Blog: Kennedy invokes prior restraint

Friday, January 22, 2010

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Justice Anthony Kennedy invoked one of the most time-honored concepts in First Amendment law in his opinion yesterday in Citizens United v. FEC, a ruling that transforms the area of campaign finance reform. That concept is prior restraint.

A prior restraint on speech occurs if the government imposes pre-publication hurdles and reviews before allowing speech to enter the marketplace of ideas. If a law, regulation, policy or scheme can be shown to be a prior restraint, then there is a strong presumption against it.

That’s because, according to many legal experts, antagonism to prior restraints on speech and press was the initial, central concern of the Founding Fathers when they ratified the first 45 words of the Bill of Rights — the First Amendment. The Founders did not want the government to be able to prevent speech by subjecting individuals to licensing laws and such. If speech proves harmful once uttered, they reasoned, then individuals can be punished for it, as in libel cases.

A classic type of prior restraint was the old English law that required printers to obtain licenses from the Crown. John Milton railed against such licensing in his famous work Areopagitica in 1644.

Justice Oliver Wendell Holmes initially subscribed to the somewhat limited notion that the First Amendment protects against prior restraints, not subsequent punishments. In Patterson v. Colorado (1907), Holmes wrote: “In the first place, the main purpose of such constitutional provisions is to prevent all such previous restraints upon publications as had been practised by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.”

In more modern times prior restraint has remained a central concern. Chief Justice Warren Burger referred to a gag order preventing the press from reporting on a criminal trial as prior restraint. Burger branded such restraints as “the most serious and least tolerable infringements” on First Amendment freedoms in his opinion in Nebraska Press Association v. Stuart (1976).

Laws that regulate who may obtain a permit to demonstrate or conduct a parade also may constitute a prior restraint on expression.

Which brings us to Kennedy and his majority opinion in Citizens United. Assailing the regulatory scheme imposed on corporations wishing to comply with federal campaign-finance laws, Kennedy wrote: “This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the [Federal Election Commission] before the speech takes place,” he began.

However, he noted that the complexity of the regulations and the deference shown to the FEC’s administrative rules for campaign finance mean that for all practical purposes a speaker must tread very lightly for fear of FEC enforcement coming crashing down on him.

“These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th and 17th century England, laws and government practices of the sort that the First Amendment was drawn to prohibit.”

Kennedy’s opinion shows that the venerated concept of prior restraint still carries force in First Amendment jurisprudence.

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