"THE DOCTRINE OF PRIOR RESTRAINT" - First Amendment, Freedom of Expression ...
"The concept of prior restraint, roughly speaking, deals with official restrictions
imposed upon speech or other forms of expression in advance of actual publication.
Prior restraint is thus distinguished from subsequent punishment, which is a penalty
imposed after the communication has been made as a punishment for having made it.
Again speaking generally, a system of prior restraint would prevent communication
from occurring at all; a system of subsequent punishment allows the communication
but imposes a penalty after the event.
Of course, the deterrent effect of a later penalty may operate to prevent a communication from ever being made. Nevertheless, for a variety of reasons, the impact upon freedom of expression may be quite different,
depending upon whether the system of control is designed to block publication in
advance or deter it by subsequent punishment.
In constitutional terms, the doctrine of prior restraint holds that the First Amendment
forbids the Federal Government to impose any system of prior restraint, with
certain limited exceptions, in any area of expression that is within the boundaries of
that Amendment. By incorporating the First Amendment in the Fourteenth
Amendment, the same limitations are applicable to the states.
Several features of the doctrine should be observed at the outset. In the first place,
the doctrine deals with limitations of form rather than of substance. The issue is not
whether the government may impose a particular restriction of substance in an area
of public expression, such as forbidding obscenity in newspapers, but whether it may
do so by a particular method, such as advance screening of newspaper copy. In
other words, restrictions which could be validly imposed when enforced by subsequent
punishment are, nevertheless, forbidden if attempted by prior restraint.
The major considerations underlying the doctrine of prior restraint, therefore, are matters
of administration, techniques of enforcement, methods of operation, and their effect
upon the basic objectives of the First Amendment.
Moreover, the doctrine of prior restraint is, in some important respects, more
precise in its application than most of the other concepts that have developed out of
the First Amendment.
It does not require the same degree of judicial balancing that the courts have held to be necessary in the use of the clear and present danger test, the rule against vagueness, the doctrine that a statute must be narrowly drawn, or the various formulae of reasonableness.
Hence, it does not involve the same necessity for the court to pit its judgment on controversial matters of economics, politics, or social theory against that of the legislature. "
"For nearly 130 years after its adoption, the First Amendment received scant attention
from the Supreme Court. Not until World War I brought an avalanche of
prosecutions under the Espionage Act did the Court begin to explore the implications
of the constitutional guarantee for freedom of expression."
Thomas Emerson Doctrine of Restraint
The Doctrine of Prior Restraint (Thomas Emerson)
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