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  • Writer's pictureLeslie A. Farber

Prior Restraint Prohibits Government Restriction of Free Speech

Updated: Jul 3, 2019

Michael Wolff’s controversial book, "Fire and Fury: Inside the Trump White House," set off a firestorm of criticism and legal sparring even before it was published in early January.

Early excerpts depicting turmoil in the Trump administration prompted the president’s legal team to issue a letter calling for the author and publisher to halt the book’s distribution. Trump’s lawyers alleged the book contained libelous information and false statements about the president, and that publishing it would be tantamount to defamation by libel and invasion of privacy.

Whether or not Wolff’s account is factual, the events leading up to the book’s release raise the question of whether or not the administration’s efforts were a violation of the First Amendment to the Constitution of the United States. Freedom of the press guarantees all Americans the right to gather, publish and distribute information and ideas without government restriction. This includes freedom from prior restraints on publication.

The rule against prior restraint, which prohibits government restriction of speech, is based on the principle that freedom of the press is essential to a free society. In the past, the U.S. Supreme Court has been tasked with defining just what constitutes “speech” and “press,” and some legal scholars have advocated for special press protections distinct from those accorded to speech. The justices have maintained a broad definition, which includes talking, writing and printing, as well as broadcasting information over the airwaves and via the Internet.

The Supreme Court also has held that no restrictions on speech can be made because of subject matter or ideas. This means that censoring people in their criticism of the government is considered unconstitutional. In fact, the Court considers prior restraints “the most serious and the least tolerable infringement on First Amendment rights,” and attempts by government to censor the media have largely been unsuccessful.

Today, freedom of the press is considered an inalienable right. However, it wasn’t until 1931 that this principle was firmly established by the landmark Supreme Court ruling in Near v. Minnesota. The Court held that the government could not prohibit the publication of a newspaper for carrying stories that, while accurate, were scandalous or libelous. This decision established a core constitutional precedent that continues to protect the press from government interference in the newsroom.

However, all speech is not equal under the First Amendment. The high court has identified circumstances where a prior restraint might be valid, including speech or publication of information that poses a threat to national security, contains obscene materials or advocates violence or the overthrow of the government. There may also be times when keeping information from the public is necessary to guarantee an individual his or her right to a fair trial.

However, even these issues are decided on a case-by-case basis. For example, when the government sought an injunction against newspapers that were planning to publish classified material concerning U.S. policy in Vietnam in the famous Pentagon Papers case (New York Times Co. v. United States), the Court found that the government had not proved that publishing the material posed extreme danger to national security.

The freedom from prior restraint is a fundamental right guaranteed by the First Amendment. Contact us at 973-509-8500 x213 or if you have questions or need legal advice regarding your rights to publish and distribute information or ideas.

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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