Introduction Edit

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 — a movie, for example — to a governmental body for a license to disseminate it — e.g., to show the movie. Second, a court may issue a temporary restraining order or an injunction against engaging in particular speech.

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.”[1] 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."[2]

As the Supreme Court explained in Vance v. Universal Amusement Co.,[3] "[t]he presumption against prior restraints is heavier — and the degree of protection broader — than that against limits on expression imposed by criminal penalties. Behind the distinction is a deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand."

Prior restraints cut against the very wording of the First Amendment because they are direct government action restricting free speech — precisely what the Constitution proscribes. “The special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment.”[4] 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.[5]

The Supreme Court's repeated rejection of prior restraints reflects the "chief purpose" of the first amendment — "to prevents previous restraints upon publication."[6]

Statutory prior restraints Edit

In the case of a statute that imposes prior restraint, “a prescreening arrangement can pass constitutional muster if it includes adequate procedural safeguards.”[7] 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.”[8] 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.[9]

Permissible prior restraints Edit

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,” [10] 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.”[11] “Some circuits [however] have explicitly indicated that the requirement of procedural safeguards in the context of a prior restraint indeed applies to commercial speech.”[12]

Furthermore, “only content-based injunctions are subject to prior restraint analysis.”[13] 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.[14]

Prior restraints in copyright infringement cases Edit

Copyright law authorizes,[15] but does not compel, a preliminary injunction in copyright infringement cases. Because of First Amendment concerns, it is critical that a court requested to preliminarily enjoin free speech require more than a mere showing that the copyright owner is likely to succeed on the merits of the copyright infringement claim.

The Supreme Court has made it clear that the First Amendment limits restraints that may be imposed on even highly suspect speech. Injunctions issued prior to a final determination that speech falls outside the protection of the First Amendment are considered unconstitutional prior restraints.[16] Some courts have held that preliminary injunctions in copyright infringement cases may constitute impermissible prior restraints.[17]


  1. 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).
  2. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court order restraining the publication or broadcast of accounts of confessions or admissions made by the defendant at a criminal trial). Injunctions that are designed to restrict merely the time, place, or manner of a particular expression are subject to a less stringent application of First Amendment principles.
  3. 445 U.S. 308, 316 (1980) (emphasis in original).
  4. Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations Comm'n, 413 U.S. 376, 390 (1973); see also Vance, 445 U.S. at 315-16 (“the burden of supporting an injunction against a future exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication”).
  5. See Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 169-71 (1998) (hereinafter Lemley & Volokh).
  6. Near v. Minnesota, 283 U.S. 697, 716 (1931).
  7. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 571 n.13 (1980).
  8. Freedman v. Maryland, 380 U.S. 51, 58, 59 (1965)
  9. Thomas v. Chicago Park District, 534 U.S. 316, 322-323 (2002).
  10. Central Hudson, 447 U.S. at 571 n.13.
  11. Bosley v., 310 F.Supp.2d 914, 930 (N.D. Ohio 2004).
  12. New York Mag. v. Metropolitan Transportation Authority, 136 F.3d 123, 131 (2d Cir. 1998), cert. denied, 525 U.S. 824 (1998); citing as examples, Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996); In re Search of Kitty’s East, 905 F.2d 1367, 1371-72 & n.4 (10th Cir. 1990).
  13. DVD Copy Control Ass'n v. Bunner, 75 P.3d 1, 17 (Cal. 2003) (a “prior restraint is a content-based restriction on speech prior to its occurrence.”
  14. Bosley, 310 F.Supp.2d at 930; Lemley & Volokh, 48 Duke L.J. at 169-71 (arguing that intellectual property should have the same First Amendment protection from preliminary injunctions as other speech).
  15. 17 U.S.C. §502(a).
  16. See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 66 (1989) (alleged obscene speech).
  17. See, e.g., SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1276 (11th Cir. 2001); Rosemont Enters., Inc. v. Random House, Inc., 366 F.3d 303, 311 (2d Cir. 1966); Globe Int'l, Inc. v. National Enquirer, Inc., 1999 WL 727232, at *5 (C.D. Cal. Jan. 25, 1999); Religious Tech. Ctr. v. Lerma, 897 F. Supp. 260, 261-62 (E.D. Va. 1995).
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