Prior Restraint

Prior restraint on speech is generally regarded, both by the Court and by commentators, to be more serious than subsequent punishment.

Why should that be so? If a particular utterance or publication may be punished after the fact, what is wrong with enjoining or otherwise preventing the speech from ever taking place?

Professor Alexander Bickel once said that a criminal statute and the fear of subsequent punishment “chills” speech, but prior restraint “freezes” speech.

According to Prof. Nowak:

“The injunctive remedy with its speedier procedural framework [and lower standard of proof] is thus more subject to abuse and to indiscriminate application, whereas criminal prosecution entails a more thorough self-selection process resulting in fewer applications and successes. The overall chilling effect on speech is consequently less with criminal prosecution. Also, even if a temporary restraining order is ultimately found to have been improperly granted, the Government may have in fact achieved its end by restraining speech at a crucial time. Although the speech may be subsequently allowed, its impact may then be negligible because of time elapsed. If subsequent punishment chills prior restraint freezes.”

Suppose the Lincoln Journal is about to publish a libelous article about me. The article is full of untrue and scandalous charges about me. Should I be able to enjoin its publication, or should I be limited to my remedy of suing for damages once the article is published and my reputation is destroyed?

In its modern form, the doctrine of prior restraint “provides that prior restraints are highly suspect both substantively and procedurally and are subject to a rebuttable presumption of unconstitutionality. In seeking to justify use of such a restraint the government bears a heavy burden of proof. Generally, the Court has professed to employ the clear and present danger doctrine in reviewing such prior restraint systems.” (Profs. Barron & Dienes).

Suppose the Lincoln Journal is about to publish some state secrets it has obtained from some unknown source. The secrets concern, let’s say, our battle plans for an offensive against the enemy. Or the location of our battleships and nuclear missiles.

Should the United States government be able to enjoin publication of these classified military secrets?

[“In the field of national security, by contrast, virginity matters. The harm that may be expected to flow from revealing a state secret is almost exclusively related to the first publication.” Jeffries, Rethinking Prior Restraint, 92 Yale L.J. 409, 412 (1002)].