Prior restraint and the Supreme Court
Prior restraint refers to the legal practice of prohibiting certain publications or expressions before they occur, which raises significant First Amendment issues in the United States. The U.S. Supreme Court has historically favored press freedom, ruling against prior restraint in landmark cases such as Near v. Minnesota (1931) and New York Times Co. v. United States (1971). In these cases, the Court emphasized that freedom of the press must be preserved, even in the face of offensive or potentially prejudicial material. However, the Court has acknowledged that prior restraint may be permissible under extreme circumstances, such as in cases involving national security or obscenity. The balance between press freedom and other rights, like the right to a fair trial and individual privacy, remains a complex issue. As media has evolved, including the rise of broadcast and digital platforms, the Court has continued to adapt its interpretations of press freedom. Despite the strong protections against prior restraint, publishers can still face legal consequences for materials published, such as libel suits. Overall, the Supreme Court's stance reflects a commitment to protecting press freedoms while recognizing certain limitations.
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Prior restraint and the Supreme Court
Description: The banning or restriction of printed materials before they are published.
Significance: Widely regarded as intrusive censorship, prior restraint has continually been rejected by the Supreme Court as a violation of the First Amendment.
Reacting to an environment in Great Britain in which both church and state exercised frequent prior restraints, the framers of the U.S. Bill of Rights gave freedom of the press a prominent place in the First Amendment. Press freedom, however, sometimes conflicts with other constitutionally protected rights and interests, including individual privacy, the right to a fair trial, and national security. Although the Supreme Court continually upheld the right of the press to publish without prior restraint in individual cases, it generally allowed that such restraint might be permissible in extreme circumstances.
The first Court case on prior restraint was Near v. Minnesota (1931), in which the Court ruled that a state could not prohibit the publication of material it considered offensive, scandalous, or defamatory. In Grosjean v. American Press Co. (1936), the Court deemed the use of excessive taxation to stifle the press a form of prior restraint and, therefore, unacceptable. The issue of pretrial publicity was taken up in Nebraska Press Association v. Stuart (1976). In this case, the Court ruled that newspapers had a right to publish even when publication might influence public opinion and therefore interfere with the impartiality of a trial. Perhaps the most well-known case involving prior restraint was New York Times Co. v. United States (1971). The case, which allowed for the publication of articles based on the classified Pentagon Papers, has been viewed by many civil libertarians as among the most significant victories for press freedom.
As the impact of broadcast media increased in the twentieth century, freedoms originally applied to the press were extended to cover radio and television. Included in this coverage was the guarantee that broadcast licenses are granted on politically neutral grounds and that the so-called “fairness doctrine” ensures those with opposing viewpoints are given air time to respond to editorials. Eventually, computer-based communications were also covered. In Reno v. American Civil Liberties Union (1996), the Court deemed unconstitutional the federal Communications Decency Act of 1996, which sought to restrict Internet dissemination of “indecent” materials.
Freedom to publish does not protect the publisher from subsequent sanctions and prosecution. Some successful post-publication libel suits resulted in restrictions on the publication of further materials, and a number of trial verdicts were overturned as a result of pretrial publicity. The Court, however, maintained that prior restraint represents a greater danger than these results. Restrictions on prior restraint apply only to those forms of speech protected under the First Amendment. Prior restraint has therefore been deemed permissible in cases involving obscenity, severe risk to national security, the advocating of certain illegal acts, and invasions of personal privacy. Further, the advent and rise of the internet and social media brought new considerations to freedoms provided by the press.
Bibliography
Biskupic, Joan, and Elder Witt. The Supreme Court and Individual Rights. 3d ed. Washington, D.C.: Congressional Quarterly, 1997.
Cushman, Robert Fairchild, with Susan Koniak. Cases in Civil Liberties. 6th ed. Englewood Cliffs, N.J.: Prentice-Hall, 1994.
Peters, Jonathan. “A "Classic Example of a Prior Restraint."” American Bar Association, 9 Dec. 2015, www.americanbar.org/groups/litigation/committees/civil-rights/practice/2015/a-classic-example-of-a-prior-restraint/. Accessed 6 Apr. 2023.