Prior Restraint
2023: A Year in Prior Restraints
Seth SternFreedom of the Press Foundation’s U.S. Press Freedom Tracker documented 11 prior restraints against journalists in 2023 (plus an 12th issued in January 2024) — the highest number since it began tracking them in 2017.
Federal Court Blocks Texas’ Book Ban
Michael J. LambertJudge Albright issued an Order preliminarily enjoining HB 900, holding that it violated the First Amendment because it compels speech, is unconstitutionally vague, and is an impermissible prior restraint.
Inadvertent Disclosure of FOIA-Exempt Material Cannot Justify Prior Restraint
Matthew Thornton, Matthew Cate, and Chuck TobinThe court—which months earlier had ruled that the record fell within the FOIA’s privacy exemption—held that the agency’s attempt to claw back the document and prohibit its dissemination would constitute a prior restraint in violation of the First Amendment.
Ohio Appellate Court Upholds Post-Trial Libel Injunction
John C. GreinerAn Ohio court recently demonstrated how a court may enjoin a party from libeling someone, without violating the Constitution.
St. Louis Post-Dispatch Fights Prior Restraint on Publication of Murder Defendant’s Mental Health Report
Jean ManekeJoseph E. Martineau, attorney with Lewis Rice LLC who is defending the Post-Dispatch, argued that there is a long history of courts rejecting any effort to restrain publication under such circumstances, given that the pleading was lawfully obtained by the reporter in its quick response to the Court.
Maryland “Broadcast Ban” Is Unconstitutional as Applied to NPR Podcast
Leslie Minora, Max Mishkin, and Charles D. TobinA Maryland federal judge has ruled that a state law banning the broadcast of lawfully-obtained recordings of criminal trials violates the First Amendment as applied to a National Public Radio podcast.
The Pentagon Papers 50 Years Later
George FreemanFifty years has not definitively resolved the impact and import of the Pentagon Papers case. Was it a monumental victory for the press? Was it a loss, since for the first time the courts imposed a prior restraint on a newspaper? Or was it an inconsequential one-off, since it hasn’t been a precedent for many…
PA High Court Upholds Gag Order Forbidding Mother from Speaking Her Own Name
Ross UfbergThe Pennsylvania Supreme Court, in the face of a powerful dissent, upheld a stunningly capacious gag order last December.
Contempt and Suppression Down Under
Peter BartlettWhen the third most powerful man in the Vatican was convicted of molesting two choirboys by an Australian jury in December 2018, media companies scrambled worldwide. Yet in Australia, there was media silence on specific details of the case.
Anti-Libel Injunctions and the Criminal Libel Connection: A Conversation with Professor Eugene Volokh
Eugene Volokh explains his theory that post-trial libel injunctions are constitutional.