Where Experience Counts And Results Matter

First Amendment Prior Restraint of Speech


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.” And, importantly, a claim involving a prior restraint of speech comes to court with a heavy presumption against the constitutional validity of the restraint.

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.’ 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 restricting what speech is prohibited; and

3) assuring that the restriction of the speech is for the public good. 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. 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. 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 community.” 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.