Note: This is an educational course, not legal advice.
A prior restraint stops speech before it happens: a court order not to publish, or a license required before speaking. English writers such as Blackstone saw freedom of the press as, at its core, freedom from prior restraints. The Court has made such restraints the most suspect form of control over speech, more so than punishment after the fact for defamation or other harms.
Why it works
Why single out prior restraints? A punishment after publication comes after a trial, with the speech already in the open where people can judge it. A restraint stops ideas before anyone hears them, often on a quick hearing and a judge's prediction of harm. Courts treat gag orders on the press about pending trials the same way: they are presumed invalid when other measures could protect a fair trial. Prior restraint doctrine does not mean the press can never be punished: the Pentagon Papers ruling left open whether criminal laws could apply after publication.
Key idea
Prior restraints carry a heavy presumption against validity: Near v. Minnesota (1931) struck down a law allowing newspapers to be shut down; in New York Times Co. v. United States (1971) (the Pentagon Papers) the government did not meet its heavy burden. Narrow exceptions (such as troop movements in wartime) were named in Near.
Worked example: A court order
A judge orders a TV station not to air an interview about a city contract until after the next election, saying it might mislead voters. Valid?
- This is a prior restraint: it stops speech in advance.
- The reason (it might mislead) is far from the narrow exceptions like wartime troop movements.
- The heavy presumption against validity is not overcome.
Answer: Invalid as a prior restraint.
Worked example: How many opinions?
How was the Pentagon Papers case decided, in form?
- A short per curiam opinion for the Court, 6 to 3.
- Every justice wrote separately: six concurrences and three dissents.
Answer: A short per curiam plus nine separate opinions.
Common mistake
Thinking the Pentagon Papers decision was one opinion of the Court. It was a short per curiam with nine separate opinions; what it holds is that the government did not meet its heavy burden. It did not decide whether publishers could be punished afterward.