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.
[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.
1 Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.
2 Government thus carries a heavy burden of showing justification for the imposition of such a restraint.
3 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 what for a long time could be published only with a license.4
The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson,5 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. 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,6 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.7 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.
8 The Court did not explore the kinds of restrictions to which the term prior restraint
would apply, nor do more than assert that only in exceptional cases
would prior restraint be permissible.9
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 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.10 The doctrine that generally emerged was that permit systems and prior licensing are constitutionally valid so long as the discretion of the issuing official was limited to questions of time, place, and manner.11 [O]nly content-based injunctions are subject to prior restraint analysis.
12
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 War13 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.14 But no cohesive doctrine relating to the subject, its applications, and its exceptions has emerged.
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.
15 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.16
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.17 Though agreed as to the result, the Justices were divided as to whether gag orders
were ever permissible and if so what the standards for imposing them were. The Court used the Learned Hand formulation of the clear and present danger
test18 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 would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.
19 Though the Court found that one seeking a restraining order must meet the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied,
it refused to rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.
20 Justice Brennan’s 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 have held, 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.
21 The only circumstance in which prior restraint of protected speech might be permissible is when publication would cause virtually certain, direct, and immediate
national harm, Justice Brennan continued, but the harm to a fair trial that might otherwise eventuate from publications which are suppressed . . . must inherently remain speculative.
22 Although the result in the case 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.23 On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart,24 the Court determined that such orders protecting parties from abuses of discovery require no heightened First Amendment scrutiny.
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