The Supreme Court's opinion in Near v. Minnesota was both a major step on the road to free expression and a missed opportunity. It represented the first time a law was struck down as violating the First Amendment's guarantee of free expression. Moreover, it placed the concept of "prior restraint" at the forefront of the theory of free expression. As one scholar noted: "Since the 1931 release of the Supreme Court's opinion in Near v. Minnesota, the doctrine of prior restraint has been an essential element of first amendment jurisprudence."
Unfortunately, the Court neither defined prior restraint, nor explained precisely why injunctions fit within a definition of prior restraint. Equally regrettable, the Court listed, without explanation, four exceptions to the prior restraint doctrine, a list that was both over- and under-inclusive. ...
In this Article, I will attempt to complete the unfinished task of Near-the creation of a comprehensive definition of prior restraint and a reasoned explanation of the exceptions. The heart of this new definition comes from the realization that, at its core, the doctrine of prior restraint embodies not only principles of free speech, but of separation of powers as well. While the dangers from a prior restraint are the same regardless of the branch from which it emanates, the method for preventing this harm will be different by necessity. Thus, when regulating speech, each branch of government is restricted in terms of timing in regard both to the communication itself and to the actions of the other branches of government.
Separation of powers has always been a critical, if indirect, mechanism for preserving individual liberty. As Justice Kennedy remarked, "Liberty is always at stake when one or more branches seek to transgress the separation of powers." Nowhere is that more true than in the doctrine of prior restraint.
The inclusion of principles of separation of powers permits, for the first time, the creation of a workable definition of prior restraint. Once this definition has been given, two facts become clear. First, the doctrine of priorrestraint can be easily and consistently applied to a wide range of speech-related issues. Second, preservation of the prior restraint doctrine is critically important for the protection of free expression.
Meyerson, Michael I.
"Rewriting Near v. Minnesota: Creating a Complete Definition of Prior Restraint,"
Mercer Law Review: Vol. 52:
3, Article 12.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol52/iss3/12