- Section 1
- Section 2
- Section 3
- Section 4
- Section 5
- Section 6
- Section 7
- Section 8
- Commerce Clause
- Dormant Commerce Clause
- Taxing and Spending Clause
- Necessary and Proper Clause
- Additional Enumerated Powers
- Section 1
- Section 2
- Section 3
- Section 4
- Section 1
- Judicial Review
- Impeachment of Federal Judges
- Justiciability
- Exceptions Clause
- Section 1
- Full Faith and Credit Clause
- Privileges and Immunities Clause
- Extradition Clause
- Fugitive Slave Clause
- New States and Other Property
- Guarantee Clause
Amendment
- Amendment I
- Establishment
- Free Exercise
- Freedom of Speech
- Freedom of the Press
- Assembly and Petition
- Freedom of Religion
- Rights of Criminal Defendants
- Eminent Domain
- Section 1
- The Question of Government Action
- Birthright Citizenship
- Privileges or Immunities Clause
- Procedural Due Process
- Substantive Due Process
- Incorporation of the Bill of Rights
- Equal Protection Clause
First Amendment: Freedom of Speech Prior Restraint
- Collateral Bar Rule
- National Security
- Preserving Fair Trials
- Obscenity
- Licensing
Prior restraint is when some sort of administrative system or a court order stops speech from occurring. These kinds of restrictions take several forms, including court ordered injunctions on speech and licensing/permit systems. Given the widespread use of prior restraints by the colonial British, prior restraint was expressly viewed as one of the worst forms of censorship by the founders. This stems in part from the unique nature of the restriction, which works to stop speech before it can even occur, compared to punishing it after it has been communicated. Because of this, prior restraint is only considered constitutional under particular, narrow exceptions. Often, issues of prior restraint are intertwined with the freedom of the press. Prior restraint issued by a court must be narrowly tailored and burden no more speech than necessary.
Some courts have even applied this collateral bar rule to licensing systems. When deciding to apply this rule to licensing systems, the Court will first look to see whether or not the licensing system is constitutional in the first place. In the 1953 case Poulus v. New Hampshire, the Court upheld a conviction for practicing a religious ceremony in a park without a permit, and denying any constitutional challenges because the defendant had not challenged his permit denial under that system’s through the permit process first. The Court determined that the system set up to review license denials in Poulus was sufficiently constitutional and did not violate due process.
This national security exception was central to the famous case New York Times v. United States. In 1971, the New York Times and the Washington Post began publishing pieces from a secret Defense Department history of the war in Vietnam that had been leaked to them. The government wanted injunctions on national security grounds. The 2nd Circuit reversed the lower courts and approved the injunction, and only 18 days after they first began to be published, the articles were ruled on by the Supreme Court. Voting 6-3, with 10 separate opinions, the Court held that the injunction was unconstitutional because the government failed to meet its burden to overcome the presumption against prior restraint.
Obscenity Important Cases The Court has upheld injunctions on the showing of films or other material that has been adjudicated as obscene. This is only after the material in question has been fully adjudicated as obscene in an adversarial court proceeding, such as the films in Paris Adult Threatre I v. Slaton, which had only faced an injunction from being shown after it was determined obscene by the Georgia Supreme Court.The Court has not upheld injunctions based on obscene material in general. In Vance v. Universal Amusement Co., the Court struck down indefinite prior restraints against a theater for “habitual use” for showing obscene material. This was because not all of the material being shown had been finally adjudicated like the material in Slaton. Paris Adult Theatre I v. Slaton (1973) An important reason must be necessary in order for a licensing system to be justified. In Cox v. New Hampshire, the Court upheld a city licensing scheme for parades and demonstrations. The city emphasized two reasons: it needed prior notice so it could properly police the event, and so that it could make sure groups did not overlap in the same routes and areas.
In contrast to Cox, the Court refused to uphold a licensing scheme for door to door solicitation in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton. The Court determined this would place a burden on speech by deterring people who would not want to seek a license. This burden was not justified by the reasons given by the government, which included preserving resident’s privacy and lessening the likelihood of crime. Reasoning that the residents could hang “no solicitation signs” and that a permit system wouldn’t stop a criminal from knocking on a door, the Court held these were not sufficiently important enough reasons to burden speech through a licensing system.
Perhaps the largest concern of the Court is the potential for a licensing system to be used as a way to discriminate against certain messages or content, allowing some speech and not others. The second requirement for a constitutional license or permit system is that there is a minimal amount of discretion or arbitrary decision power in the hands of the licensing government official. In City of Lakewood v. Plain Dealer Publishing Co., the Court declared a permit system for newspaper racks to be unconstitutional. In order to place a newspaper rack on public property, a permit would have to be annually approved by the mayor. There were no neutral criteria for the mayor to determine which newspaper racks would be permitted, effectively giving him uncontrolled power over the existence of newspaper racks. The Court determined that there was a facial constitutional issue anytime a licensing law gives a government official the ability to discriminate against viewpoints. Additionally, the Court emphasized the danger of too much discretion given to the government is one of self-censorship: those applying for a license will minimize negative speech in order to qualify for a license. Un-controlled discretion is dangerous because without proper criteria on how to approve a permit, it becomes difficult to measure if an official is being fair, or to decide how to fix the situation if they are not.
