Editing Prior restraint (section)

==United States==
{{Main|United States free speech exceptions}}

=== ''Near v. Minnesota'' ===
{{Main|Near v. Minnesota}}
The first notable case in which the [[United States Supreme Court]] ruled on a prior restraint issue was ''[[Near v. Minnesota]]'', {{ussc|283|697|1931}}. In that case the Court held prior restraints to be unconstitutional, except in extremely limited circumstances such as national security issues.  The ruling came about after Jay Near's newspaper, ''[[The Saturday Press (Minneapolis)|The Saturday Press]]'', a small local paper that ran countless exposés of Minneapolis's elected officials' alleged illicit activities, including [[gambling]], [[racketeering]], and [[Graft (politics)|graft]], was silenced by the [[Minnesota Gag Law]] of 1925, also known as ''The Public Nuisance Law''. Near's critics called his paper a [[scandal sheet]], and alleged that he tried to extort money by threatening to publish attacks on officials and others.  
In the Near case the Court held that the state had no power to enjoin the publication of the paper in this way – that any such action would be [[unconstitutional]] under the [[First Amendment to the United States Constitution|First Amendment]]. It wrote:

<blockquote>If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter — in particular that the matter consists of charges against public officers of official dereliction — and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.</blockquote>

And

{{blockquote|The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. ... it would be but a step to a complete system of censorship. ... The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this court has said, on proof of truth.|''[[Patterson v. Colorado]]'', 205 U.S. 454, 462.}}

This was an extension of the Court's earlier views, which had followed Blackstone. In ''[[Patterson v. Colorado]]'', the Court had written: "In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." (quoted in the ''Near'' decision).  The ''Near'' decision was the first time that it was held that even alleged untruth or malicious intent would not be sufficient reason to impose prior restraints.

Near was decided 5–4. The four dissenting justices strongly approved of the "gag law", and felt that the nature of the articles in ''The Saturday Press'', including their recurrent [[antisemitism]], their frequent (allegedly false) accusations of official misconduct, and their disrespectful and confrontational tone, made them unworthy of protection. But this view did not prevail.

After the ''Near'' decision, newspapers had a clearly established freedom to criticize public officials without fear of retribution, even when charges made by the papers could not be proven in court. Newspapers could still be punished through [[libel]] laws, if they published material found to be untrue. The "Gag Law" was unique in the United States at that time, and even in Minnesota had only been used on two occasions. Indeed, the Court commented on the unusual nature of the proceeding in its decision.

The Court in ''Near'' left open the possibility of prior restraints for various exceptional purposes, such as national security, control of obscenity, and the like. It wrote:

{{quote box|... the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' ([[Schenck v. United States]], 249 U.S. 47, 52, 39 S. Ct. 247, 249). No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.}}

Near's dicta suggest that, while a constitutional prior restraint can exist, the high burden of proof necessary to demonstrate constitutionality results in a presumption of invalidity, and the government bears the burden of showing the restraint's constitutionality.<ref name=Waldman />{{rp|321}}

In a later case (''[[Nebraska Press Ass'n v. Stuart]]''), the Court wrote:

{{blockquote|The principles enunciated in Near were so universally accepted that the precise issue did not come before us again until ''[[Organization for a Better Austin v. Keefe]]'', {{ussc|402|415|1971}}. There the state courts had enjoined the petitioners from picketing or passing out literature of any kind in a specified area. Noting the similarity to ''Near vs. Minnesota'', a unanimous Court held:

<blockquote>Here, as in that case, the injunction operates, not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution of literature 'of any kind' in a city of 18,000. 
. ... . 
Any prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity. ''[[Carroll v. Princess Anne]]'', 393 U.S. 175, 181 (1968); ''[[Bantam Books, Inc. v. Sullivan]]'', 372 U.S. 58, 70 (1963). Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint.</blockquote>}}

This shows the strong later acceptance of what had been a disputed decision when it was first handed down.

=== ''Kinney v. Barnes'' ===
In the 2012 case of ''Kinney v. Barnes'', Kinney, a legal recruiter, was the subject of inflammatory comments on the website of the company who previously employed him. The company claimed he received extra incentives on the job causing his termination. Kinney filed a defamation suit seeking retraction of the comments and a [[permanent injunction]] against any similar future comments being made. The Supreme Court of Texas ruling specifically addressed whether future comments could be barred and whether this would constitute prior restraint.{{efn|name=fn1|For the purpose of the case being examined, the court assumed that the already posted comments were defamatory and could be removed (though whether they were defamatory had not yet been proven).}} Although the court ruled that the statements posted which were judged to be defamatory could be removed, they did not prohibit similar speech from being posted online at a later time. They reasoned that this would constitute prior restraint and risk producing a chilling effect. The court reasoned, in keeping with a prior decision (''Hajek v. Bill Mowbray Motors, Inc.'', 647 [[South Western Reporter|S.W.2d]] 253, 255 (Tex. 1983)), that the appropriate remedy to defamatory speech was penalization of "what is wrongfully spoken" rather "denial of the right to speak".<ref name="kinney">{{cite web|url=http://law.justia.com/cases/texas/supreme-court/2014/13-0043.html|title=Kinney v. Barnes :: 2014 :: Supreme Court of Texas Decisions :: Texas Case Law :: Texas Law :: U.S. Law :: Justia|website=Justia US Law|access-date=11 July 2016}}</ref>


===Wartime censorship===
{{see also|Military censorship}}
During [[World War I]], and to a greater extent during [[World War II]], [[war correspondent]]s accompanied military forces, and their reports were subject to advance censorship to preserve military secrets. The extent of such censorship was not generally challenged, and no major court case arose from this issue. In later conflicts the degree to which war reporting was subject to censorship varied, and in some cases it has been alleged that the censorship was as much political as military in purpose. This was particularly true during the [[Vietnam War]] and the [[1983 invasion of Grenada]].

===Pentagon Papers case===
{{Main|New York Times Co. v. United States}}
In the [[Pentagon Papers]] case (''[[New York Times Co. v. United States]]'', {{ussc|403|713|1971}}), the [[Presidency of Richard Nixon|Nixon administration]] sought to enjoin ''[[The New York Times]]'' and ''[[The Washington Post]]'' newspapers from publishing excerpts from a top-secret [[United States Department of Defense]] history of the [[United States]] involvement in the [[Vietnam War]] from 1945 to 1971. The government tried to use the "national security" exception that had been suggested in the ''Near'' decision. The Supreme Court struck down the injunctions. However, the decision was fragmented, with nine separate opinions being filed in the case.  It was not clear at the time what the effect would be on future prior restraint cases.

===H-bomb article cases===

====''Scientific American''====
On March 15, 1950 ''[[Scientific American]]'' magazine published an article by [[Hans Bethe]] about [[thermonuclear fusion]], the mechanism by which [[star]]s generate energy and emit [[electromagnetic radiation]] (light, etc.). Fusion is also the process which makes the [[hydrogen bomb]] (H-bomb) possible. The AEC ([[United States Atomic Energy Commission|Atomic Energy Commission]]) ordered publication stopped. Several thousand copies of the printed magazine were destroyed, and the article was published with some text removed at the direction of the AEC. At this time there existed in the United States no workable design for a hydrogen bomb (the [[Teller–Ulam]] design would not be developed for another year), but the U.S. was engaged in a crash program to develop one. [[Gerard Piel]], the publisher of ''Scientific American'', complained that the AEC was "suppressing information which the American People need in order to form intelligent judgments". Bethe, however, declined to support this complaint, and the suppression of the unedited version of the article was never litigated.{{Citation needed|date=March 2024}}

====''The Progressive''====
{{main|United States v. The Progressive}}

In February 1979, an anti-nuclear activist named [[Howard Morland]] drafted an article for ''[[The Progressive]]'' magazine, entitled "The H-Bomb Secret: To Know How is to Ask Why". The article was an attempt by Morland to publish what he thought the "H-Bomb Secret" was (the [[Teller–Ulam design]]), derived from various unclassified sources and informal interviews with scientists and plant workers. Through a number of complicated circumstances, the [[United States Department of Energy|Department of Energy]] attempted to enjoin its publication, alleging that the article contained sensitive technical information which was (1) probably derived from classified sources, or (2) became a classified source when compiled in a correct way, even if it were derived from unclassified sources, based on the "[[born secret]]" provisions of the 1954 [[United States Atomic Energy Act of 1954|Atomic Energy Act]]. A preliminary injunction was granted against the article's publication, and Morland and the magazine appealed ([[United States v. The Progressive|United States v. ''The Progressive'', et al.]]). After a lengthy set of hearings (one ''[[in camera]]'', another open to the public), and attracting considerable attention as a "[[freedom of the press]]" case, the government dropped its charges after it claimed the case became moot when another bomb speculator ([[Chuck Hansen]]) published his own views on the "secret" (many commentators speculated that they were afraid the Atomic Energy Act would be overturned under such scrutiny). The article was duly published in ''The Progressive'' (in the November 1979 issue) six months after it was originally scheduled, and remains available in libraries. (As an aside, Morland himself decided that he did not have the secret, and published a "corrected" version a month later.)

===Judicial gag orders===
Frequently a court will impose advance restrictions on lawyers, parties, and on the press in reporting of trials, particularly criminal trials. These restrictions are intended to protect the right to a fair trial, and to avoid interference with the judicial process. Nonetheless, they are a form of prior restraint, and the press in particular has often objected to such orders.

In ''[[Nebraska Press Assn. v. Stuart]]'', {{ussc|427|539|1976}}, the United States Supreme Court overturned such a "[[gag order]]". It ruled that alternative methods to help ensure a fair trial, short of prior restraints, might have been used, and that it was not all clear, under the circumstances, that the gag order would have the desired effect even if upheld.  It also made a particular point of asserting that orders restricting reporting on events that occur in open court are not permissible. It wrote:

<blockquote>To the extent that this order prohibited the reporting of evidence adduced at the open preliminary hearing, it plainly violated settled principles: '[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom.' ''[[Sheppard v. Maxwell]]'', (384 U.S., at 362–363).</blockquote>

The Court's conclusion in this case reaffirmed its general opposition to prior restraints, and indicated that judicial gag orders would be sustained only in exceptional cases.  It wrote:

<blockquote>Our analysis ends as it began, with a confrontation between prior restraint imposed to protect one vital constitutional guarantee and the explicit command of another that the freedom to speak and publish shall not be abridged. We reaffirm that the guarantees of freedom of expression are not an absolute prohibition under all circumstances, but the barriers to prior restraint remain high and the presumption against its use continues intact.</blockquote>

In the [[United Kingdom]] judicial gag orders are much more frequently employed, and the strong prejudice against them reflected in the above quote does not seem to be felt by British courts. Other countries also employ such orders more freely than the [[United States]] does.

===DeCSS case===
{{main|Universal v. Reimerdes}}
In October 1999 the [[Motion Picture Association of America]] (MPAA) learned of the availability on the Internet of [[DeCSS]], a program that allowed people to view the content of [[DVDs]] using computers that lacked commercial DVD players, bypassing the [[encryption]] system known as the [[Content Scrambling System]] (CSS) generally used on commercial DVDs. The MPAA responded by sending out a number of [[cease and desist]] letters to web site operators who posted the software. In January 2000, a lawsuit was filed against the publisher of the magazine ''[[2600: The Hacker Quarterly]]'', and others. This case is known as ''[[Universal v. Reimerdes]]'', {{West|SUPP|111|2|294|S.D.N.Y.|2000|}}.

The suit asked for an injunction under the U.S. [[Digital Millennium Copyright Act]] (DMCA) prohibiting the ''2600'' site from posting the DeCSS code. It also asked for a prohibition on linking to other sites that posted the code.

The injunction was issued and sustained in an appeal to the [[U.S. Court of Appeals]] for the [[Second Circuit]] and the constitutionality of the DMCA was upheld. The district court wrote that the computer code "... does more, in other words, than convey a message" and that  "... it has a distinctly functional, non-speech aspect in addition to reflecting the thoughts of the programmers."  The appeals court later wrote that "Under the circumstances amply shown by the record, the injunction's linking prohibition validly regulates the Appellants' opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs" thus upholding the injunction against publishing links to the DeCSS code in these circumstances.

The appeals court did consider the prior restraint and free expression issues, but treated the DeCSS program primarily as a means of evading copyright protection, and under that theory, held that the ''2600'' site could be permanently enjoined from posting the DeCSS code, and from linking to sites that posted it in an attempt to make the code available. The case was not taken to the Supreme Court.{{Citation needed|date=March 2024}}

{{See also|Illegal number}}

===Theater and motion pictures===
There is a long history of prior restraints on the theater; in the [[United Kingdom]] stage plays still required a license until 1968. This attitude was early transferred to motion pictures, and prior restraints were retained for films long after they had been dropped for other forms of publication: in some jurisdictions, a film had to be submitted to a [[film censor board]] in order to be approved for showing.

The United States Supreme Court upheld the use of a board of censors in ''[[Mutual Film Corporation v. Industrial Commission of Ohio]]'', {{ussc|236|230|1915}} by deciding that the First Amendment did not apply to motion pictures. The power of such boards was weakened when the Supreme Court later overruled itself and decided that the First Amendment does apply to motion pictures.  In the case of ''[[Joseph Burstyn, Inc. v. Wilson]]'', {{ussc|343|495|1952}}, the court decided that giving the power to forbid or restrict a film to a censorship board on the grounds a film was "sacrilegious" was far too damaging to the protections of the First Amendment.

The "death knell" for censorship boards occurred in 1965 when the U.S. Supreme Court found the Maryland law making it a crime to exhibit a film without submitting it to the censorship board was unconstitutional.  In ''[[Freedman v. Maryland]]'', {{ussc|380|51|1965}}, the state's requirement that a film be presented to the board was unconstitutional as it lacked adequate procedural safeguards.  While it is not necessarily unconstitutional to require films to be submitted to a censorship board, the board has extremely limited options: a censorship board has no power to prohibit a film, and, if the law grants it that power, the law is unconstitutional.  The board's only options when a film is presented to it are either to grant a license for the film or immediately go to court to enjoin its exhibition.

Also, state or local censorship boards had been found to have no jurisdiction over broadcasts by television stations, even when located in the state or community where they are grounded, thus eliminating yet another reason for their existence.

Both the state of [[Maryland]] and the province of [[Ontario]] retained film censor boards to a particularly late date.  Maryland abandoned its board in the 1980s, and a 2004 decision of the Ontario Court of Appeal, reversing a previous trend in favor of the [[Ontario Film Classification Board]]'s right to insist on cuts, ruled that the province had no right to insist on cuts as a condition of release as [[Canada|Canadian]] federal [[obscenity]] laws were sufficient to deal with obscene material.  In May 2005, the Ontario government ended the power of the Classification Board to insist on cuts, requiring all films with adult content that were not judged obscene to be rated "R" for adults only.{{Citation needed|date=March 2008}}

In many countries, legally effective [[Motion picture rating system|rating systems]] are in effect. See [[History of British Film Certificates]] for information on film restrictions in the UK.

===Industry codes===
Many industries have formulated "voluntary" codes limiting the content of expression, generally affecting perceived effects on [[public morality]] rather than revelation of secrets.  Examples of these include the [[Hays Code]], which affected [[Hollywood (film industry)|Hollywood]] films from the 1930s to the 1950s, and the [[Comics Code]], which was designed to deal with the rise of horror comics in the 1950s and lasted into the 1970s. The movie [[MPAA film rating system|rating system]] currently in effect in the United States, run by the [[Motion Picture Association of America]] (MPAA) is another such industry code. Such codes have generally been adopted with the twofold purposes of forestalling possible government intervention and avoiding unfavorable publicity or boycotts. While such codes are not generally enforced by governmental action, they are generally enforced on content producers by gatekeepers in the [[marketing]] chain: studios in the case of the Hays Code, distributors in the case of the Comics Code and theater chains in the case of the MPAA rating system. Content producers have often objected to these codes and argue that they are, in effect, a form of prior restraint. However, the first amendment prohibition of prior restraint applies to government or court action and does not bind private entities such as theater chains.{{citation needed|date=December 2022}}