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| Freedom of Expression in the United
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Source: Congressional Research Service - The Constitution of the United States of America: Analysis and
Interpretation
The Doctrine of Prior Restraint
"[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."43
"Any system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity."44
Government "thus carries a heavy burden of showing justification for
the imposition of such a restraint."45
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 that which for a long
time could be published only with a license.46
The United States Supreme Court's first encounter with a law
imposing a prior restraint came in Near v. Minnesota ex rel. Olson,47
in which a five-to-four 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. While the dissenters maintained that
the injunction constituted no prior restraint, inasmuch as that doctrine
applied to prohibitions of publication without advance approval of an
executive official,48 the majority deemed the difference of no
consequence, since in order to avoid a contempt citation the newspaper
would have to clear future publications in advance with the
judge.49 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."50
The Court did not undertake to explore the kinds of
restrictions to which the term "prior restraint" would apply nor to do
more than assert that only in "exceptional circumstances" would prior
restraint be permissible.51 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 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, and as it
voided other restrictions on First Amendment rights.52 The doctrine
that generally emerged was that permit systems--prior licensing, if you
will--were constitutionally valid so long as the discretion of the
issuing official was limited to questions of times, places, and
manners.53 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
War54 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.55 But no
cohesive doctrine relating to the subject, its applications, and its
exceptions has yet emerged.
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.56 Though agreed on result, the Justices were divided with
respect to whether "gag orders" were ever permissible and if so what
the standards for imposing them were. The opinion of the Court utilized
the Learned Hand formulation of the "clear and present danger"
test57 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 were likely to mitigate the harm, and (c) how effectively a
restraining order would operate to prevent the threatened danger.58
One seeking a restraining order would have a heavy burden to meet to
justify such an action, a burden that could be satisfied only on a
showing that with a prior restraint a fair trial would be denied, but
the Chief Justice refused to rule out the possibility of showing the
kind of threat that would possess the degree of certainty to justify
restraints.59 Justice Brennan's major 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 hold, 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."60 The extremely narrow
exceptions under which prior restraints might be permissible relate to
probable national harm resulting from publication, the Justice
continued; because the trial court could adequately protect a
defendant's right to a fair trial through other means even if there were
conflict of constitutional rights the possibility of damage to the fair
trail right would be so speculative that the burden of justification
could not be met.61 While the result 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.62
On a different level, however, are orders restraining the press as a
party to litigation in the dissemination of information obtained through
pretrial discovery. In Seattle Times Co. v. Rhinehart,63 the Court
determined that such orders protecting parties from abuses of discovery
require "no heightened First Amendment scrutiny."64
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 proposition
that obscenity is not a protected form of expression.65 In Kingsley
Books v. Brown,66 the Court upheld a state statute which, while 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,67 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 which it found to be obscene.
Books and periodicals may also be subjected to some forms of prior
restraint,68 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.69
Footnotes
Footnote 43: Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).
Footnote 44: Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963).
Footnote 45: 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).
Footnote 46: Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-14
(1931): Lovell v. Griffin, 303 U.S. 444, 451 (1938).
Footnote 47: 283 U.S. 697 (1931).
Footnote 48: Id. at 723, 733-36 (Justice Butler dissenting).
Footnote 49: Id. at 712-13.
Footnote 50: Id. at 719-20.
Footnote 51: Id. at 715-16.
Footnote 52: 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).
Footnote 53: 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).
Footnote 54: New York Times Co. v. United States, 403 U.S. 713 (1971).
The vote was six to three, 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.
Footnote 55: 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 730-733. 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, thus increasing the
dangers of nuclear proliferation. The injunction was lifted when the
same information was published elsewhere and thus no appellate review
was had 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).
Footnote 56: Nebraska Press Ass'n. v. Stuart, 427 U.S. 539 (1976).
Footnote 57: Id. at 562, quoting Dennis v. United States, 183 F.2d 201,
212 (2d Cir. 1950), aff'd., 341 U.S. 494, 510 (1951).
Footnote 58: 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.
Footnote 59: The Court differentiated between two kinds of information,
however: (1) reporting on judicial proceedings held in public, which has
"special" protection and requires a much higher justification than (2)
reporting of information gained from other sources as to which the
burden of justifying restraint is still high. Id. at 567-68, 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., 433 U.S. 97 (1979).
Footnote 60: Id. 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.
Footnote 61: Id. at 588-95.
Footnote 62: 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).
Footnote 63: 467 U.S. 20 (1984).
Footnote 64: 467 U.S. at 36. The decision was unanimous, all other
Justices joining Justice Powell's opinion for the Court, but with
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.
Footnote 65: Infra, pp.1149-59.
Footnote 66: 354 U.S. 436 (1957). See also Bantam Books v. Sullivan, 372
U.S. 58 (1963).
Footnote 67: 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).
Footnote 68: Cf. Kingsley Books v. Brown, 354 U.S. 436 (1957).
Footnote 69: 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 (1990) (ordinance requiring licensing of "sexually oriented
business" places no time limit on approval by inspection agencies and
fails to provide an avenue for prompt judicial review); 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).
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