Rewriting Near v. Minnesota: Creating a Complete Definition of Prior Restraint - Michael I. Meyerson

• Jurisdiction: United States,Federal
• Publication year: 2001
• Citation: Vol. 52 No. 3

Rewriting Near v. Minnesota: Creating a Complete Definition of Prior Restraint by Michael I. Meyerson^*

The Supreme Court's opinion in Near v. Minnesota¹ was both a major step on the road to free expression and a missed opportunity. It represented the first time a law was struck down as violating the First Amendment's guarantee of free expression. Moreover, it placed the concept of "prior restraint" at the forefront of the theory of free expression. As one scholar noted: "Since the 1931 release of the Supreme Court's opinion in Near v. Minnesota, the doctrine of prior restraint has been an essential element of first amendment jurisprudence."²

Unfortunately, the Court neither defined prior restraint, nor explained precisely why injunctions fit within a definition of prior restraint. Equally regrettable, the Court listed, without explanation, four exceptions to the prior restraint doctrine, a list that was both over- and under-inclusive.³

The lack of a generally accepted definition, plus the unprincipled gaps created by the exceptions, has led to a situation in which the prior restraint doctrine is increasingly derided by legal scholars and frequent- ly misunderstood by the Court itself. Many respected commentators have concluded that the concept of prior restraints marks a "distinction without a difference."⁴ The prior restraint doctrine has been termed, "so far removed from its historic function, so variously invoked and discrepancy applied, and so often deflective of sound understanding, that it no longer warrants use as an independent category of First Amendment analysis."⁵

One reason for the strong antipathy some feel for the prior restraint doctrine is that it seems to justify the imposition of subsequent punishments on speech. Ever since Blackstone and the Sedition Act of 1798,⁶ the heavy hand of censorship was defended on the basis that no "previous restraint" was involved.⁷ Because the prior restraint doctrine is not a substantive protection, it "leaves open the possibility that this same speech-suppressive activity might be found constitutional if sufficiently redesigned and recast in the form of a subsequent sanc-Such criticism is short-sighted. Unless we inhabit a legal universe where all speech is protected, the doctrine of prior restraint is essential for the protection of free speech. As soon as it is conceded that some speech might be punished, procedural protection becomes essential. With its distinguished historical pedigree, the prior restraint doctrine helps to preserve the murky line between protected and unprotected speech. The most vigorous defense of protected speech is aided by the secondary shield of the prior restraint doctrine. Moreover, the doctrine serves to restrain the overuse of arguably permissible censorship by biased, overly eager, or insensitive government officials.

But this protection is possible only if a critical problem is solved: the lack of a legal definition of the term "prior restraint." Many share the frustration of Professor Harry Kalven who bemoaned in 1971, "it is not altogether clear just what a prior restraint is or just what is the matter with it."⁹

In his classic 1955 study of prior restraint, Professor Thomas Emerson wrote that "despite an ancient and celebrated history, the doctrine of prior restraint remains today curiously confused and unformed."¹⁰ Amazingly, that situation remains today. The result has been the purpose for the prior restraint doctrine has been obscured, a consistent and predictable application of the doctrine has been impossible, and the utility of the doctrine has been diminished.

Without a definition, prior restraint has frequently degenerated into nothing more than a "category label."¹¹ It can become almost a game for attorneys defending speakers to affix the label of prior restraint on whatever law is being challenged.¹² Often, the game can be successful. As Professor Laurence Tribe has noted, the Supreme Court "has often used the cry of 'prior restraint' not as an independent analytical framework but rather to signal conclusions that it has reached on other grounds."¹³

In this Article, I will attempt to complete the unfinished task of Near—the creation of a comprehensive definition of prior restraint and a reasoned explanation of the exceptions. The heart of this new definition comes from the realization that, at its core, the doctrine of prior restraint embodies not only principles of free speech, but of separation of powers as well. While the dangers from a prior restraint are the same regardless of the branch from which it emanates, the method for preventing this harm will be different by necessity. Thus, when regulating speech, each branch of government is restricted in terms of timing in regard both to the communication itself and to the actions of the other branches of government.

Separation of powers has always been a critical, if indirect, mechanism for preserving individual liberty. As Justice Kennedy remarked, "Liberty is always at stake when one or more branches seek to transgress the separation of powers."¹⁴ Nowhere is that more true than in the doctrine of prior restraint.

The inclusion of principles of separation of powers permits, for the first time, the creation of a workable definition of prior restraint. Once this definition has been given, two facts become clear. First, the doctrine of prior restraint can be easily and consistently applied to a wide range of speech-related issues. Second, preservation of the prior restraint doctrine is critically important for the protection of free expression.

I. A Near-Great Decision

In Near the Supreme Court ruled a Minnesota law that permitted the government to obtain a court order abating defamatory newspapers as a "nuisance" created an unconstitutional prior restraint.¹⁵ The opinion, written by Chief Justice Hughes, declared "it has been generally, if not universally, considered that it is the chief purpose of the guaranty [of liberty of the press] to prevent previous restraints upon publication."¹⁶ Instead of denning what made a particular regulatory scheme a prior restraint, the Court focused on the statute's "operation and effect."¹⁷ Noting the "object and effect" of the statute was to "suppress" future publication, the Court described the operation of the statute as putting "the publisher under an effective censorship."¹⁸

According to the Court, the primary offending feature of the statute was that upon a finding that a publisher had distributed a "malicious, scandalous or defamatory" newspaper, the "resumption of publication [was] punishable as a contempt of court by fine or imprisonment."¹⁹ The Court's injunction "would lay a permanent restraint upon the publisher, to escape which he must satisfy the court as to the character of a new publication."²⁰ Whether future publications would be free from punishment would depend upon whether the publisher was able "to satisfy the judge that the charges are true and are published with good motives and for justifiable ends."²¹ This, explained the Court, "is of the essence of censorship."²²

The Court stated, though, that the constitutional ban on prior restraint was not "absolutely unlimited" but was subject to limitation "only in exceptional cases."²³ The Court listed four such cases:²⁴ 1) "actual obstruction to [the Government's] recruiting service or the publication of the sailing dates of transports or the number and location of troops;"²⁵ 2) "the primary requirements of decency . . . against obscene publications;"²⁶ 3) "incitements to acts of violence and the overthrow by force of orderly government . . . words that may have all the effect of force;"²⁷ and 4) "[protection of] private rights according to the principles governing the exercise of the jurisdiction of courts of equity."²⁸

The Court added an additional exception, stating the ban on private restraints would not prevent a court, in a proper case, from using its traditional contempt powers over those who interfere directly with the operation of the court: "There is also the conceded authority of courts to punish for contempt when publications directly tend to prevent the proper discharge of judicial functions."²⁹

The primary weakness in the Near decision comes from its failure to define precisely what will constitute a prior restraint. There is no overarching principle to help evaluate future complicated regulatory attempts. Moreover, the listed exceptions appear nothing more than an ad hoc enumeration rather than part of a reasoned doctrine.

II. Separation of Powers and the Definition of Prior Restraint

The most famous eighteenth-century discussion of prior restraint, Sir William Blackstone's Commentaries on the Laws of England,³⁰ also does not provide a definition of that which it condemns. Rather, Blackstone announced the distinction between "prior restraints" and "subsequent punishment" and explained that subsequent punishment for libels is consistent with his view of liberty of the press:

The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.³¹ @@@

While this statement does indicate the general English opposition to previous restraints, it does not actually say what constitutes such a restraint. Blackstone merely contrasts previous restraints with punishments that are imposed after someone "publishes what is improper, mischievous, or illegal."³² Later in this same section, he discusses the press licensing of the previous century, but instead of describing the full array of impermissible previous restraints, he simply contrasts such...