Prior restraint
Prior restraint is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression. It is in contrast to censorship that establishes general subject matter restrictions and reviews a particular instance of expression only after the expression has taken place.
In some countries prior restraint by the government is forbidden, subject to exceptions, by their respective constitutions.
Prior restraint can be effected in a number of ways. For example, the exhibition of works of art or a movie may require a license from a government authority before it can be published, and the failure or refusal to grant a license is a form of censorship as is the revoking of a license. It can take the form of a legal injunction or government order prohibiting the publication of a specific document. Sometimes, a government or other party becomes aware of a forthcoming publication on a particular subject and seeks to prevent it: to halt ongoing publication and prevent its resumption. These injunctions are considered prior restraint because potential future publications are stopped in advance. It can also take the form of a policy imposed by a commercial corporation upon its employees, requiring them to obtain written permission to publish a given written work, even one authored outside of work hours produced using their own computing resources.
Common justifications given for prior restraints include avoiding exposure of military secrets, protecting victims of involuntary pornography or rape, or to protect the integrity of a judicial proceeding.
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. According to Blackstone, a person should not be punished for speaking or writing the truth with good motives and for justifiable ends. Truth alone, however, was not considered a sufficient justification, if published with bad motives.This view was the common legal understanding at the time the U.S. Constitution was adopted. Only later have the concepts of freedom of speech and the press been extended 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 implement criminal or civil sanctions only after the offending material has been published. While such sanctions 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: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.
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,. 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 by 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
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.". 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. 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 antisemitism, their frequent 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. 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:
Near's dicta suggest that, while a constitutional prior restraint can exist, the high burden of proof necessary to demonstrate constitutionality results in a presumption of invalidity, and the government bears the burden of showing the restraint's constitutionality.
In a later case, the Court wrote:
This shows the strong later acceptance of what had been a disputed decision when it was first handed down.