THE DOCTRINE OF PRIOR RESTRAINT

THOMAS I. EMERSON*

The concept of prior restraint, roughly speaking, deals with official restrictions
imposed upon speech or other forms of expression in advance of actual publication.
Prior restraint is thus distinguished from subsequent punishment, which is a penalty
imposed after the communication has been made as a punishment for having made it.
Again speaking generally, a system of prior restraint would prevent communication
from occurring at all; a system of subsequent punishment allows the communication
but imposes a penalty after the event. Of course, the deterrent effect of a later penalty
may operate to prevent a communication from ever being made. Nevertheless, for a
variety of reasons, the impact upon freedom of expression may be quite different,
depending upon whether the system of control is designed to block publication in
advance or deter it by subsequent punishment.
In constitutional terms, the doctrine of prior restraint holds that the First Amend-
ment forbids the Federal Government to impose any system of prior restraint, with
certain limited exceptions, in any area of expression that is within the boundaries of
that Amendment. By incorporating the First Amendment in the Fourteenth
Amendment, the same limitations are applicable to the states.
Several features of the doctrine should be observed at the outset. In the first place,
the doctrine deals with limitations of form rather than of substance. The issue is not
whether the government may impose a particular restriction of substance in an area
of public expression, such as forbidding obscenity in newspapers, but whether it may
do so by a particular method, such as advance screening of newspaper copy. In
other words, restrictions which could be validly imposed when enforced by subse-
quent punishment are, nevertheless, forbidden if attempted by prior restraint. The
major considerations underlying the doctrine of prior restraint, therefore, are matters
of administration, techniques of enforcement, methods of operation, and their effect
upon the basic objectives of the First Amendment.
Moreover, the doctrine of prior restraint is, in some important respects, more
precise in its application than most of the other concepts that have developed out of
the First Amendment. It does not require the same degree of judicial balancing
that the courts have held to be necessary in the use of the clear and present danger
test, the rule against vagueness, the doctrine that a statute must be narrowly drawn,
or the various formulae of reasonableness. Hence, it does not involve the same
necessity for the court to pit its judgment on controversial matters of economics,
politics, or social theory against that of the legislature. This is not to say that the
*A.B. 1928, LL.B. 1931, M.A. 1946, Yale University. Professor of Law, Yale University, since
1946. Author (with David Haber), POLITICAL AND CIVIL RIGHTS IN THE UNITED STATES (1952). Con-
tributor to legal and other publications.
 THE Doc:mNE op PRIOR RESTRAINT

doctrine of prior restraint is clear-cut, simple, and easy to apply. It is not. Further,
it is subject to exceptions. But it does raise somewhat different problems, and ones
perhaps more susceptible to judicial solution than those with which the Supreme
Court appears to have been overwhelmed in dealing with other aspects of the First
Amendment.
Despite an ancient and celebrated history, the doctrine of prior restraint remains
today curiously confused and unformed. It has, moreover, been the object of con-
siderable adverse criticism. When the doctrine was revitalized in Near v.Min-
nesota,' one legal writer referred to it disparagingly as a "resurgence of the eight-
eenth century doctrine."2 In 1949, another legal writer concluded, "Whatever the
value of the prior restraints doctrine in the past, it has outlived its usefulness. '3 And
Professor Freund has recently expressed the hope that "future cases will not be
solved by a facile application of the subsequent-punishment-prior-restraint dichot-
omy."4 The doctrine has been largely or wholly rejected by several justices of the
Supreme Court, past and present, though never by the whole Court.
Nevertheless, the doctrine of prior restraint remains a part of our constitutional
law and is assuming a special significance today. A number of crucial issues in civil
liberties-issues which necessarily involve a decision on the status and scope of the
doctrine-are likely to reach the Supreme Court in the near future. Among these is
the right of state or local boards to censor motion pictures on obscenity grounds.
Another is the censorship of comic books and similar literature.
But the doctrine of prior restraint has a more far-reaching importance. We are
witnessing today a tremendous and ominous expansion of preventive law in the area
of civil liberties. More and more, our controls are being devised not as punishment
for actual wrongful conduct, but with a view to preventing future evils by a series
of restrictions and qualifications that seriously jeopardize freedom of expression.
The vast loyalty-security program is just such a system. So is the non-Communist
oath of the Taft-Hartley Act, the registration and detention provisions of the In-
ternal Security Act, and the operation of many legislative committees. Proposals
for increased censorship are part of the same pattern. There are strong pressures in
modern industrial society for controls over expression that prevent rather than
punish after the event. In part, perhaps, the trend may be justified by the com-
plexities of modern life and the increased need for effective regulation. But in part,
the growth stems from the efforts of those who seek to manipulate the minds of
large groups of citizens upon whom a government or administration must depend
for support. In any event, against such a background the concept of prior restraint
takes on a new and prominent significance.
' See infra pt. II.
2 Note, Previous Restraints Upon Freedom of Speech, 31 COLUM. L. REv. 2148 (1931).
'Note, Prior Restraint-A Test of Invalidity in Free Speech Cases?, 49 CoLum. L. REv. lool, ioo6
(2949).
'Freund, The Supreme Court and Civil Liberties, 4 VAND. L. REv. 533, 544 (1951).
' See infra pt. IV.
 LAW AND CONTEMPORARY PROBLEMS

Surprisingly enough, the doctrine of prior restraint has never been thoroughly
explored. There exists no comprehensive study of its historical roots, its application
in judicial decisions, the basic considerations which underlie the principle, or its
proper scope in a modern law of civil liberties. It is impossible, in this short sketch,
to undertake an adequate study of the subject. The most that can be done here is
to point out some of the highlights and to pose some of the questions.0
I
DEVELOPMENT OF THE DOCTRINE
The doctrine of prior restraint grew out of the historical setting in which one
of the early battles for freedom of expression was fought. The invention of printing
in the fifteenth century and its rapid development in the sixteenth and seventeenth
centuries opened vast possibilities for the communication of ideas in all fields of
thought and action. Prevailing doctrines of spiritual and temporal sovereignty made
it inevitable that control over the new medium of expression should be gathered
firmly in the hands of the ruling authorities.
As early as 1501, Pope Alexander VI, in a bull which prohibited unlicensed print-
ing, applied the technique of prior restraint as a means of control. In England-
the immediate source of our doctrine of prior restraint-printing first developed
under royal sponsorship and soon became a monopoly to be granted by the Crown.
For almost two centuries, a stream of royal proclamations, Star Chamber decrees, and
Parliamentary enactments, constantly increasing in complexity, shackled the art
and the business of printing and publication.7
The Licensing Act of 1662' illustrates the scope of the system. Not only were
seditious and heretical books and pamphlets prohibited, but no person was allowed
to print any material unless it was first entered with the Stationers' Company, a
government monopoly, and duly licensed by the appropriate state or clerical func-
tionary. Further, no book was to be imported without a license; no person was
permitted to sell books without a license; all printing presses had to be registered with
the Stationers' Company; the number of master printers was limited to twenty, and
these were to be licensed and to furnish bond; and sweeping powers to search for
suspect printed matter in houses and shops, except the houses of peers, were granted.
In this form, the licensing laws, renewed and augmented from time to time, con-
tinued through most of the latter half of the century.
' For discussion of the doctrine, in addition to the materials cited in notes 2-4 supra, see ZECHIARIAH
CHAPEE, JR., FREE SPEECH IN THE UNITED STATES passim, esp. 9-30, 314-17, 375-81, 400-35, 521-23, 532-
40 (94); C. HERMAN PRITCHETT, CIVIL LIBERTIES AND THE VINSON COURT C. 3 (1954); Note, Regila-
tion of Comic Books, 68 HARV. L. REV. 489, 490.94 (955).
' See 4 WILLIAM HoLDSwORTH, A HISTORY oF ENGLiSH L.%Nv360-79 (2d ed. 1937), and Press
Control and Copyright in the z6th and s 7 th Centuries, 29 YALE L.J. 841 (1920); 2 JAMES STEPHEN,
A HISTORY OF THE CRIMINAL LAW OF ENGLAND 300-75 (1883); CLYDE A. DuNIWAY, THE DEVELOP-
MENT OF FREEDOMI OF THE PRESS IN MASSACHUSETTS cc. 1-5 (1906); JAMES PATERSON, THE LIBERTY OF
THE PRESS, SPEECH, AND PUBLIC WORSHIP 43-52 (i88o); Curtis Bok, Censorship and the Arts, in
CIVIL LIBERTIES UNDER ATTACK 107 (1951). See also material collected in Note, supra note 2 at 1158
n. 8.
a 13 & 14 CAR. 2, C. 33.
 THE DocamRN OF PRIOR RESTRAINT 651
In 1695, when the current licensing law expired, the House of Commons de-
clined to extend it. The House of Lords voted for renewal but, when the Commons
insisted, acquiesced. Thus, the licensing system, in all important respects, lapsed. It
was never revived. 9
It is interesting to note that the demise of the licensing system appears to have
occurred not so much because of broad opposition in principle to any curtailment of
free expression, but rather because the system in operation had become generally un-
wieldy, extreme, and even ridiculous. Lord Macaulay summarizes the reasons given
by the House of Commons to the House of Lords for refusing to renew the law:1"
They pointed out concisely, clearly and forcibly, and sometimes with a grave irony
which is not unbecoming, the absurdities and iniquities of the statute which was about
to expire. But all their objections will be found to relate to matters of detail. On the
great question of principle, on the question whether the liberty of unlicensed printing be,
on the whole, a blessing or curse to society, not a word is said. The Licensing Act is
condemned, not as a thing essentially evil, but on account of the petty grievances, the
exactions, the jobs, the commercial restrictions, the domiciliary visits, which were inci-
dental to it.
Furthermore, it is important to observe that, although the system of prior restraint
was allowed to lapse, the law against seditious libel and blasphemy remained un-
affected and was, indeed, applied with increasing frequency and severity as a form
of subsequent punishment for expression considered hostile to state or church."
Developments in America paralleled, with some lag, the situation in England.
By the second decade of the eighteenth century, the licensing laws had broken
down. 2
In the course of the eighteenth century, freedom of the press from licensing came
to assume the status of a common law or natural right. Blackstone summarized the
law in a famous passage:"a
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 free man 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
consequences of his own temerity.
Such was the situation when, in 1791, the First Amendment was drafted, adopted
'For a vivid account of the events leading to the refusal of the House of Commons to renew the
licensing act, see 4 THOMAS B. MACAULAY, THE HISroRy OF ENGLAND 430-43 (1879); and 5 id. 12-14.
See also Holdsworth, supra note 7, 29 YALE L.J. at 852-56.
10 MACAULAY, op. cit. supra note 9, at 13.
"'See E.J.C. NEEP, SEDITIOUS OFFENSES 9-19 (I926); CHAFEE, supra note x6, c. 13; Hervey and
Kelley, Some Constitutional Aspects of Statutory Regulation of Libels on Government, 15 TEMp. L.Q.
453, 454-62 (194); Shientag, From Seditious Libel to Freedom of the Press, ii BROOKLYN L. REV.
125 (1942).
'2 See DUNIWAY, op. cit. supra note 7; Vance, Freedom of Speech and of the Press, 2 MINN. L. REv.
239, 247 (1918).
234 BL. COMM. *151-52.
 LAW AND CONTEMPORARY PROBLEMS

by Congress, and ratified by the states. The struggle over the licensing laws was
certainly not forgotten. And there can be little doubt that the First Amendment was
designed to foreclose in America the establishment of any system of prior restraint
on the pattern of the English censorship system. Indeed, it was argued in some
quarters that this was the sole purpose of the First Amendment and that, following
14
Blackstone, it was not intended to embrace subsequent punishment of publications.
Not until the twentieth century did the Supreme Court finally settle this issue in
favor of the broader interpretation of the First Amendment."a But the doctrine that
no previous restraint of publication could stand against the First Amendment was
never challenged. Thus, the concept was elevated to the status of constitutional
principle.
II
NEAR V. MINNESOTA

For nearly 130 years after its adoption, the First Amendment received scant at-
tention from the Supreme Court. Not until World War I brought an avalanche of
prosecutions under the Espionage Act did the Court begin to explore the implica-
tions of the constitutional guarantee for freedom of expression. And it was some
years later before the Court dealt at any length with the doctrine of prior restraint.
During this period of quiescence, there did arise a number of issues which might
have called for consideration of the concept of prior restraint. But these problems
either never reached the Supreme Court or were resolved on other grounds." Apart
from occasional routine statements of principle, the Court did not invoke the doctrine
until, in I93I, it decided the case of Near v. Minnesota?
The statute before the Court in Near v. Minnesota was the so-called Minnesota
Gag Law. Somewhat experimental in nature, this legislation had aroused consider-
able concern in the newspaper world."8 It provided that any person "engaged in the
business" of regularly publishing or circulating an "obscene, lewd and lascivious" or
a "malicious, scandalous and defamatory" newspaper or periodical "is guilty of a
nuisance." Procedure was established for suit to be brought "in the name of the
State to enjoin perpetually the persons committing or maintaining any such nuisance
from further committing or maintaining it." The court issuing an injunction was
empowered to punish disobedience, as in other cases of contempt, by a fine or jail
sentence up to 12 months.1 9
"4For discussion of the issue and collection of the materials, see CHAIEE, op. Cit. supra note 6, at
9-12.
" Schenck v. United States, 249 U.S. 47 (igsg), and later cases.
"oThe clearest use of prior restraint was in the postal laws and regulations, denying use of the
mails under certain conditions. For discussion of this development, see Deutsch, Freedom of the Press
and of the Mails, 36 MICH. L. REv. 703 (1938); Rogers, Federal Interference wtih Freedom of the
Press, 23 YALE L.J. 559, 568-78 (1914); CHAFEE, op. cit. supra note 6, at 42-51, 97-100, 298'305, 549-50;
Donnelly, Government and Freedom of the Press, 54 ILL. L. REV. 31, 40-44 (i950); Milwaukee Publish-
ing Co. v. Burleson, 255 U.S. 407 (1921). For other instances, see Note, supra note 2, at 1151-55.
17283 U.S. 697 (1931).
8
" See L. T. BEMAN, SELECTED ARTICLES ON CENSORSHIP OP SPEECH AND THE PRESS 211-18 (1930).
1 283 U.S. at 702-03.
 THE DocNE OF PRIOR RESTRAINT

The particular case involved the publishers of The Saturday Press, a weekly
sheet issued in Minneapolis. After the publication of nine issues, suit was brought
by the County Attorney alleging that the paper was "largely devoted to malicious,
scandalous and defamatory articles" and seeking an injunction. No charge was
made under the obscenity portion of the statute. The articles in question, as de-
scribed by the Supreme Court with some understatement, "charged in substance
that a Jewish gangster was in control of gambling, bootlegging and racketeering in
Minneapolis, and that law enforcing officers and agencies were not energetically
performing their duties." The state court, finding the publication constituted a
"nuisance" within the statute, perpetually enjoined the defendants from issuing
"any publication whatsoever which is a malicious, scandalous or defamatory news-
20
paper, as defined by law."
The Supreme Court held, five to four, that the statutory scheme constituted a
prior restraint and hence was an abridgment of freedom of the press in violation of
the First Amendment guarantees incorporated in the Fourteenth Amendment.
Chief Justice Hughes, speaking for the majority, analyzed the operation of the
statute and concluded it amounted to "an effective censorship." ". . . [T]he statute
in question does not deal with punishments," he said; "it provides for no punish-
ment, except in case of contempt for violation of the court's order, but for sup-
pression and injunction, that is, for restraint upon publication."'" The Chief
Justice then traced the historical background of the First Amendment, stressing
the intention of the framers to ban the English system of licensing the press. After
pointing out that the prohibition against prior restraint did not apply in "exceptional
cases"--noting as examples certain types of obstruction to the conduct of war, ob-
scenity, and incitements to violence-the Chief Justice broadly laid down the doctrine
in the following terms:2
The exceptional nature of its limitations places in a strong light the general conception
that liberty of the press, historically considered and taken up by the Federal Constitution,
has meant, principally although not exclusively, immunity from previous restraints or
censorship.

The Chief Justice made no reference to the clear and present danger test or to
other doctrines recently employed in cases of subsequent punishment. He expressly
said, "In the present case, we have no occasion to inquire as to the permissible scope
of subsequent punishment."23 And he made entirely clear that the doctrine of
prior restraint protected the publication of material which could be the subject of
subsequent punishment under criminal libel or other laws :24
The fact that for approximately one hundred and fifty years there has been almost an
entire absence of attempts to impose previous restraints upon publications relating to the
malfeasance of public officers is significant of the deep-seated conviction that such re-
straints would violate constitutional right. Public officers, whose character and conduct
"Id. at 703-o6. 21 Id. at 712, 715- '21d. at 76.
2
'1d. at 715. 2' Id. at 718-i9.
 LAW AND CONTEMPORARY PROBLEMS

remain open to debate and free discussion in the press, find their remedies for false accusa-
tions in actions under libel laws providing for redress and punishment, and not in pro-
ceedings to restrain the publication of newspapers and periodicals.
Justice Butler, writing for the four dissenters, characterized the decision as
giving to freedom of the press "a meaning and a scope not heretofore recognized."
His primary argument was that "the Minnesota statute does not operate as a
previous restraint on publication within the proper meaning of that phrase." "It
is fanciful to suggest," he said, "similarity between the granting or enforcement of
the decree authorized by this statute to prevent further publication of malicious,
scandalous and defamatory articles and the previous restraint upon the press by
licensers as referred to by Blackstone and described in the history of the times to
which he alludes."25
Near v. Minnesota is a landmark case. It remains to this day the major pro-
nouncement of the Supreme Court on the doctrine of prior restraint. Two aspects
of the decision deserve special attention:
In the first place, the Supreme Court, for the first time, vigorously and effective-
ly enunciated the doctrine of prior restraint. It gave meaning and content to a
concept which, until then, had never been clearly outlined. For the first time,
also, the Court employed the doctrine to strike down a legislative act. In short,
the Court in Near v. Minnesota, refurbishing an ancient principle, created a potent
instrument of modern constitutional law.
A second important aspect of the decision lies in the Court's concept of prior re-
straint. There was, on the face of it, much to be said for the minority position.
The Minnesota statute did not conform to the pattern of licensing of the seventeenth
century variety. No original approval of a publication was required. Only after
a person had published "malicious, scandalous and defamatory" matter could he
be enjoined. And the injunction did not prevent him from continuing to publish at
all; it only restrained him from publishing a "malicious, scandalous and defama-
tory" newspaper.26 Thus, the publisher would be guilty of contempt and pun-
ished only as and when he committed subsequent offenses. Theoretically, therefore,
the statute could hardly be said to set up prior restraint. On paper, it was a system
for subsequent punishment by contempt procedure.
But in practice, the system was bound to operate as a serious prior restraint.
Punishment could be summarily dispensed by a single official, without jury trial
or the other protections of criminal procedure, for infraction of a loose and illusive
mandate. Under such circumstances, any publisher seeking to avoid prison would,
in sheer self-protection, have to clear in advance any doubtful matter with the official
wielding such direct, immediate, and unimpeded power to sentence. The judge
would, in effect, become a censor.
Thus, the Court made clear that it was not interpreting the concept of prior
2Id. at 723, 735-36 (italics in original).
6
" Id. at 712-13.
 THE DocrmiN OF PRIOR RESTRAINT 655
restraint on a narrow legalistic or historical basis. It was, as it said, testing the
statute by its "operation and effect."'
The Court, indeed, in applying the doctrine to a modern problem was raising
many more questions than it answered. What, in fact, is prior restraint? What
are the "exceptional cases" where it does not apply? What are the basic elements of
the concept which should guide a Court in determining the scope of the doctrine?
These issues require further analysis.
III
THE NATURE OF PRIOR RESTRAINT

In examining these problems, it is first necessary to define more precisely what

forms of official restriction contain elements of prior restraint. We may then ex-
plore the characteristics of that mode of restriction and its impact upon freedom of
expression.
As a starting point, one must assume the general principle that, under the First
Amendment and our notions of a democratic society, freedom of expression is the
rule and constraint the exception. It is not necessary to assume that the First
Amendment imposes an absolute prohibition against governmental restriction upon
public expression nor to accept the constitutional interpretation that gives the First
Amendment a "preferred position" in the scale of constitutional values-although
the author leans toward the first and fully agrees with the second. But the more
commonly accepted principle, that only in the most urgent circumstances can a limi-
tation upon freedom of expression be justified, and that the courts, under the First
Amendment, have a serious obligation to strike down limitations which do not clearly
meet such conditions, is fundamental to any analysis of prior restraint.
There is, at present, no common understanding as to what constitutes "prior
restraint." The term is used loosely to embrace a variety of different situations.
Upon analysis, certain broad categories seem to be discernible:
The clearest form of prior restraint arises in those situations where the gov-
ernment limitation, expressed in statute, regulation, or otherwise, undertakes to pre-
vent future publication or other communication without advance approval of an
executive official. Such limitations are normally enforced by criminal prosecution
for having published without the required approval, the prosecution being based
upon mere failure to obtain approval and not on any issue concerning the content or
manner of the publication. Examples of this type of prior restraint are the English
licensing laws, motion picture censorship, the requirement of permits for park meet-
ings, and the like. In some cases, the method of enforcement may be refusal by the
official to make available government facilities or services, such as in denial of the
use of the mails.
A second form of prior restraint involves judicial officials and is based upon
the injunction or similar judicial process, enforced through a contempt proceeding.
2" at 708.
ld.
656 LAW AND CONTEMPORARY PROBLEMS

The injunction may be directed only against specific aspects of a particular kind
of communication, as the injunction against publishing a "malicious, scandalous and
defamatory newspaper" in Near v. Minnesota. Or it may attempt to prevent all
communication entirely, as an injunction preventing publication of any further
issues of a newspaper.
A third type of situation involves legislative restraints which make unlawful
publication or other communication unless there has been previous compliance with
specific conditions imposed by legislative act. In this situation, no approval of an
executive or judicial official is involved. Examples of such restraint are those re-
quiring registration of lobbyists or of certain political organizations. Laws im-
posing taxes on newspapers or other forms of communication may be said to fall
within this category. Enforcement of the control is normally by criminal prose-
cution or other legal proceeding for failure to meet the condition.
Finally, there is a fourth type of situation which contains elements of prior
restraint upon communication, but in which the restraint appears more indirect
or secondary to some other immediate objective. This occurs, for example, where
political views or other forms of expression are used as a test for holding an office
or position of influence. Such restraints appear in the Taft-Hartley non-Communist
affidavit and in the loyalty-security programs. Perhaps limitations upon picketing
for a closed shop and the constraints flowing from the activities of legislative com-
mittees could be said to involve similar indirect or secondary restraints.
These various types of prior restraint-and perhaps others could be added-raise
somewhat different issues. Furthermore, within each category, the type of com-
munication concerned-whether it be books, newspapers, motion pictures, park
meetings, or something else-naturally involves special considerations. For pur-
poses of our analysis, we will consider primarily those characteristics of prior re-
straint which mark the most common forms of communications affected by the
first, or executive, type of restraint s
Breadth: A system of prior restraint normally brings within the complex of
government machinery a far greater amount of communication than a system of
subsequent punishment. It subjects to government scrutiny and approval all ex-
pression in the area controlled-the innocent and borderline as well as the offensive,
the routine as well as the unusual. The machinery is geared to universal in-
spection, not to scrutiny in particular cases which are the subject of complaint or
otherwise come to the attention of prosecuting officials. The pall of government
"The literature on the operation of systems of prior restraint is scattered but voluminous. Among
the more important is ANNE LYON HAIGHT, BANNED BooKs (1955); CHAFEE, op. cit. supra note 6, and
GOVERNMENT AND MASS COMMUNICATIONS esp. c. 3 (1947); THEODORE SCHROEDER, "OBscENE" LITERA-
TURE AND CONSTITUTIONAL LAW (1911); MORRIS L. ERNST AND ALEXANDER LINDEY, THE CENSOR
MARCHES ON (1940); GEORGE R. Sco'rr, INTO WHOSE HANDS (1945); Lockhart and McClure, Literature,
The Law of Obscenity and the Constitution, 38 MINN. L. REV. 295 (1954); Note, Motion Pictures and
the First Amendment, 6o YALE L.J. 696 (1951); Comment, Censorship of Obscene Literature By In-
formal Governmental Action, 22 U. Cm. L. REV. 216 (1954); Comment, Movie Censorship and the
Supreme Court: What Next?, 42 CALIF. L. REV. 122 (1954).
 THE DoCmiINE OF PRIOR REsTRAINT 657

control is, thus, likely to hang more pervasively over the area of communication,
and more issues are likely to be resolved against free expression.
Timing and delay: Under a system of subsequent punishment, the communica-
tion has already been made before the government takes action; it thus takes
its place, for whatever it may be worth, in the market place of ideas. Under a
system of prior restraint, the communication, if banned, never reaches the market
place at all. Or the communication may be withheld until the issue of its release is
finally settled, at which time it may have become obsolete or unprofitable. Such
a delay is particularly serious in certain areas-such as in motion pictures-where
large investments may be involved. 29
Propensity toward an adverse decision: A system of prior restraint is so con-
structed as to make it easier, and hence more likely, that in any particular case the
government will rule adversely to free expression. A communication made is a
fait accompli, and the publisher has all the practical advantages of that position.
A government official thinks longer and harder before deciding to undertake the
serious task of subsequent punishment-the expenditure of time, funds, energy, and
personnel that will be necessary. Under a system of prior restraint, he can reach
the result by a simple stroke of the pen. Thus, in one case, the burden of initial
action falls upon the government; in the other, on the citizen. Again, once a com-
munication has been made, the government official may give consideration to the
stigma and the troubles a criminal prosecution forces upon the citizen. Before the
communication has been issued, however, such factors would not enter the picture.
For these and similar reasons, a decision to suppress in advance is usually more
readily reached, on the same facts, than a decision to punish after the event.
Procedure: Under a system of prior restraint, the issue of whether a communica-
tion is to be suppressed or not is determined by an administrative rather than a
criminal procedure. This means that the procedural protections built around the
criminal prosecution-many of which are constitutional guarantees-are not ap-
plicable to a prior restraint. The presumption of innocence, the heavier burden of
proof borne by the government, the stricter rules of evidence, the stronger objection
to vagueness, the immeasurably tighter and more technical procedure-all these
are not on the side of free expression when its fate is decided.
Further, the initial decision rests with a single government functionary rather
than with a jury. Those who framed the First Amendment placed great emphasis
upon the value of a jury of citizens in checking government efforts to limit freedom
of expression. While the jury probably plays less of a role in this age of popular
conformity, it, nevertheless, still continues to furnish an important safeguard against
the abuses of officialdom? 0
Finally, the net effect of using the administrative process is to place primary re-
" Note, for example, the delay in exhibiting the film which was the subject of litigation in Burstyn v.
Wilson, 343 U.S. 495 (1952). See also ERNST AND LINDEY, Op. cit. supra note 28, at 96.
"oSee, e.g., the failure of the prosecution of theater managers in Jersey City and Elizabeth, N.J., for
showing the film, The Moon Is Blue. Comment, supra note 28, 42 CALIF. L. Rpv. at 126-27.
 LAW AND CONTEMPORARY PROBLEMS

sponsibility for judging the communication upon an executive official rather than
in the courts. Judicial review of administrative action is limited in scope, tends to
bow before administrative expertise, and is frequently unavailable in practice. Thus,
sensitive issues of free expression are decided largely by a minor bureaucrat rather
than through an institution designed to secure a somewhat more independent, ob-
jective, and liberal judgment."
Opportunity for public appraisaland criticism: A system of prior restraint usu-
ally operates behind a screen of informality and partial concealment that seriously
curtails opportunity for public appraisal and increases the chances of discrimination
and other abuse. Decisions are less likely to be made in the glare of publicity that
accompanies a subsequent punishment. The policies and actions of the licensing
official do not as often come to public notice; the reasons for his action are less
likely to be known or publicly debated; material for study and criticism are less
readily available; and the whole apparatus of public scrutiny fails to play the role
it normally does under a system of subsequent punishment. All this may have
certain advantages from some points of view. In cases of alleged obscenity, for
instance, publicity may serve to give much wider circulation to a publication ulti-
mately condemned. And in some cases, individual citizens may not desire or benefit
from greater publicity. In the long run, however, the preservation of civil liberties
must rest upon an informed and active public opinion. Any device that draws a
cloak over restrictions on free expression seriously undermines the democratic
process0 2
The dynamics of prior restraint: Perhaps the most significant feature of systems
of prior restraint is that they contain within themselves forces which drive irresistibly
toward unintelligent, overzealous, and usually absurd administration. One factor
is the ability and personality of the licenser or censor. As Milton long ago ob-
33
served,
If he be of such worth as behoves him, there cannot be a more tedious and unplcasing
journey-work, a greater loss of time levied upon his head, than to be made the perpetual
reader of unchosen books and pamphlets ... we may easily foresee what kind of licensers
we are to expect hereafter, either ignorant, imperious, and remiss, or basely pecuniary.
No adequate study seems to have been made of the psychology of licensers, censors,
security officials, and their kind, but common experience is sufficient to show that
their attitudes, drives, emotions, and impulses all tend to carry them to excesses.
This is particularly true in the realm of obscenity, but it occurs in all areas where
officials are driven by fear or other emotion to suppress free communication."4
"tSee the discussion in Lockhart and McClure, supra note 28, at 309-x6, 388-90. See also ERNsr AND
LINDEY, op. cit. supra note 28, at 215.
"Note, for example, the reluctance of those seeking the ban of certain paper-bound books, to bring
the censorship into the open. Lockhart and McClure, supra note 28, at 3o9-16.
"' JoHn MILTON, AREOPAGITICA 20-2X (Everyman ed., 1927).
atSee, e.g., ERNST AND LINDLEY, op. ci. supra note 28, at 217, 225-27; HEYWOOD BROUN AND
MARGARET LEECH, ANTHONY Co.msTocK 266, 273 (1927); HOLBROOK JAcxsON, THE FEAR Or BooKs
83-87, 184-85 (1932); ScoTt, op. cit. supra note 28, at 202-03; Pollock, The Censorship, 97 FORT-
 Ti-E DOCTRINE OF PRIOR RESTRAINT

Further, it is necessary to keep in mind not only the character structure of the
licenser, but the institutional framework in which he operates. The function of the
censor is to censor. He has a professional interest in finding things to suppress.
His career depends upon the record he makes. He is often acutely responsive to
interests which demand suppression-interests which he himself represents-and
not so well attuned to the more scattered and less aggressive forces which support free
expression.
All this is true to some extent, of course, with regard to prosecutors who partici-
pate in the administration of systems of subsequent punishment. But such a prosecu-
tor normally does not focus on a single problem in the way a licenser does. Nor does
he wield comparable power. The long history of prior restraint reveals over and
over again that the personal and institutional forces inherent in the system nearly
always end in a stupid, unnecessary, and extreme suppression.35
Certainty and risk: It is frequently argued that a system of prior restraint
affords individual citizens greater certainty in the law with less risk of serious
consequences. Under such a system, it is said, an individual can find out what is
permitted and what is forbidden without incurring the danger of criminal or
similar sanctions in the event his interpretation of the law is erroneous. For this
reason, some publishers prefer licensing systems to systems based on subsequent
punishment. And this has been a factor in the establishment of private systems of
censorship, such as exist in the motion picture industry and now in the comic book
industry. From the point of view of some individuals, there is much to be said for
these considerations. But from a public or social point of view-the interest of
society as a whole in free expression-the argument is, in the long run, dubious.
For it means, under most circumstances, less rather than more communication of
ideas; it leaves out of account those bolder individuals who may wish to express
their opinions and are willing to take some risk; and it implies a philosophy of
willingness to conform to official opinion and a sluggishness or timidity in asserting
rights that bodes ill for a spirited and healthy expression of unorthodox and un-
accepted opinion.
Effectiveness: A system of prior restraint is, in general, more readily and
effectively enforced than a system of subsequent punishment. Undoubtedly it is
true that both systems depend ultimately upon the application of penal sanctions.
But there are noteworthy differences. A penal proceeding to enforce a prior restraint
normally involves only a limited and relatively simple issue-whether or not the
communication was made without prior approval. The objection to the content or
manner of the communication need not be demonstrated. And furthermore, the
NIGHTLY REV. 88o, 881 (1912); JATMEs N. ROSENBERG, CENSORSHIP IN THE UNITED STATES 21 (1928);
ALEC CRAIG, THE BANNED BOOKS OF ENGLAND 89 (1937).
" For examples see MACAULAY, op. cit. supra note 9; THOMAS MAY, THE CONSTITUTIONAL HISTORY
OF ENGLAND 102-o6 (1863); Pollock, supra note 34, at 880-92; Lockhart and McClure, supra note 28,
at 316-20; MORRIS L. ERNST AND WILLIAM SEAGLE, To THE PURE . . . A STUDY OF OBSCENITY AND TH
CENSOR 38-56 (1928).
 LAW AND CONTEMPORARY PROBLEMS

violation of a censorship order strikes sharply at the status of the licenser, whose
prestige thus becomes involved and whose power must be vindicated. Systems of
subsequent punishment can, of course, be enforced to the hilt; but in practice, this
rarely occurs or is limited to short periods of time.3"
All in all, therefore, we must conclude that in a democratic society, such as ours,
a system of prior restraint based upon executive approval will operate as a greater
deterrent to free expression and cause graver damage to fundamental democratic
rights than a system of subsequent punishment. This is, of course, not invariably so.
A system of subsequent punishment, applying severe criminal sanctions in the
first instance, may prove a greater obstruction to legitimate expression where ruth-
lessly enforced. This could be true particularly in a highly organized and re-
pressive state. But in the looser confines of an open society, it will normally not
be the case. For purposes of the judicial process-which would find it difficult to
make refined distinctions between the operation of the two systems in each par-
ticular instance-this powerful tendency of prior restraint becomes a factor of
critical and definitive importance.
These, then, are some of the considerations which underlie the doctrine of prior
restraint. They are the reasons why the doctrine is not simply an arbitrary his-
torical accident, but a rational principle of fundamental weight in the application
of the First Amendment. All of them do not apply in every situation. And other
factors, relating to the particular form of restraint and the particular area of com-
munication, must obviously be taken into account. But they furnish the basic frame-
work within which the doctrine of prior restraint must be judged.
The limits of this paper do not permit an analysis along the same lines of the
other categories of prior restraint outlined above. Many of the same considerations
apply, often to a lesser degree. But in those categories, too, the problem must be
considered in the light of similar or comparable factors so far as they are applicable.

IV
THE SUPREME COURT'S TREATMENT OF PRIOR RESTRAINT
In the years following Near v. Minnesota, the Supreme Court has frequently
dealt with restrictions upon expression that have involved elements of prior re-
straint. There has developed some disagreement among the justices and some
shifting in the attitude of the prevailing majority. Actually, the doctrine has never
been subjected to thorough-going analysis, and no clear and full statement of prin-
ciple has received acceptance of the Court.
Near v. Minnesota had raised, but left unsolved, the question of what exceptions,
if any, existed to the general rule of no prior restraint. Chief Justice Hughes had
indicated, by way of dictum, that the doctrine would not be applied in "exceptional
cases." He mentioned three situations as illustrative of these exceptions.3 7 The first
" See, e.g., Report of the Select Committee on Current Pornographic Materials, H. R. REP. No.
2510, 82d Cong., 2d Sess. 5-12 (1952).
37 283 U.S. at 716.
 THE DOCTRINE OF PRIOR RESTRAINT 66i
included restraints that could be imposed "[w]hen a nation is at war." The Chief
Justice cited only the Schenck case 3 --not a case of prior restraint-but went on to
say: "No one would question but that a government might prevent actual ob-
struction to its recruiting service or the publication of the sailing dates of transports
or the number and location of troops." The second exception related to obscenity:
"On similar grounds, the primary requirements of decency may be enforced against
obscene publications." Here he cited no authority. The third exception involved
sedition: "The security of the community life may be protected against incitement to
acts of violence and the overthrow by force of orderly government." In support
of this third exception, the Chief Justice cited the Schenck case again and the
Gompers case 3 9-a case that appears to fall within the last category of prior restraint
outlined above.
The war exception rests upon peculiar factors of obvious weight. But the Chief
Justice made no attempt to explain why obscene or seditious utterances should be
distinguished from "malicious, scandalous and defamatory" utterances. Certainly,
no such distinction can be based upon the appeal to history; on the contrary, the
opposition to licensing plainly extended to prior restraint of allegedly seditious pub-
lications and probably to the obscene, too, so far as obscenity was then a ground for
restraint. Nor could the Court rely upon any modern authority. The entire passage
remains obscure. It may be that the Chief Justice merely intended to make the tra-
ditional point that seditious and obscene publications were subject to subsequent
punishment as exceptions to the First Amendment. In any event, the attempt to
enumerate exceptions to the prior restraint rule was not carefully considered and
can scarcely be said to have settled the issue.
We proceed, therefore, to a brief examination of the use of the prior restraint
doctrine in the later cases. The problems are best presented by grouping the de-
cisions according to the particular medium of expression. The limits of this paper
do not permit an exploration of those situations, mostly falling within the fourth
category above, which contain important elements of prior restraint but where
the Supreme Court has not seriously attempted to apply the doctrine. Nor does
it include several areas, such as post office censorship, control of radio and television,
and the like, where the Court has not directly dealt with the issue. The major
pronouncements of the Court fall within four areas-newspapers and books, dis-
tribution and canvassing, assembly in public places, and motion pictures 0
"8 Schenck v. United States, 249 U.S. 47 (1919).
"0Gompers v. Bucks Stove & Range Co., 221 U. S. 418 (911).
40 The only important decisions in other areas where the doctrine of prior restraint has played some
part arc Thornhill v. Alabama, 310 U.S. 88 (1940); and Hannegan v. Esquire, 327 U.S. 146 (1946).
See also Donaldson v. Read Magazine, 333 U.S. 178 (1947); United States v. CIO, 335 U.S. 1o6, 153-55
(1948); Dennis v. United States, 341 U.S. 494, 579 (951). For discussion of some of these problems,
see Donnelly, supra note 16; Kadin, Administrative Censorship: A Study of the Mails, Motion Pictures
and Radio Broadcasting, I9 B.U.L. REv. 533 (1939). A recent post office case raising the problem of
prior restraint is Sunshine Book Co. v. Summerfield, 221 F.2d 42 (D.C. Cir. 1954), cert. denied, 349
U.S. 921 (1955) , 128 F. Supp. 564 (D.D.C. 1955).
662 LAW AND CONTEMPORARY PROBLUMS

Newspapers and Books

Since the doctrine of prior restraint developed directly out of attempts to license
the press, we should expect to find its application most clearly accepted in that
area. Nothing in the growth of modern society has, thus far at least, appealed to
the country as grounds for altering the considerations which led to the elimina-
tion of prior restraint upon the press. Actually, after Near v.Minnesota, no attempt
to establish a licensing or censorship system for books or newspapers has come
before the Supreme Court. Recently, efforts by local police officials to institute an
informal system of censorship through threats of criminal prosecution for the sale
of books placed on police or private lists have been outlawed in several courts. 4'
In as much as these systems seem to embrace the worst evils of prior restraint, and
since the press itself is involved, it may be expected that the Supreme Court would
have little difficulty in disposing of cases of this nature.
The Supreme Court has dealt with one other ancient form of restraint upon the
press-the imposition of a tax upon publication. In Grosjean v. American Press
Co., 2 the Court had before it a Louisiana statute, sponsored by Huey Long, which
levied a license tax of two per cent upon the gross receipts of newspapers and peri-
odicals having a circulation of over 20,oo a week. Justice Sutherland, writing for
a unanimous Court, reviewed again the English licensing laws and discussed, in
addition, the struggle in England and colonial America against "taxes on knowl-
edge." He held that the Louisiana law had a "direct tendency to restrict circula-
43
tion" and hence was clearly invalid as a form of prior restraint
The growth of the comic-book industry has been thought by some to raise new
problems that demand for their solution some form of prior restraint. That the
Supreme Court would consider the issues any different from the traditional ones
seems highly doubtful."
Distribution and Canvassing
The distribution of pamphlets or leaflets, either on the city streets or by door to
door canvassing-also a traditional form of communication-has been increasingly
subjected to various forms of municipal licensing. A series of these cases has been
considered by the Supreme Court, most of them raised by the activities of Jehovah's
Witnesses. In support of their ordinances, the municipalities have urged that li-
censing is justified in order to prevent public disorder, molestation of inhabitants,
fraud, or littering of the city streets. With the exception of regulations aimed at
canvassing for commercial purposes, the Supreme Court has consistently struck
" Bantam Books, Inc. v. Melko, 25 N.J. Super. 292, 96 A.2d 47 (Ch. 1953); New American Li-
brary v. Allen, x14 F. Supp. 823 (N.D. Ohio, 1953). But cf. Sunshine Book Co. v. McCaffrey, 112
N.Y.S.2d 476 (Sup. Ct. 1952). For a full discussion, see Comment, supra note 28, 22 U. Cm. L,
REV. 216. See also Note, supra note 6, 68 HARV. L. REV. at 494-99.
42297 U.S. 233 (1936).
"Id. at 244-45. Ci. Corona Daily Independent v. Corona, 115 Cal. App. 2d 382, 252 P. 2d 56, cert.
denied, 346 U.S. 833 (1953).
" For discussion of the comic book problem, see Note, supra note 6, 68 HAuv. L. REV. 489.
 THE DocTRINE OF PRIOR RESTRAINT

down the ordinances. But the grounds for its decisions have not always been
entirely clear.
In the first case, Lovell v. Griffin." the city ordinance prohibited the distribution
of circulars or literature of any kind within the city limits without first obtaining
written permission from the City Manager. Chief Justice Hughes, on behalf of a
unanimous Court, held the ordinance void on its face: ". . . its character is such that
it strikes at the very foundation of the freedom of the press by subjecting it to
license and censorship." 46 But the Chief Justice made some point of the fact that
the ordinance was "not limited to 'literature' that is obscene or offensive to public
morals or that advocates unlawful conduct"; and also that it was not limited "with
respect to time or place" or "to ways which might be regarded as inconsistent with
the maintenance of public order or as involving disorderly conduct, the molesta-
tion of the inhabitants, or the misuse or littering of the streets."47 There was some
implication that such limitations might have saved the ordinance.
This ambiguity was partially clarified by the decision in Schneider V.State s
Here the ordinance specified that the Chief of Police "shall refuse a permit in all
cases where the application, or further investigation made at the officer's discretion,
shows that the canvasser is not of good character or is canvassing for a project not
free from fraud."4 9 The Court held the ordinance invalid as a prior restraint,
Justice McReynolds dissenting. The majority opinion of Justice Roberts is not
altogether clear. But it appears to accept the doctrine of prior restraint as pro-
hibiting any form of advance permission. It expressly points out that frauds and
trespasses "may be denounced as offenses and punished by law," that the time of
canvassing can likewise be controlled, and adds: "Doubtless there are other features
of such activities which may be regulated in the public interest without prior li-
censing or other invasion of constitutional liberty."5
A third case reached the same result but opened the door to one form of restraint.
In Cantwell v. Connecticut,5 the ordinance prohibited the solicitation of money or
anything of value for a religious, charitable, or philanthropic cause unless the
secretary of the public welfare council determined "whether such cause is a religious
one or is a bona fide object of charity or philanthropy and conforms to reasonable
standards of efficiency and integrity. . . ,"2 In its application to solicitation for
religious purposes, the ordinance was held to be invalid as a prior restraint. Again,
the opinion of Justice Roberts is not free from ambiguity. But it seems to say that
no form of permit involving any discretion in the issuing officer would be sanc-
tioned. On the other hand, it adds that a person wishing to solicit funds could
" 303 U.S. 444 (1938).
40Id. at 447.
7
Id. at 451.
48 308 U.S. 147 (1939)-
"Id. at 158.
IId. at 164-65.
61 310 U.S. 296 (1940).
" Id. at 301-02.
 LAW AND CONTEMPORARY PROBLEMS

validly be required first "to establish his identity and his authority to act for the
cause which he purports to represent." 53 Justice Roberts seems to be drawing a
distinction between prior restraint involving executive permission and one imposing
legislative conditions-that is, between the first and third types of prior restraint
outlined above.
The Court has never departed from the position taken in the Schneider and
Cantwell cases.54 But it has divided sharply upon the question whether a general
licensing tax upon the solicitation of orders for merchandise could be applied to
persons engaged in selling religious tracts. In Jones v. Opelika and Murdock v.
Pennsylvania,5 5 the Court, by vote of five to four, struck down such taxes as con-
stituting a form of prior restraint. These decisions were reaffirmed in Follett v.
McCormick5" as to an occupational tax upon book agents living in the municipality,
three justices dissenting. The issue in disagreement, however, was not whether a
tax directed at reducing circulation of books or periodicals would constitute an in-
valid prior restraint, but whether a non-discriminatory tax upon all types of solicita-
tion could be considered a restraint upon free expression.
Thus, in the distribution and canvassing cases the doctrine of prior restraint has
remained substantially intact.
Assembly in Public Places
The series of cases dealing with prior restraint upon the right to assemble in
public places has roused the sharpest controversy over the scope of the prior re-
straint doctrine. The decisions have related to three aspects of public assembly-
parades, meetings on public streets or in public parks, and the use of sound trucks.
In this area of communication, a number of special factors must be considered.
In the first place, the communication takes place upon public property. It has been
argued that this fact gives the government wider scope in its choice of controls.
Secondly, the facilities available-streets, parks, public buildings, and the like-are
used for other purposes and, in any event, are limited in capacity. Hence, it is urged
there is need for "traffic" regulation which can only be effectively secured by a permit
system. Thirdly, the expression takes the form of public speech rather than the
written word or private communication. From this, it is said, there arises a more
difficult problem of maintaining public order and, therefore, greater need for pre-
ventive control. Finally, other fators may enter the picture, such as the effect upon
others, including those who may not wish to listen, of loud noises from sound
amplifiers.
In the case of parades, the "traffic" problem is clearly paramount. Obviously,
" Id. at 306.
"Largent v. Texas, 318 U.S. 418 (943); Thomas v. Collins, 323 U.S. 5x6 (945), discussed inlra;
Marsh v. Alabama, 326 U.S. 501 (1946). See also Martin v. Struthers, 319 U.S. 141 (1943), invalidating
a subsequent punishment ordinance. The Court's refusal to extend the doctrine to commercial solicitation
was given expression in Breard v. Alexandria, 341 U. S. 622 (1951), Justices Black and Douglas dissent-
ing on First Amendment grounds. Id. at 649.
C.319 U.S. 103, 105 (1943). so321 U.S. 573 (1944).
 THE DocnuNE oF PRIoR RESTRAINT 665
advance preparations must be made and the right to use the streets for such pur-
poses strictly limited. The Supreme Court, indeed, did not hesitate, in Cox v. New
Hampshire,57 to uphold a system which required advance permission to stage a
parade. The law was interpreted as giving authority to the licensing official to
condition approval only upon the finding that "the convenience of the public in
the use of the streets would not thereby be unduly disturbed, upon such condi-
tions or changes in time, place and manner as would avoid disturbance."5' A
"reasonable" license fee was also found acceptable. The Court was unanimous.
More difficult issues have arisen in cases where permits are required for meetings.
The first case, Hague v. CIO,59 involved a Jersey City ordinance, administered by
Mayor Hague, which required a permit for such a public assembly but authorized
the Director of Public Safety to refuse it only "for the purpose of preventing riots,
disturbances or disorderly assemblage."6 The majority of five justices could not
agree upon all aspects of the case, but seemed to be united upon the prior restraint
issues. They held that the fact the meetings were to be conducted on public prop-
erty did not authorize the city to refuse permission or subject them to unlimited
control, and further, that the conditions designed to secure public order could not
be enforced through a system of advance permission. Two justices dissented, and
two did not participate.
In Thomas v. Collinsel the Court went further and held that even a simple
registration requirement, involving no executive discretion, could not be imposed
as a condition to addressing a meeting for the purpose of encouraging labor organi-
zation and soliciting members. The prevailing opinion of Justice Rutledge, to
which only Justices Black, Douglas, and Murphy agreed, indicated that such registra-
tion could be imposed upon the activity of soliciting members or funds, but could
not be applied where speech was the predominant element. The opinion did not
distinguish between prior restraint and subsequent punishment. Justice Jackson
concurred separately, and Chief Justice Stone and Justices Roberts, Reed, and Frank-
furter dissented.
Subsequent cases have left the prevailing situation cloudy. In Niemotko v.
Maryland,62 the municipality, by custom, required a permit before a meeting could
be held in the city parks. No standards for granting or denying the permit were
in effect. The Court unanimously held the system invalid as a prior restraint. But
Chief Justice Vinson, writing the opinion, based the decision upon the "absence
of narrowly drawn, reasonable, and definite standards for the officials to follow."6 3
He failed to make clear what kind of standards would have been sustained, whether
only "traffic" control or broader conditions.
Kunz v. New York 4 concerned a licensing system which required approval
L7312 U.S. 569 (1941)- rsd. at 576.
&D307 U.s. 496 (1939). Id. at 502.
41323 U.S. 516 (1945). The law was not confined 3to meetings in public places.
02340 U.S. 268 (195x). 1d.
I at 272.
04 340 U.S. 290 (95).
 LAW AND CONTEMPORARY PROBLEMS

from a city official to hold a religious meeting on public property. The ordinance
contained no standards, but the permit was denied upon the ground that, in
previous meetings, the speaker had ridiculed and denounced other religious beliefs.
The Court held the law invalid as a prior restraint, again stressing that there were
"no appropriate standards" to guide administrative action. Justice Jackson dissented
in an opinion which contains the only serious effort of any member of the Court to
appraise the doctrine of prior restraint.0 5 His conclusion was that the doctrine
should not be applied in the field of street meetings. Justice Frankfurter, concurring
in both the Niemotko and Kunz cases, made clear his position that existence of
prior restraint was only one factor to be considered in First Amendment cases and
not one that was decisive in itself.
Poulos v. New Hampshire,7 the most recent of the decisions, failed to clarify
the situation. Here, the statute imposing a license for public, open-air meetings was
interpreted by the state court to require "uniform, non-discriminatory and con-
sistent administration in the granting of licenses."6" The speaker was convicted for
holding a meeting without a license after one had been improperly refused him.
Justice Reed, writing for the majority, construed the statute as a "ministerial, police
routine for adjusting the rights of citizens" and leaving to licensing officials "no
discretion as to granting permits, no power to discriminate, no control over speech." 9
Upon this dubious interpretation, he held that no prior restraint was involved and
sustained the statute. He then went on to affirm the conviction on the ground
that the speaker should have exhausted his state remedies for the wrongful refusal
to issue the license. Both aspects of the decision, while not repudiating the doctrine
of prior restraint in principle, seriously qualify it in practice.
Justice Frankfurter concurred in the Poulos decision without passing on the
prior restraint issue.7° Justices Black and Douglas dissented on both issues. They
read the statute as imposing an invalid prior restraint and, apart from that, would
have held the speaker immune from punishment when a permit had been unlaw-
fully refused.7 '
Finally, the sound truck cases should be briefly mentioned. In the first, Saia v.
New York, 72 the municipal ordinance forbade the use of sound amplifiers except by
permission of the Chief of Police. A majority of five justices-Vinson, Black,
Douglas, Murphy, and Rudedge-held the ordinance invalid as a prior restraint,
noting that it contained no standards and was not "narrowly drawn to regulate the
hours or places of use of loudspeakers, or the volume of sound.""3 The implication
was that a system of prior restraint limited to "traffic" regulation and the control
of sound would be upheld. Justices Reed, Frankfurter, Jackson, and Burton dis-
sented.
But a few months later, in Kovacs v. Cooper,74 the Court dealt with another
" Id. at 295. 00Id.
0
at 273. 67345 U.S. 395 (1953).
681d. at 402. 70
Id. at 403, 404. d. at 414.
71Id. at 421, 422. 72 334 U.S. 558 (1948). 7'Id. at 56o.
74 336 U.S. 77 (1949).
 TBE DocnuiNE oF PRIOR RESTRAINT 667

ordinance which made it unlawful to operate on the city streets a "sound amplifier
• . . or any instrument of any kind or character which emits therefrom loud and
raucous noises." 75 No permit system was involved; the ordinance was enforceable
solely by subsequent punishment. Chief Justice Vinson joined the dissenters in the
Saia case to uphold the ordinance. Interestingly enough, Justice Reed, writing the
prevailing opinion, distinguished the Saia case on the sole ground that the ordinance
there involved a system of prior restraint, whereas the Kovacs ordinance estab-
lished a system of subsequent punishment. It appears doubtful, however, that
the decision turned upon that distinction.
The net result of the public assembly cases has been to strike down prior restraint
in every case where it has been found to exist, except where it has been based upon
"traffic" control. But the majority of the Court has probably not committed itself
to such a strict application of the prior restraint doctrine. The language of some of
its opinions indicates that it might allow systems of prior restraint to include con-
ditions other than "traffic" control, provided the standards are clearly and precisely
set forth. And its general attitude toward prior restraint, as evidenced by its un-
willingness to find it in the Poulos case, indicates a somewhat grudging acquiescence
in the doctrine.
Justice Frankfurter, and previously Justice Jackson, for all practical purposes
abandoned the doctrine in public assembly cases. On the other hand, Justices Black
and Douglas have maintained a firm position in support of the doctrine and its
implications. They have shown no sign of admitting any exceptions other than
the "traffic" controls and precise regulation of the volume of sound in the amplifier
cases.
Motion Pictures
Official censorship systems for motion pictures, requiring advance approval before
a film can be shown, represent what is probably the closest approach in America
today to the English licensing laws of the seventeenth century. The machinery for
control is strikingly similar. Obviously, censorship in this field is prior restraint in
its classical form.
Until 1952, censorship of films could not be challenged on First Amendment
grounds because the Mutual Film case17 had held that motion pictures were mere
entertainment and not subject to the protection of that constitutional provision. The
decision in Burstyn v. Wilson,7 7 however, overruled the Mutual Film case and
brought motion pictures within the scope of the First Amendment. Consequently,
the issue is now squarely posed whether the censorship systems are valid under the
doctrine of prior restraint.
A basic issue-that such censorship does constitute prior restraint-was indeed
1 1d. at 82. Justice Reed went on to make one of the most unqualified pronouncements on prior
restraint in any Court opinion: "When ordinances undertake censorship of speech or religious practices
before permitting their exercise, the Constitution forbids their enforcement." Ibid.
"' Mutual Film Corp. v. Industrial Commission, 236 U.S. 230 (1915).
7T343 U.S. 495 (1952).
 LAW AND CONTEMPORARY PROBLEMS

flatly decided in the Burstyn case. The law under which that case arose authorized
the censor to deny a license to any film, which was "obscene, indecent, immoral, in-
human, sacrilegious, or is of such a character that its exhibition would tend to cor-
rupt morals or incite to crime. . .. ,,7'The particular film-The Miracle-was re-
fused a license on the ground that it was "sacrilegious." Six members of the
Supreme Court joined in an opinion by Justice Clark that the New York law
constituted a system of prior restraint:90
The statute involved here does not seek to punish, as a past offense, speech or writing
falling within the permissible scope of subsequent punishment. On the contrary, New
York requires that permission to communicate ideas be obtained in advance from state
officials who judge the content of the words and pictures sought to be communicated.
This Court recognized many years ago that such a previous restraint is a form of infringe-
ment upon freedom of expression to be especially condemned.
The Court then went on to say that Near v. Minnesota recognized certain ex-
ceptions to the rule of no prior restraint and framed the issue in these terms: "In the
light of the First Amendment's history and of the Near decision, the State has a
heavy burden to demonstrate that the limitation challenged here presents such an
exceptional case.""0 Addressing itself to this question, the Court held that a system
of prior restraint based on the standard of "sacrilegious" did not constitute an ex-
ception and hence was invalid under the general rule. Thus, the Court made clear
that the doctrine of prior restraint was, in general, applicable to the medium of
motion pictures, but that particular standards of restraint might be considered ex-
ceptions.
From this point, the Court has proceeded cautiously. It rejected the standard of
"sacrilegious" on two related grounds: first, the standard was so broad that "the
censor is set adrift upon a boundless sea"; secondly, "the state has no legitimate in-
terest in protecting any or all religions from views distasteful to them which is
sufficient to justify prior restraints upon the expression of those views."'" The
Court expressly refrained from deciding the validity of other standards, including
"whether a state may censor motion pictures under a clearly-drawn statute designed
's2
and applied to prevent the showing of obscene films.
Justices Reed, and Frankfurter and Jackson concurred in the decision, but not on
prior restraint grounds. 8 3 The first considered the film not "of a character that the
First Amendment permits a state to exclude from public view."8 4 The two latter
took the position that the standard was unduly vague and hence did not satisfy due
process requirements.
In three subsequent cases, all decided per curiam without opinion, the Court
has followed the same piece-meal approach."5 The effect of these decisions has been
'9 1d. at 503. 8
• Id. at 497. ld. at 504.
s Id. at 504-05. s Id. at 5o6. s3Id. at 5o6, 507.
R Id. at 507.

" Gelling v. Texas, 343 U.S. 960 (x95p), citing the Burstyn case and Winters v. New York, 333
U.S. 507 (1948), a due process vagueness case (Justice Frankfurter concurred on the basis of the
 Tim DocRINE OF PRIOR RESTRAINT
to hold invalid systems of prior restraint based upon standards of "prejudicial to the
best interests of the people," "immoral," "sexually immoral," and "harmful" (ap-
parently interpreted by the state court as "inciting to crime"). It is not clear that
the Court would sustain any of these terms as standards for subsequent punishment,
so the extent of its commitment to the doctrine of prior restraint remains ambiguous.
But Justices Black and Douglas, in concurring opinions, have made plain their
views that the doctrine of prior restraint should apply to all aspects of motion picture
censorship. Justice Frankfurter continues to base his concurrence on vagueness
grounds.
The major problem remaining, so far as the majority is concerned, is the one
expressly bypassed in the Burstyn case-whether a system of prior restraint may be
based upon the standard of "obscene" or some comparable term. It will be re-
membered that one of the exceptions mentioned in Near v. Minnesota was the case
of "obscene publications." Yet, it hardly seems likely today that the Court would
sanction a censorship of newspapers or books based upon an exception for obscenity.
To sustain such an exception for motion pictures, therefore, would require the Court
to find novel or distinguishing features in that medium of expression.
On balance, it is doubtful that such features exist. It may be urged that motion
pictures reach a larger audience, that they convey a pictorial impression instead of a
verbal one, or that they are largely designed for entertainment purposes. The last
suggestion seems definitely disposed of by the Burstyn decision; and the two former
scarcely seem sufficient to overcome-in fact they tend to reinforce-the considerations
which underlie the doctrine of prior restraint. Furthermore, there is strong ground
for believing that motion pictures are, by virtue of the economics of the industry,
more susceptible to the dangers of prior restraint than most other media of communi-
cation. It may be suggested also that motion pictures, normally exhibited before
vast audiences, are readily controlled by systems of subsequent punishment, so that
no prior restraint is needed to accomplish any lawful regulation."'
In any event, the decision of the Supreme Court on this point will be a crucial
one for the doctrine of prior restraint. Almost certainly it will force the Court to
make a closer analysis of the doctrine and its implications. It may result in a clarifica-
tion of the Court's position which could reaffirm the doctrine as a major consti-
tutional principle or reduce it to virtual impotence.

Winters case only); Superior Films v. Dep't of Education and Commercial Pictures v. Regents, 346 U.S.
587 (954), citing only the Burstyn case.
" For a discussion of motion picture censorship, see Note, supra note 28, 6o YA E L.J. 696; Com-
ment, supra note 28, 42 CALIF. L. REv. 122; Kupferman and O'Brien, Motion Picture Censorship-The
Memphis Blues, 36 CORNELL L.Q. 273 (1951); Comment, Prior Restraints on Motion Pictures, 4
CATHOLIC U.L. REV. x12 (954); Desmond, Censoring the Movies, 29 NOTRE DAME LAW. 27 (1953).
See also American Civil Liberties Union v. Chicago, 3 Ill. 2d 334, 121 N.E.2d 585 (954) (upholding
power of the City of Chicago to censor motion pictures on obscenity grounds), appeal dismissed for want
of a final judgment, 348 U. S. 979 (955); RKO Radio Pictures v. Dep't of Education, 162 Ohio St. 263,
122 N.E.2d 769 (1954) (majority of four declaring Ohio censorship law unconstitutional, but law stilt
valid as six votes are required for a holding of unconstitutionality).
 LAW AND CONTEMPORARY PROBLEMS

V
CONCLUSION

The doctrine of prior restraint, while growing out of historical circumstances,

finds its rationale today in the grievous impact which systems of prior restraint exert
upon freedom of expression. The form and dynamics of such systems tend strongly
towards over-control-towards an excess of order and an insufficiency of liberty. The
doctrine does not require a choice between regulation or no regulation. It simply
forbids a particular method of control which experience has taught tends to create
a potent and unnecessary mechanism of government that can smother free com-
munication. These tendencies in systems of prior restraint are even more dangerous
today in view of the growing pressures for preventive controls over many forms
of expression. Thus, the perils that presently threaten democratic rights in this
country confirm the basic soundness of the rule against prior restraint.
The application of the doctrine to various forms of prior restraint and to various
areas of communication raise some difficult problems. In general, it is clear that
the most serious form is that which entrusts the prevention of communication to an
executive official. Around this type of restraint, the worst evils of the system are
likely to accumulate. There seems to be no reason why the rule against prior re-
straint in this form should not apply in all areas of expression. Such, indeed, has
been the import of the Supreme Court decisions since Near v. Minnesota.
The question is then presented whether it is advisable to recognize any excep-
tions to the general rule as applied to executive restraint. Two exceptions seem
clearly indicated. One is the exception for prior restraint necessary to military opera-
tions in time of war. So long as this exception is confined to periods of actual hostili-
ties, it is perhaps not a matter of great significance. In the next war, the issue of prior
restraint is likely to be overshadowed by other problems. The exception could prove
dangerous, however, if it is applied to defensive or preparatory operations. In this
application, it should be strictly limited.
A second exception consists in those "traffic" controls necessary to regulate com-
munication where facilities are limited. Such controls involve, primarily or en-
tirely, matters of time and place. To be effective, they usually must be applied in
advance. Furthermore, these controls can be administered through precise and
almost automatic rules which leave little or no discretion to an executive official. In
view of these considerations, an exception based upon "traffic" controls would
normally seem justified.
Beyond this, there may be occasional controls that can safely be handled through
prior restraint. One such may be the volume of sound in the use of amplifying
equipment. Such a control likewise can be expressed in definite, or even quantitative,
terms. Yet, even here, it is doubtful that necessary limitations could not be achieved
through a system of subsequent punishment.
In any event, exceptions beyond these limited categories are dangerous and tend
 THE DoCINE OF PRIOR RESTRAINT

to nullify the doctrine. Standards relating to public order in public assembly cases
and standards based upon such concepts as obscenity, for instance, cannot be re-
duced to precise form. They inevitably leave in the hands of the administrator a
wide and largely uncontrolled discretion. And once such exceptions are admitted,
they give the executive official a jurisdiction and status to inspect and limit com-
munication. Thus, they introduce all the evils the rule against prior restraint was
intended to eliminate. As to those that have thus far been proposed, it is hard to
see why the problems for which a remedy is sought cannot also be handled effectively
by methods of subsequent punishment.
As to the judicial form of prior restraint, similar considerations apply. Where
the injunction or other judicial process prohibits only certain kinds of communica-
tion, as in Near v. Minnesota, the judicial officer tends to be in the same position
as an executive officer. Where the injunction prohibits all communication, the
element of individual control is eliminated or minimized, but the restraint includes
lawful as well as unlawful communication. In either case, the restraint is pervasive
and should normally fall within the rule.
In the legislative form of prior restraint, somewhat different factors pertain. Here
no individual discretion is involved. The control may operate to prevent expression,
but most of the abuses arising out of intimate government inspection and super-
vision of communication are absent. Under such circumstances, the strict rule of
prior restraint should not apply. Hence, the validity under the First Amendment
turns upon the same sort of considerations as in subsequent punishment cases, with
the element of preventive control operating as an additional, but not conclusive,
factor. The same considerations apply to those situations in the fourth category,
where elements of prior restraint exist, but the restraint is indirect or secondary.
Up to the present time, in their results at least, the decisions of the Supreme Court
are consistent with the foregoing principles. But the majority of the Court has
never formulated them in a comprehensive way and occasionally, as in the Poulos
case, has not reached, in practice, results consonant with the theory. Justice Frank-
furter has rejected the theory in important areas. Only Justices Black and Douglas
have fully adopted the doctrine in principle and practice.
Unless the doctrine of prior restraint is given a more rational and comprehensive
form, it is likely to be whittled away in future decisions. It is to be hoped that in
the cases likely to be presented soon, the Court will resolve the present ambiguity and
wholeheartedly accept the doctrine.