The Neglected History of the Prior Restraint Doctrine: Rediscovering the Link between the First Amendment and the Separation of Powers

Abstract:     
The prior restraint doctrine, once so fundamental to Constitutional Jurisprudence, has lost much of its effectiveness over the years. Nevertheless, prior restraint doctrine is crucial to preserving the line between protected and unprotected speech. One of the fundamental problems that contribute to the current ineffectiveness of prior restraint doctrine is that there exists no comprehensive definition of "prior restraint". This article chronicles the historical roots of prior restraint in order to arrive at a generally accepted legal definition. Through the course of this historical journey, the article yields a heretofore unexplored aspect of prior restraint doctrine, namely that prior restraint embodies principles of both free speech and separation of powers.

The history of prior restraint begins in the Fifteenth Century, not coincidentally around the time of invention of the Gutenberg printing press. This article traces censorship laws in England from their inception. It chronicles the growing dissent against prior restraint, beginning with the Seventeenth Century scholars who spoke out against prior restrain. The article then discusses the movement for juror autonomy that grew out of the Eighteenth Century and the laws of the Nineteenth Century enjoining prior restraint on libelous statements. The article traces the transition of prior restraint doctrine to the American Colonies, through the revolution, the cases leading up to Near v. Minnesota in 1931, and to its current permutations. Using this extensive historical background, the article fully and comprehensively defines prior restraint and connects it to the fundamental doctrine of separation of powers.

Number of Pages in PDF File: 49

Keywords: prior restraint doctrine, separation of powers, free speech, free expression, First Amendment, Sedition Act

JEL Classification: K1

Accepted Paper Series