Lesson 63 - Free Speech 24:

PRIOR RESTRAINTS

It's old, it's venerated, it doesn't make a lot of sense but people love it anyway: It's the prior restraint doctrine.

According to Sir William Blackstone, the 18th-century English legal scholar who was immensely influential in the Colonies at around the time of the Revolution, "the freedom of the press" meant mostly freedom from "prior restraints" -- licensing and screening systems that would let the government prevent the publication of certain materials. But after something is published, Blackstone argued, the law could certainly punish the publisher if the publication was unlawful. Prior restraints were banned, but subsequent punishments were permitted.

As late as 1905, Justice Oliver Wendell Holmes, Jr. (later a strong supporter of a much broader free speech principle), opined that the First Amendment should be read to only bar prior restraints and not subsequent punishments. Some scholars still believe that this was the original understanding of the First Amendment, though others disagree.

Since the early 1930s, the Court has always been quite firm in condemning prior restraints, even when it was leaving open the door for speech to be punished after publication. Today, the doctrine is that prior restraints face an *extremely* strong presumption of invalidity, though theoretically they may sometimes be permissible.

The trouble is that there is really no fundamental difference between “prior restraint” and “subsequent punishment.” All punishment of speech will "restrain" speech beforehand by its deterrent effect: If the law says that publishing X will lead to a ten-year jail term, then lots of people will be restrained from publishing X (and surely this must be the law's intent).

On the other hand, almost all prior restraints operate only through subsequent punishment. If the government requires a license to put up a Web page, or demands a right to screen the page before you put it up, you can still do it -- you'll just be punished after the fact.

Many scholars today think the prior restraint doctrine is largely senseless (and some, but not all, of the authors of this series agree). The two virtues that it might have are:

If you violate a prior restraint, and are then brought to trial for it, the only issue at tria will be whether you violated the restraint -- for instance, published without a license -- and not whether your speech was actually, say, libel or obscenity or revelation of military secrets or what have you. Therefore, if your speech is actually innocent, and the prior restraint is thus unjustified, you won't have a chance to prove it unless you sue to lift the prior restraint to begin with, something that might take a lot of time and thus delay your speech.
Historically, violations of prior restraints were adjudicated by judges without juries, while libel cases, sedition cases, and the like were tried before a jury. The Framers to a large extent saw juries as defenders of liberty and judges (who are agents of the government) as threats to liberty. This is not the view of many today, but the ban on prior restraints may have served as a guarantee that any speech restrictions be administered by juries and not judges.

We leave it to you to decide whether the prior restraint doctrine is a good idea. For now, a few words on what constitutes a prior restraint:

A system of press licensing -- under which licenses can be discretionarily given or withheld by the government, rather than just one in which a license is automatically given but is a way of collecting revenue -- is almost certainly a prior restraint, at least when the government is acting as sovereign.
The same is true for a system of advance screening, where before publishing something you have to get a government agency's permission. Again, though, note that this is clear only when the government is acting as sovereign; quite likely, the government *can* demand advance screening rights when it's acting as employer.
Court-imposed content-based injunctions against speech are probably prior restraints (except for injunctions against copyright infringement and injunctions of commercial advertising). For instance, the general rule is that you can't enjoin a libel, but have to sue after the fact for damages.

authors:

Larry Lessig David Post Eugene Volokh

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