PRIOR RESTRAINT: Is Free Speech Under Attack by Adeyemi Oshunrinade


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Historically, the understanding of the First Amendment was that, it provided freedom from prior restraint of speech or expression; the doctrine forbade the abridgment of speech in advance of publication. May Congress allow censorship of speech, before the speaker is given the opportunity to make his speech? or may the prospective speaker be punished before given the opportunity to render his speech?

Note there is a difference between prior restraints and subsequent punishment imposed for speech that has already been made. Such punishment may be through the breach of the peace, disorderly conduct, or civil damages which might be imposed after expression has taken place. The dissatisfaction with the doctrine of prior restraints is based on the notion that, speech must be afforded the opportunity to enter into the market place of ideas, before it is determined whether such speech should be punished or not.

Simply put, the principle behind the doctrine of prior restraint is that, blocking the passage of speech before it is disseminated goes against the dictate of the First Amendment and it violates the constitutional guarantee of freedom of expression. However, in the case of subsequent punishment, at least the public has the opportunity to hear and judge the communication in controversy and the speaker remains responsible for the contents of his speech.

The modern doctrine of prior restraint includes a variety of government restraints which are imposed prior to expression. In its modern form, the doctrine provides that prior restraints are suspects both substantively and procedurally and are therefore, subject to constitutional scrutiny. To justify the use of prior restraint as a censorship tool, the government bears a heavy burden of proof such as that employed in cases involving clear and present danger or whenever a compelling state interest is at stake.

There may be a sound argument for imposing prior restraint on speech where there is a statute authorizing its use; and where the government can show based on facts an alleged threat to the government or national security; the established presence of such threat showing a compelling state interest, might satisfy the heavy burden of justification necessary for the use of prior restraint.

In the absence of such a statute, a simple declaration by the government that speech involves a danger or threat to public interest and security is insufficient to overcome the heavy presumption against prior restraint. Constitutional guarantee will not allow the imposition of prior restraint, where the main objective is to censor speech based on content, when such speech creates no burden on state interests or pose no danger to public good.

The aim of the First Amendment is to provide protection against the wrong use of prior restraint, any attempt to censor expression prior to its making must be properly scrutinized and must pass constitutional muster prior to its use; and it must be determined whether such restraint is proper as censorship tool.

A Minnesota statute passed in 1925 declared that a person is guilty of nuisance and may be enjoined from further committing or maintaining the nuisance, if such person is engaged in the business of regularly or customarily producing, publishing or circulating a malicious, scandalous or defamatory newspaper, magazine or other periodicals. The Saturday Press attacked the mayor, the chief of police and other law enforcement agents for their participation in gangster activities of gambling, racketeering and bootlegging; it also criticizes them for their failure to expose and punish them. (See Near v. Minnesota,283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 2d 1357(1931))

Under the statute, the County Attorney brought an action to enjoin the further publication by Saturday press or any other newspaper of any publication whatsoever which is malicious, scandalous or defamatory. At the beginning of the action on November 22, 1927, an order was made directing the defendant to show cause why a temporary injunction should not issue or why defendant should not publish, circulate or have in their possession any future edition of The Saturday Press. (Near v. Minnesota, supra)

The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and on the demurrer challenged the constitutionality of the statute. The District Court overruled the demurrer and certified the question of constitutionality to the state Supreme Court. The state Supreme Court sustained the statute and the act was held to be valid over the objection that it violated not only the state constitution, but also the Fourteenth Amendment of the Constitution of the United States. (Near v. Minnesota, supra)

The defendant Near denied that the publications were malicious, scandalous, or defamatory as alleged. He expressly invoked the protection of the due process clause of the Fourteenth Amendment and the case came to trial. The plaintiff offered in evidence the verified complaint, together with the issues of the publication over the objection of the defendant. (Near v. Minnesota, supra)

The District Court found that the defendant, through those publications engaged in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper; and that the said publication under said name of The Saturday Press, or any other name, constitutes a public nuisance under the law of the state. The judgment further enjoined the defendants from producing, editing, publishing, circulating, having in their possession, selling or giving away any publication whatsoever which is malicious, scandalous or defamatory newspaper, as defined by law. (Near v. Minnesota, supra)

The Supreme Court was asked to determine whether a statute authorizing such proceeding in restraint of publication is consistent with the conception of the liberty of the press as historically conceived and guaranteed. On certification, the court made clear that the chief purpose of the First Amendment, and which is universally recognized is to prevent previous restrain upon publication.

According to the court every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity. The court raised the point that mere exemption from restraint cannot be all that is secured by the constitutional provisions,’ and that ‘the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a by-word, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications.

The court reiterated that though, there is a First Amendment guarantee against prior restraint, this does not mean the public authorities cannot put a restraint on speech or publications for example, many things that might be said in the time of peace may not be allowed in the time of war, if such speech might hinder government efforts to recruit into the armed forces. In that case no court will regard such speech as protected by the First Amendment.

However, in all other cases involving the defamation of conduct, false accusations and libel; public officers falsely defamed or accused may seek redress afterwards in the court of law under libel laws, rather than in proceedings to restrain the publication of newspapers and periodicals.

The court concluded the statute was an infringement on the liberty of the press guaranteed by the Fourteenth Amendment.

Dr. Adeyemi Oshunrinade [E.JD] is an expert in general law, foreign relations and the United Nations; ‘Prior Restraint’ is an excerpt from his incoming book ‘Constitutional Law-First Amendment’ follow on Twitter @san0670

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1 reply

  1. Thanks Myra for visiting, will check out the tool.

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