Prior Restraints

This section covers official government restrictions 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," which repeatedly has found that such restraints are presumed unconstitutional. Restraints on Internet speech follow the same rules, although particular speech can often be restrained if it has already been adjudged as libelous.

A nationwide movement protecting the student press from censorship gains momentum

Demi Vitkute | Prior Restraints | News | September 8, 2017
News
September 8, 2017

Laws designed to protect the student press from censorship by school officials are gaining traction around the country, and the American Bar Association recently lent its support to the cause with a unanimous resolution.

Rhode Island passed a new law on July 18 that protects the free expression rights of student journalists, becoming the third state to do so this year after similar laws passed in Nevada and Vermont, and the thirteenth state overall to enact statutory protection for student journalism.

Google v. Equustek Solutions Inc.

October 3, 2016

A Canadian court ordered Google to remove links to a company's products from its search engine worldwide, not just in Canada. Google appealed to the Supreme Court of Canada, and the Reporters Committee and a coalition of American media companies intervened to argue that such worldwide takedown demands are overbroad and will have a seriously detrimental effect on freedom of expression, particularly if other countries impose similarly sweeping restrictions to enforce their own laws.

Comments on General Data Protection Regulation

The Reporters Committee submitted comments to the United Kingdom's Data Protection Team on the "right to be forgotten," which will be implemented as part of the European Union's General Data Protection Regulation (GDPR). RCFP writes that the regulation's "erasure" obligation should not be extended to Online Service Providers such as Facebook or Twitter, or it will have profound negative effects on the news media and freedom of expression online. We also argued that an exception for "journalistic purposes" must be applied broadly to ensure protection under international principles protecting the right to information and freedom of expression.

In re National Security Letter

September 26, 2016

In this case, the District Court recognized that the nondisclosure requirements in a National Security Letter statute (18 U.S.C. § 2709(c)) amount to a prior restraint, it nonetheless applied a lesser level of scrutiny than prior restraints receive. The case was appealed to the Ninth Circuit. The Reporters Committee argued the district court's permissive standard is only appropriate in limited circumstances, such as licensing regimes for obscene movies. Section 2709(c), on the other hand, restrains speech on matters of public concern. The brief concluded that a ruling by the Ninth Circuit finding the nondisclosure provision is anything less than a classic prior restraint - requiring the highest burden on the government - will weaken essential constitutional protections guaranteeing the free flow of information to the public.

Microsoft advances on challenge to search warrant gag orders

Selina MacLaren | Prior Restraints | News | March 31, 2017
News
March 31, 2017

Communications service providers are constantly faced with demands to turn over their customer’s records to law enforcement. But Microsoft found that when it was served with these demands, they were all too often accompanied by gag orders with no ending date, forbidding them to talk about the demand or tell their customer that their records were involved. So the tech giant decided last year to sue the government over those gag orders in federal court in Seattle, and in February, it overcame the first hurdle by beating back the government’s effort to have that part of the case dismissed.

Play tackles issues of press freedom in imagined reign of King Charles III

Emma Lux | Prior Restraints | News | March 30, 2017
News
March 30, 2017

Allison Jean White as Kate, Christopher McLinden as Prince William and Robert Joy as King Charles in the American Conservatory Theater production of King Charles III, directed by David Muse. Photo by Kevin Berne.

Microsoft v. Dep't of Justice

September 2, 2016

Microsoft challenged the federal law that allows the Department of Justice to impose gag orders, often permanently, on communications services providers when served with a search warrant for their customers' records. The Reporters Committee, joined by a coalition of 29 other media organizations, argued that the gag orders function as prior restraints that interfere with the news media's right to receive information, interfere with the right of access to court records, and threaten the confidential relationship between reporters and their sources. The brief was written with attorneys with Orrick, Herrington & Sutcliffe LLP.

Hassell v. Bird

August 10, 2016

The Reporters Committee for Freedom of the Press, together with 30 other media organizations, filed an amicus letter brief with the California Supreme Court urging it to review a case in which Yelp was ordered to take down material from its site without notice or an opportunity to be heard. A trial court had entered a default judgment in a libel suit after the defendant failed to appear and contest the suit. The plaintiff then sought and received an injunction requiring Yelp to remove the reviews. Two courts found that Yelp was bound by the injunction. The amicus letter argued that Section 230 of the Communications Decency Act immunizes online services providers from injunctions, an injunction restraining speech of a nonparty is an improper remedy for a defamation action, and the lower courts improperly required a content distributor to remove speech before allowing an opportunity to be heard.

Near at 85: A look back at the landmark decision

Prior restraint ruling continues to resonate
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Kevin Delaney

AP Photo

Chief Justice Charles Evans Hughes in 1933

This year marks the 85th anniversary of Near v. Minnesota, the milestone U.S. Supreme Court decision that created the presumption that prior restraints — government restriction of speech prior to publication — are unconstitutional.

Although a lifetime has passed between 1931 when the Court issued its opinion and 2016, Near’s holding continues to resonate.

On Near’s 85th birthday, we look back at the case that, if not for a change in the composition of the court, could have been decided differently and assess its continued impact on journalism.

Challenging the Public Nuisance Law

Quashing a prior restraint

Appeals court stops judge's attempt to stop publication of jailhouse recordings
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Kevin Delaney

Palm Beach Post/Lannis Waters

Palm Beach County Circuit Judge Jack S. Cox talks to attorneys during the December 2015 hearing.

In late December of last year, the Florida Fourth District Court of Appeal, in the case Palm Beach Newspapers v. State, overturned a trial court’s order prohibiting The Palm Beach Post from publishing transcripts of a prisoner’s recorded telephone conversations.

Since January of 2013, the Fourth District has overturned four prior restraint orders, with three reversals coming within the last 18 months. The Fourth District hears appeals from trial courts located in Palm Beach, Broward, St. Lucie, Martin, Indian River and Okeechobee Counties.