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Friday, November 19, 2021

The puzzle of prior restraint

"Prior restraint" is trending today following a New York trial court's show-cause order to The New York Times. The court ordered the paper to show cause why it should not be required to remove and cease publishing certain document from Project Veritas (which allegedly contain attorney-client-privileged material), not publish such documents in the future, and cease efforts to obtain further documents. And it orderied The Times to cease those activities pending a hearing on the OSC.

The "prior restraint doctrine" distinguishes "prior restraint" from "post-publication punishment." A prior restraint is a law or order that prohibits speech before it occurs and requires a speaker to obtain government permission before speaking--e.g., a licensing or permitting system or, as here, an injunction barring future speech. A post-publication punishment identifies some speech as unlawful, but functions through through the mechanism of sanction or punishment after the speech has occurred--e.g., criminal penalties for burning a flag or fines for displaying an off-premises sign. The distinction originates in the Blackstonian conception of free speech (which, depending on who you believe, may have been incorporated as the original understanding of the First Amendment), which held that prior restraints are impermissible but that the government has unfettered power to punish the speech after the fact. The distinction survives under the modern First Amendment further along the spectrum--government generally cannot punish speech after the fact and it really generally cannot impose prior restraints.

While a cornerstone of modern free expression, the distinction is somewhat artificial. From the speaker's standpoint, there is no distinction between an agency saying "you must get permission before burning a flag and we hereby deny you permission" and a statute saying "you will go to jail if you burn a flag"--the result is that I am not allowed to burn a flag. From the speaker's standpoint, a law threatening jail time for engaging in speech "restrains" my speech "prior" to it occurring--I will not speak if I know I will be sanctioned. And all restrictions on speech, however characterized, are enforced through post-speech punishment. If I fail to obtain permission (whether because I do not bother trying or because I am denied permission) and I speak anyway, the sanction (jail, fines, whatever) will not come until after I speak without a license. If I am enjoined and I speak anyway, the sanction will be contempt after I speak, enforced through jail, fines, and other fun.

The prior-restraint doctrine purports to limit unfettered discretion in licensing. But no one has more unfettered discretion than a police officer deciding whether to stop me from speaking or waving my sign in the moment or a prosecutor deciding whether to prosecute me. That is, a system requiring a permit (e.g., to hold a protest) cannot grant the officials running the system unfettered, before considering the protected nature of the speech for which the permit was sought; the First Amendment does not care about police having unfettered discretion once the person is holding a protest and the challenge to the arrest or prosecution would consider the protected nature of the speech involved.

Moreover, if a judge ultimately must decide whether some speech is protected and publishable, it strange to distinguish between the judge making that decision pre-speech and post-speech.* Consider the Times/Project Veritas dispute. The case turns on whether The Times obtained PV's documents lawfully (which appears to be the case) and whether stopping a third-party from disclosing attorney-client-protected material is a need of the highest order (which probably is not the case, unless the privacy interests in attorney-client communications somehow are more important than the privacy interests of a sexual-assault victim). There is no obvious distinction between the court deciding that now and stopping the speech and further search for documents and the court deciding that later and imposing damages for the speech and the search for documents. In theory the former is worse because we lose the benefit of the speech getting "out there" and contributing to the market in the interim. But imagine that The Times had conspired with the leaker to obtain the documents--it would refrain from publishing knowing that the court will impose damages or another sanction on it at the end of the day. Or take a defamation case. Is it worse for a court to prohibit X from publishing defamatory statements about A than imposing damages for X's defamatory statements after he published them?**

[*] Or, to add a third layer--pre-speech in an offensive action by the newspaper challenging the permitting law.

[**] Beyond the point of this post, but there may be a distinction between an interim or preliminary judicial determination and a final judicial determination following trial. That is, a court can issue a preliminary injunction, stopping speech off a preliminary or initial review of the merits; a court imposes post-publication punishment following a full hearing on the merits. Eugene Volokh has urged this line with respect to defamation injunctions--a court can prohibit X from speaking about A going forward, but only after a full proceeding determining that what X wants to say is defamatory.

There is one possible distinction, at least with injunctions. If I am denied a permit, I can speak anyway and in the subsequent enforcement proceeding I can challenge the permitting system and the decision to deny the permit, in addition to arguing that my speech was protected. If I am enjoined, the collateral-bar rule holds that I cannot speak or publish in violation of the injunction and challenge the contempt order by arguing that the injunction is invalid or should not have been entered; I must comply with the injunction and appeal it.

Posted by Howard Wasserman on November 19, 2021 at 09:22 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink

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