Prior Restraint: How prior restraint law evolved under the pressure of the First Amendment and the people's belief in free expression and freedom of the press.
Updated September 19, 2002
Prior restraint: to suppress a message before it can be communicated.
In early 16th century England the press had to be licensed by the monarchy. Nothing could be printed without the king's permission. Licensing of the press in England ended when in 1694 the British Parliament refused to continue the practice.
The British jurist, Sir William Blackstone (1723-1780), wrote in his "Commentaries on the Laws of England": "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity."
Licensing of the press has never been allowed in the United States. However, colonial governors in some colonies, like Virginia, kept a tight rein on printers and had jailed them when they published material offensive to the royal governors or the King of England. (Look up the trial of John Peter Zenger, publisher of the New York Weekly Journal, who was imprisoned for political articles published in his newspaper in 1735.)
Although a newspaper may be restrained from publishing government documents under certain circumstances -- a list of CIA agents operating in foreign countries, or describing troop movements during a military action, as examples -- the U.S. Supreme Court has stated repeatedly that the government must overcome the heavy presumption against prior restraint in order to be successful in prohibiting publication.
Near v. Minnesota, 283 U.S. 697 (1931) -- A landmark case in freedom of the press jurisprudence. In this decision, a 5-to-4 U.S. Supreme Court majority first applied the First Amendment's prohibition on abridging freedom of the press to the states through the Due Process Clause of the Fourteenth Amendment.
A Minnesota law made it illegal to publish material that is "malicious, scandalous, and defamatory." Publishers could be stopped from further publication.
Minnesota prosecuted Jay Near for publishing The Saturday Press, because the paper had stated that local law enforcement officials were in league with gangsters and were receiving graft.
Minnesota officials brought a lawsuit against Near and shut down his press.
The U.S. Supreme Court ruled that although freedom of speech and the press is "not an absolute right," prior restraint has been rejected in the United States and England as a means of dealing with irresponsible speech. The court told Minnesota officials they could sue under defamation laws but could not stop Near from publishing.
Unfortunately, by the time the case was decided by the Supreme Court, Near was bankrupt. Nevertheless, the court's decision laid the foundation for future rulings.
New York Times v. United States and United States v. Washington Post, 403 U.S. 713 (1971) -- Undoubtedly, the Near decision had a great influence on the high court's ruling in this the so-called "Pentagon Papers" case. The Pentagon Papers were actually Department of Defense documents entitled "History of the United States Decision-Making Process on Vietnam Policy" which former government employee Daniel Ellsberg, who wrote the documents, photocopied and distributed to the newspapers.
Prior to the Pentagon Papers case, the federal government had never attempted to use the federal courts to prevent the publication of information.
The New York Times and the Washington Post began publishing sections of the documents. The U.S. Department of Justice filed suit in federal district courts for a restraining orders to block further publication on the basis that the items published jeopardized national security.
The district court in New York granted the government's request for a temporary restraining order but later refused to grant a permanent injunction against the New York Times publishing the material. The government appealed to the U.S. Court of Appeals for the Second Circuit and the court kept the restraining order in place until the lower court could hear move evidence from the government. So the New York Times could not publish.
In Washington, D.C., the federal district court rejected the government's request for a restraining order against the Washington Post. The government appealed to the Court of Appeals for the District of Columbia, but was again turned down. The Washington Post continued to publish the Pentagon Papers.
The government appealed to the U.S. Supreme Court. The high court in a 6-to-3 per curium (unsigned) decision allowed the continued publication of the Pentagon Papers. The court noted that the government had not met its burden of proof to show the justification for prior restraint. It was one of the most important decisions for press freedom, the court has ever delivered.
United States v. Progressive, Inc. 467 F.Supp. 990 (1979) -- The Progressive magazine in Madison, WI, attempted to publish an article entitled, "The H-Bomb Secret: How We Got It, Why We're Telling It." The material gleaned for the article had already been published in newspapers, magazines, and scientific journals in the United States. The federal district court for the Western District of Wisconsin halted the publication based upon a provision in the Atomic Energy Act of 1954 which specifically authorized prior restraint of the publication of data covered by the act.
A federal court, in this rare instance, allowed prior restraint. The judge was convinced the article could speed up the proliferation of hydrogen bombs. The Progressive magazine appealed to the U.S. Court of Appeals for the Seventh Circuit. A hearing was scheduled for early September 1979, but the Palo Alto, California Peninsula Times-Tribune, the Milwaukee Sentinel and the Madison, Wisconsin Press Connection published similar articles written by other authors. The government dropped the case.
The Progressive magazine later published the article. The judge's fears about the proliferation of hydrogen bombs proved to be unjustified.
Snepp v. United States 444 U.S. 507 (1980) -- this decision defines the First Amendment rights of government employees. The U.S. Supreme Court held that a security agreement (a contract), which subjected a former CIA agent, Frank Snepp, to prepublication review and clearance, did not violate the First Amendment.
Snepp was awarded the CIA's Medal of Merit for his work in Vietnam. He was, however, disillusioned with the CIA and quit, then wrote a book, Decent Interval, which was critical of the agency. He refused to turn his manuscript over to the CIA for prepublication review. The book was published.
The Supreme Court ruled that Snepp's royalties would go directly to the government and Snepp would realize no profit from his work.
TO REQUIRE A LICENSE in order to hand out political and religious leaflets, handbills and pamphlets is prohibited:
In numbers of cases, the U.S. Supreme Court has prohibited the licensing of this free speech/free press activity as a violation of the First Amendment -- to often used as a prior restraint on speech or the press. The U.S. Supreme Court on June 17, 2002 in Watchtower Bible and Tract Society of New York, inc. v. Village of Stratton ruled 8-to1 that Stratton could not require canvassers to obtain a permit before going door-to-door to communicate their political or religious ideas.
In general, First Amendment activities, which do not interfere with traffic or implicate public safety are immune to licensing or permits. Artists can show their work in city parks and on street corners without obtaining a license from the city or town.
Cities and towns may require permits or licenses for marches or for peaceful demonstrations. The permit fees must be reasonable so they do not discourage these First Amendment activities. The licensing requirement gives the city or town notice to block off streets and to provide police protection.