Prior restraint is the judicial suppression of material that would be published or broadcast.
Prior restraint is not unconstitutional per se, Southeastern Promotions v. Conrad, 420 U.S. 546 (1975).
However, prior restraints bear a heavy presumption of unconstitutionality, Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976). “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Id. At 559.
Generally there are three areas in which prior restraints are more likely to be upheld, Near v. Minnesota, 283 U.S. 697 (1931):
- “Fighting words”
- Information regarding issues of national security.
There are other limited instances in which a prior restraint on the press can pass constitutional muster.
For example, in Howard Publications d/b/a The Times v. Lake Michigan Charters, 649 N.E.2d 129 (Ind. Ct. App. 1995), trans. den, 658 N.E.2d 582, the Indiana Supreme Court, by 2-2-1 vote, upheld the trial court’s order prohibiting a newspaper from publishing information that had been submitted to the court under seal in order to resolve a discovery dispute.
Although the documents were placed in the court file in an envelope marked “Privileged Documents For In Camera Review,” the reporter who obtained the documents testified that the envelope was not sealed and that she obtained the documents simply by reviewing the court’s file.
The court held that because the trial court’s order related to discovery materials, not materials admitted into evidence or filed with the court, the prior restraint did not violate the newspaper’s First Amendment rights.