Prior restraint

Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression. It is in contrast to censorship that establishes general subject matter restrictions and reviews a particular instance of expression only after the expression has taken place.

In some countries (e.g., United States, Argentina) prior restraint by the government is forbidden, subject to exceptions, by their respective constitutions.

Prior restraint can be effected in a number of ways. For example, the exhibition of works of art or a movie may require a license from a government authority (sometimes referred to as a classification board or censorship board) before it can be published, and the failure or refusal to grant a license is a form of censorship as is the revoking of a license. It can take the form of a legal injunction or government order prohibiting the publication of a specific document. 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. It can also take the form of a (usually secret) policy imposed by a commercial corporation upon its employees, requiring them to obtain written permission to publish a given written work, even one authored outside of work hours produced using their own computing resources.

Common justifications given for prior restraints include avoiding exposure of military secrets, protecting victims of involuntary pornography or rape, or to protect the integrity of a judicial proceeding.

In William Blackstone's Commentaries "Freedom of the Press" is defined as the right to be free from prior restraints. According to Blackstone, 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.

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. (4 Bl. Com. 151, 152.)

This view was the common legal understanding at the time the U.S. 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.^{[citation needed]}

Prior restraint is often considered a particularly oppressive form of censorship 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: