A prior restraint is an official government restriction of speech prior to publication. Prior restraints are viewed by the U.S. Supreme Court as “the most serious and the least tolerable infringement on First Amendment rights,” according to the Court’s 1976 opinion in Nebraska Press Association v. Stuart.1 Since 1931, the Court repeatedly has found that such attempts to censor the media are presumed unconstitutional.2
Because the Court found in Nebraska Press that the “barriers to prior restraint remain high and the presumption against its use continues intact,” prior restraint orders are rarely upheld. As a result, editorial decisions about publication of information the government deems sensitive are generally left solely to the discretion of news organizations.
One interesting aspect of this area of the law is that while courts have been clear that prior restraints will rarely survive scrutiny even when national security concerns are raised, courts seem to be most willing to allow restraints when the administration of a trial is at issue, or when fair trial rights are implicated.
In the 1976 landmark case Nebraska Press Association v. Stuart, the Court addressed the constitutionality of an order prohibiting the media from publishing or broadcasting certain information about Erwin Charles Simants, who was accused of murdering the Henry Kellie family in a small Nebraska town. This case pitted the First Amendment rights of a free press against the defendant’s Sixth Amendment right to a fair trial.
To ensure that Simants received a fair trial, the Nebraska Supreme Court modified the district court’s order to prohibit reporting of confessions or admissions made by Simants or facts “strongly implicative” of Simants.
On appeal, the U.S. Supreme Court struck down the prior restraint order. The Court emphasized that the use of prior restraint is an “immediate and irreversible sanction” that greatly restricts the First Amendment rights of the press. “If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time,” Chief Justice Warren Burger wrote for the Court.
To determine whether the prior restraint order was justified, the Court applied a form of the “clear and present danger” test, examining whether “the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” In applying this test, the Court articulated a three-part analytical framework, which imposed a heavy burden on the party seeking to restrain the press. First, the Court examined “the nature and extent of the pretrial news coverage.” Second, the Court considered whether other less restrictive measures would have alleviated the effects of pretrial publicity. Finally, the Court considered the effectiveness of a restraining order in preventing the threatened danger.
The Court found that the trial judge reasonably concluded that the “intense and pervasive pretrial publicity” in the Simants case “might reasonably impair the defendant’s right to a fair trial.” However, the trial judge did not consider whether other measures short of a prior restraint order would protect the defendant’s rights. The trial judge should have considered changing the location of the trial, postponing the trial, intensifying screening of prospective jurors, providing emphatic and clear instructions to jurors about judging the case only on the evidence presented in the courtroom or sequestering the jury.
The Court also found that the effectiveness of the trial judge’s prior restraint order to protect Simants’ right to a fair trial was questionable. Because the prior restraint order is limited to the court’s territorial jurisdiction, it could not effectively restrain national publications as opposed to publications within the court’s jurisdiction. Moreover, it is difficult for trial judges to draft effective prior restraint orders when it is hard “to predict what information will in fact undermine the impartiality of jurors.” Finally, because this trial took place in a town of 850 people, rumors traveling by word of mouth may be more damaging to the defendant’s fair-trial rights than printed or broadcasted news accounts. In short, the probability that the defendant’s fair-trial rights would be impaired by pretrial publicity was not shown with “the degree of certainty” needed to justify a prior restraint order.
Nevertheless, government officials and private individuals occasionally attempt to stop publication. In Toledo Blade Company v. Henry County Court of Common Pleas,3 the Ohio Supreme Court reversed a trial court’s order that prohibited the media from reporting on one defendant’s criminal trial until after the impaneling of a jury in a second defendant’s criminal trial. The trial court had justified its order on grounds that the publicity was likely to prejudice the second defendant’s right to a fair trial. In reversing the trial court’s order, the Ohio Supreme Court relied on the analytical framework established in Nebraska Press Association to conclude that the trial court’s order was “patently unconstitutional.”
The Supreme Court has recognized that, theoretically, publication of some information may be restrained to protect national security. However, when The New York Times and Washington Post began publishing the Pentagon Papers, a study regarding U.S. involvement in Vietnam, and the government tried to stop publication, the Supreme Court refused to uphold prior restraints on the newspapers because the government had failed to make a sufficient showing of harm to national security.4
A federal district court issued a restraining order when The Progressive threatened to publish an article explaining the design of a hydrogen bomb. An appeals court ultimately dismissed the case after the article appeared in another publication.5
Courts have recognized that prior restraints may be imposed where the activity restrained presents a clear and present danger or a serious and imminent threat to the administration of justice.6 In the earliest incarnation of the “clear and present danger” test, Justice Oliver Wendell Holmes stated that expression could be punished when “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 Congress has a right to prevent.”7
The “clear and present danger” test subsequently evolved in Brandenburg v. Ohio.8 In that case, the Supreme Court held that the advocacy of force or criminal activity may not be penalized unless such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
In 1996, the U.S. Court of Appeals in Washington, D.C., upheld a policy that requires employees of the State Department, the U.S. Information Agency and the Agency for International Development to submit for prepublication review articles, speeches and teaching materials that discuss those agencies or U.S. foreign policy matters. A divided three-judge appellate panel held that because the policy requires only agency review and not agency consent, it is not an unconstitutional restriction on speech.9
Law enforcement investigations
Law enforcement officials often tell reporters not to publish certain information about crimes — for example, the names of victims or witnesses, or the place where the crime occurred. Reporters should be skeptical about admonitions not to publish, particularly when such officials have made the information readily available.10 Unless these restrictions are authorized by a judge who has found a “clear and present danger” to the administration of justice, officials cannot order reporters not to publish lawfully obtained information. The decision to publish in such contexts is a matter of ethical considerations, not legal restraints.
1. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).
2. Near v. Minnesota, 283 U.S. 697 (1931); see also, New York Times v. United States, 403 U.S. 713 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
3. Toledo Blade Company v. Henry County Court of Common Pleas, 926 N.E.2d 634 (Oh. 2010)
4. New York Times v. United States, 403 U.S. 713 (1971).
5. United States v. Progressive, 467 F.Supp. 990 (W.D. Wis.), dismissed without opinion, 610 F.2d 819 (7th Cir. 1979).
6. Wood v. Georgia, 370 U.S. 375, 385 (1961).
7. Schenk v. United States, 249 U.S. 47 (1919).
8. Brandenburg v. Ohio, 395 U.S. 444 (1969).
9. Weaver v. USIA, 87 F.3d 1429 (D.C. Cir. 1996), cert. denied, 117 S.Ct. 2407 (1997).
10. See Florida Star v. B.J.F., 491 U.S. 524 (1989).