prior restraint

 

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Prior restraint is a legal term referring to a government's actions that prevent materials from being published. Censorship that requires a person to seek governmental permission in the form of a license or imprimatur before publishing anything constitutes prior restraint every time permission is denied. More recently, prior restraint has often taken the form of an injunction or other governmental order prohibiting the publication of a specific document or subject. Sometimes, the government becomes aware of a forthcoming publication on a particular subject and seeks to prevent it. In other cases, the government attempts to halt ongoing publication and prevent its resumption. These injunctions are also usually considered to be cases of prior restraint, because future publications are stopped before they start.

Anglo-American legal tradition

Blackstone and early views

In William Blackstone’s Commentaries “Freedom of the Press” is defined as the right to be free from prior restraints. In addition, he held that a person should not be punished for speaking or writing the truth, with good motives and for justifiable ends. (However, truth alone was not considered a sufficient justification, if published with bad motives.)

”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 [283 U.S. 697, 714] 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." (4 Bl. Com. 151, 152.)

This view was the common legal understanding at the time the US constitution was adopted. Only later have the concepts of freedom of speech and the press been extended (in the United States, the United Kingdom, and other countries sharing their legal tradition) to protect honest error, or truth even if published for questionable reasons.

Judicial view

Prior restraint is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as suits for libel, slander, defamation, or actions for criminal libel) generally involve punishment only after the offending material has been published. While such punishment might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. The United States Supreme Court expressed this view in Nebraska Press Assn. v. Stuart by noting:

" The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.

"A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time."

Also, most of the early struggles for freedom of the press were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.

Prior restraint in the United States

Near v. Minnesota

The first notable case in which the United States Supreme Court ruled on a prior restraint issue was Near v. Minnesota, 283 U.S. 697, (1931). In that case the Court held prior restraints to be unconstitutional, except in extremely limited circumstances such as national security issues. The ruling came about after Jay Near's newspaper, The Saturday Press, a small local paper that ran countless exposés of Minneapolis's elected officials’ alleged illicit activities, including gambling, racketeering, and graft, was silenced by the Minnesota Gag Law of 1925, also known as The Public Nuisance Law. Near’s critics called his paper a scandal sheet, and alleged that he tried to extort money threatening to publish attacks on officials and others. In the Near case the Court held that the state had no power to enjoin the publication of the paper in this way – that any such action would be unconstitutional under the First Amendment. It wrote:

”If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter-in particular that the matter consists of charges against public officers of official dereliction-and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.”

And

”The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. … it would be but a step to a complete system of censorship. … The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this court has said, on proof of truth. (Patterson v. Colorado 205 U.S. 454, 462)”.

This was an extension of the Court’s earlier views, which had followed Blackstone. In Patterson v. Colorado, the Court had written: “In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” (quoted in the Near decision). The Near decision was the first time that it was held that even alleged untruth or malicious intent would not be sufficient reason to impose prior restraints. Near was decided 5-4, and the four dissenting justices strongly approved of the "gag law", and felt that the nature of the articles in the Saturday Press, including their recurrent anti-Semitism, their frequent (allegedly false) accusations of official misconduct, and their disrespectful and confrontational tone, made them unworthy of protection. But this view did not prevail. After the Near decision, newspapers had a clearly established freedom to criticize public officials without fear of retribution, even when charges made by the papers could not be proven in court. Newspapers could still be punished through libel laws, if they published material found to be untrue. It should be noted that the "Gag Law" was unique in the United States at that time, and even in Minnesota had only been used on two occasions. Indeed the Court commented on the unusual nature of the proceeding in its decision.

The Court in Near left open the possibility of prior restraints for various exceptional purposes, such as national security, control of obscenity, and the like. It wrote:

"…the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' (Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247, 249). 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. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government."

In a later case (Nebraska Press Assn. v. Stuart), the Court wrote:

"The principles enunciated in Near were so universally accepted that the precise issue did not come before us again until Organization for a Better Austin v. Keefe (402 U.S. 415) (1971). There the state courts had enjoined the petitioners from picketing or passing out literature of any kind in a specified area. Noting the similarity to Near v. Minnesota, a unanimous Court held:

"Here, as in that case, the injunction operates, not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution of literature `of any kind' in a city of 18,000.

. . . . .

"Any prior restraint on expression comes to this Court with a `heavy presumption' against its constitutional validity. Carroll v. Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint."

This shows the strong later acceptance of what had been a disputed decision when it was first handed down.

Wartime censorship

During World War I, and to a greater extent during World War II, war correspondents accompanied military forces, and their reports were subject to advance censorship to preserve military secrets. The extent of such censorship was not generally challenged, and no major court case arose from this issue. In later conflicts the degree to which war reporting was subject to censorship varied, and in some cases it has been alleged that the censorship was as much political as military in purpose. This was particularly true during the Vietnam War and the invasion of Grenada.

Such issues arose again during the 2003 Invasion of Iraq, when many embedded reporters accompanied soldiers as they made their way into the country. These reports were subject to censorship in that they were not allowed to reveal a unit's exact location.

Pentagon papers case

In the Pentagon Papers case (New York Times Co. v. United States, 1971), the Nixon administration sought to enjoin the New York Times and the Washington Post newspapers from publishing excerpts from a top-secret United States Department of Defense history of the United States involvement in the Vietnam War from 1945 to 1971. The government tried to use the “national security” exception that had been suggested in the Near decision. The Supreme Court struck down the injunctions. However, the decision was fragmented, with nine separate opinions being filed in the case. It was not clear at the time what the effect would be on future prior restraint cases. j

The H-Bomb Article Cases

Scientific American

On March 15 1950 Scientific American published an article by Hans Bethe about thermonuclear fusion, the basic process that makes stars shine, and that is used in the hydrogen bomb (or H-Bomb). The AEC (Atomic Energy Commission) ordered publication stopped. Several thousand copies of the printed magazine were destroyed, and the article was published with some text removed at the direction of the AEC. At this time there existed in the United States no workable designs for a hydrogen bomb (the Teller-Ulam design would not come into existence for another year), but the U.S. was engaged in a crash program to develop one. Gerard Piel, the publisher of Scientific American, complained that the AEC was "suppressing information which the American People need in order to form intelligent judgments." Bethe, however, declined to support this complaint, and the suppression of the unedited version of the article was never litigated.

The Progressive

In February 1979, an anti-nuclear activist named Howard Morland drafted an article for The Progressive magazine, entitled "The H-Bomb Secret: To Know How is to Ask Why." The article was an attempt by Morland to publish what he thought the "H-Bomb Secret" was (the Teller-Ulam design), derived from various unclassified sources and informal interviews with scientists and plant workers. Through a number of complicated circumstances, the Department of Energy attempted to enjoin its publication, alleging that the article contained sensitive technical information which was (1) probably derived from classified sources, or (2) became a classified source when compiled in a correct way, even if it were derived from unclassified sources, based on the "born secret" provisions of the 1954 Atomic Energy Act. A preliminary injunction was granted against the article's publication, and Morland and the magazine appealed (United States v. The Progressive, et al.). After a lengthy set of hearings (one in camera, another open to the public), and attracting considerable attention as a "freedom of the press" case, the government dropped its charges after it claimed the case became moot when another bomb speculator (Chuck Hansen) published his own views on the "secret" (many commentators speculated that they were afraid the Atomic Energy Act would become overturned under such scrutiny). The article was duly published in The Progressive (in the November 1979 issue) six months after it was originally scheduled, and remains available in libraries. (As an aside, Morland himself decided that he did not have the secret, and published a "corrected" version a month later.)

Judicial "gag" orders

Frequently a court will impose advance restrictions on lawyers, parties, and on the press in reporting of trials, particularly criminal trials. These restrictions are intended to protect the right to a fair trial, and to avoid interference with the judicial process. Nonetheless, they are a form of prior restraint, and the press in particular has often objected to such orders.

In Nebraska Press Assn. v. Stuart, (427 U.S. 539) (1976), the United States Supreme Court overturned such a "gag order". It ruled that alternative methods to help ensure a fair trial, short of prior restraints, might have been used, and that it was not all clear, under the circumstances, that the gag order would have the desired effect even if upheld. It also made a particular point of asserting that orders restricting reporting on events that occur in open court are not permissible. It wrote:

"To the extent that this order prohibited the reporting of evidence adduced at the open preliminary hearing, it plainly violated settled principles: '[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom.' Sheppard v. Maxwell, (384 U.S., at 362 -363)".

The Court's conclusion in this case reaffirmed its general opposition to prior restraints, and indicated that judicial gag orders would be sustained only in exceptional cases. It wrote:

"Our analysis ends as it began, with a confrontation between prior restraint imposed to protect one vital constitutional guarantee and the explicit command of another that the freedom to speak and publish shall not be abridged. We reaffirm that the guarantees of freedom of expression are not an absolute prohibition under all circumstances, but the barriers to prior restraint remain high and the presumption against its use continues intact."

In the United Kingdom judicial gag orders are much more frequently employed, and the strong prejudice against them reflected in the above quote does not seem to be felt by British courts. Other countries also employ such orders more freely than the United States does.

The DeCSS Case

In October 1999 the Motion Picture Association of America (MPAA), learned of the availability on the internet of DeCSS, a program intended to allow DVDs to be viewed on operating systems that lacked commercial DVD players, and to that end, bypassing the encryption system known as the Content Scrambling System (CSS) generally used on commercial DVDs. The MPAA responded by sending out a number of cease and desist letters to web site operators who posted the software. In January 2000, a lawsuit was filed against the publisher of the online magazine 2600: The Hacker Quarterly, and others. This case is known as Universal v. Reimerdes.

The suit asked for an injunction under the U.S. Digital Millennium Copyright Act (DMCA) prohibiting the 2600 site from posting the DeCSS code. It also asked for a prohibition on linking to other sites that posted the code.

The injunction was issued and sustained in an appeal to the U.S. Court of Appeals for the Second Circuit and the constitutionality of the DMCA was upheld. The district court wrote that the computer code "… does more, in other words, than convey a message" and that "… it has a distinctly functional, non-speech aspect in addition to reflecting the thoughts of the programmers." The appeals court later wrote that "Under the circumstances amply shown by the record, the injunction's linking prohibition validly regulates the Appellants' opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs" thus upholding the injunction against publishing links to the DeCSS code in these circumstances.

The appeals court did consider the prior restraint and free expression issues, but treated the DeCSS program primarily as a means of evading copyright protection, and under that theory, held that the 2600 site could be permanently enjoined from posting the DeCSS code, and from linking to sites that posted it in an attempt to make the code available. The case was not taken to the Supreme Court.

Theater and motion pictures

There is a long history of prior restraints on the theater; and, in the United Kingdom, plays still required a license until well into the twentieth century. This attitude was early transferred to motion pictures, and prior restraints have been retained for films long after they have been dropped for other forms of publication. Both the state of Maryland and the province of Ontario retained film censor boards to a particularly late date. However, Maryland abandoned its board in the 1980s, and a 2004 decision of the Ontario Court of Appeal, reversing a previous trend in favor of the Ontario Film Classification Board's right to insist on cuts, ruled that the province had no right to insist on cuts as a condition of release in view of the fact that Canadian federal obscenity laws were sufficient to deal with obscene material. In May, 2005, the Ontario government ended the power of the Classification Board to insist on cuts, requiring all films that were not judged obscene to be rated "R" for adults only.

In many countries, legally effective rating systems are in effect. See History of British Film Certificates for information on film restrictions in the UK.

Industry codes

Many industries have formulated to "voluntary" codes limiting the content of expression. Examples of these include the Hays Code, which affected Hollywood films from the 1930s to the 1950s, and the Comics Code, which was designed to deal with the rise of horror comics in the 1950s and lasted into the 1970s. The movie rating system currently in effect in the United States, run by the Motion Picture Association of America (MPAA) is another such industry code. Such codes have generally been adopted with the twofold purposes of forestalling possible government intervention, and avoiding unfavorable publicity or boycotts. While such codes are not generally enforced by governmental action, they are generally enforced on content producers by gatekeepers in the marketing chain: studios in the case of the Hayes Code; distributors in the case of the Comics Code; and theater chains in the case of the MPAA rating system. Content producers have often objected to these codes, and argue that they are, in effect, a form of prior restraint.

See also

• Censorship in the United States
• Death of Vince Foster
• Tory v. Cochran
• Media transparency

External links

• "Prior Restraint" on Findlaw
• "Prior Restraints and the Presumption of Unconstitutionality"
• "Prior Restraint" by Barry O. Hines, R. Kurt Wilke, & Sarah M. Lahr
• "Prior Restraint" from the Massachusetts Bar Association's Journalists' Handbook.
• Howard Morland's account of The Progressive case and the events leading up to it.
• United States of America v. Progressive, Inc. The decision of the lower court in this case. The appeal was denied as moot after the government dropped the case.
• Wisconsin Free Speech Legacy's extensive discussion of the case and the stages it went through
• "The Holocaust Bomb: a Question of Time" by Howard Morland. Later comment by the author of the original "H-bomb" article.
• "The H-Bomb Secret" by Howard Morland (as published in The Progressive) This link includes the entire text of the November 1979 issue of the magazine, most of which was devoted to this subject. It includes articles about the court case, public response to the case, and why The Progressive insisted on publishing the article as originally written.
• Applied Cryptography Source Code Disk appeal
• "The First Amendment Handbook: Prior Restraints" Deals largely with Nebraska Press Association v. Stuart.
• The text of Nebraska Press Association v. Stuart from Findlaw

Bibliography

• Born Secret: The H-Bomb, the Progressive Case and National Security Devolpi (Pergamon) 1981
• The Secret that Exploded, Howard Morland (Random House) 1981 About the Progressive case.
• Minnesota Rag: Corruption, Yellow Journalism, and the Case That Saved Freedom of the Press, Fred W. Friendly (University of Minnesota Press) 1982 A history of the Near case.
• The Good Guys, The Bad Guys and The First Amendment: Free speech vs. fairness in broadcasting by Fred W. Friendly (Random House; 1976) (ISBN 0-394-49725-2)
• Make No Law : The Sullivan Case and the First Amendment Anthony Lewis (Random House) 1991 A history of the case that established the actual malice standard for libel of public officials.
• Beyond the Burning Cross: A Landmark Case of Race, Censorship, and the First Amendment Edward J. Cleary (Vintage) 1995 A History of R.A.V. v. St Paul a "hate crime" case.
• The Day the Presses Stopped: A History of the Pentagon Papers Case David Rudenstine (University of California Press) 1996
• American Aurora: A Democratic-Republican Returns : The Suppressed History of Our Nation's Beginnings and the Heroic Newspaper That Tried to Report It Richard N. Rosenfeld (St. Martin's Press) 1997 A newspaper suppression case in the early years of the United States.
• Press Censorship in Elizabethan England Cyndia Susan Clegg (Cambridge University Press) 1997
• Flag Burning and Free Speech: The Case of Texas v. Johnson Robert Justin Goldstein (University Press of Kansas) 2000
• The Law of Public Communication Kent R. Middleton, William E. Lee, and Bill F. Chamberlin (Allyn & Bacon) 2003 A general survey of the current US law.
• The Tyranny of Printers": Newspaper Politics in the Early American Republic Jeffrey L. Pasley (University Press of Virginia) 2003
• Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism Geoffrey R. Stone (W. W. Norton & Company) 2004

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