Copyright

Prior Restraint in Law: Definition & Exceptions

Instructor: Brittany McKenna

Brittany is a licensed attorney who specializes in criminal law, legal writing, and appellate practice and procedure.

Prior restraint is a form of unconstitutional government censorship occurring before the speech is made. This lesson provides an introduction to prior restraint and illustrates some of the ways in which the government censors expression.

Definition

Think back to your last trip to a coffee shop. You probably encountered friendly baristas chatting about current events, while happy patrons sipped lattes and perused the internet on their laptops and tablets. Daily editions of local, state, and nationwide newspapers were folded neatly on tabletops awaiting consumption. Newly released music played softly in the background.

You may not realize it, but a seemingly mundane trip to the coffee shop is the perfect illustration of one the greatest cornerstones of American life: the freedom of expression. The newspapers, the music, even the casual conversations are all examples of how we freely express ourselves on a daily basis. If the government were allowed to stop free speech before it happened, your trip to the local coffee shop would likely look very different.

Prior restraint is the censorship of speech by the government before the speech is published, distributed, or otherwise heard or read. The right to free speech (also known as 'free expression') is protected by the First Amendment to the United States Constitution, which prohibits the government from making any law 'abridging the freedom of speech.' Subject to a small number of exceptions, prior restraint on free speech is unconstitutional.

Prior restraint can take many forms. For example, the government or a government agency may refuse to grant a permit or license to a group that seeks to engage in free expression. Think of a political group that wants to stage a protest in front of City Hall. If the city government denies the political group a permit to hold the protest, the city might be imposing prior restraint on the group's speech by preventing the protest from taking place. If a state or federal law imposes a licensing or permitting requirement on the exercise of free speech, that law may be considered an illegal prior restraint.

In some instances, the government may seek a legal injunction to stop a publication ahead of time. An injunction is an order from a court of law that instructs a party to do certain acts or to refrain from certain acts. In the context of free speech and prior restraint, the term 'publication' means any method of sharing expression with the public-- whether that comes in the form of publishing an article, premiering a film, giving a public address, or any other exercise of expression. Therefore, prior restraint may arise if the government seeks and is granted an injunction to stop the publication of speech before it happens.

There are times when, instead of preventing speech before it happens, the government will wait until after the speech is communicated to impose sanctions or seek legal intervention. This type of censorship is different from prior restraint because the action restricting the expression is made post-publication.

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