Procedural Matters and Freedom of Speech: Prior Restraints

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

“[L]iberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.” 1 Footnote
Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931) . “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” 2 Footnote
Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963) . Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” 3 Footnote
Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) ; New York Times Co. v. United States, 403 U.S. 713, 714 (1971) . Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities. The great struggle for liberty of the press was for the right to publish without a license what for a long time could be published only with a license.4 Footnote
Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713–14 (1931) ; Lovell v. Griffin, 303 U.S. 444, 451 (1938) .

The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson ,5 Footnote
283 U.S. 697 (1931) . in which a five-to-four majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an “obscene, lewd and lascivious” or a “malicious, scandalous and defamatory” issue. An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters. Although the dissenters maintained that the injunction constituted no prior restraint, because that doctrine applied to prohibitions of publication without advance approval of an executive official,6 Footnote
283 U.S. at 723, 733–36 (Justice Butler dissenting). the majority deemed it “the essence of censorship” that, in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge.7 Footnote
283 U.S. at 713 . Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the Court. “[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.” 8 Footnote
283 U.S. at 719–20 . The Court did not explore the kinds of restrictions to which the term “prior restraint” would apply, nor do more than assert that only in “exceptional cases” would prior restraint be permissible.9 Footnote
283 U.S. at 716 .

Nor did subsequent cases substantially illuminate the murky interior of the doctrine. The doctrine of prior restraint was called upon by the Court as it struck down restrictions on First Amendment rights, including a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them.10 Footnote
E.g., Lovell v. Griffin, 303 U.S. 444 (1938) ; Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Kunz v. New York, 340 U.S. 290 (1951) ; Niemotko v. Maryland, 340 U.S. 268 (1951) ; Staub v. City of Baxley, 355 U.S. 313 (1958) . For other applications, see Grosjean v. American Press Co., 297 U.S. 233 (1936) ; Murdock v. Pennsylvania, 319 U.S. 105 (1943) ; Follett v. McCormick, 321 U.S. 573 (1944) . The doctrine that generally emerged was that permit systems and prior licensing are constitutionally valid so long as the discretion of the issuing official was limited to questions of time, place, and manner.11 Footnote
Cox v. New Hampshire, 312 U.S. 569 (1941) ; Poulos v. New Hampshire, 345 U.S. 395 (1953) . In Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968) , the Court held invalid the issuance of an ex parte injunction to restrain the holding of a protest meeting, holding that usually notice must be given the parties to be restrained and an opportunity for them to rebut the contentions presented to justify the sought-for restraint. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) , the Court held invalid as a prior restraint an injunction preventing the petitioners from distributing 18,000 pamphlets attacking respondent’s alleged “blockbusting” real estate activities; he was held not to have borne the “heavy burden” of justifying the restraint. “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy . . . is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.” Id. at 419–20 . See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property is facially invalid as prior restraint). “[O]nly content-based injunctions are subject to prior restraint analysis.” 12 Footnote
DVD Copy Control Association, Inc. v. Bunner , 75 P.3d 1, 17 (Cal. 2003) ( “[a] prior restraint is a content-based restriction on speech prior to its occurrence,” id. at 17–18 ). Regarding the standard for content-neutral injunctions, see “Public Issue Picketing and Parading,” infra.

The most recent Court encounter with the doctrine in the national security area occurred when the government attempted to enjoin press publication of classified documents pertaining to the Vietnam War13 Footnote
New York Times Co. v. United States, 403 U.S. 713 (1971) . The vote was 6-to-3, with Justices Black, Douglas, Brennan, Stewart, White, and Marshall in the majority and Chief Justice Burger and Justices Harlan and Blackmun in the minority. Each Justice issued an opinion. and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that, in some circumstances, prior restraint of publication would be constitutional.14 Footnote
The three dissenters thought such restraint appropriate in this case. Id. at 748, 752, 759 . Justice Stewart thought restraint would be proper if disclosure “will surely result in direct, immediate, and irreparable damage to our Nation or its people,” id. at 730 , while Justice White did not endorse any specific phrasing of a standard. Id. at 730–33 . Justice Brennan would preclude even interim restraint except upon “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” Id. at 712–13 . But no cohesive doctrine relating to the subject, its applications, and its exceptions has emerged.

The Supreme Court has written that “[t]he special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment.” 15 Footnote
Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973) ; see also Vance v. Universal Amusement Co., 445 U.S. 308, 315–316 (1980) ( “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” ). 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.16 Footnote
See Mark A. Lemley and Eugene Volokh , Freedom of Speech and Injunctions in Intellectual Property Cases , 48 Duke Law Journal 147, 169–171 (1998) .

Injunctions and the Press in Fair Trial Cases

Confronting a claimed conflict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant.17 Footnote
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) . Though agreed as to the result, the Justices were divided as to whether “gag orders” were ever permissible and if so what the standards for imposing them were. The Court used the Learned Hand formulation of the “clear and present danger” test18 Footnote
427 U.S. at 562 , quoting Dennis v. United States , 183 F.2d 201, 212 (2d Cir. 1950) , aff’d, 341 U.S. 494, 510 (1951) . and considered as factors in any decision on the imposition of a restraint upon press reporters “(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.” 19 Footnote
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976) (opinion of Chief Justice Burger, concurred in by Justices Blackmun and Rehnquist, and, also writing brief concurrences, Justices White and Powell). Applying the tests, the Chief Justice agreed that (a) there was intense and pervasive pretrial publicity and more could be expected, but that (b) the lower courts had made little effort to assess the prospects of other methods of preventing or mitigating the effects of such publicity and that (c) in any event the restraining order was unlikely to have the desired effect of protecting the defendant’s rights. Id. at 562–67 . Though the Court found that one seeking a restraining order must meet “the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied,” it refused to “rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.” 20 Footnote
427 U.S. at 569–70 . The Court distinguished between reporting on judicial proceedings held in public and reporting of information gained from other sources, but found that a heavy burden must be met to secure a prior restraint on either. Id. at 570 . See also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting aside injunction restraining news media from publishing name of juvenile involved in pending proceeding when name has been learned at open detention hearing that could have been closed but was not); Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) . Justice Brennan’s concurring opinion flatly took the position that such restraining orders were never permissible. Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would have held, and secrecy can do so much harm “that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained.” 21 Footnote
427 U.S. at 572, 588 . Justices Stewart and Marshall joined this opinion and Justice Stevens noted his general agreement except that he reserved decision in particularly egregious situations, even though stating that he might well agree with Justice Brennan there also. Id. at 617 . Justice White, while joining the opinion of the Court, noted that he had grave doubts that “gag orders” could ever be justified but he would refrain from so declaring in the Court’s first case on the issue. Id. at 570 . The only circumstance in which prior restraint of protected speech might be permissible is when publication would cause “virtually certain, direct, and immediate” national harm, Justice Brennan continued, but “the harm to a fair trial that might otherwise eventuate from publications which are suppressed . . . must inherently remain speculative.” 22 Footnote
427 U.S. at 599 . Although the result in the case does not foreclose the possibility of future “gag orders,” it does lessen the number to be expected and shifts the focus to other alternatives for protecting trial rights.23 Footnote
One such alternative is the banning of communication with the press on trial issues by prosecution and defense attorneys, police officials, and court officers. This, of course, also raises First Amendment issues. See, e.g., Chicago Council of Lawyers v. Bauer , 522 F.2d 242 (7th Cir. 1975) , cert. denied, 427 U.S. 912 (1976) . On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart ,24 Footnote
467 U.S. 20 (1984) . the Court determined that such orders protecting parties from abuses of discovery require “no heightened First Amendment scrutiny.” 25 Footnote
467 U.S. at 36 . The decision was unanimous, all other Justices joining Justice Powell’s opinion for the Court, but Justices Brennan and Marshall noting additionally that under the facts of the case important interests in privacy and religious freedom were being protected. Id. at 37, 38 .

Footnotes 1 Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931) . 2 Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963) . 3 Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) ; New York Times Co. v. United States, 403 U.S. 713, 714 (1971) . 4 Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713–14 (1931) ; Lovell v. Griffin, 303 U.S. 444, 451 (1938) . 5 283 U.S. 697 (1931) . 6 283 U.S. at 723, 733–36 (Justice Butler dissenting). 7 283 U.S. at 713 . 8 283 U.S. at 719–20 . 9 283 U.S. at 716 . 10 E.g., Lovell v. Griffin, 303 U.S. 444 (1938) ; Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Kunz v. New York, 340 U.S. 290 (1951) ; Niemotko v. Maryland, 340 U.S. 268 (1951) ; Staub v. City of Baxley, 355 U.S. 313 (1958) . For other applications, see Grosjean v. American Press Co., 297 U.S. 233 (1936) ; Murdock v. Pennsylvania, 319 U.S. 105 (1943) ; Follett v. McCormick, 321 U.S. 573 (1944) . 11 Cox v. New Hampshire, 312 U.S. 569 (1941) ; Poulos v. New Hampshire, 345 U.S. 395 (1953) . In Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968) , the Court held invalid the issuance of an ex parte injunction to restrain the holding of a protest meeting, holding that usually notice must be given the parties to be restrained and an opportunity for them to rebut the contentions presented to justify the sought-for restraint. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) , the Court held invalid as a prior restraint an injunction preventing the petitioners from distributing 18,000 pamphlets attacking respondent’s alleged “blockbusting” real estate activities; he was held not to have borne the “heavy burden” of justifying the restraint. “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy . . . is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.” Id. at 419–20 . See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property is facially invalid as prior restraint).

The necessity of immediate appellate review of orders restraining the exercise of First Amendment rights was strongly emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977) , and seems to explain the Court’s action in Philadelphia Newspapers v. Jerome, 434 U.S. 241 (1978) . But see Moreland v. Sprecher, 443 U.S. 709 (1979) (party can relinquish right to expedited review through failure to properly request it).

12 DVD Copy Control Association, Inc. v. Bunner , 75 P.3d 1, 17 (Cal. 2003) ( “[a] prior restraint is a content-based restriction on speech prior to its occurrence,” id. at 17–18 ). Regarding the standard for content-neutral injunctions, see “Public Issue Picketing and Parading,” infra. 13 New York Times Co. v. United States, 403 U.S. 713 (1971) . The vote was 6-to-3, with Justices Black, Douglas, Brennan, Stewart, White, and Marshall in the majority and Chief Justice Burger and Justices Harlan and Blackmun in the minority. Each Justice issued an opinion. 14 The three dissenters thought such restraint appropriate in this case. Id. at 748, 752, 759 . Justice Stewart thought restraint would be proper if disclosure “will surely result in direct, immediate, and irreparable damage to our Nation or its people,” id. at 730 , while Justice White did not endorse any specific phrasing of a standard. Id. at 730–33 . Justice Brennan would preclude even interim restraint except upon “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” Id. at 712–13 .

The same issues were raised in United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979) , in which the United States obtained an injunction prohibiting publication of an article it claimed would reveal information about nuclear weapons, thereby increasing the dangers of nuclear proliferation. The injunction was lifted when the same information was published elsewhere and thus there was no appellate review of the order.

With respect to the right of the Central Intelligence Agency to prepublication review of the writings of former agents and its enforcement through contractual relationships, see Snepp v. United States, 444 U.S. 507 (1980) ; Alfred A. Knopf, Inc. v. Colby , 509 F.2d 1362 (4th Cir.) , cert. denied, 421 U.S. 992 (1975) ; United States v. Marchetti , 446 F.2d 1309 (4th Cir.) , cert. denied, 409 U.S. 1063 (1972) .

15 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973) ; see also Vance v. Universal Amusement Co., 445 U.S. 308, 315–316 (1980) ( “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” ). 16 See Mark A. Lemley and Eugene Volokh , Freedom of Speech and Injunctions in Intellectual Property Cases , 48 Duke Law Journal 147, 169–171 (1998) . 17 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) . 18 427 U.S. at 562 , quoting Dennis v. United States, 183 F.2d 201, 212 (2d Cir. 1950) , aff’d, 341 U.S. 494, 510 (1951) . 19 Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976) (opinion of Chief Justice Burger, concurred in by Justices Blackmun and Rehnquist, and, also writing brief concurrences, Justices White and Powell). Applying the tests, the Chief Justice agreed that (a) there was intense and pervasive pretrial publicity and more could be expected, but that (b) the lower courts had made little effort to assess the prospects of other methods of preventing or mitigating the effects of such publicity and that (c) in any event the restraining order was unlikely to have the desired effect of protecting the defendant’s rights. Id. at 562–67 . 20 427 U.S. at 569–70 . The Court distinguished between reporting on judicial proceedings held in public and reporting of information gained from other sources, but found that a heavy burden must be met to secure a prior restraint on either. Id. at 570 . See also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting aside injunction restraining news media from publishing name of juvenile involved in pending proceeding when name has been learned at open detention hearing that could have been closed but was not); Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) . 21 427 U.S. at 572, 588 . Justices Stewart and Marshall joined this opinion and Justice Stevens noted his general agreement except that he reserved decision in particularly egregious situations, even though stating that he might well agree with Justice Brennan there also. Id. at 617 . Justice White, while joining the opinion of the Court, noted that he had grave doubts that “gag orders” could ever be justified but he would refrain from so declaring in the Court’s first case on the issue. Id. at 570 . 22 427 U.S. at 599 . 23 One such alternative is the banning of communication with the press on trial issues by prosecution and defense attorneys, police officials, and court officers. This, of course, also raises First Amendment issues. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975) , cert. denied, 427 U.S. 912 (1976) . 24 467 U.S. 20 (1984) . 25 467 U.S. at 36 . The decision was unanimous, all other Justices joining Justice Powell’s opinion for the Court, but Justices Brennan and Marshall noting additionally that under the facts of the case important interests in privacy and religious freedom were being protected. Id. at 37, 38 .