Obscenity and Prior Restraint.

Only in the obscenity area has there emerged a substantial consideration of the doctrine of prior restraint, and the doctrine’s use there may be based upon the fact that obscenity is not a protected form of expression.452 In Kingsley Books v. Brown,453 the Court upheld a state statute that, though it embodied some features of prior restraint, was seen as having little more restraining effect than an ordinary criminal statute; that is, the law’s penalties applied only after publication. But, in Times Film Corp. v. City of Chicago,454 a divided Court specifically affirmed that, at least in the case of motion pictures, the First Amendment did not proscribe a licensing system under which a board of censors could refuse to license for public exhibition films that it found obscene. Books and periodicals may also be subjected to some forms of prior restraint,455 but the thrust of the Court’s opinions in this area with regard to all forms of communication has been to establish strict standards of procedural protections to ensure that the censoring agency bears the burden of proof on obscenity, that only a judicial order can restrain exhibition, and that a prompt final judicial decision is assured.456


See discussion of “Obscenity,” infra. See also Justice Brennan’s concurrence in Nebraska Press Ass’n v. Stuart, 427 U.S. at 590. back
354 U.S. 436 1957). See also Bantam Books v. Sullivan, 372 U.S. 58 (1963). back
365 U.S. 43 (1961). See also Young v. American Mini Theatres, 427 U.S. 50 (1976) (zoning ordinance prescribing distances adult theaters may be located from residential areas and other theaters is not an impermissible prior restraint). back
Cf. Kingsley Books v. Brown, 354 U.S. 436 (1957). back
Freedman v. Maryland, 380 U.S. 51 (1965); Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968); Blount v. Rizzi, 400 U.S. 410 (1971); United States v. Thirty-seven Photographs, 402 U.S. 363, 367–375 (1971); Southeastern Promotions v. Conrad, 420 U.S. 546 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229 (1990) (ordinance requiring licensing of “sexually oriented business” “does not provide for an effective limitation on the time within which the licensor’s decision must be made [and] also fails to provide an avenue for prompt judicial review”); City of Littleton v. Z.J. Gifts D–4, L.L.C., 541 U.S. 774, 784 (2004) (“Where (as here and as in FW/PBS) the regulation simply conditions the operation of an adult business on compliance with neutral and nondiscretionary criteria . . . and does not seek to censor content, an adult business is not entitled to an unusually speedy judicial decision of the Freedman type”); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (seizure of books and films based on ex parte probable cause hearing under state RICO law’s forfeiture procedures constitutes invalid prior restraint; instead, there must be a determination in an adversarial proceeding that the materials are obscene or that a RICO violation has occurred). But cf. Alexander v. United States, 509 U.S. 544 (1993) (RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses, based on the predicate acts of selling four magazines and three videotapes, does not constitute a prior restraint and is not invalid as “chilling” protected expression that is not obscene). back