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| - Prior restraint is a legal term referring to a government's actions that prevent materials from being published. Censorship that requires a person to seek governmental permission in the form of a license or imprimatur before publishing anything constitutes prior restraint every time permission is denied. More recently, prior restraint has often taken the form of an injunction or other governmental order prohibiting the publication of a specific document or subject. Sometimes, the government becomes aware of a forthcoming publication on a particular subject and seeks to prevent it. In other cases, the government attempts to halt ongoing publication and prevent its resumption. These injunctions are also usually considered to be cases of prior restraint, because future publications are stoppe
- There are two ways in which the government may attempt to restrict speech. The more common way is to make a particular category of speech, such as obscenity or defamation, subject to criminal prosecution or civil suit, and then, if someone engages in the proscribed category of speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint, which may occur in two ways. First, a statute may require that a person submit the speech that he wishes to disseminate — a movie, for example — to a governmental body for a license to disseminate it — e.g., to show the movie. Second, a court may issue a temporary restraining order or an injunction against engaging in particular speech.
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| abstract
| - There are two ways in which the government may attempt to restrict speech. The more common way is to make a particular category of speech, such as obscenity or defamation, subject to criminal prosecution or civil suit, and then, if someone engages in the proscribed category of speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint, which may occur in two ways. First, a statute may require that a person submit the speech that he wishes to disseminate — a movie, for example — to a governmental body for a license to disseminate it — e.g., to show the movie. Second, a court may issue a temporary restraining order or an injunction against engaging in particular speech. With respect to both these types of prior restraint, the Supreme Court has written that “[a]ny system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Prior restraints, it has held, "are the most serious and least tolerable infringement on First Amendment rights. . . . A prior restraint, . . . by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time. The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events." As the Supreme Court explained in Vance v. Universal Amusement Co., "[t]he presumption against prior restraints is heavier — and the degree of protection broader — than that against limits on expression imposed by criminal penalties. Behind the distinction is a deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand." Prior restraints cut against the very wording of the First Amendment because they are direct government action restricting free speech — precisely what the Constitution proscribes. “The special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment.” 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. The Supreme Court's repeated rejection of prior restraints reflects the "chief purpose" of the first amendment — "to prevents previous restraints upon publication."
- Prior restraint is a legal term referring to a government's actions that prevent materials from being published. Censorship that requires a person to seek governmental permission in the form of a license or imprimatur before publishing anything constitutes prior restraint every time permission is denied. More recently, prior restraint has often taken the form of an injunction or other governmental order prohibiting the publication of a specific document or subject. Sometimes, the government becomes aware of a forthcoming publication on a particular subject and seeks to prevent it. In other cases, the government attempts to halt ongoing publication and prevent its resumption. These injunctions are also usually considered to be cases of prior restraint, because future publications are stopped before they start.
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