The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Freedom of Speech and Press

Prior Restraint

One important concept to understand about the Freedom of the Press is the concept of prior restraint. According to Sir William Blackstone, an influential English commentator of the 18th century, the liberty of the press does not prevent the enforcement of laws against “blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels.” But if this broad category of writings could legitimately be outlawed, then just what does the liberty of the press protect? “Properly understood,” said Blackstone, this liberty “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” In other words, Blackstone is arguing that offensive material should not be censored prior to its publication, but that laws enforced after publication of the work would provide the discouragement of such publications in the future.

Blackstone was undoubtedly a major influence on the legal thinking of the American Founders, and many of their best legal minds likewise viewed the Speech and Press Clauses as protecting against only “prior restraint.” In the Pennsylvania Ratifying Convention of 1787, James Wilson defined the meaning of the liberty of the press in similar terms: “that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual.”