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.

Las Vegas Review-Journal and Associated Press v. Eighth Judicial District Court of the State of Nevada

February 14, 2018

A Nevada district court judge ordered the Las Vegas Review-Journal and the Associated Press to refrain from reporting on and to destroy copies of an anonymized autopsy report obtained through a public records request. The news outlets filed a petition for a writ of prohibition or mandamus in the Nevada Supreme Court to dissolve the prior restraint, and the Reporters Committee, along with the Nevada Press Association, filed a proposed amicus brief in support of that petition. The brief explains the significant news value in reporting on anonymized autopsy reports and the dangerous nature of the district court's gag order, which erroneously elevates purported privacy concerns over long-established First Amendment protections. The brief also focuses on the implications of the gag order for journalists and other members of the public who request records under the Nevada Public Records Act.


In re National Security Letter

October 12, 2017

The Reporters Committee for Freedom of the Press and a coalition of 20 media organizations submitted an amicus brief to the U.S. Court of Appeals for the 9th Circuit, supporting unknown plaintiff's petition for rehearing and rehearing en banc. The brief responds to a panel decision that would allow the government to prohibit wire or electronic communication service providers from disclosing information about National Security Letters (NSLs). The brief argues that this nondisclosure requirement is a prior restraint and should be subject to the most exacting scrutiny under the Supreme Court's precedent in the Pentagon Papers case. 

Van Zant v. Pyle

October 6, 2017

A federal district court judge in Manhattan permanently enjoined the release of a fictionalized film by Cleopatra Films about the 1977 plane crash that killed members of the band Lynyrd Skynyrd, because one of the co-producers, a former member of the band, was subject to a settlement agreement that limited his ability to profit off of the band's story. Cleopatra filed an expedited appeal with the Second Circuit. RCFP's amicus brief argues that the First Amendment protects films, including fictionalizations like Cleopatra's movie, that the injunction entered by the district court is a prior restraint, which is forbidden in all but the rarest of circumstances, and that even assuming Cleopatra is bound by the settlement agreement and violated it, the proper remedy is an action for damages, not a prior restraint.

A nationwide movement protecting the student press from censorship gains momentum

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

May 9, 2017

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
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
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.