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When is the government allowed to censor pre-published material?
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Elianna Spitzer is a legal studies writer and a former Schuster Institute for Investigative Journalism research assistant. She has also worked at the Superior Court of San Francisco's ACCESS Center.
Updated on June 30, 2019Prior restraint is a type of censorship in which speech or expression is reviewed and restricted before it occurs. Under prior restraint, a government or authority controls what speech or expression can be publicly released.
Prior restraint has a history of being viewed as a form of oppression in the United States. The Founding Fathers had experienced the effects of prior restraint while under British rule, and they specifically used language in the First Amendment of the U.S. Constitution—freedom of speech and freedom of the press—to guard against prior restraint, which they felt was a violation of democratic principles.
Prior restraint is not limited to speech. It can impact all forms of expression including writing, art, and media. It legally takes the form of licenses, gag orders, and injunctions. The government might outright prevent public distribution of media, or place conditions on speech that make it difficult for it to occur. Something as seemingly harmless as a town ordinance restricting where newspapers can be sold could be considered prior restraint.
U.S. courts view prior restraint as unconstitutional until proven otherwise. The government entity or organization looking to review and restrict speech must offer an extremely compelling reason for the restriction to even be considered. Courts have recognized some of these reasons as exceptions to the general illegality of prior restraint.
The most famous cases concerning prior restraint form the foundation of free expression in the U.S. They are cross-disciplinary, focusing on art, speeches, and documents.
Near v. Minnesota was one of the first U.S. Supreme Court cases to take on the issue of prior restraint. In 1931, J.M. Near published the first issue of The Saturday Press, a controversial, independent paper. The governor of Minnesota at the time filed a complaint under the state's public nuisance law for an injunction against the paper. He alleged that The Saturday Press was "malicious, scandalous, and defamatory," qualities which were illegal under the law. In a 5-4 decision delivered by Justice Charles E. Hughes, the court found the statute unconstitutional. The government cannot restrict publication prior to the release date, even if the material being published might be illegal.
In 1971, the Nixon administration attempted to block the publication of a group of documents known as the Pentagon Papers. The papers were part of a study commissioned by the Department of Defense to document U.S. military involvement in Vietnam. The Nixon Administration argued that if the New York Times published information from the study, it would harm U.S. defense interests. Six Supreme Court justices sided with the New York Times, denying the government's request for an injunction. The Court adopted a "heavy presumption" against prior restraint under the First Amendment. The government's interest in keeping the papers secret could not provide a strong enough reason to restrict the freedom of the press. In a concurring opinion, Justice William J. Brennan added that the government did not offer evidence that the papers would result in "direct" and "immediate" harm to U.S. troops.
In 1975, a Nebraska state trial judge issued a gag order. He was concerned that media coverage of a murder trial might prevent the court from seating an unbiased jury. The Supreme Court heard the case a year later. In a unanimous decision delivered by Chief Justice Warren E. Burger, the court struck down the gag order. The court argued that restricting media coverage did little to help ensure a fair trial and allowed rumors to overcome factual reporting. The press should not be hindered except in situations where there is a "clear and present danger" that the media will disrupt the trial, Justice Burger wrote. The court listed ways that a fair trial could be ensured without the use of a gag order.
In 1964, a Klu Klux Klan leader in Ohio delivered a speech at a rally using derogative and racist language. He was arrested under Ohio's syndicalism law for publicly advocating for violence. Clarence Brandenburg was convicted and sentenced and his appeals were affirmed or dismissed by lower courts. The Supreme Court reversed his conviction on the basis that Ohio's syndicalism law violated the First Amendment. The court ignored prior language surrounding inciting violence like "clear and present danger" and "bad tendency." In Brandenburg v. Ohio, the Court unanimously backed the "imminent and lawless action" test. In order to restrict speech for inciting violence, the government must provide a compelling argument to show intent, imminence, and likelihood to incite.
