FIRST AMENDMENT PRIOR RESTRAINT OF SPEECH:
WHEN A GOVERNMENT ENTITY FORBIDS A CITIZEN TO
TALK ABOUT A CERTAIN ISSUE
By Teresa Luna
When a government forbids a person from speaking about a certain issue and it
does so in advance of the speech, the government entity has probably violated that
person’s First Amendment rights.
Such a “prior restraint of speech” is the “least
tolerable infringement on First Amendment rights.”1 And, importantly, a claim involving
a prior restraint of speech comes to court with a heavy presumption against the
constitutional validity of the restraint.2
To be clear, however, there are times when a government might be justified in
issuing such an order. One of the main tools in determining whether a prior restraint of
speech is constitutional is whether it is content-neutral. Generally, a government order
not to speak about a certain subject is unconstitutional because it is not content-neutral.
The government has told the person what content he or she may not speak about. On
the flip side, a constitutional, content-neutral order not to speak might be something like
an order for all persons sitting in the audience section of a courtroom to remain silent
during court proceedings. This is content-neutral as the judge has issued an order that
has nothing to do with “what” someone might say – it just simply requires that if you are
going to sit and watch a court proceeding that you may not talk.
There are also times when speech that is not content-neutral may be restricted.
"The settled rule is that a system of prior restraint 'avoids constitutional infirmity only if it
takes place under procedural safeguards designed to obviate the dangers of a
censorship system.'"
3
In other words, the government’s actions must have safeguards
such as: 1) restricting the speech for a specific and brief period of time; 2) narrowly
1
Error! Main Document Only.Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558; 96 S.Ct. 2791 (1976).
Error! Main Document Only.Southeastern Promotions, LTD v. Conrad, 420 U.S. 546, 558; 95 S.Ct. 1239 (1975)
(quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558;
96 S.Ct. 2791 (1976).
3
Error! Main Document Only.Southeastern Promotions, LTD, 420 U.S. 546 at 559 (quoting Freedman v. Maryland,
380 U.S. 51, 58 (1965)).
2
restricting what speech is prohibited; and 3) assuring that the restriction of the speech
is for the public good.4 A good example of this might be a judge ordering a jury not to
speak about the evidence from a trial to anyone outside of the jury until the trial is over.
This is narrowly restricted, it lasts only a brief time, and it is for the public good.
Generally, First Amendment prior restraints of speech are found in government
workplaces. Examples from cases I have handled include: 1) ordering an employee
from assisting another employee with her court case against the government;
2)
ordering a school employee not to report instances of child abuse to government
officials; 3) ordering a school employee not to answer parents’ questions about lack of
special education services; and 4) ordering a parent not to register complaints about the
school’s failure to provide required services to that parent’s child.
There are two types of prior restraints of speech:
the classic type and the type
that requires prior approval by the government before the person can speak. 5
The
classic type is when the government official forbids the speech before it occurs and is,
in effect, a gag order.
The second type, which requires prior approval of the
government official before the citizen can speak about the issue, is still a prior restraint if
the conditions listed above are not met.
Even if the prior restraint of speech is later lifted and turned out to be of only a
temporary nature, this does not relax the presumption that it was unconstitutional. 6 The
law is clear that the loss of our freedom of speech even for a short period of time is still
an irreparable injury.
Another issue that arises in employment prior restraint of speech cases under the
First Amendment is whether the speech involves matters of public concern.
“A matter
of public concern generally involves a matter of political, social, or other concern to the
4
Error! Main Document Only.Southeastern Promotions, LTD, 420 U.S. 546 at 559 (quoting Freedman v. Maryland,
380 U.S. 51, 58 (1965)); Error! Main Document Only.Allied Artists Pictures Corp. v. Alford, 410 F.Supp. 1348, 1354
(W.D. Tenn. 1976); Error! Main Document Only. Carroll v. President and Commissioners of Princess Anne, 393 U.S.
175, 183; 89 S.Ct. 347 (1968).
5
See Smith v. Daily Mail Pub. Co., 443 U.S. 97, 101 (1979); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 708
(1931).
6
In re King World Prod., Inc., 898 F.2d 56, 60 (6th Cir. 1990); Elrod v. Burns, 427 U.S. 347, 373-74 (1976); WXYZ, Inc.
v. Hand, 658 F. 2d 420, 426 n. 8 (6th Cir. 1981).
community.”7 When these employees speak out as citizens about matters that should
concern the public, they must face only those speech restrictions necessary for their
employer to operate efficiently.
The public’s interest in hearing the information the
public employee is revealing must be weighed against how much disruption that speech
would cause in the workplace. For example, the importance of an employee’s speech
about fraud in a government office would far outweigh minor gossip that might occur in
the workplace as a result.
But, the importance of an employee’s speech about her
unhappiness with the sick leave policy would be outweighed by the commotion it
caused among the employees in her office. One thing courts have been clear about,
however, is that speech that exposes government corruption is exactly the type that
demands strong First Amendment protection.8
7
Jackson v. City of Columbus, 194 F.3d 737, 746 (6th Cir. 1999).
See See v. City of Elyria, 502 F.3d 484, 493 (6th Cir 2007); Rich v. Gobble, 2009 U.S. Dist. LEXIS 24641 at *37 (E.D.
Tenn. 2009).
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