Prior restraint

There are two ways in which the government may attempt to restrict speech. The more common way is to make a particular category of speech, such as obscenity or defamation, subject to criminal prosecution or civil suit, and then, if someone engages in the proscribed category of speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint, which may occur in two ways. First, a statute may require that a person submit the speech that he wishes to disseminate &mdash; a movie, for example &mdash; to a governmental body for a license to disseminate it &mdash; e.g., to show the movie. Second, a court may issue a temporary restraining order or an injunction against engaging in particular speech &mdash; publishing the Pentagon Papers, for example.

With respect to both these types of prior restraint, the Supreme Court has written that “[a]ny system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Freedman v. Maryland, 380 U.S. 51, 57, 58 (1965) (“a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards”); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (injunction sought by United States against publication of the Pentagon Papers denied). Prior restraints, it has held, "are the most serious and least tolerable infringement on First Amendment rights. . . . A prior restraint, . . . by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint 'freezes' it at least for the time. The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events."

The Supreme Court has written that “[t]he special vice of a prior restraint is thacommunication will be suppressed. . . before an adequate determination that it is unprotected by the First Amendment.” 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.

In the case of a statute that imposes prior restraint, “a prescreening arrangement can pass constitutional muster if it includes adequate procedural safeguards.” These procedural safeguards, the Court wrote, include that “the burden of proving that the film is unprotected expression must rest on the censor,” and “that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film.” In the case of time, place, or manner restrictions (and presumably other forms of speech that do not receive full First Amendment protection), lesser procedural safeguards are adequate.

Prior restraints are permitted in some circumstances. The Supreme Court has written, in dictum, “that traditional prior restraint doctrine may not apply to [commercial speech],” and the Court has not ruled whether it does. “The vast majority of [federal] circuits. . . do not apply the doctrine of prior restraint to commercial speech.” “Some circuits [however] have explicitly indicated that the requirement of procedural safeguards in the context of a prior restraint indeed applies to commercial speech.”

Furthermore, “only content-based injunctions are subject to prior restraint analysis.” In addition, prior restraint is generally permitted, even in the form of preliminary injunctions, in intellectual property cases, such as those for copyright or trademark infringement.