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Constitutional Law • First Amendment - Free Speech
CONLAW#119
Legal Definition
Prior restraints are judicial orders or administrative systems (not legislative) that stop speech before it occurs, and are presumptively invalid unless the government can show some special societal harm justifying restraint. For such a prior restraint to be procedurally valid: (1) the standards must be narrowly drawn, reasonable, and definite; (2) the restraining body must promptly seek an injunction; and (3) there must be prompt and final determination of the validity of the restraint.
Plain English Explanation
Prior restraints are orders from courts or government agencies that restrain speech prior to the speech occurring. In other words, generally speaking, people are free to say whatever they want and, at worst, may face consequences for the things that they said... but at least they got to say it. "Prior restraints" are acts that effectively prevent speech from happening in the first place. As you can imagine, this is a pretty severe action. So severe, in fact, that the government is only allowed to do so in limited circumstances.
For example, where such speech would cause severe and irreparable harm to national security, public safety, or another compelling government interest. Even then, the government bears a heavy burden to prove the necessity of the prior restraint.
To protect against government overreach, the Supreme Court has said any system of prior restraints must have robust procedural safeguards. The rules for censoring speech must be clearly defined and narrowly tailored, not broad or vague. The censor must promptly initiate court proceedings to justify the restraint. And there must be a prompt final judicial determination, to ensure the free speech rights of the censored party are only restricted for the shortest time necessary.
For example, where such speech would cause severe and irreparable harm to national security, public safety, or another compelling government interest. Even then, the government bears a heavy burden to prove the necessity of the prior restraint.
To protect against government overreach, the Supreme Court has said any system of prior restraints must have robust procedural safeguards. The rules for censoring speech must be clearly defined and narrowly tailored, not broad or vague. The censor must promptly initiate court proceedings to justify the restraint. And there must be a prompt final judicial determination, to ensure the free speech rights of the censored party are only restricted for the shortest time necessary.
Hypothetical
Hypo 1: Bob, a resident of Hypofornia, operates a controversial website where users can anonymously post the personal information of abortion providers, including their home addresses. Sam, the Attorney General of Hypofornia, obtains a court order requiring Bob to shut down the website before it goes live, arguing it will lead to violence and harassment against the abortion providers. Result: This appears to be an unconstitutional prior restraint on Bob's free speech. While the state may argue there is a compelling interest in preventing harassment, the court order was issued before Bob's website even launched, based on speculation about its effects. There was no adversarial hearing or final determination on whether the restraint was justified. Bob could challenge the court order as an invalid prior restraint lacking adequate procedural safeguards.
Hypo 2: A Hypofornia court issues an order barring a local newspaper, where Bob works as a journalist, from publishing an article based on leaked classified documents about a secret government surveillance program. The court schedules a hearing on the restraining order in three months. Result: This court order is almost certainly an unconstitutional prior restraint. The hearing to determine the validity of the restraint is scheduled months away, rather than promptly as required. This lengthy delay is an unacceptable restriction on the newspaper's free press rights. Moreover, prior restraints on publishing leaked information are rarely upheld, since it would enable the government to preemptively censor news stories that are merely embarrassing or newsworthy, not a serious threat to national security.
Hypo 3: Bob is a former spy who writes a "tell-all" book exposing government secrets from his time in the intelligence agency. As the book is being shipped to stores, the government obtains a temporary restraining order barring its release, claiming the book contains classified information that would damage national security if published. The court holds prompt adversarial hearings where the government presents compelling evidence that several passages in Bob's book would reveal the identities of undercover agents abroad if published. Result: This scenario poses a closer question, since protecting intelligence sources is a compelling government interest. However, several procedural safeguards seem to be met here - the government is promptly initiating court proceedings and presenting specific evidence to justify the restraint, and the court is holding prompt hearings to determine the validity of the prior restraint. Assuming the government's evidence is sufficiently compelling, this prior restraint may be one of the rare instances where it is constitutionally permissible, provided the injunction is narrowly tailored and no broader than necessary.
Hypo 4: New Hypoland passes a law requiring all films to be submitted to a government censorship board for approval before they can be released in theaters. The board has the power to order edits or ban films outright if they are deemed "offensive to public morals." Result: This scheme would be a blatantly unconstitutional system of prior restraints. The law sets up a censorship board with broad, vague powers to block the release of films before they ever reach an audience. This is the quintessential example of a prior restraint that the First Amendment forbids. The criteria for censorship are subjective and insufficiently defined, and the burden is on filmmakers to obtain the government's approval before engaging in free speech. The law is not narrowly tailored and does not provide for prompt judicial review. A court would almost certainly strike this down as a prior restraint.
Hypo 5: Congress passes a law prohibiting the publication of scientific research papers on a new deadly strain of bird flu, out of fear that the information could be used by terrorists to create a biological weapon. Result: This would likely not be considered a prior restraint, because the restriction on speech is coming from Congress via legislation, not a court order or administrative system. Laws that restrict entire categories of speech, while still constitutionally problematic in many cases, are generally not considered "prior restraints" as defined by the courts. A legal challenge to this law would have to argue it violates the First Amendment for other reasons.
Hypo 2: A Hypofornia court issues an order barring a local newspaper, where Bob works as a journalist, from publishing an article based on leaked classified documents about a secret government surveillance program. The court schedules a hearing on the restraining order in three months. Result: This court order is almost certainly an unconstitutional prior restraint. The hearing to determine the validity of the restraint is scheduled months away, rather than promptly as required. This lengthy delay is an unacceptable restriction on the newspaper's free press rights. Moreover, prior restraints on publishing leaked information are rarely upheld, since it would enable the government to preemptively censor news stories that are merely embarrassing or newsworthy, not a serious threat to national security.
Hypo 3: Bob is a former spy who writes a "tell-all" book exposing government secrets from his time in the intelligence agency. As the book is being shipped to stores, the government obtains a temporary restraining order barring its release, claiming the book contains classified information that would damage national security if published. The court holds prompt adversarial hearings where the government presents compelling evidence that several passages in Bob's book would reveal the identities of undercover agents abroad if published. Result: This scenario poses a closer question, since protecting intelligence sources is a compelling government interest. However, several procedural safeguards seem to be met here - the government is promptly initiating court proceedings and presenting specific evidence to justify the restraint, and the court is holding prompt hearings to determine the validity of the prior restraint. Assuming the government's evidence is sufficiently compelling, this prior restraint may be one of the rare instances where it is constitutionally permissible, provided the injunction is narrowly tailored and no broader than necessary.
Hypo 4: New Hypoland passes a law requiring all films to be submitted to a government censorship board for approval before they can be released in theaters. The board has the power to order edits or ban films outright if they are deemed "offensive to public morals." Result: This scheme would be a blatantly unconstitutional system of prior restraints. The law sets up a censorship board with broad, vague powers to block the release of films before they ever reach an audience. This is the quintessential example of a prior restraint that the First Amendment forbids. The criteria for censorship are subjective and insufficiently defined, and the burden is on filmmakers to obtain the government's approval before engaging in free speech. The law is not narrowly tailored and does not provide for prompt judicial review. A court would almost certainly strike this down as a prior restraint.
Hypo 5: Congress passes a law prohibiting the publication of scientific research papers on a new deadly strain of bird flu, out of fear that the information could be used by terrorists to create a biological weapon. Result: This would likely not be considered a prior restraint, because the restriction on speech is coming from Congress via legislation, not a court order or administrative system. Laws that restrict entire categories of speech, while still constitutionally problematic in many cases, are generally not considered "prior restraints" as defined by the courts. A legal challenge to this law would have to argue it violates the First Amendment for other reasons.
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