Also known as: prior restraints · prior restraint doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A governmental restriction that prevents speech or publication from occurring before it takes place. Such restrictions carry a heavy presumption of unconstitutionality under the First Amendment and are permitted only in narrow circumstances where the government demonstrates a special societal harm such as a serious threat to national security. The government bears the burden of showing that no less restrictive alternative will suffice and that the restraint is narrowly tailored.
Select any source to read its text and confirm it supports the definition.
Patrick Phan, a newspaper reporter, obtains documents detailing upcoming troop movements during an active conflict. The government seeks a court order barring publication. The court grants the injunction after finding that disclosure would create an immediate and serious threat to national security that no other measure could avert.
Pilar Pena organizes a rally criticizing local police practices and applies for a required permit. City officials deny the permit without stated criteria or time limits on their decision. A court invalidates the scheme because it functions as an unconstitutional prior restraint that risks viewpoint discrimination.
Peter Park obtains classified documents about government decision-making in an ongoing military operation and prepares to publish excerpts. The government seeks an injunction claiming harm to foreign relations. The court refuses the restraint because the government fails to prove that publication would cause the requisite degree of harm.
Phoebe Park publishes an article accusing a public figure of misconduct. The subject sues and requests an order preventing further distribution. The court denies the injunction because prior restraints on allegedly defamatory speech are disfavored even when damages may later be available.
Perry Pratt, a reporter, is barred by a trial court order from attending or reporting on a criminal proceeding to protect the defendant's rights. An appellate court lifts the order after determining that less restrictive measures such as voir dire could adequately safeguard fairness without suppressing press access.
Premier Manufacturing operates a radio station that plans to air a program containing indecent language during daytime hours. Regulators issue an order prohibiting the broadcast in advance. The court sets aside the order because the government did not demonstrate that the restraint was the least restrictive means of serving its interests.
A court may issue such an injunction only when the government carries a heavy burden of proving that publication would cause a special societal harm such as a serious threat to national security and that no narrower alternative exists. The restraint must be narrowly tailored and the government must show that less restrictive measures would be ineffective.
Supporting sources
…sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers. The Court found the State's interest insufficient to justify the restrictive effect of the statute. The burden imposed by §…
…195 U. S. 65, 69 (1904). From him they learned that the major means of accomplishing free speech and press was to prevent prior restraints, the publisher later being subject to legal action if his publication was injurious. 4 W. Blackstone, Commentaries 150-153. [^maj-15]: See also Meiklejohn, The First Amendment Is An…
…of a contested restriction of speech also informs our evaluation of its constitutionality. Thus, for example, "[a]ny system of prior restraints
…no more than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation; and so always that he does not thereby disturb the public peace, or attempt to subvert…
…in this case. See supra, at 560. We have observed that commercial speech is such a sturdy brand of expression that traditional
Yes. Such schemes are unconstitutional on their face because they lack precise objective criteria and create an unacceptable risk of content or viewpoint discrimination. The absence of narrow standards allows officials to suppress speech before it occurs without adequate justification.
Supporting sources
No. When less restrictive alternatives such as user-installed filters exist and can effectively protect minors, a government mandate imposing criminal penalties on platforms for failing to verify age is unconstitutional. The government must prove that its chosen means is the least restrictive effective alternative.
Supporting sources
Only if the restraint is the sole means of ensuring fairness and is narrowly tailored after consideration of alternatives such as change of venue or careful voir dire. The restraint is presumptively unconstitutional and the government bears a heavy burden to justify it.
Yes when the employee voluntarily agreed to the review requirement as a condition of employment involving sensitive information. Enforcement of the agreement through remedies such as constructive trust does not violate the First Amendment.