1. Allison Bawden
Feb. 7, 2016
The First Amendment versus unconstitutional prior restraint by the U.S. Government
The definition of prior restraint is “judicial suppression of material that would be
published or broadcast, on the grounds that it is libelous or harmful.” Prior restraint thwarts
taboo content from being shared with the public in any way; in some cases only after the risqué
material has been published, for example in cases regarding defamation, slander, or libel. The
question is, and it’s an issue that has been asked since the first case of prior restraint was
exercised in the United States, is this: is prior restraint a violation of First Amendment rights?
According to the First Amendment, the cornerstone and founding set on principles on which our
country laid down as more than law, is as follows: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances” (U.S. Const. amend. I). According to the ad hoc
balancing theory approach to the First Amendment, the government’s exercise of prior restraint
is not unconstitutional when used as situationally in the best interest of the public’s safety.
However, that does not mean all previous cases of prior restraint have been justified, and the
future cases of the government’s ability to exercise prior restraint should not be used loosely.
An example of why the government’s ability to exercise prior restraint is vindicated in
the best interest of the public, and thus deemed not a void of First Amendment rights Near v.
Minnesota. This particular case begged the question of how ‘free’ should the press be? In 1927,
J. M. Near, who has been described as "anti-Catholic, anti-Semitic, anti-black and anti-labor”

2. (Friendly, 39) began to print and distribute The Saturday Press in Minneapolis. The content of
The Saturday Press was such that the co-author was gunned down in the streets and hospitalized
prior to court proceedings. In a country where the founding fathers clearly penned utter “freedom
of speech”, should a publication that features anti-semantic political accusations be banned?
Following publication, n injunction was issued and the case went to trial, escalating all the way
to the U.S. Supreme Court. Through numerous appeals, the final decision on behalf of the court
justices was that The Saturday Press was defamation to such an extent that the defendants could
not even prove legitimacy to the claims in their paper. The court issued that the The Saturday
Press be banned "from producing, editing, publishing, circulating, having in their possession,
selling or giving away any publication whatsoever which is a malicious, scandalous or
defamatory newspaper, as defined by law," and also "from further conducting said nuisance
under the name and title of said 'The Saturday Press or any other name or title” (Friendly, 43).
The stifling of an American’s rights to speech and press is a heavy task, one not easily granted
by the United State court systems. But it is, very rarely, a necessity. This case exemplifies that
the use of prior restraint is only used in severe cases, and exercised when there is more than
probable cause, thus not infringing on First Amendment rights.
Arguably the most high profile and contended case of prior restraint by the government is
New York Times v. United States. The Nixon administration exercised prior restraint on The New
York Times and Washington Post newspapers to publish papers that, at the time, were classified.
These papers (known today as the ‘Pentagon Papers’) revealed that the United States government
had been duping the public by not disclosing the facts that the scale of the Vietnam War had
been escalated knowingly by the U.S. Government. This included U.S. bombings of Cambodia,

3. Laos, and raids on North Vietnam. This was not in true accordance of the Freedom of
Information Act of 1966, which “allows for the full or partial disclosure of previously unreleased
information and documents controlled by the United States government” (5 U.S. Code § 552 -
Public information; agency rules, opinions, orders, records, and proceedings). The argument was
made by the Nixon administration that the New York Times and Washington post should cease
publication of these papers immediately, in the interest of national security. The case was
appealed, and went swiftly to the Supreme Court. This is an unjust use of prior restraint because
the validation used by the then-current members of government of ‘national security’ appeared to
be, more accurately, not wanting to illuminate and infuriate the citizens of a country that had
already demonstrated a decaying support of the Vietnam War, and was still mourning the loss of
58,220 U.S. military members (National Archives and Records Administration in 2008). This is
a “regrettable instances when this powerful institution behaved to the detriment of the people it
purported to serve” (Streitmatter XV). Fortunately, the Supreme Court agreed and on June 30,
1971 six Justices concurring and three dissenting, the Supreme Court sustained the right of the
two news sources to broadcast the material. This is an example of the ad hoc balancing theory
approach to constitutional rights because although the government officials involved had deemed
the issue at hand worthy of prior restraint, the facts were taken into account and the First
Amendment rights of freedom of speech and freedom of the press was granted to the New York
Times and the Washington Post.
It is no secret that the press has had a monumental effect on the structure and backbone
on the United States ever since we declared our independence from the reigning monarchy and
became a free nation. Journalists are the watchdogs of society who look in dark corners and

4. smoky rooms, to shine a light on illicit activities for the good of the public. Without the press
and the sovereignty they are granted, Watergate would have never come into light, Monica
Lewinsky may not have become a household name. The act of prior restraint upon our
watchdogs of society is not taken lightly, and always under heavy scrutiny when attempted. But
when undertaken correctly, by the judges appointed by the public, and originated for the right
reasons it is not unconstitutional.
Works Cited
Previous restraint | censorship. (n.d.). Retrieved February 10, 2016, from
http://www.britannica.com/topic/previous-restraint
U.S. Const. amend I.
Friendly, F. W. (2003). Minnesota rag: Corruption, yellow journalism, and the case that saved
freedom of the press (1st ed.). Minneapolis: University of Minnesota Press.
5 U.S. Code § 552 - Public information; agency rules, opinions, orders, records, and proceedings.
Near v. Minnesota ex rel. Olson (June 30, 1930), Oyez ITT Chicago-Kent College of Law
CITATION 283 US 697.
Streitmatter, R. (1997). Mightier than the sword: How the news media have shaped American
history (3rd ed.). Boulder, CO: Westview Press.