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Prior Restraint

 In First Amendment law, a prior restraint is government action that prohibits speech or other expression before it can take place.  There are two common forms of prior restraints. The first is a statute or regulation that requires a speaker to acquire a permit or license before speaking, and the second is a judicial injunction that prohibits certain speech. Both types of prior restraint are strongly disfavored, and, with some exceptions, generally unconstitutional.  

Definition from Nolo’s Plain-English Law Dictionary

Government action that prevents a publication or broadcast. Prior restraints are considered a violation of the First Amendment and are rarely permitted except in cases in which the publication is obscene, defamatory, or represents a clear and present danger -- a theory articulated by the U. S. Supreme Court in Near v. Minnesota (1931).

Definition provided by Nolo’s Plain-English Law Dictionary.

August 19, 2010, 5:22 pm

 

The ordinance, in its broad sweep, prohibits the distribution of "circulars, handbooks, advertising, or literature of any kind." It manifestly applies to pamphlets, magazines and periodicals. [. . . ] The City Manager testified that "everyone applies to me for a license to distribute literature in this City. [ . . .] "

[. . .] 

We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his "Appeal for the Liberty of Unlicensed Printing." And the liberty of the press became initially a right to publish "without a license what formerly could be published only with one." While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. See Patterson v. Colorado, 205 U. S. 454, 205 U. S. 462; Near v. Minnesota, 283 U. S. 697, 283 U. S. 713-716; Grosjean v. American Press Co.,297 U. S. 233, 297 U. S. 245, 297 U. S. 246. Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form.

Lovell v. Griffin, 303 U.S. 444 (1938)