Prior Restraint Doctrine

The Prior Restraint Doctrine holds that government actions that prevent or restrain speech before it occurs are presumptively unconstitutional and bear a heavy burden of justification. Prior restraints include court injunctions prohibiting publication, government licensing or permit schemes that condition speech on official approval, and prepublication review requirements. The doctrine has roots extending back to English common law's opposition to press licensing.

The foundational modern case is Near v. Minnesota (1931), where the Supreme Court struck down a state law authorizing the suppression of newspapers as scandalous and defamatory. The Court recognized narrow exceptions where prior restraints might be justified, such as preventing the publication of troop movements during wartime, obscenity, or incitements to violence. These exceptions are extremely narrow and rarely invoked.

The most famous application of the doctrine is New York Times Co. v. United States (1971), the Pentagon Papers case, where the Court rejected the government's attempt to enjoin publication of classified documents about the Vietnam War. The Court emphasized that the government bears an extraordinarily heavy burden in justifying any prior restraint on publication. In the licensing context, the Court has required that any licensing scheme contain narrow, objective, and definite standards to guide the licensor's decision, provide a prompt decision, and make available prompt judicial review (Freedman v. Maryland, 1965). Without these procedural safeguards, a licensing scheme operates as an unconstitutional prior restraint.