The Doctrine of Prior Restraint, 20 LAW & CONTEMP. PROB. 648 (1955)
The concept of prior restraint, roughly speaking, deals with official restrictions
imposed upon speech or other forms of expression in advance of actual publication.
Prior restraint is thus distinguished from subsequent punishment, which is a penalty
imposed after the communication has been made as a punishment for having made it.
Again speaking generally, a system of prior restraint would prevent communication
from occurring at all; a system of subsequent punishment allows the communication
but imposes a penalty after the event. Of course, the deterrent effect of a later penalty
may operate to prevent a communication from ever being made. Nevertheless, for a
variety of reasons, the impact upon freedom of expression may be quite different,
depending upon whether the system of control is designed to block publication in
advance or deter it by subsequent punishment.
Date of Authorship for this Version
Emerson, Thomas I., "The Doctrine of Prior Restraint" (1955). Faculty Scholarship Series. Paper 2804.