Prior Restraint and Censorship

Author:Benno C. Schmidt

Page 2009

History has rooted in our constitutional tradition of freedom of expression the strongest aversion to official censorship. We have learned from the English rejection of press licensing and from our own experiences that the psychology of censors tends to drive them to excess, that censors have a stake in finding things to suppress, and that?in systems of wholesale review before publication?doubt tends to produce suppression. American law tolerated motion picture censorship for a time, but only because movies were not thought to be "the press" in FIRST AMENDMENT terms. Censorship of the movies is now virtually dead, smothered by stringent procedural requirements imposed by unsympathetic courts, by the voluntary rating system, and, most of all, by public distaste for the absurdities of censorship in operation.

American law has tolerated requirements of prior official approval of expression in several important areas, however. No one may broadcast without a license, and the government issues licenses without charge to those it believes will serve the "public interest." Licensing is also grudgingly tolerated?because of the desirability of giving notice and of avoiding conflicts or other disruptions of the normal functions of public places?in the regulation of parades, demonstrations, leafleting, and other expressive activities in public places. But the courts have taken pains to eliminate administrative discretion that would allow officials to censor PUBLIC FORUM expression because they do not approve its message.

Notwithstanding these areas where censorship has been permitted, the clearest principle of First Amendment law is that the least tolerable form of official regulation of expression is a requirement of prior official approval for publication. It is easy to see the suffocating tendency of prior restraints where all expression?whether or not ultimately deemed protected by the First Amendment for publication?must be submitted for clearance before it may be disseminated. The harder question of First Amendment theory has been whether advance prohibitions on expression in specific cases should be discredited by our historical aversion to censorship. The question has arisen most frequently in the context of judicial INJUNCTIONS against publication. Even though injunctions do not involve many of the worst vices of wholesale licensing and censorship, the Supreme court has tarred them with the brush of "prior restraint."

The seminal case was NEAR V. MINNESOTA (1931), handed down by a closely divided Court but never questioned since. A state statute provided for injunctions against any "malicious, scandalous, and defamatory newspaper," and a state judge had enjoined a scandal sheet from publishing anything scandalous in the future. The Minnesota scheme did not require advance approval of all publications, but came into play only after a publication had been found scandalous, and then only to prevent further similar publications. Nevertheless, the...

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