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The First Amendment provides very strong protection against prior
restraints on expression. The overhead below outlines the 1931
U.S. Supreme Court decision that established the prior restraint
doctrine in First Amendment law. As you will see, the Court allowed
for specific execptions to the general prohibition on prior restraints.
Since 1931 the Court has created additional exceptions, some
of which are discussed in Pember and in the case law below.
Near v. Minnesota , 283 U.S. 697, 283 U.S. 697, 1 M.L.R. 1001 (1931)
(1) Prior restraints are a violation of the First Amendment,
but three categories of speech may be restrained:
Obscene Speech - if the government can prove that expression
is obscene, then the expression may be supressed.
Incitement to Violence - if the government proves that speech
is an incitement to violence it may stop and ban the speech.
National Security - again, the burden is on the government to
prove that speech threatens the national security. if it meets
this burden, the government may ban publication of specific information.
National Security:
New York Times v. United States, 403 U.S. 713 (1971)
"Any system of prior restraints of expression comes to this Court
bearing a heavy presumption
against its constitutional validity." Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 70 (1963);
see also Near v. Minnesota, 283 U.S. 697 (1931). The Government
"thus carries a heavy
burden of showing justification for the imposition of such a
restraint." Organization for a Better
Austin v. Keefe, 402 U.S. 415, 419 (1971).
Publication of Lawfully Obtained Information:
CBS v. Davis, 114 S.Ct. 912 (Blackmun, Cir, Justice 1994)
Justice Blackmun granted an emergency stay of a preliminary injunction
barring CBS from broadcasting videotape shot inside a meat packing
plant as part of a "48 Hours" expose. A state court issued the
injunction because CBS had obtained the video through "calculated
misdeeds." Blackmun found the parties seeking the injunction
made insufficient showings of potential economic harm and of
wrong doing on the part of CBS to overcome the First Amendment
barrier to prior restraints.
Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)
Court order enjoining the "news media" from publishing "any information"
concerning a sensational murder trial beyond that suggested by
state "Bench/Bar/Press" guidelines held unconstitutional. The
Court established a 3-part test any "gag order" on publication
of "pretrial publicity" that places a very heavy burden on a
court to demonstrate the need for and the potential effectiveness
of any restraint on publication.
U.S. v. Noriega, 917 F.2d 1543 (11th Cir), cert denied 498 U.S. 976 (1990)
Court of Appeals upheld temporary restraining order on CNN's
broadcast of tape recordings of telephone conversations between
General Manuel Noriega and his attorneys made while Noreiga was
in federal prison awaiting trial on criminal charges.
Florida Star v. BJF, 109 S.Ct. 2603 (1989)
State law made it illegal to "print, publish, or broadcast...in
any medium of mass communication" the name of a victim of a sexual
offense. The Supreme Court held that "where a newspaper publishes
truthful information about a matter of public significance...state
officials may not constitutionally punish publication of the
information, absent a need to further a state interest of the
highest order.
Florida v. Globe Communications Corp., 622 So. 2d 1066 (1993); aff'd 23 MLR 1116 (Fla. 1994).
The Globe identified the alleged victim in William Kennedy Smith
rape trial. Relying on Florida Star, the Florida Supreme Court
held that Fla. Stat. 794.03 violates the First Amendment and
the Florida constitution. The Court held that the statute was
overbroad and facially underinclusive.
Smith v. Daily Mail, 443 U.S. 97 (1979)
West Virginia statute prohibiting the publication without the
approval of the juvenile court the name of any youth charged
as a juvenile offender held unconstitutional. The Court said
the state's interest in protecting the anonymity of the juvenile
did not overcome the First Amendment right to publish truthful
information.
Prior Restraint of Government Employee's Speech:
U.S. v. National Treasury Employees Union 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995).
Protests at Abortion Clinics
Schenck v. Pro Choice Network
Hill v. Colorado
Prior Restraint of Internet Website
Planned Parenthood
of Columbia v. ACLA 290 F.3d 1058 (9th Cir. May 16, 2002)
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