Legal Definitions - Prior Restraint

In the context of the First Amendment, Prior Restraint refers to government action that prevents speech or other forms of expression from occurring in the first place. Unlike laws that punish speech *after* it has been made (like libel or incitement), prior restraint stops the communication *before* it can be shared with an audience.

Courts generally view prior restraint with extreme skepticism, considering it a severe infringement on freedom of speech and the press. For a prior restraint to be permissible, the government must typically demonstrate an exceptionally compelling reason, such as an immediate and direct threat to national security during wartime or a direct incitement to violence.

Here are some examples to illustrate this concept:

• Example 1: Denying a Protest Permit Based on Content

  Imagine a city ordinance requires groups to obtain a permit before holding any public demonstration in a park. A local activist group applies for a permit to protest a new city tax policy. The city council denies their permit application, stating that the proposed protest message is "too divisive" and "could incite public anger."

  How it illustrates Prior Restraint: The city (a government entity) is preventing the activist group's speech (the protest) from happening *before* it even begins. By denying the permit based on the content of their message, the city is exercising prior restraint, stopping the expression before it can occur.

• Example 2: Court Order Halting a Book Publication

  A former government scientist writes a memoir detailing their experiences and observations while working on a sensitive, but unclassified, research project. Before the book is published, the government seeks and obtains a court order prohibiting the publisher from releasing the book, arguing that its contents, even if not classified, could still be detrimental to public perception of the agency.

  How it illustrates Prior Restraint: Here, a judicial injunction (a court order) is used by the government to prevent the publication and distribution of the book. This action stops the speech (the book's content) *before* it reaches the public, making it a clear instance of prior restraint.

• Example 3: State Law Banning Early Election Reporting

  A state legislature passes a law making it illegal for any news organization to publish or broadcast exit poll results or declare election winners before all polling places in the state have officially closed on election day. The stated purpose is to prevent influencing voters who have not yet cast their ballots.

  How it illustrates Prior Restraint: This state law is a government regulation that directly prohibits a specific type of speech (election results/exit polls) from being disseminated by the press *before* a certain time. It acts as a blanket ban on that information for a defined period, preventing its expression prior to its occurrence, thus constituting prior restraint.