The Supreme Court has Roundly Rejected Prior Restraint!

Recently I had occasion to reference LEBOWSKI regarding a current event; I cannot pass that up. As with many things, Walter is essentially correct. The Supreme Court has roundly rejected “prior restraint.” What does that mean?

Prior restraint is the act of preventing publication of specific information. Most would agree that prior restraints are dangerous because they completely prevent the dissemination of information, and is the sort of authoritarian conduct the US rejects and is contrary to both the language and the spirit of the First Amendment. Courts will only allow prior restraint in this face of a high likelihood of immediate harm. Military secrets and the like can qualify, but overall we’d rather punish unprotected speech after the fact (via defamation suits) than risk stifling legitimate speech.

The Supreme Court worked this out during the 20th century, including such famous legal events as the Pentagon Papers cases. One of the first major cases on the topic, Near v. MN (1931), concerned a newspaper that ran exposes about local politicians until it was silenced by a state law. A divided Court (5-4) wrote that the state had no power to enjoin the paper in any way, and doing so was unconstitutional. In other words, the public has a nearly unlimited right to criticize government officials (and libel and slander laws can handle the rest).