopular in the United States.

In 1971, a government employee shared classified documents about the war with New York Times. The documents came to be called the "Pentagon Papers," and they painted a negative picture of the government's incompetence and corruption in carrying out the war.

President Nixon obtained a restraining order to prevent the papers from being published, invoking prior restraint and arguing that they represented a threat to national security. The newspaper filed a lawsuit, arguing that the administration's actions violated the right to freedom of the press.

The Supreme Court sided with the New York Times in a 6-3 decision. They started off by noting that any use of prior restraint bears a "heavy presumption against its constitutional validity." Additionally, the vague idea of "security" wasn't sufficient "to abrogate the fundamental law embodied in the First Amendment."⁴ However, the six justices differed in their reasoning behind the opinion: some thought that there should be some allowances for prior restraint, while others said that the Constitution simply didn't allow the Supreme Court to give censorship power to the president.

Exceptions to Prior Restraint

In some cases, prior restraint has been protected.

Wartime Censorship/National Security

The government often has stricter rules around freedom of speech when it comes to national security during wartimes. For example, during World War I, Congress passed the Espionage Act of 1917. It prohibited sharing information related to national defense in any way. It also imposed penalties on anyone who interfered with the process of drafting or recruiting soldiers. In the 1919 case of Schenk v. United States, which centered on someone who was printing pamphlets encouraging people to dodge the draft, the Supreme Court ruled that individual rights may have to take a back seat to national security during times of war.

Figure 3: A political cartoon protesting the Sedition Act passed during World War I. In this image, Uncle Sam represents the government capturing characters named "spy" "traitor" and "German money." Source: Library of Congress

Preserving a Fair Trial

Courts are also permitted to withhold or prevent information from getting to the media if it could interfere with a fair trial. This can happen if media coverage of an incident influences the opinion of the jury. It can also harm victims who don't want their information to be public.