Amendment 1 — Prior Restraints On Speech

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First Amendment :

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.

The Supreme Court has recognized that “liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.” [1](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn1amd1 " Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). ") 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.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn2amd1 " 3 Joseph Story, Commentaries on the Constitution of the United States § 1876 (1833). ") 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.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn3amd1 " Lovell v. Griffin, 303 U.S. 444, 451 (1938); Near, 283 U.S. at 713. ") Given this history, the Supreme Court reviews “[a]ny system of prior restraints of expression” with “a heavy presumption against its constitutional validity.” [4](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn4amd1 " Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963). ") To state this another way, the government “carries a heavy burden of showing justification for the imposition of such a restraint.” [5](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn5amd1 " Org. 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). ")

The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson, in which a 5-4 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.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn6amd1 " Near, 283 U.S. at 702, 723. ") An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters.[7](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn7amd1 " Id. at 704. ") 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,[8](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn8amd1 " Id. at 733–36 (Butler, J., dissenting). ") 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.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn9amd1 " Id. at 713 (majority opinion). ") Recognizing that liberty of the press to scrutinize closely the conduct of public affairs was essential, Chief Justice Charles Hughes stated: “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.” [10](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn10amd1 " Id. at 720 (emphasis added). ") The Court, however, did not explore the kinds of restrictions to which the term “prior restraint” would apply other than to assert that prior restraint would only be permissible in “exceptional cases.” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn11amd1 " Id. at 716. ")

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 .” [12](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn12amd1 " Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels., 413 U.S. 376, 390 (1973); see also Vance v. Univ. Amusement Co., 445 U.S. 308, 315–16 (1980) ( “[T]he 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.” ). ") The prohibition on prior restraint, thus, essentially limits restraints until a final judicial determination is made that the First Amendment does not protect the restricted speech. For example, it limits temporary restraining orders and preliminary injunctions pending final judgments rather than permanent injunctions following final judgments that the First Amendment does not protect the restricted speech.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn13amd1 " See Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 169–71 (1998). ")

In a number of cases during the mid-1900s, the Court invoked the doctrine of prior restraint to strike 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.[14](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn14amd1 " 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). Some of these cases involved both free speech and free exercise rights. See . ") The doctrine that generally emerged from these early cases was that permit systems and prior licensing are constitutionally valid so long as the issuing official’s discretion was limited to questions of time, place, and manner.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn15amd1 " 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. The Carroll Court held 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. The Court stated: “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). ") In a 1965 opinion, Freedman v. Maryland, the Supreme Court clarified that in the noncriminal context, a prior restraint may be upheld only if it contains certain procedural safeguards.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn16amd1 " Freedman v. Maryland, 380 U.S. 51, 58 (1965). ") First, the burden must be on the government to prove that the speech is unprotected.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn17amd1 " Id. ") Second, the restraint may not “be administered in a manner which would lend an effect of finality to the censor’s determination whether [speech] constitutes protected expression.” [18](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn18amd1 " Id. ") To meet this second requirement, a statute or “authoritative judicial construction” must ensure “that the censor will, within a specified brief period, either issue a license or go to court to restrain” the speech.[19](https://www.law.cornell.edu/constitution-conan/amendment-1/prior-restraints-on-speech#fn19amd1 " Id. at 59. The Court further explained that “[a]ny restraint imposed in advance of a final judicial determination on the merits must . . . be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution,” and “the procedure must . . . assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.” Id. at 59. 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, <a href="/supremec