Prior Restraint

The term prior restraint refers to a governmental restriction on speech or other expression before it can take place. This is seen by many as a blatant violation of the First Amendment rights enjoyed by all Americans, but is sometimes used by courts concerned about the effect publicity might have on a person’s right to a fair trial. Prior restraint might also be employed in the name of national security, or in certain law enforcement situations. To explore this concept, consider the following prior restraint definition.

Definition of Prior Restraint


  1. A court order banning speech or other expression before it takes place.
  2. A governmental restraint on expression, whether verbal, written, or artistic, before it takes place.


1951    U.S. Supreme Court

Prior Restraint and the U.S. Constitution

Few issues have the power to inflame the ire of American citizens like the idea of censorship by the U.S. government. The First Amendment of the U.S. Constitution grants:

“Congress shall make no law . . .  abridging the freedom of speech, or of the press.”

The Supreme Court has broadened this protection to include all forms of government and governmental agencies, whether federal, state, or local. This includes acts by the legislature, the executive branch, or the court system. No governmental agency in the U.S. may imprison, fine, or impose civil liability on any person or organization because of something they said or wrote – usually.

Certain important circumstances require a ban on speech or publication of certain information, whether for public safety, or to guarantee an individual his right to due process. The difficulty through the years has been to determine what forms of “prior restraint” are unconstitutional. In that effort, legal and legislative minds have looked toward what type of censorship the First Amendment was intended to prohibit.

Certainly many government officials view keeping certain information from the American public to be necessary to national security. This involves prior restraint against news media publication of certain information and events. Other people take a totalitarian position that no government agency should have authority to ban the news media’s publication of any information.

For example:

Nate, California’s representative at the U.S. Senate, feels that NASA’s discovery of a very large meteoroid heading toward Earth should be withheld from the public. His feeling stems from his certainty that such an announcement would cause panic in the face of a disaster that could not be prevented or escaped. For this reason, he supports prior restraint, banning the press from releasing an announcement or information regarding the impending event.

Howard, an astronomer with NASA, believes that prior restraint is unconstitutional, and that people have a right to know. In addition, the press has a right to publish the information. Both men’s views have merit. If a decision on whether to exercise prior restraint must be made, the standard of “clear and present danger” would be applied. The question then would be whether panic created by dissemination of the information would be more harmful to the public than just waiting for the meteor to hit the planet.

Definition of Speech

In the past, the U.S. Supreme Court has been tasked with defining just what constitutes “speech,” and “press,” as these terms relate to the First Amendment. The Court has maintained a broad definition, which includes talking, writing, and printing, as well as broadcasting information over the airwaves, the Internet, or other method. Freedom of speech has been determined to also apply to symbolic expressions, such as wearing certain articles of clothing, flying the flag upside down, or even burning the flag or a cross.

Prior Restraint on Content

The Supreme Court has repeatedly held that no restrictions on speech can be made because of its content. This means that a person’s message cannot be censored or banned based on its subject matter or ideas, as this is clearly unconstitutional. For instance, there can be no laws made prohibiting people from voicing their opposition to proposed laws, or higher taxes.

People cannot be censored in their criticism of war, or of their government. Banning this type of expression would distort the people’s ability to share and discuss information necessary to governing themselves. It is a long-held principle that the government simply can’t be trusted to determine what information or ideas “the people” should be allowed to hear and share.

Example of Prior Restraint on Content

Marian appears at her state legislature session, with the press in tow. She stands at the head of an aisle and begins expressing her views on the gun control bill that is before the state Senate, telling her personal story. Marian makes the point that, even if guns had been completely banned in her state, and guns confiscated from every law abiding citizen, it would not have prevented the death of her daughter, who was shot while at school. The men responsible had not obtained their weapons legally, and therefore such legislation would have been ineffective at best, and ridiculous at worst.

Although the legislators supporting the bill before Marian’s state Senate may not like the content of what Marian is saying, she is within her rights to express these things. Because Marian notified the press, bringing them with her to the session, some of the legislators might consider banning such impromptu speeches based on their inflammatory content. While this might pre-empt others who have similar ideas, such prior restraint based on content is unconstitutional.

Gag Orders as Prior Restraint

A gag order is a type of protective order issued by a judge that prohibits parties involved in a legal dispute from talking to the press, or anyone else. While most judges see gag orders as necessary to protecting a defendant’s right to a fair trial, some people see them as a violation of their First Amendment right to free speech. Gag orders as prior restraint are most commonly issued to parties, witnesses, attorneys, law enforcement officials, and jurors, ordering them not to make any public comments to the press, or to pass on any information that is not already public record.

Clear and Present Danger Test

In the early 20th century, a known socialist named Charles Schenck, distributed thousands of anti-draft fliers to both American servicemen and draftees. His fliers proclaimed the draft as nothing more than slavery, or “involuntary servitude,” and declared that World War I itself was prompted only by capitalist greed. Schenck’s flyers urged servicemen and draftees to petition the government to cancel the draft.

Charles Schenck was arrested and charged with violating the Espionage Act of 1917, as prosecutors claimed he conspired “to cause insubordination … in the military and naval forces of the United States. Although Schenck argued that the Espionage Act itself violated people’s First Amendment right to freedom of expression, he was found guilty on all charges against him.

Schenck appealed his case all the way to the U.S. Supreme Court, which upheld his conviction based on a test of whether a person’s expression poses a clear and present danger to the United States or its citizens. In the Court’s unanimous opinion, Justice Oliver Wendell Holmes, Jr. stated:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

The Court pointed out that Schenck had specifically intended to damage or destabilize the draft, and made the argument that the character and nature of every act depends on the circumstances in which it is done, and the intent of the individual undertaking the act. Schenck’s opinion delivered in flyers during peacetime would certainly be protected by the First Amendment. During war time, however, his rhetoric amounted to national revolt.

The Court likened his act to a man who falsely cried “Fire!” in a crowded theater. In a private place, or a quite park, this announcement would likely fall under free speech protection. Any man falsely shouting “Fire!” in a crowded public venue, causing panic in the people present, however, would enjoy no such protection. This “clear and present danger” test has since been applied to many questions of prior restraint, and the constitutionality of prohibiting free speech.

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • First Amendment – A Constitutional Amendment prohibiting the enactment of any laws establishing a religion, hindering the free exercise of religion, censoring speech or other expression, infringing on the freedom of the press, or blocking the public’s right to peaceably assemble.

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