Politics & International Relations
Prior Restraint
Prior restraint refers to the government's ability to prevent the publication or dissemination of information before it is made public. This is often seen as a violation of the freedom of speech and press, as it allows the government to control what information is made available to the public. Prior restraint is generally only allowed in cases where national security or public safety is at risk.
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eBook - ePubJustice and the Media
Reconciling Fair Trials and A Free Press
- Matthew D. Bunker(Author)
- 2013(Publication Date)
- Routledge(Publisher)
4 Prior Restraints
DOI: 10.4324/9780203812686-4Prior Restraints have historically been perhaps the least tolerated infringements on free speech in Anglo-American law. In its most common form, a Prior Restraint is a judicial order preventing the media from publishing material already in its hands. In the 18th century, Sir William Blackstone stated the legal aversion to Prior Restraints in its classic formulation: “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”1 Prior Restraints were regarded as pernicious because they stopped speech from ever being heard. A scheme of subsequent punishment might discourage potential speakers, but Prior Restraints allowed ideas to be silenced before they even saw the light of day. As Chief Justice Burger put it: “If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, Prior Restraint ‘freezes’ it at least for the time.”21 W. Blackstone, Commentaries on the Laws of England (1765-69), book 4, chap. II, 151-152, reprinted in L. Levy, ed., Freedom of the Press from Zenger to Jefferson 104-05 (1966).2 Nebraska Press Assn v. Stuart, 427 U.S. 539, 559 (1975).The traditional common law doctrine of Prior Restraint grew out of the licensing system in England. Under licensing, the Crown exercised control over printers and punished those who published without a license. The licensing system ended in 1694.3 It was not until the 20th century that the U.S. Supreme Court decided a major case involving a Prior Restraint, and constitutionalized the Blackstonian common law doctrine that Prior Restraints were rarely, if ever, allowable.3 L. Levy, Emergence of a Free Press 6-7, 12 (1985).That decision, Near v. Minnesota,4 and another landmark case decided in 1976, Nebraska Press Assn v. Stuart,5
eBook - PDFThe Right to Freedom of Assembly
A Comparative Study
- Orsolya Salát(Author)
- 2015(Publication Date)
- Hart Publishing(Publisher)
2 Prior Restraints, Exemptions and Bargain I. Prior Restraint IN GENERAL F REEDOM OF ASSEMBLY is the right where Prior Restraints abound. The duty to notify or even apply for a permit is a common feature of national jurisdictions. Advance notice and permit might give occasion even to a prior ban of an assembly, and it is a regular option for the police to impose some conditions on route, date, duration, appearance, or even content of the message. Some legal orders like the German establish a duty to cooper-ate with police before the assembly takes place, again others might require high permit fees or insurance. These might have an effect of either completely preventing the assembly or changing its message one way or the other. Traditionally, Prior Restraint referred to censorship of press products. It is in this area where the special dangers of Prior Restraint were reflected by philosophers, lawyers and writers. Censorship in England was introduced in a sixteenth-century law requiring royal permission for every press prod-uct. John Milton refers to several reasons against a newly reintroduced censorship of press products in his 1644 pamphlet Areopagitica in the midst of the revolution. According to Milton, censorship is bad because truth will win in the long run if it can freely encounter with falsehood, 1 and no book should be eliminated in advance because 2 as good almost kill a man as kill a good book: who kills a man kills a reasonable creature, God’s image; but he who destroys a good book, kills reason itself, kills the image of God, as it were in the eye. Blackstone writes in his Commentaries: 3 The liberty of the press is indeed essential to the nature of a free state; but this con-sists in laying no previous restraints upon publications, and not in freedom from 1 ‘[T]hough all the winds of doctrine were let loose to play on the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength.
eBook - PDF- Brent J. Steele(Author)
- 2019(Publication Date)
- Cambridge University Press(Publisher)
It does this by considering international structure through four well-known accounts of international politics in the works of Robert Cox (1981; 1983), Daniel Deudney (2007), Laura Sjoberg (2012; 2013), and Kenneth Waltz (1979; Sagan, Waltz, and Betts 2007). From this the chapter reviews forms of restraint in IR theory. While these understandings are vital to build a comprehensive account of restraint in global politics, they rest largely within a liberal-rationalist frame that reifies the nation-state and ignores some of the historical conditions that incentivize and overwhelm such restraint. Predicting that restraint will be and is practiced more frequently by liberal democ- racies, these studies overlook some of the rare but significant moments when such communities narrate against, and overwhelm, restraint in their policies, a point I explore in the following chapters. Restraint in International Relations What is restraint? Again, recall my definition proposed earlier, and used throughout this book – restraint is the going against or resisting something we would otherwise expect to prevail. And yet restraint is oftentimes used interchangeably with the word “constraint.” While their meanings as intended by authors may be similar, consulting their definitions reveals two similar concepts that still contain substantive differences. Constraint is defined variously as “a limitation or restriction,” or the “inhibition of relations with people.” 3 Its origins are supposedly from the Middle English, related to “coercion.” Elsewhere it is articulated as “repression” of the self and others.
eBook - ePubDeciding Communication Law
Key Cases in Context
- Susan Dente Ross(Author)
- 2004(Publication Date)
- Taylor & Francis(Publisher)
Some Prior Restraints do exist today. Police may legally step in to prevent you from verbally conspiring to commit a crime or inciting others to violence, and government may impose Prior Restraints to prevent speech that threatens national security. Cities can require permits prior to parades in the streets or to coordinate use of public parks and meeting areas. The U.S. Supreme Court also has upheld the constitutionality of laws banning protests within a certain distance of abortion facilities and stopping distribution of election materials within a certain distance of the polls. Judges’ orders prohibiting trial participants from discussing the trial generally are acceptable. Laws that limit use of copyrighted material are mandated by the Constitution, and laws that criminalize the production and distribution of obscenity are accepted.READING THE Prior Restraint CASES
Guidance on what is, and is not, an unconstitutional Prior Restraint is best gleaned from the Supreme Court’s own words. To enrich your understanding, the full text of one foundational Prior Restraint case, Near v. Minnesota, and excerpts from the Supreme Court’s ruling in New York Times Co. v. United States follow. (Note that throughout this text, the Supreme Court’s pagination is indicated in the body of the cases by numbers in brackets, e.g. [155].)A number of other cases also should inform a full understanding of Prior Restraint law in America. Other key cases of interest that you may wish to read include:• Snepp v. United States, 444 U.S. 507 (1980) (upholding CIA prior review of present or past employee’s dissemination of CIA-related information).• Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973) (enjoining publication of sex-designated help wanted ads).• Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) (dissolving an injunction stopping distribution of pamphlets criticizing a real estate developer).• Times Film Corp. v. Chicago
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