prior restraint

Prior restraint describes an administrative or judicial order that forbids certain speech before the time that the communication is to occur, as stated in Alexander v. United States.

Prior restraint may be a statute or regulation that requires a speaker to acquire a permit or license before speaking, a judicial injunction that prohibits certain speech, or a prohibition by the government that outright prohibits a certain type of speech. Courts typically disfavor prior restraint on pure speech and often find prior restraint to be unconstitutional.

In Near v. Minnesota, a statute authorized the prior restraint of a news publication. The United States Supreme Court held that such a statute is unconstitutional. However, the Court found that prior restraint may be allowed in exceptional cases, such as when the nation is at war, or when the speech would incite violence. The Court also emphasized the importance of the freedom of the press, which is safeguarded by the due process clause of the Fourteenth Amendment.

In New York Times Co. v. United States, the United States government tried to stop the New York Times and the Washington Post from publishing classified government documents. The Supreme Court held that the evidence that the government presented did not meet the heavy burden of justifying a prior restraint. In fact, the government's urging of “security” did not trump the newspapers' freedom of press as guaranteed by the First Amendment. To support an issuance of prior restraint, the government needs to prove that the newspaper publication would cause inevitable, direct, and immediate danger to the United States.

​In Hazelwood School District v. Kuhlmeier, public school officials attempted to prevent the school's student-run newspaper from publishing certain information because the students in the articles could be identified. The Supreme Court held that in a public school, educators are entitled to a higher degree of control over a student-run newspaper than a government would have over a professional newspaper. Educators’ control on student speech in school-sponsored activities does not offend the First Amendment as long as the educators’ actions are reasonably related to legitimate pedagogical reasons.

[Last updated in March of 2024 by the Wex Definitions Team]