Joel Dillard & Associates

Representing Working People

What is a prior restraint on speech, and why is it unconstitutional?

It is among the most well-established ideas in constitutional law: prior restraints are typically unconstitutional.

Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights . . . the Supreme Court has routinely held that prior restraints on protected speech are presumed to be constitutionally invalid.
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556, 559 (1976). In fact, for a while the Court thought that the First Amendment’s free speech clause was only about banning prior restraints. See generally Chemerinsky, Constitutional Law: Principles & Policies, at 892-93, 918 (2d Ed. 2002) (discussing Patterson v. Colorado, 205 U.S. 454, 462 (1907) and 4 William Blackstone, Commentaries on the Law of England, 151-152 (1769)).

But what does it actually mean? What is a prior restraint? No one seems to know. Chemerinsky, supra, at 918. The courts sometimes say that the difference is that a prior restraint prevents speech in advance and other rules merely punish them after the fact. But as a well-respected scholar put it, [a]ll punishment for speech - whether under prior restraints or other laws - occurs after the expression takes place.Chemerinsky, supra.

From my point of view, the answer is one of lexicographical ipse dixit: a prior restraint is whatever the courts call a prior restraint. In practice this means either a court-issued gag order, or a system of licensure and censorship. [T]he classic type of prior restraint is where the government requires a license or permit in order for speech to occur. Chemerinsky, infra, at 932 (discussing Lovell v. City of Griffin, 303 U.S. 444 (1938)). To invalidate such schemes - where speech is to be submitted to government censors before publication - was a core purpose for the First Amendment.

For example, in Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir.2003), the Fifth Circuit held it was unconstitutional to require pre-approval from school officials before a petition could be circulated among attendees at a school board meeting. See also Brooks v. Auburn University, 412 F. 2d 1171 (5th Cir. 1969) (university president cannot require pre-approval of speakers on campus)

Three requirements must be met for a licensing scheme to be valid. Chemerinsky, supra at 933.

  1. The purpose must be to address a clear and present dangerous threat to a protected competing interest. Wood v. Georgia, 370 U.S. 375 (1962).
  2. There must be clear standards leaving almost no discretion to the licensing authority.City of Lakewood v. Plain Dealer Publishing Co., 486 US 750, 759 (1988).
  3. Licensing can be required only if it takes place under procedural safeguards designed to obviate the dangers of . . . censorship. Freedman v. Maryland, 380 U.S. 51, 58 (1965). There must be a procedure that prevents the policy from being misused or abused, with appeal to court where necessary to correct a mistake or abuse.

The bottom line: any system of prior approval and censorship of the speech of private citizens is likely to be unconstitutional.


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