The First Amendment prohibits government from interfering with free speech. But the government is entitled to impose reasonable regulations. For example, the government can dictate the time, place, and manner speech is communicated. However, government is generally prohibited from imposing prior restraints.
What is a Prior Restraint?
Prior restraints are regulations that stop speech before it occurs. Prior restraints are disfavored and come to the Court bearing a heavy presumption against its constitutional validity. Historically, prior restraints have come in the form of licensing and injunctions.
Licensing
Licensing, in this context, is a form of government regulation seeking to prohibit free speech unless a license is issued. The Supreme Court disfavors these regulations because it gives government unbridled discretion to regulate content. However, the government may require a license provided it is: content neutral, narrowly tailored, and the administering agency has limited discretion.
In Lovell vs. Griffin, 303 U.S. 444, the city of Griffin, Georgia, enacted an ordinance prohibiting the distribution of, “circulars, handbooks, advertising, or literature of any kind” within the city without a license. A Jehovah’s Witness was convicted of violating the statute when she disseminated religious pamphlets.
The Supreme Court overturned her conviction arguing the statute was not narrowly tailored. Justice Hughes, writing for a unanimous court, held the regulation was so broadit allowed the government to censor material. Moreover, the Court could not find a reasonable justification for the regulation.
Similarly, in Lakewood vs. Plain Dealer Publishing Co., 486 U.S. 750 (1988), the Court struck down a local ordinance requiring a license for the placement of newspaper racks on public property. There, the Court struck down the statute because it threatened the exercise of free speech and allowed the government to hide it motivations for denying a license behind a cloak of secrecy.
However, government is still permitted to impose license requirements. These regulations are generally upheld when they relate to a: time, place, or manner issue and the government issues the license at random. The most well-known example would be a license to hold a protest on a public street where the activities would interfere with traffic.
Injunctions
Injunctions are court orders prohibiting one party from acting. Even if the speech is not protected under the First Amendment, the Court has held injunctions as unconstitutional because of the risk of censorship. The Court has taken the position that it is better to punish unlawful speech after it occurs rather than stop it.
This was the case in Near vs. Minnesota, 283 U.S. 697 (1931), where the Court found an injunction unconstitutional despite the speech being potentially defamatory. There, the government sought an injunction prohibiting a newspaper from publishing a story regarding police corruption. The government maintained the newspaper did not have First Amendment protection because the article was defamatory.
The Court disagreed; holding the appropriate remedy was to seek damages if the article was defamatory, not prohibit its publication. The Court feared that allowing the government to stop potentially unlawful speech would result in censorship.
The government has the right to impose reasonable regulations on the exercise of free speech. However, it may not impose prior restraints. Allowing the government to impose licensing requirements would have a chilling effect on speech and injunctions would stop potentially lawful speech from being communicated. For these reasons, the court generally disfavors prior restraints.
Byline
Donovan Copperplate is a freelance writer who focuses on legal issues such as DUI, Constitutional Law, Criminal Defense, Criminal Procedure, Personal Injury and other issues as well; to learn more visit an establish source such as hammerle.com.
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