15. Con Law: Prior Restraints

Any gov'tal action that would prevent a communication from reaching the public. Prior restraints are not favored in our political system. The Court would rather allow speech to occur and then punish it if it was unprotected. But it will uphold a prior restraint if some special harm would otherwise result. It must be narrowly tailored to achieve some compelling or significant gov't interest and certain procedural safeguards are required.

For exam purposes, ask if there is some special societal harm that justifies the restraint.

Preserving a fair trial for an accused might be a sufficient basis for prior restraint. However, the restraint will be upheld only if it is the only sure way of preserving a fair trial.

Prior restraint is permissible where the parties have contractually agreed to the restraint.

The gov't's interest in preventing the dissemination of obscenity is sufficient to justify a system of prior restraint.

These safeguards must be provided in all prior restraint cases:

(1) The standards must be narrowly drawn, reasonable and definite, so as to include only prohibitable speech;

(2) If the restraining body wishes to restrain dissemination of an item, it must promptly seek an injunction; and

(3) There must be a prompt and final judicial determination of the validity of the restraint.

The gov't bears the burden of proving that the speech involved is unprotected.

SEIZURE OF BOOKS AND FILMS: may be made only upon probably cause that they contain obscenity or are otherwise unlawful.

Single seizures -- of a book or film to preserve it as evidence may be made only with a warrant issued by a neutral and detached magistrate. And even here a prompt post-seizure determination of obscenity must be available. If other copies of a film are not available to the exhibitor, a copy must be made for him so that he may continue showing the film.

Large scale seizures -- to destroy them or block their distribution or exhibition -- must be preceded by a full adversary hearing and a judicial determination of obscenity.

After seizing material, the gov't may enjoin its further publicaiton only after it is determined to be obscene in a full judicial hearing.

The Court allows gov'ts to establish censorship boards to screen movies before they are released in the community, as long as the procedural safeguards are followed. The censor bears the burden of proving that the movie is unprotected speech.

When the gov't adopts a content-based prior restraint of speech, the gov't has the burden of proving that the restriction is the least restrictive alternative to accomplish its goal.