Censorship which occurs in advance of publication. Meant submitting all proposed publications to government censors who exercised considerable discretion regarding the content to be approved for publication.
John Milton argues against prior restraint: let good and evil ideas "fight it out."
whether or not the framers intended to include prior restraint in the First Amendment of the Constitution
Arguments against prior restraint
censorship privileges government over citizens; creates civil unrest by driving dissent underground; citizens cannot govern absent a breadth of information
in imposing prior restraint, government is attempting to avert the consequences of speech that has yet to be uttered.
Brandenburg Test (fighting words)
Speaker intends to provoke imminent lawless action and the action is likely to occur. The speech must cause alleged damage, the danger must be immediate, and it must be grave.
To overcome the presumption of unconstitutionality
government must prove the danger is serious; imminent; that stopping the speech will stop the danger; no alternatives to prior restraint will work; the remedy [prior restraint] is neither vague nor over-broad [narrowly tailored].
Nebraska Press Association v. Stuart
Facts: Courts must exercise least restrictive means to guarantee 6th Amendment right to fair trial; gag orders are a last resort.
Temporary restraining orders (TROs)
common means of maintaining the status quo while a court gathers evidence and reaches a decision.
Near v. Minnesota
Case establishing limits of prior restraints of the press
Near v. Minnesota: Facts
MN claimed Jay Near published "malicious, scandalous and defamatory" reports about local public officials, breaking a state law.
• Near v Minnesota: Issue:
Was this an unconstitutional prior restraint under 1st and 14th Amendments?
Near v Minnesota: Ruling
Prior restraints on the press are almost always unconstitutional under the First Amendment.
Three exceptions to Near
Publication jeopardizes national security in wartime; obscene publications; incitement of imminent, lawless action or violent overthrow of the government.
Pentagon Papers (1971)
• Facts: Two cases combined at SCOTUS; arose from publication in New York Times and Washington Post of stolen government documents. Government seeks injunction to stop presses.
Charged with conspiracy, theft and violation of 1917 Espionage Act. Charges dismissed due to govt. misconduct.
Pentagon Papers: Issue
Did the injunction violate the First Amendment? (Did it fit an exception to the Near rule)?
Pentagon Papers: Ruling
Majority of Court says Yes. Courts must assume from the start that prior restraint is unconstitutional. Government bears burden of proof to show otherwise.
Pentagon Papers: Ruling (2)
In national security cases, government needs to prove publication will provide "direct, immediate and irreparable harm" to nation or its people.
Nebraska Press Assn. v. Stuart (1976)
• Sets out rules for prior restraints on media coverage of judicial proceedings. First Amendment [free press] v. Sixth Amendment [fair trial]
Nebraska Press Assn. v. Stuart: Facts
• Involved a "gag order" (aka "a protective order") on media coverage of a pretrial hearing in a murder case.
Nebraska Press Assn. v. Stuart: Issue
Did the gag order violate First and Fourteenth Amendments?
Nebraska Press Assn. v. Stuart: Ruling
Yes. -Rationale: To justify a gag order, judge must find there is a clear and present danger that the defendant will be deprived of a fair trial.
Nebraska Press Test
To issue gag order the judge must consider: 1. The extent and nature of the news coverage 2. Whether other measures could be used to protect the defendant's right to a fair trial 3. Whether a gag order would be effective
other means of providing fair trials
Sequester the jury Change the venue Continue the case Require a new trial Carefully question potential jurors (voir dire) Admonish jurors to ignore media reports Gag trial participants (protective orders)