The Bill of Rights enshrines the rights to free speech and free press in our Constitution. Yet since the beginning of our republic, various compartments of our government have tried (and always failed) to impose prior restraint on those rights by invoking court power to stop the publication or broadcast of unwanted news.

While there is potential for the government’s lawful exercise of that power against our free press, no court in the land has upheld forbidding publication or broadcast. There are lots of post-publication consequences, like libel and slander lawsuits or criminal prosecution, but not before publication.

A recent case in Iowa is just the latest example of how strongly the First Amendment protects the freedom of the press. A single justice of the state’s highest appellate court ordered the Des Moines Register newspaper not to publish records obtained lawfully from a lower-court’s public file regarding the mental health of a party to a lawsuit.

The person’s attorneys filed the records in the lawsuit, and the records were available to the public for three months, during which time the Des Moines Register obtained copies. Soon after, the party learned of his attorney’s mistake and moved to seal the records and sought to stop the newspaper’s publication. Iowa Supreme Court Justice David Wiggins issued the order of prior restraint, telling the newspaper not to publish until further notice.

But, as expected, the prior restraint order was lifted a few days later.

“The stay was strictly temporary in nature, its duration limited to the time necessary for the filing of the defendants’ response, the plaintiff’s reply and this court’s entry of a ruling on the plaintiff’s combined applications,” Wiggins wrote in the order to lift the restraint.

Des Moines Register Executive Editor Carol Hunter was grateful for the decision, stating that it “upholds the U.S. Supreme Court’s long recognition that prior restraint on publication would violate the First Amendment. It’s a bedrock constitutional protection that helps guarantee a free press.”

A Very High Burden to Meet

The U.S. Supreme Court announced opinions in 1971 and 1976 setting the nearly impossible burden the government must meet if a court is to prohibit publication or broadcast of news.

The highest court in the land referred to the “extraordinary protection against prior restraints enjoyed by the press under our constitutional system,” [New York Times v. United States, 403 U.S. 713 (1971)] and considered prior restraint to be “the most serious and the least tolerable infringement on First Amendment rights” [Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)].

Florida has plenty of examples of courts being asked or actually imposing a prior restraint. However, the prior restraints are always overturned and usually last only a few days, so the courts can evaluate all of the facts at issue [Post-Newsweek Stations Orlando, Inc. v Guetzloe, 968 So. 2d 608 (2007) and Florida v. Tadros, 16-2013-CF-08026 (2013)].

Often government attempts at prior restraint arise in criminal trial where defense counsel fears that adverse publicity from lawfully obtained evidence will poison the jury pool.

For example, Ohio Judge Keith P. Muehlfeld sought to prevent the media from publishing or broadcasting stories about the proceedings of a manslaughter case involving a child’s death until after a jury had been impaneled. The Ohio Supreme Court held that the gag order was unconstitutional and therefore unenforceable.

Sometimes prior restraint arises in more lofty disputes such as The Pentagon Papers in 1971 [New York Times Co. v. United States, 403 U.S. 713 (1971)], where the government attempted to prohibit the New York Times and the Washington Post from publishing parts of a secret government study about the Vietnam War.

In both cases, the US Constitution and First Amendment say the operations of government belong to our people, not the other way around.

I represent news organizations and people interested in obtaining public records and involved in publishing who want to stay within the law. If you have any questions about these issues, please contact me at 904-807-2179 or [email protected].