Prior restraint and the Supreme Court

DESCRIPTION: The banning or restriction of printed materials before they are published.

SIGNIFICANCE: Widely regarded as intrusive censorship, prior restraint has continually been rejected by the Supreme Court as a violation of the First Amendment.

Responding to a British tradition in which both church and state frequently imposed prior restraints on expression, the framers of the US Bill of Rights granted freedom of the press a prominent position in the First Amendment. Press freedom, however, sometimes conflicts with other constitutionally protected rights and interests, including individual privacy, the right to a fair trial, and national security. Although the Supreme Court continually upheld the right of the press to publish without prior restraint in individual cases, it generally allowed that such restraint might be permissible in extreme circumstances.

The first Court case on prior restraint was Near v. Minnesota (1931), in which the Court ruled that a state could not prohibit the publication of material it considered offensive, scandalous, or defamatory. In Grosjean v. American Press Co. (1936), the Court deemed the use of excessive taxation to stifle the press a form of prior restraint and, therefore, unacceptable. The issue of pretrial publicity was taken up in Nebraska Press Association v. Stuart (1976). In this case, the Court ruled that newspapers had a right to publish, even when publication might influence public opinion and therefore interfere with the impartiality of a trial. Perhaps the most well-known case involving prior restraint was New York Times Co. v. United States (1971). The case, which allowed for the publication of articles based on the classified Pentagon Papers, has been viewed by many civil libertarians as among the most significant victories for press freedom.

As the impact of broadcast media increased in the twentieth century, freedoms originally applied to the press were extended to cover radio and television. Included in this coverage was the guarantee that broadcast licenses are granted on politically neutral grounds and that the so-called “fairness doctrine” attempted to ensure those with opposing viewpoints were given air time to respond to editorials. Eventually, computer-based communications were also covered. In Reno v. American Civil Liberties Union (1997), the Court deemed unconstitutional provisions of the federal Communications Decency Act of 1996 that sought to restrict internet dissemination of “indecent” materials.

Freedom to publish does not protect the publisher from subsequent sanctions and prosecution. Some successful post-publication libel suits resulted in restrictions on publishing further materials, and a number of trial verdicts were overturned as a result of pretrial publicity. The Court, however, maintained that prior restraint represents a greater danger than these results. Restrictions on prior restraint apply only to those forms of speech protected under the First Amendment. Prior restraint has therefore been deemed permissible in cases involving obscenity, severe risk to national security, the advocating of certain illegal acts, and invasions of personal privacy. Further, the advent and rise of the internet and social media brought new considerations to the freedoms provided by the press.

In the early twenty-first century, Thomas v. Chicago Park District (2002) and United States v. Playboy Entertainment Group, Inc. (2000) highlighted important principles regarding prior restraint and its limitations under the First Amendment.

In Thomas v. Chicago Park District, the Supreme Court upheld a city ordinance requiring permits for mass events in public parks. The Court found that while the ordinance could be seen as a form of prior restraint—since it required approval before allowing certain speech—it was constitutionally valid because it was a time, place, and manner restriction. The ordinance was narrowly crafted with objective standards for permit decisions and included immediate appeal processes, which prevented arbitrary censorship and ensured that speech could still be freely exercised. This case emphasized that prior restraint may be permissible if the restrictions are narrowly defined and subject to clear, objective review mechanisms.

In contrast, United States v. Playboy Entertainment Group, Inc. struck down a law that required cable television operators either to fully scramble sexually explicit channels or to limit their transmission to late-night hours. The Court ruled that the law was unconstitutional because it was a content-based restriction on speech and the government had not shown that it used the least restrictive means of protecting children from harmful material. This case highlights that content-based speech restrictions are subject to strict scrutiny and may fail when a less restrictive alternative is available. Together, these cases demonstrate that advance restrictions on speech are subject to close scrutiny and must include safeguards against unnecessary infringement on First Amendment rights.

Bibliography

Baracksay, Daniel. “Prior Restraint.” Free Speech Center, 31 Mar. 2025, firstamendment.mtsu.edu/article/prior-restraint/. Accessed 6 Apr. 2026.

Biskupic, Joan, and Elder Witt. The Supreme Court and Individual Rights. 3rd ed., Congressional Quarterly, 1997.

Cushman, Robert Fairchild, with Susan Koniak. Cases in Civil Liberties. 6th ed., Prentice-Hall, 1994.

Martin, Audrey Perry. “Fairness Doctrine.” Free Speech Center, 5 July 2024, firstamendment.mtsu.edu/article/fairness-doctrine/. Accessed 6 Apr. 2026.

Peters, Jonathan William. “A ‘Classic Example of a Prior Restraint.’” American Bar Association, 9 Dec. 2015, www.americanbar.org/groups/litigation/committees/civil-rights/practice/2015/a-classic-example-of-a-prior-restraint/. Accessed 9 Apr. 2026.

“Reno v. American Civil Liberties Union 521 US 844.” Justia US Supreme Court Center, 26 June 1997, supreme.justia.com/cases/federal/us/521/844/. Accessed 6 Apr. 2026.

Spitzer, Elianna. “What is Prior Restraint? Definition and Examples.” ThoughtCo., 25 June 2024, www.thoughtco.com/prior-restraint-definition-4688890. Accessed 9 Apr. 2026.

“United States v. Playboy Entertainment Group, Inc. 529 U.S. 803.” Legal Information Institute, 22 May 2000, www.law.cornell.edu/supct/html/98-1682.ZS.html. Accessed 6 Apr. 2026.