United States Constitution

PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution



First Amendment: Freedom of Speech Prior Restraint

Prior restraint is when some sort of administrative system or a court order stops speech from occurring. These kinds of restrictions take several forms, including court ordered injunctions on speech and licensing/permit systems. Given the widespread use of prior restraints by the colonial British, prior restraint was expressly viewed as one of the worst forms of censorship by the founders. This stems in part from the unique nature of the restriction, which works to stop speech before it can even occur, compared to punishing it after it has been communicated. Because of this, prior restraint is only considered constitutional under particular, narrow exceptions. Often, issues of prior restraint are intertwined with the freedom of the press. Prior restraint issued by a court must be narrowly tailored and burden no more speech than necessary.
Collateral Bar Rule Important Cases
Prior restraints are often considered the worst forms of censorship, partly because of how they work with the ‘collateral bar rule’. The collateral bar rule prevents any challenges to a court order if the party disobeys the order before first challenging it in court. When a law is unconstitutional, punishments for those who violate that law can be challenged. Prior restraints are often court ordered however, so a person who speaks in violation of one without first challenging it in court may not then challenge it later, regardless of the constitutionality of their speech. In Walker v. City of Birmingham, the Supreme Court upheld charges against Dr. Martin Luther King Jr. for violating a court order preventing him from marching without a permit. Additionally, the Court denied him the ability to challenge the constitutionality of that order under the collateral bar rule.

Some courts have even applied this collateral bar rule to licensing systems. When deciding to apply this rule to licensing systems, the Court will first look to see whether or not the licensing system is constitutional in the first place. In the 1953 case Poulus v. New Hampshire, the Court upheld a conviction for practicing a religious ceremony in a park without a permit, and denying any constitutional challenges because the defendant had not challenged his permit denial under that system’s through the permit process first. The Court determined that the system set up to review license denials in Poulus was sufficiently constitutional and did not violate due process.

The Court will not apply the collateral bar rule if the licensing system is not constitutional on its face, however. The decision in Shuttlesworth v. City of Birmingham overturned the convictions of civil rights protesters for marching without a permit. Because this particular licensing system gave local officials unlimited discretion to approve or disapprove permits, the Court determined it to be unconstitutional and said that a “person faced with such an unconstitutional licensing law may ignore it.” It is important to note that the marchers in Shuttlesworth marching without a permit were doing so in violation of the same permit system as Dr. King in Walker. However, Dr. King violated a court ordered injunction, whereas the marchers in this case violated an unconstitutional permit law.
  Walker v. City of Birmingham (1967)

Poulous v. New Hampshire (1953)

Shuttlesworth v. City of Birmingham (1969)

National Security Important Cases
The first major exception to the general rule against prior restraint is in regards to issues of national security. Surprisingly, the initial boundaries of this exception were set in a case that was not about national security at all. The decision in Near v. Minnesota struck down a court order that prevented a newspaper from publishing anything “whatsoever containing a malicious, scandalous, and defamatory matter.” After discussing historical context of the freedom of the press, the Court determined that punishment after the fact was the usual and proper way of dealing with defamatory press because of the “deep seated” belief that prior restraint violated the First Amendment. However, the Court did outline hypothetical situations where an injunction against the press could incur. One of these situations was if the press were to release “the sailing dates or the number and location of troops.”

This national security exception was central to the famous case New York Times v. United States. In 1971, the New York Times and the Washington Post began publishing pieces from a secret Defense Department history of the war in Vietnam that had been leaked to them. The government wanted injunctions on national security grounds. The 2nd Circuit reversed the lower courts and approved the injunction, and only 18 days after they first began to be published, the articles were ruled on by the Supreme Court. Voting 6-3, with 10 separate opinions, the Court held that the injunction was unconstitutional because the government failed to meet its burden to overcome the presumption against prior restraint.

All the Justices of the majority agreed that the government had failed to meet the requirements to necessary to keep a constitutional prior restraint of the press, yet their opinions varied. Justices Black and Douglas wrote strong opinions against all use of prior restraint against the press, declaring “every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” The remaining justices in the majority felt either that some additional congressional approval was needed for the executive to ask for such prior restraint, or that strict scrutiny was required and had not been met.Chief Justice Burger and Justice Harlan both dissented because they felt the decision had been rushed: they argued that the injunction needed to remain in place at least until the time the Supreme Court had been able to review the material. Justice Blackmun voiced similar concerns but also emphasized that the release of the documents may prolong the Vietnam War or cost the lives of soldiers.
 Near v. Minnesota (1931)New York Times Co. v. United States (1971)
Preserving Fair Trials Important Cases
Another area where there can be prior restraint is if they are necessary to protect the fairness of a trial, by restricting what the media can share. Although this is technically permissible, it has almost never been upheld in practice. In a rare move, the Court upheld such a ban in Nebraska Press Association v. Stewart, where the trial court prohibited the media from broadcasting confessions or admissions by the accused in a murder trial in a small town. The opinion weighed the freedom of the press against the right to a free trial and found that one could not be greater than the other. This led the Court to determine that a very strong presumption against prior restraints of this type exists, and that it could only be overruled if it passed a three part test. First, there must be excessive publicity without the prior restraint, and this publicity will jeopardize fairness. Second, this must be a method of last resort – all other methods to achieve a fair trial must be ineffective. Lastly, the prior restraint must be workable and effective – an ineffective prior restraint will not be upheld.

Nebraska’s prior restraint was upheld, but no other prior restraint like it has been upheld since. The question of whether or not a Court’s prior restraint of participants outside of the press – such as attorneys involved in the trial – has never been decided on.
 Nebraska Press Association v. Stuart (1976)
Obscenity Important Cases
The Court has upheld injunctions on the showing of films or other material that has been adjudicated as obscene. This is only after the material in question has been fully adjudicated as obscene in an adversarial court proceeding, such as the films in Paris Adult Threatre I v. Slaton, which had only faced an injunction from being shown after it was determined obscene by the Georgia Supreme Court.The Court has not upheld injunctions based on obscene material in general. In Vance v. Universal Amusement Co., the Court struck down indefinite prior restraints against a theater for “habitual use” for showing obscene material. This was because not all of the material being shown had been finally adjudicated like the material in Slaton. Paris Adult Theatre I v. Slaton (1973)

Vance v. Universal Amusement Co. (1980)

Licensing Important Cases
Licensing, the requirement for a license or permit in to be able to express speech, is the most traditional form of prior restraint. In order for a license or permit scheme to be held as constitutional, three conditions must be met. First, there must be an important reason for licensing. Second, there must be clear standards for the licensing that leave almost no discretion to the government. Lastly, there must be procedural safeguards to ensure constitutionality and fairness.

An important reason must be necessary in order for a licensing system to be justified. In Cox v. New Hampshire, the Court upheld a city licensing scheme for parades and demonstrations. The city emphasized two reasons: it needed prior notice so it could properly police the event, and so that it could make sure groups did not overlap in the same routes and areas.

In contrast to Cox, the Court refused to uphold a licensing scheme for door to door solicitation in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton. The Court determined this would place a burden on speech by deterring people who would not want to seek a license. This burden was not justified by the reasons given by the government, which included preserving resident’s privacy and lessening the likelihood of crime. Reasoning that the residents could hang “no solicitation signs” and that a permit system wouldn’t stop a criminal from knocking on a door, the Court held these were not sufficiently important enough reasons to burden speech through a licensing system.

Perhaps the largest concern of the Court is the potential for a licensing system to be used as a way to discriminate against certain messages or content, allowing some speech and not others. The second requirement for a constitutional license or permit system is that there is a minimal amount of discretion or arbitrary decision power in the hands of the licensing government official. In City of Lakewood v. Plain Dealer Publishing Co., the Court declared a permit system for newspaper racks to be unconstitutional. In order to place a newspaper rack on public property, a permit would have to be annually approved by the mayor. There were no neutral criteria for the mayor to determine which newspaper racks would be permitted, effectively giving him uncontrolled power over the existence of newspaper racks. The Court determined that there was a facial constitutional issue anytime a licensing law gives a government official the ability to discriminate against viewpoints. Additionally, the Court emphasized the danger of too much discretion given to the government is one of self-censorship: those applying for a license will minimize negative speech in order to qualify for a license. Un-controlled discretion is dangerous because without proper criteria on how to approve a permit, it becomes difficult to measure if an official is being fair, or to decide how to fix the situation if they are not.

Procedural safeguards are required for any licensing scheme. A decision to grant or deny a license must be prompt, a fair hearing must be provided, and prompt judicial review of any decision denying a license must be available. In Freedman v. Maryland, the Court struck down a permit system for displaying movies that required approval by a censor board before a movie could be shown. The Court held that the safeguards in place were inadequate: if the censor board ruled against a film, the permit-seeker had the burden of persuading the court that it was protected expression and the showing of the film was prohibited until fully adjudicated, of which there was no guarantee of speed. The process did not involve a Court unless the applicant chose to pursue one themselves, and even then, risked a long process during which he could not show the film. The Court determined that the weight of proof should be on the censor, and that a prompt judicial determination in an adversarial proceeding was necessary.
 Cox v. New Hampshire (1941)

City of Lakewood v. Plain Dealer Publishing Co. (1988)

Freedman v. Maryland (1965)