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Prior restraint is a legal term which refers to a government's actions that prevent materials from being published. Prior restraint is considered the most oppressive form of censorship (and in fact "censorship" in classical usage refers to prior restraint) in Anglo-American jurisprudence because it prevents the controversial material from being heard or distributed at all. Other forms of censorship generally involve punishment after the fact. While such punishment might lead to a chilling effect, legal commentators argue that at least such censorship does not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes the idea or material completely out of the marketplace, making it the worst form of censorship in a free society.
The first case to limelight the oppression caused by a prior restraint ruling was that of Near v. Minnesota, a 1931 United States Supreme Court ruling that 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-time scandal sheet that ran countless exposes of Minneapolis's elected officials illicit activities, including gambling, racketeering, and graft, was silenced by The Minnesota Gag Law of 1925, also known as The Public Nuisance Law. When the statute was struck down as unconstitutional under the First Amendment, newspapers had a new freedom to criticize public officials without fear of retribution, as long as the charges made by the papers could be proven in court. Newspapers could still be punished though libel laws with heavy fines and possible jail sentences.
However during the 2003 Invasion of Iraq many 'embedded' reporters accompanied soldiers as they made their way into the country. These reports were subject to censorship in that they were not to reveal a unit's exact location. However some reports were in fact censored directly by military forces when a story would have been considered unfavourable. Journalists themselves, under a possible chilling effect, or perhaps because of Patriotic journalism, also chose not to broadcast stories.
Film has a long history of prior restraint, with both Maryland and the province of Ontario having film censor boards for a considerable period of time. However, Maryland abandoned its board in the 1980s, and a 2004 decison of the Ontario Court of Appeal, reversing a previous trend in favor of the Ontario Film Classification Board 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 federal obscenity laws were sufficient to deal with obscene material.
In order to deal with the threat of prior restraint, many industries have agreed to "voluntary" codes in order to forestall goverment intervention. Examples of these include the Hayes 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 first instance in U.S. history of the federal government issuing a prior restraint for national security reasons is the case of the Pentagon Papers.
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