Prior Restraint

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Prior restraint is a legal term referring to the prevention or restriction of speech prior to publication. Prior restraint is nearly always found to be unconstitutional, as it violates the First Amendment rights of freedom of speech and freedom of the press.

The leading precedents against prior restraints are:

  • Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976) ("Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights");
  • Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390, 37 L. Ed. 2d 669, 93 S. Ct. 2553 (1973) (a prior restraint should not "sweep" any "more broadly than necessary").
  • Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175, 183-184, 21 L. Ed. 2d 325, 89 S. Ct. 347 (1968) (An "order" issued in "the area of First Amendment rights" must be "precise" and narrowly "tailored" to achieve the "pin-pointed objective" of the "needs of the case");
  • Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 575, 577, 96 L. Ed. 2d 500, 107 S. Ct. 2568 (1987) (regulation prohibiting "all 'First Amendment activities'" substantially overbroad).

An exceptional case that allowed prior was USA v The Progressive. It delayed publication of a magazine article on H-bomb secrets for six months in 1979.

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