How is a Criminal Law not a Prior Restraint?

The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.

Alexander v. United States.

A criminal statute restricting speech based on its content also forbids certain communications in advance of the time that such communications are to occur.

So what is the difference?

A criminal statute is made by the legislature, rather than the executive or judicial branch. That’s a distinction, but is it a difference?

Can the State constitutionally do with legislation something that it cannot, consonant with the First Amendment, do administratively? It seems unlikely—state action is state action.

The other distinction between prior restraints and criminal laws is that the former are generally aimed at particular speakers, and the latter are not. I can see an argument for that distinction making prior restraints more constitutionally suspect than content-based restrictions (because they chill speech more directly), and an argument for that distinction making criminal statutes more suspect than content-based restrictions (because they chill more people’s speech).

I’m not sure how that shakes out, but I have a theory that the nearest civil equivalent to a content-based criminal statute is a prior restraint.

4 Comments

  1. This seems like a particularly silly distinction when you consider that the First Amendment says “Congress shall make no law.”

    What’s the sense in lessening the burden on the one branch singled out?

    1. Here’s a distinction, from a Fifth Circuit case:

      “While the unconstitutionality of a statute may be raised as a defense to prosecution for its violation, a litigant who disobeys an injunction is precluded from raising its constitutional invalidity as a defense in contempt proceedings.”

      It’s true, but the litigant who is subject to an injunction knows it before the contempt proceedings. Someone who might be prosecuted for violating a content-based restriction seldom gets to challenge its constitutionality before he is accused of violating it.

      1. Also, nobody throws a “litigant’s” ass in jail and makes them pay a bond before a court decides likely success on the merits. Every criminal defendant who pays a bond is subject to a variety of injunctions.

        Sorry, I’m sure I’m preaching to the choir.

  2. You could plausibly argue that law provides a basis for prior restraint, but does not itself provide the restraint. That would seem to follow the same model as the Flag Code, which is “law” in some sense, but is not enforceable.

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