Prior restraint
Encyclopedia
Prior restraint or prior censorship is censorship
in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known. Prior restraint prevents the censored material from being heard or distributed at all; other measures provide sanctions only after the offending material has been communicated, such as suits for slander or libel. In some countries (e.g., United States
, Argentina
) prior restraint is forbidden, subject to certain exceptions, by a constitution
.
Prior restraint often takes the form of a legal injunction
or government order prohibiting the publication of a specific document or subject. Sometimes, a government or other party becomes aware of a forthcoming publication on a particular subject and seeks to prevent it: to halt ongoing publication and prevent its resumption. These injunctions are considered prior restraint because potential future publications are stopped in advance.
, particularly in wartime
, may be restricted, even when there are laws that protect freedom of expression. In many cases invocation of national security is controversial, with opponents of suppression arguing that government errors and embarrassment are being covered up; examples are given below.
Publication of information on legal cases in progress may be restricted by an injunction. (Otherwise publishing of material which may affect a case is subject to penalties, but not prevented from the outset.)
's Commentaries
“Freedom of the Press” is defined as the right to be free from prior restraints. In addition, he held that a person should not be punished for speaking or writing the truth, with good motives and for justifiable ends. Truth alone, however, was not considered a sufficient justification, if published with bad motives.
This view was the common legal understanding at the time the US constitution was adopted. Only later have the concepts of freedom of speech
and the press
been extended (in the United States
, the United Kingdom
, and other countries sharing their legal tradition) to protect honest error, or truth even if published for questionable reasons.
in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as actions for libel or criminal libel, slander, defamation, and contempt of court
) implement criminal or civil sanctions only after the offending material has been published. While such sanctions might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas
. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. The United States Supreme Court expressed this view in Nebraska Press Assn. v. Stuart
by noting:
Also, most of the early struggles for freedom of the press
were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.
, . 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, a small local paper that ran countless exposés of Minneapolis's elected officials' alleged illicit activities, including gambling, racketeering, and 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 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
. It wrote:
And
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 anti-Semitism
, 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. It should be noted that 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:
In a later case (Nebraska Press Assn. v. Stuart
), the Court wrote:
This shows the strong later acceptance of what had been a disputed decision when it was first handed down.
, 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.
Such issues arose again during the 2003 Invasion of Iraq
, when many embedded reporters accompanied soldiers as they made their way into the country. These reports were subject to censorship in that they were not allowed to reveal a unit's exact location.
case (New York Times Co. v. United States
), the 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.
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 (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 come 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.
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 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 Atomic Energy Act. A preliminary injunction was granted against the article's publication, and Morland and the magazine appealed (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 become 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.)
In Nebraska Press Assn. v. Stuart
, , 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:
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:
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.
(MPAA), learned of the availability on the internet of DeCSS
, a program intended to allow DVDs to be viewed on operating systems that lacked commercial DVD players, and to that end, 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
, .
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.
See also: Illegal number
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
, 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, , 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
, , 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 in view of the fact that 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.
In many countries, legally effective rating systems
are in effect. See History of British Film Certificates
for information on film restrictions in the UK.
rather than revelation of secrets. Examples of these include the Hays Code, which affected 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 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.
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known. Prior restraint prevents the censored material from being heard or distributed at all; other measures provide sanctions only after the offending material has been communicated, such as suits for slander or libel. In some countries (e.g., United States
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
, Argentina
Constitution of Argentina
The constitution of Argentina is one of the primary sources of existing law in Argentina. Its first version was written in 1853 by a Constitutional Assembly gathered in Santa Fe, and the doctrinal basis was taken in part from the United States Constitution...
) prior restraint is forbidden, subject to certain exceptions, by a constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
.
Prior restraint often takes the form of a legal injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
or government order prohibiting the publication of a specific document or subject. Sometimes, a government or other party becomes aware of a forthcoming publication on a particular subject and seeks to prevent it: to halt ongoing publication and prevent its resumption. These injunctions are considered prior restraint because potential future publications are stopped in advance.
Exceptions to restrictions on prior restraint
It is widely accepted that publication of information affecting national securityNational security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
, particularly in wartime
Wartime
The term wartime could refer to:* Wartime, Saskatchewan, a small community in Saskatchewan, Canada.* Wartime Station, Saskatchewan, a small community in Saskatchewan, Canada.* A formal state of war, as opposed to peacetime...
, may be restricted, even when there are laws that protect freedom of expression. In many cases invocation of national security is controversial, with opponents of suppression arguing that government errors and embarrassment are being covered up; examples are given below.
Publication of information on legal cases in progress may be restricted by an injunction. (Otherwise publishing of material which may affect a case is subject to penalties, but not prevented from the outset.)
Blackstone and early views
In William BlackstoneWilliam Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
's Commentaries
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
“Freedom of the Press” is defined as the right to be free from prior restraints. In addition, he held that a person should not be punished for speaking or writing the truth, with good motives and for justifiable ends. Truth alone, however, was not considered a sufficient justification, if published with bad motives.
This view was the common legal understanding at the time the US constitution was adopted. Only later have the concepts of freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
been extended (in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, and other countries sharing their legal tradition) to protect honest error, or truth even if published for questionable reasons.
Judicial view
Prior restraint is often considered a particularly oppressive form of censorshipCensorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as actions for libel or criminal libel, slander, defamation, and contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
) implement criminal or civil sanctions only after the offending material has been published. While such sanctions might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas
Marketplace of ideas
The "marketplace of ideas" is a rationale for freedom of expression based on an analogy to the economic concept of a free market. The "marketplace of ideas" belief holds that the truth or the best policy arises out of the competition of widely various ideas in free, transparent public discourse, an...
. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. The United States Supreme Court expressed this view in Nebraska Press Assn. v. Stuart
Nebraska Press Assn. v. Stuart
Nebraska Press Association v. Stuart, 427 U.S. 539 , was a landmark Supreme Court of the United States decision in which the Court held unconstitutional prior restraints on media coverage during criminal trials.-Background:...
by noting:
Also, most of the early struggles for freedom of the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.
Near v. Minnesota
The first notable case in which the United States Supreme Court ruled on a prior restraint issue was Near v. MinnesotaNear v. Minnesota
Near v. Minnesota, 283 U.S. 697 , was a United States Supreme Court decision that recognized the freedom of the press by roundly rejecting prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence...
, . 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, a small local paper that ran countless exposés of Minneapolis's elected officials' alleged illicit activities, including gambling, racketeering, and 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
Scandal Sheet
Scandal Sheet is a black-and-white film noir directed by Phil Karlson. The film is based on the novel The Dark Page by Samuel Fuller, who himself was a newspaper reporter before his career in film...
, and alleged that he tried to extort money 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
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. It wrote:
- ”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.”
And
- ”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 anti-Semitism
Anti-Semitism
Antisemitism is suspicion of, hatred toward, or discrimination against Jews for reasons connected to their Jewish heritage. According to a 2005 U.S...
, 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. It should be noted that 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:
In a later case (Nebraska Press Assn. v. Stuart
Nebraska Press Assn. v. Stuart
Nebraska Press Association v. Stuart, 427 U.S. 539 , was a landmark Supreme Court of the United States decision in which the Court held unconstitutional prior restraints on media coverage during criminal trials.-Background:...
), the Court wrote:
- "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, . 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 v. Minnesota, a unanimous Court held:
- "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."
This shows the strong later acceptance of what had been a disputed decision when it was first handed down.
Wartime censorship
During World War IWorld War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
, and to a greater extent during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, war correspondent
War correspondent
A war correspondent is a journalist who covers stories firsthand from a war zone. In the 19th century they were also called Special Correspondents.-Methods:...
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
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
and the 1983 invasion of Grenada.
Such issues arose again during the 2003 Invasion of Iraq
2003 invasion of Iraq media coverage
The 2003 invasion of Iraq involved unprecedented media coverage. The coverage itself became a source of controversy, as media outlets were accused of bias, reporters were casualties of both Iraqi and American gunfire, and claims of censorship and propaganda became widespread.-U.S...
, when many embedded reporters accompanied soldiers as they made their way into the country. These reports were subject to censorship in that they were not allowed to reveal a unit's exact location.
Pentagon papers case
In the Pentagon PapersPentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
case (New York Times Co. v. United States
New York Times Co. v. United States
New York Times Co. v. United States, 403 U.S. 713 , was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.President Richard Nixon had...
), the Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
administration sought to enjoin The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
and The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
newspapers from publishing excerpts from a top-secret United States Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
history of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
involvement in the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
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.
Scientific American
On March 15, 1950 Scientific AmericanScientific American
Scientific American is a popular science magazine. It is notable for its long history of presenting science monthly to an educated but not necessarily scientific public, through its careful attention to the clarity of its text as well as the quality of its specially commissioned color graphics...
magazine published an article by Hans Bethe
Hans Bethe
Hans Albrecht Bethe was a German-American nuclear physicist, and Nobel laureate in physics for his work on the theory of stellar nucleosynthesis. A versatile theoretical physicist, Bethe also made important contributions to quantum electrodynamics, nuclear physics, solid-state physics and...
about thermonuclear fusion, the mechanism by which star
Star
A star is a massive, luminous sphere of plasma held together by gravity. At the end of its lifetime, a star can also contain a proportion of degenerate matter. The nearest star to Earth is the Sun, which is the source of most of the energy on Earth...
s generate energy and emit electromagnetic radiation
Electromagnetic radiation
Electromagnetic radiation is a form of energy that exhibits wave-like behavior as it travels through space...
(light, etc.). Fusion is also the process which makes the hydrogen bomb (H-Bomb) possible. The AEC (Atomic Energy Commission
United States Atomic Energy Commission
The United States Atomic Energy Commission was an agency of the United States government established after World War II by Congress to foster and control the peace time development of atomic science and technology. President Harry S...
) 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 come be developed for another year), but the U.S. was engaged in a crash program to develop one. Gerard Piel
Gerard Piel
Gerard Piel was the publisher of the new Scientific American magazine starting in 1948. He wrote for magazines, including The Nation, and published books on science for the general public.-Biography:...
, 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.
The Progressive
Howard Morland
Howard Morland is a United States journalist and activist against nuclear weapons who in 1979 became famous for apparently discovering the "secret" of the hydrogen bomb and publishing it after a lengthy censorship attempt by the Department of Energy...
drafted an article for The Progressive
The Progressive
The Progressive is an American monthly magazine of politics, culture and progressivism with a pronounced liberal perspective on some issues. Known for its pacifism, it has strongly opposed military interventions, such as the US-led invasion of Iraq in 2003. The magazine also devotes much coverage...
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
Teller-Ulam design
The Teller–Ulam design is the nuclear weapon design concept used in most of the world's nuclear weapons. It is colloquially referred to as "the secret of the hydrogen bomb" because it employs hydrogen fusion, though in most applications the bulk of its destructive energy comes from uranium fission,...
), derived from various unclassified sources and informal interviews with scientists and plant workers. Through a number of complicated circumstances, the Department of Energy
United States Department of Energy
The United States Department of Energy is a Cabinet-level department of the United States government concerned with the United States' policies regarding energy and safety in handling nuclear material...
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
Born secret
"Born secret" and "born classified" are both terms which refer to a policy of information being classified from the moment of its inception, usually regardless of where it was being created, usually in reference to specific laws in the United States that are related to information that describes...
" provisions of the 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, et al.
United States v. The Progressive
United States of America v. Progressive, Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland is the name of a lawsuit against the magazine The Progressive by the U.S. government in 1979...
). After a lengthy set of hearings (one in camera
In camera
In camera is a legal term meaning "in private". It is also sometimes termed in chambers or in curia.In camera describes court cases that the public and press are not admitted to...
, another open to the public), and attracting considerable attention as a "freedom of the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
" case, the government dropped its charges after it claimed the case became moot when another bomb speculator (Chuck Hansen
Chuck Hansen
Chuck Hansen compiled, over a period of 30 years, the world's largest private collection of documents on how America developed the atomic bomb. These documents were obtained through the U.S...
) published his own views on the "secret" (many commentators speculated that they were afraid the Atomic Energy Act would become 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
Nebraska Press Assn. v. Stuart
Nebraska Press Association v. Stuart, 427 U.S. 539 , was a landmark Supreme Court of the United States decision in which the Court held unconstitutional prior restraints on media coverage during criminal trials.-Background:...
, , 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:
- "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. MaxwellSheppard v. MaxwellSheppard v. Maxwell, 384 U.S. 333 , was a United States Supreme Court case that examined the rights of freedom of the press as outlined in the 1st Amendment when weighed against a defendant's right to a fair trial as required by the 6th Amendment...
, (384 U.S., at 362-363)".
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:
- "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."
In the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
does.
The DeCSS Case
In October 1999 the Motion Picture Association of AmericaMotion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
(MPAA), learned of the availability on the internet of DeCSS
DeCSS
DeCSS is a computer program capable of decrypting content on a commercially produced DVD video disc. Before the release of DeCSS, there was no way for computers running a Linux-based operating system to play video DVDs....
, a program intended to allow DVDs to be viewed on operating systems that lacked commercial DVD players, and to that end, bypassing the encryption
Encryption
In cryptography, encryption is the process of transforming information using an algorithm to make it unreadable to anyone except those possessing special knowledge, usually referred to as a key. The result of the process is encrypted information...
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
Cease and desist
A cease and desist is an order or request to halt an activity and not to take it up again later or else face legal action. The recipient of the cease-and-desist may be an individual or an organization....
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
2600: The Hacker Quarterly
2600: The Hacker Quarterly is an American publication that specializes in publishing technical information on a variety of subjects including telephone switching systems, Internet protocols and services, as well as general news concerning the computer "underground" and left wing, and sometimes ,...
, and others. This case is known as Universal v. Reimerdes
Universal v. Reimerdes
Universal City Studios, Inc. v. Reimerdes was the first test of the Digital Millennium Copyright Act , a United States federal law.The plaintiffs, 8 movie studios, successfully sought an injunction against the distribution of DeCSS, a program capable of decrypting content protected using the...
, .
The suit asked for an injunction under the U.S. Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
(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.
See also: Illegal number
Illegal number
An illegal number is a number that represents information which is illegal to possess, utter or propagate. Any information that can be represented in binary format is representable as a number, and therefore if the information itself is illegal in some way, the pure number itself may be...
Theater and motion pictures
There is a long history of prior restraints on the theater; in the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
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
Mutual Film Corporation v. Industrial Commission of Ohio
Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230 , was a court case decided by the United States Supreme Court in 1915, in which, in a 9-0 vote, the Court ruled that the free speech protection of the Ohio Constitution — which was substantially similar to the First...
, 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, , 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
Freedman v. Maryland
Freedman v. Maryland, , is a United States Supreme Court case that ended government-operated rating boards with a decision that a rating board could only approve a film and had no power to ban a film. The ruling also concluded that a rating board must either approve a film within a reasonable time,...
, , 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
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...
and the province of Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
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 in view of the fact that Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
federal obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
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.
In many countries, legally effective rating systems
Motion picture rating system
A motion picture rating system is designated to classify films with regard to suitability for audiences in terms of issues such as sex, violence, substance abuse, profanity, impudence or other types of mature content...
are in effect. See History of British Film Certificates
History of British film certificates
-Overview:The UK's film ratings are decided by the British Board of Film Classification and have been since 1912. Previously, there were no agreed rating standards, and local councils imposed their own - often differing - conditions or restrictions...
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 moralityPublic morality
Public morality refers to moral and ethical standards enforced in a society, by law or police work or social pressure, and applied to public life, to the content of the media, and to conduct in public places...
rather than revelation of secrets. Examples of these include the Hays Code, which affected 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 rating system
MPAA film rating system
The Motion Picture Association of America's film-rating system is used in the U.S. and its territories to rate a film's thematic and content suitability for certain audiences. The MPAA system applies only to motion pictures that are submitted for rating. Other media may be rated by other entities...
currently in effect in the United States, run by the Motion Picture Association of America
Motion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
(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
Marketing
Marketing is the process used to determine what products or services may be of interest to customers, and the strategy to use in sales, communications and business development. It generates the strategy that underlies sales techniques, business communication, and business developments...
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.
See also
- Censorship in the United StatesCensorship in the United StatesIn general, censorship in the United States, which involves the suppression of speech or other public communication, raises issues of freedom of speech, which is constitutionally protected by the First Amendment to the United States Constitution....
- Tory v. CochranTory v. CochranTory v. Cochran, 544 U.S. 734 , is a United States Supreme Court case involving libel. The case began in California with Johnnie Cochran, the famed attorney who represented O.J. Simpson, suing his former client Ulysses Tory for libel and invasion of privacy...
- Media transparencyMedia transparencyMedia transparency is the concept of determining how and why information is conveyed through various means.As used in the humanities,the topic of media transparency implies openness and accountability...
- Westmoreland v. CBSWestmoreland v. CBSWestmoreland v. CBS was a $120 million libel suit brought by former U.S. Army Chief of Staff General William Westmoreland against CBS Television for the televising of a documentary entitled The Uncounted Enemy: A Vietnam Deception, narrated by the investigative reporter, Mike Wallace. It was shown...
External links
- "Prior Restraint" on Findlaw
- "Prior Restraints and the Presumption of Unconstitutionality"
- "Prior Restraint" by Barry O. Hines, R. Kurt Wilke, & Sarah M. Lahr
- "Prior Restraint" from the Massachusetts Bar Association's Journalists' Handbook.
- Howard Morland's account of The Progressive case and the events leading up to it.
- United States of America v. Progressive, Inc. The decision of the lower court in this case. The appeal was denied as moot after the government dropped the case.
- Wisconsin Free Speech Legacy's extensive discussion of the case and the stages it went through
- "The Holocaust Bomb: a Question of Time" by Howard Morland. Later comment by the author of the original "H-bomb" article.
- "The H-Bomb Secret" by Howard MorlandHoward MorlandHoward Morland is a United States journalist and activist against nuclear weapons who in 1979 became famous for apparently discovering the "secret" of the hydrogen bomb and publishing it after a lengthy censorship attempt by the Department of Energy...
(as published in The Progressive) This link includes the entire text of the November 1979 issue of the magazine, most of which was devoted to this subject. It includes articles about the court case, public response to the case, and why The Progressive insisted on publishing the article as originally written. - Applied Cryptography Source Code Disk appeal
- "The First Amendment Handbook: Prior Restraints" Deals largely with Nebraska Press Association v. Stuart.
- The text of Nebraska Press Association v. Stuart from Findlaw