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What is prior restraint?

A prior restraint is a legal restraint on material before publication. It’s an order that prevents publication.

Does the protection against prior restraint protect only the news media?

In theory, the protection against prior restraint applies to all speakers. Practically, however, fewer circumstances exist in which individuals can assert this protection. Moreover, in light of the balancing test suggested in Landmark Communications, a court might be more likely to find that the government’s interest in preventing harmful speech outweighs an individual’s interest in disseminating sensitive information.

What types of restraints on speech do individuals face?

As most famously described by Justice Oliver Wendell Holmes in Schenck v. United States, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Other types of speech by individuals also fall outside the protection against prior restraint, including fighting words and obscenity.

"There are two ways in which the government may attempt to restrain speech," wrote scholar Henry Cohen in "Freedom of Speech and Press: Exceptions to the First Amendment" (Congressional Research Service, 2001). "The more common is to make a particular category of speech, such as obscenity or defamation, subject to criminal prosecution or civil suit, and then, if someone engages in the proscribed category of speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint; i.e., to issue a court injunction against engaging in particular speech " publishing the Pentagon Papers, for example."

If my employer tells me I can’t say certain things or discuss certain matters, isn’t that prior restraint?

Not from a First Amendment standpoint. The First Amendment limits what government in its various forms can do to restrict speech. Many individuals are subject to employment or other contracts that limit their right to speak freely. That’s a private matter.

The reporters and editors at my local newspaper are highly biased. Is there a federal regulator who should know about this?

No. Under the First Amendment, newspapers and magazines can publish information as they see fit, biased or not. If published information is libelous, the publication can be sued by the person claiming to be libeled. But the federal government does not and cannot regulate newspaper content.

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Last system update: Friday, November 14, 2008 | 12:26:10
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