Prior Restraints

Prior Restraints

The First Amendment provides very strong protection against prior restraints on expression. The overhead below outlines the 1931 U.S. Supreme Court decision that established the prior restraint doctrine in First Amendment law. As you will see, the Court allowed for specific execptions to the general prohibition on prior restraints. Since 1931 the Court has created additional exceptions, some of which are discussed in Pember and in the case law below.

Near v. Minnesota , 283 U.S. 697, 283 U.S. 697, 1 M.L.R. 1001 (1931)

(1) Prior restraints are a violation of the First Amendment, but three categories of speech may be restrained:

Obscene Speech - if the government can prove that expression is obscene, then the expression may be supressed.

Incitement to Violence - if the government proves that speech is an incitement to violence it may stop and ban the speech.

National Security - again, the burden is on the government to prove that speech threatens the national security. if it meets this burden, the government may ban publication of specific information.

National Security:

New York Times v. United States, 403 U.S. 713 (1971)

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Publication of Lawfully Obtained Information: CBS v. Davis, 114 S.Ct. 912 (Blackmun, Cir, Justice 1994) Justice Blackmun granted an emergency stay of a preliminary injunction barring CBS from broadcasting videotape shot inside a meat packing plant as part of a "48 Hours" expose. A state court issued the injunction because CBS had obtained the video through "calculated misdeeds." Blackmun found the parties seeking the injunction made insufficient showings of potential economic harm and of wrong doing on the part of CBS to overcome the First Amendment barrier to prior restraints. Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976) Court order enjoining the "news media" from publishing "any information" concerning a sensational murder trial beyond that suggested by state "Bench/Bar/Press" guidelines held unconstitutional. The Court established a 3-part test any "gag order" on publication of "pretrial publicity" that places a very heavy burden on a court to demonstrate the need for and the potential effectiveness of any restraint on publication. U.S. v. Noriega, 917 F.2d 1543 (11th Cir), cert denied 498 U.S. 976 (1990) Court of Appeals upheld temporary restraining order on CNN's broadcast of tape recordings of telephone conversations between General Manuel Noriega and his attorneys made while Noreiga was in federal prison awaiting trial on criminal charges. Florida Star v. BJF, 109 S.Ct. 2603 (1989) State law made it illegal to "print, publish, or broadcast...in any medium of mass communication" the name of a victim of a sexual offense. The Supreme Court held that "where a newspaper publishes truthful information about a matter of public significance...state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order. Florida v. Globe Communications Corp., 622 So. 2d 1066 (1993); aff'd 23 MLR 1116 (Fla. 1994). The Globe identified the alleged victim in William Kennedy Smith rape trial. Relying on Florida Star, the Florida Supreme Court held that Fla. Stat. 794.03 violates the First Amendment and the Florida constitution. The Court held that the statute was overbroad and facially underinclusive. Smith v. Daily Mail, 443 U.S. 97 (1979) West Virginia statute prohibiting the publication without the approval of the juvenile court the name of any youth charged as a juvenile offender held unconstitutional. The Court said the state's interest in protecting the anonymity of the juvenile did not overcome the First Amendment right to publish truthful information.

Prior Restraint of Government Employee's Speech:

U.S. v. National Treasury Employees Union 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995).

Protests at Abortion Clinics

Schenck v. Pro Choice Network

Hill v. Colorado

Prior Restraint of Internet Website Planned Parenthood of Columbia v. ACLA 290 F.3d 1058 (9th Cir. May 16, 2002)