The Doctrine of Prior Restraint
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
“[L]iberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.”423 “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”424 Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.”425 Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities. The great struggle for liberty of the press was for the right to publish without a license what for a long time could be published only with a license.426
The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson,427 in which a fivetofour majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an “obscene, lewd and lascivious” or a “malicious, scandalous and defamatory” issue. An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters. Although the dissenters maintained that the injunction constituted no prior restraint, because that doctrine applied to prohibitions of publication without advance approval of an executive official,428 the majority deemed it “the essence of censorship” that, in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge.429 Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the Court. “[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.”430 The Court did not explore the kinds of restrictions to which the term “prior restraint” would apply, nor do more than assert that only in “exceptional cases” would prior restraint be permissible.431
Nor did subsequent cases substantially illuminate the murky interior of the doctrine. The doctrine of prior restraint was called upon by the Court as it struck down restrictions on First Amendment rights, including a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them.432 The doctrine that generally emerged was that permit systems and prior licensing are constitutionally valid so long as the discretion of the issuing official was limited to questions of time, place, and manner.433 “[O]nly content-based injunctions are subject to prior restraint analysis.”434
The most recent Court encounter with the doctrine in the national security area occurred when the government attempted to enjoin press publication of classified documents pertaining to the Vietnam War435 and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that, in some circumstances, prior restraint of publication would be constitutional.436 But no cohesive doctrine relating to the subject, its applications, and its exceptions has emerged.
The Supreme Court has written that “[t]he special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment.”437 The prohibition on prior restraint, thus, is essentially a limitation on restraints until a final judicial determination that the restricted speech is not protected by the First Amendment. It is a limitation, for example, against temporary restraining orders and preliminary injunctions pending final judgment, not against permanent injunctions after a final judgment is made that the restricted speech is not protected by the First Amendment.438
The Supreme Court has also written “that traditional prior restraint doctrine may not apply to [commercial speech],”439 and “[t]he vast majority of [federal] circuits . . . do not apply the doctrine of prior restraint to commercial speech.”440 “Some circuits [however] have explicitly indicated that the requirement of procedural safeguards in the context of a prior restraint indeed applies to commercial speech.”441 In addition, prior restraint is generally permitted, even in the form of preliminary injunctions, in intellectual property cases, such as those for infringements of copyright or trademark.442
Injunctions and the Press in Fair Trial Cases.—Confronting a claimed conﬂict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant.443 Though agreed as to the result, the Justices were divided as to whether “gag orders” were ever permissible and if so what the standards for imposing them were. The Court used the Learned Hand formulation of the “clear and present danger” test444 and considered as factors in any decision on the imposition of a restraint upon press reporters “(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.”445 Though the Court found that one seeking a restraining order must meet “the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied,” it refused to “rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.”446 Justice Brennan’s concurring opinion ﬂatly took the position that such restraining orders were never permissible. Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would have held, and secrecy can do so much harm “that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained.”447 The only circumstance in which prior restraint of protected speech might be permissible is when publication would cause “virtually certain, direct, and immediate” national harm, Justice Brennan continued, but “the harm to a fair trial that might otherwise eventuate from publications which are suppressed . . . must inherently remain speculative.”448 Although the result in the case does not foreclose the possibility of future “gag orders,” it does lessen the number to be expected and shifts the focus to other alternatives for protecting trial rights.449 On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart,450 the Court determined that such orders protecting parties from abuses of discovery require “no heightened First Amendment scrutiny.”451
Obscenity and Prior Restraint.—Only in the obscenity area has there emerged a substantial consideration of the doctrine of prior restraint, and the doctrine’s use there may be based upon the fact that obscenity is not a protected form of expression.452 In Kingsley Books v. Brown,453 the Court upheld a state statute that, though it embodied some features of prior restraint, was seen as having little more restraining effect than an ordinary criminal statute; that is, the law’s penalties applied only after publication. But, in Times Film Corp. v. City of Chicago,454 a divided Court specifically affirmed that, at least in the case of motion pictures, the First Amendment did not proscribe a licensing system under which a board of censors could refuse to license for public exhibition films that it found obscene. Books and periodicals may also be subjected to some forms of prior restraint,455 but the thrust of the Court’s opinions in this area with regard to all forms of communication has been to establish strict standards of procedural protections to ensure that the censoring agency bears the burden of proof on obscenity, that only a judicial order can restrain exhibition, and that a prompt final judicial decision is assured.456
423 Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).
424 Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963).
425 Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
426 Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713–14 (1931); Lovell v. Griffin, 303 U.S. 444, 451 (1938).
427 283 U.S. 697 (1931).
428 283 U.S. at 723, 733–36 (Justice Butler dissenting).
429 283 U.S. at 713.
430 283 U.S. at 719–20.
431 283 U.S. at 716.
432 E.g., Lovell v. Griffin, 303 U.S. 444 (1938); Cantwell v. Connecticut, 310 U.S. 296 (1940); Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268 (1951); Staub v. City of Baxley, 355 U.S. 313 (1958). For other applications, see Grosjean v. American Press Co., 297 U.S. 233 (1936); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944).
433 Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New Hampshire, 345 U.S. 395 (1953). In Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968), the Court held invalid the issuance of an ex parte injunction to restrain the holding of a protest meeting, holding that usually notice must be given the parties to be restrained and an opportunity for them to rebut the contentions presented to justify the sought-for restraint. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Court held invalid as a prior restraint an injunction preventing the petitioners from distributing 18,000 pamphlets attacking respondent’s alleged “blockbusting” real estate activities; he was held not to have borne the “heavy burden” of justifying the restraint. “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaﬂets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy . . . is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.” Id. at 419–20. See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property is facially invalid as prior restraint). The necessity of immediate appellate review of orders restraining the exercise of First Amendment rights was strongly emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977), and seems to explain the Court’s action in Philadelphia Newspapers v. Jerome, 434 U.S. 241 (1978). But see Moreland v. Sprecher, 443 U.S. 709 (1979) (party can relinquish right to expedited review through failure to properly request it).
434 DVD Copy Control Association, Inc. v. Bunner, 75 P.3d 1, 17 (Cal. 2003) (“[a] prior restraint is a content-based restriction on speech prior to its occurrence,” id. at 17–18). Regarding the standard for content-neutral injunctions, see “Public Issue Picketing and Parading,” infra.
435 New York Times Co. v. United States, 403 U.S. 713 (1971). The vote was 6-to-3, with Justices Black, Douglas, Brennan, Stewart, White, and Marshall in the majority and Chief Justice Burger and Justices Harlan and Blackmun in the minority. Each Justice issued an opinion.
436 The three dissenters thought such restraint appropriate in this case. Id. at 748, 752, 759. Justice Stewart thought restraint would be proper if disclosure “will surely result in direct, immediate, and irreparable damage to our Nation or its people,” id. at 730, while Justice White did not endorse any specific phrasing of a standard. Id. at 730–33. Justice Brennan would preclude even interim restraint except upon “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” Id. at 712–13. The same issues were raised in United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), in which the United States obtained an injunction prohibiting publication of an article it claimed would reveal information about nuclear weapons, thereby increasing the dangers of nuclear proliferation. The injunction was lifted when the same information was published elsewhere and thus there was no appellate review of the order. With respect to the right of the Central Intelligence Agency to prepublication review of the writings of former agents and its enforcement through contractual relationships, see Snepp v. United States, 444 U.S. 507 (1980); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975); United States v. Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).
437 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973); see also Vance v. Universal Amusement Co., 445 U.S. 308, 315–316 (1980) (“the burden of supporting an injunction against a future exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication”).
438 See Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 169–171 (1998).
439 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557 (1980), citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772 n.24 (1976).
440 Bosley v. WildWetT.com, 310 F. Supp. 2d 914, 930 (N.D. Ohio 2004).
441 New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123, 131 (2d Cir. 1998), cert. denied, 525 U.S. 824 (1998), citing Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996); In re Search of Kitty’s East, 905 F.2d 1367, 1371–72 & n.4 (10th Cir. 1990).
442 See Bosley v. WildWetT.com, 310 F. Supp. 2d 914, 930 (N.D. Ohio 2004). See also Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998) (arguing that intellectual property should have the same First Amendment protection from preliminary injunctions that other speech does).
443 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).
444 427 U.S. at 562, quoting Dennis v. United States, 183 F.2d 201, 212 (2d Cir. 1950), aff’d, 341 U.S. 494, 510 (1951).
445 Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976) (opinion of Chief Justice Burger, concurred in by Justices Blackmun and Rehnquist, and, also writing brief concurrences, Justices White and Powell). Applying the tests, the Chief Justice agreed that (a) there was intense and pervasive pretrial publicity and more could be expected, but that (b) the lower courts had made little effort to assess the prospects of other methods of preventing or mitigating the effects of such publicity and that (c) in any event the restraining order was unlikely to have the desired effect of protecting the defendant’s rights. Id. at 562–67.
446 427 U.S. at 569–70. The Court distinguished between reporting on judicial proceedings held in public and reporting of information gained from other sources, but found that a heavy burden must be met to secure a prior restraint on either. Id. at 570. See also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting aside injunction restraining news media from publishing name of juvenile involved in pending proceeding when name has been learned at open detention hearing that could have been closed but was not); Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979).
447 427 U.S. at 572, 588. Justices Stewart and Marshall joined this opinion and Justice Stevens noted his general agreement except that he reserved decision in particularly egregious situations, even though stating that he might well agree with Justice Brennan there also. Id. at 617. Justice White, while joining the opinion of the Court, noted that he had grave doubts that “gag orders” could ever be justified but he would refrain from so declaring in the Court’s first case on the issue. Id. at 570.
448 427 U.S. at 599.
449 One such alternative is the banning of communication with the press on trial issues by prosecution and defense attorneys, police officials, and court officers. This, of course, also raises First Amendment issues. See,e.g., Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976).
450 467 U.S. 20 (1984).
451 467 U.S. at 36. The decision was unanimous, all other Justices joining Justice Powell’s opinion for the Court, but Justices Brennan and Marshall noting additionally that under the facts of the case important interests in privacy and religious freedom were being protected. Id. at 37, 38.
452 See discussion of “Obscenity,” infra.See also Justice Brennan’s concurrence in Nebraska Press Ass’n v. Stuart, 427 U.S. at 590.
453 354 U.S. 436 1957). See also Bantam Books v. Sullivan, 372 U.S. 58 (1963).
454 365 U.S. 43 (1961). See also Young v. American Mini Theatres, 427 U.S. 50 (1976) (zoning ordinance prescribing distances adult theaters may be located from residential areas and other theaters is not an impermissible prior restraint).
455 Cf. Kingsley Books v. Brown, 354 U.S. 436 (1957).
456 Freedman v. Maryland, 380 U.S. 51 (1965); Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968); Blount v. Rizzi, 400 U.S. 410 (1971); United States v. Thirty-seven Photographs, 402 U.S. 363, 367–375 (1971); Southeastern Promotions v. Conrad, 420 U.S. 546 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229 (1990) (ordinance requiring licensing of “sexually oriented business” “does not provide for an effective limitation on the time within which the licensor’s decision must be made [and] also fails to provide an avenue for prompt judicial review”); City of Littleton v. Z.J. Gifts D–4, L.L.C., 541 U.S. 774, 784 (2004) (“Where (as here and as in FW/PBS) the regulation simply conditions the operation of an adult business on compliance with neutral and nondiscretionary criteria . . . and does not seek to censor content, an adult business is not entitled to an unusually speedy judicial decision of the Freedman type”); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (seizure of books and films based on ex parte probable cause hearing under state RICO law’s forfeiture procedures constitutes invalid prior restraint; instead, there must be a determination in an adversarial proceeding that the materials are obscene or that a RICO violation has occurred). But cf. Alexander v. United States, 509 U.S. 544 (1993) (RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses, based on the predicate acts of selling four magazines and three videotapes, does not constitute a prior restraint and is not invalid as “chilling” protected expression that is not obscene).