Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
The Supreme Court has found censorship to be an especially intolerable restriction on freedom of expression. The term censorship might encompass almost any restriction on the dissemination or content of expression, but most fundamentally it means *prior restraint—any government scheme for screening either who may speak or the content of what people wish to say before the utterance. Although the Court has never held prior restraint to be inherently unconstitutional, it has emphasized that “any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” (Bantam Books, Inc. v. Sullivan 1963, p. 70).
The Court first directly addressed the constitutionality of prior restraint in *Near v. Minnesota (1931). In question was a Minnesota law that allowed judges to eliminate as a public nuisance any “malicious, scandalous and defamatory” newspaper or periodical (see libel). A state court had declared a newspaper, the Saturday Press, to be a public nuisance after it had attacked public officials with allegations of corruption, laziness, and illicit contact with gangsters. Much of the material seemed anti-Semitic. The state court issued an order forever prohibiting the editors “from producing, editing, publishing, circulating, having in their possession, selling or giving away any publication whatsoever which is a malicious, scandalous or defamatory newspaper” either under the title of the Saturday Press or any other title (p. 706). Violation of the order would constitute contempt of court.
By a margin of 5 to 4, the U.S. Supreme Court found the statute to be an unconstitutional form of censorship, because before a banned newspaper could publish again, the editors would have to satisfy a judge as to the new publication’s good character. Chief Justice Charles Evans *Hughes for (p. 153) the majority concluded that prior restraint would be constitutional only in extreme circumstances, for example, if a newspaper were about to publish the location of troops in wartime. Speaking for dissenters, Justice Pierce *Butler protested that the Minnesota law did not constitute a classic form of censorship because the newspaper had published nine issues before being suppressed. He noted that the law “does not authorize administrative control in advance such as was formerly exercised by the licensers and censors” (p. 735).
In subsequent cases, the Court disapproved of administrative licensing of speech where the licenser can make decisions based on the context of the would-be speaker’s expression. For example, in *Lovell v. Griffin (1938) the Court held unconstitutional an ordinance banning distribution of literature without permission of the city manager, where the manager had carte blanche to grant or deny permits. Likewise, the Court in Joseph Burstyn, Inc. v. Wilson (1951) found unconstitutional a New York scheme under which exhibition licenses could be denied to motion pictures found to be “sacrilegious.” Nor would the Court allow the postmaster general to revoke Esquire magazine’s second-class mailing privileges on grounds that the publication was not contributing sufficiently to the public good and welfare (Hannegan v. Esquire, Inc., 1946). The Court struck down *injunctions prohibiting newspapers from publishing articles based on the Pentagon Papers, classified documents that had been leaked to the press (*New York Times Co. v. United States, 1971). And it held that judges could not prohibit journalists from publishing material potentially prejudicial to a criminal defendant when such material was obtained in open court (*Nebraska Press Association v. Stuart, 1976).
On the other hand, the Court is likely to allow licensing systems that minimize administrative discretion, regulate the *time, place, and manner of expression without regard to its content, and are guided by clear and specific standards (*Cox v. New Hampshire, 1941; Poulos v. New Hampshire, 1953). The Court has allowed government censorship of obscene movies, but only if stringent procedures are followed, including prompt *judicial review (Freedman v. Maryland, 1965). The Court has also granted public elementary and secondary schools broad power to censor student publications (Hazelwood School District v. Kuhlmeier, 1988). It has also concluded that the federal government has broad power to require many government employees to submit to censorship of their speech and writing even after they leave government employment and even when unclassified material is involved (Snepp v. United States, 1980). Further, the Court has held that people who disobey court orders restraining expression may be punished for contempt even if the restriction is likely to be found unconstitutional (Walker v. City of Birmingham, 1967).
The Near decision itself has been invoked to justify prior restraint, which has led critics to complain that the Court has provided no clear theory or standards for determining when prior restraint is permissible. In the Pentagon Papers Case, justices on both sides of the decision used Near to support their positions—some for the proposition that prior restraint is presumptively unconstitutional, but others for the proposition that exceptional circumstances can justify prior restraint. And when, in 1979, a federal district court issued an injunction prohibiting The Progressive magazine from publishing an article purporting to explain how to build a hydrogen bomb, the judge concluded that the article was analogous to the types of exceptional circumstances listed in Near (United States v. The Progressive). (The injunction was lifted after similar material was published elsewhere and the government dropped the case.)
In recent years, spirited scholarly debate has arisen over the question of whether the evil of prior restraint might be overstated. Some have argued that judicially imposed restraints are less serious than administrative censorship, that freedom of expression may be served better by the use of prior restraint than by severely punishing expression after the fact. Fear of severe subsequent punishment, they assert, may have a far greater “chilling effect” on speech than narrowly focused, judicially supervised prior restraint.
The Supreme Court appears thus far not to have been swayed by such argument. It appears to remain committed to the view that censorship, whether imposed by administrators or by judges, is presumptively unconstitutional and the most deplorable way of restricting freedom of expression.
“Near v. Minnesota, 50th Anniversary,” symposium in Minnesota Law Review 66 (1981):1–208. Martin H. Redish, “The Proper Role of the Prior Restraint Doctrine in First Amendment Theory,” Virginia Law Review 70 (1984): 53–100.
Robert E. Drechsel