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How and why the Constitution does not allow prior restraint
Research & Learn
FIRE’s position is that colleges and universities should never seek editorial control over student newspapers.
The following selection is excerpted from ݮƵAPP’s Guide to Free Speech on Campus.
“Prior restraint” refers to the practice of prohibiting publications or speech before they are published or communicated (restraining individuals prior to their speaking). This is distinct from the more common type of censorship: punishing speech after it has been uttered.
Prior restraint is one of the most ancient, primitive, and effective forms of censorship. The traditional example of a “prior restraint” is the print licensing system the Crown of England relied upon in the sixteenth and seventeenth centuries, against which John Milton, quoted in our Preface, wrote so eloquently. Under the licensing system, books were reviewed for content before they could be printed. If the Crown disagreed with the content or tone, it could prevent the book from going into print. Even before the United States became a country, English legal minds recognized that prior restraint was the enemy of a free people.
American courts have continued this proper fear of and hostility to such a remarkable power of censorship, repeatedly holding that prior restraint on speech and publication is almost never permissible. In typical censorship, an individual utters the prohibited words, his or her fellow citizens hear or read them, and the individual then faces governmental action for such speech. However, where there is prior restraint, the general public never learns what it is that the government does not want a fellow citizen to say and the public to hear. Prior restraint is a profoundly serious threat to liberty.
Some narrow exceptions exist that allow the government to screen materials before they are released to determine if they are obscene. However, even these procedures need to be swift, governed by explicit standards, and viewpoint neutral.
Unconstitutional prior restraint can take many forms, such as requiring that students get prior approval of the content or viewpoint of campus demonstrations; denying the use of a public theater for showing a controversial production; imposing broad restrictions on public speaking and reporting; banning leafleting; or enacting a rule that allows local officials unfettered discretion to decide who is allowed to organize a parade. The most typical instance where prior restraint occurs is when a state body, such as a public college or university, requires that speech of any kind must receive prior approval.
FIRE's Guide to Free Speech on Campus
ݮƵAPP has distributed more than 138,000 print and online copies of its Guide to Free Speech on Campus to equip students with the rhetorical and legal tools to stand up for their rights.
The legal presumptions against prior restraint are extremely strong. For example, in New York Times v. United States (1971) the Supreme Court ruled against suppressing the publication of the “Pentagon Papers,” classified Department of Defense documents relating to the United States’ involvement in Vietnam, despite the fact that some justices recognized that their release might even harm national security. In order to qualify for a prior restraint court order, material about to be published must have a clear, immediate, and devastating impact on national security. The classic example of permitted prior restraint would be a ban before publication of the schedule or route of troop ships in wartime (such publication likely would be ordered postponed until the ships have arrived). Because the presumptions against prior restraint are so powerful, public university students should feel quite confident that their university is breaking the law if it tries to limit their speech through the use of a prior restraint.
Some narrow exceptions exist that allow the government to screen materials before they are released to determine if they are obscene. However, even these procedures need to be swift, governed by explicit standards, and viewpoint neutral. In the rare cases where some campus prescreening is allowed (placing a flier on a campus bulletin board reserved only for events approved by the student government, for example) the criteria must likewise be explicit, standardized, and unrelated to the viewpoint expressed.
The Student Press and Prior Restraint
Some public universities have policies that require all student newspapers be submitted to an advisor before they are published. Federal (and state) court decisions strongly suggest that this practice is unconstitutional. Furthermore, if these policies give any member of the administration of a public university the right to edit content on the basis of viewpoint — either explicitly or in practice — then such policies will almost certainly be struck down in a court of law.
Censors may attempt to justify prepublication review by citing Hazelwood School District v. Kuhlmeier (1988), which limited the rights of high school journalism students who printed a school newspaper as part of a journalism class. The Court ruled that, under those circumstances, the school could regulate so-called “school-sponsored” speech (the administration acting, in effect, as the publisher) as long as the regulation was related to “reasonable pedagogical concerns.” Thus, the school skirts the prior restraint doctrine through the fiction that the high school itself is the editor of the school newspaper and therefore enjoys editorial control.
Universities that do not allow a free student press deprive the campus community of an important component of the open discussion, debate, and expression that universities exist to foster.
Unfortunately, one court has applied Hazelwood to a university newspaper. In Hosty v. Carter (2005), the U.S. Court of Appeals for the Seventh Circuit found that Patricia Carter, Dean of Student Affairs and Services at Governors State University, had not violated the First Amendment rights of student editors of the student newspaper by requiring that the paper must be reviewed by school administrators prior to publication. The court’s analysis made clear that it believed that Hazelwood was equally applicable to colleges as it was to high schools. Despite the clear conflict with cases decided before Hazelwood that already had made it quite clear that that prepublication review is impermissible, the Supreme Court declined to review the Seventh Circuit’s decision.
Thankfully, the effect of Seventh Circuit’s almost certainly erroneous, anomalous ruling in Hosty has been limited. Indeed, in response to Hosty, several states have passed legislation protecting collegiate student journalists and expressly forbidding administrative prior review of the type at issue in Hosty. For example, Illinois’ College Campus Press Act was passed in 2007 and effectively renders the Seventh Circuit’s decision moot on all public campuses in the state.
FIRE’s position is that colleges and universities should never seek editorial control over student newspapers and that the application of Hazelwood to colleges is both legally incorrect and morally wrong. Even at private universities, if a school’s newspaper is run by students, university officials should neither want nor use the power to review each issue before it goes to print. Student media plays an important role in educating and bringing issues to the campus community. Universities that do not allow a free student press deprive the campus community of an important component of the open discussion, debate, and expression that universities exist to foster.
To learn more about your rights, explore ݮƵAPP’s Guide to Free Speech on Campus.