The decision in Near v. Minnesota, while establishing the prior restraint doctrine as a critical element for First Amendment analysis, failed to give a definition of prior restraint. The result has been inconsistent and unpredictable application of the doctrine as well as diminished protection of free expression. This article takes the next critical step in the journey begun by Near v. Minnesota; it attempts to create a comprehensive definition of prior restraint using the principles of separation of powers. Because all three branches can create 'prior restraints,' the prevention of unconstitutional restraints will necessitate different safeguards depending on which branch of government is attempting to exercise the prior restraint. Fundamentally, the only governmental activity relating to speech permitted "prior" to communication is that of the legislature creating a general rule, that does not focus on the particular speaker or individual message. There is no role for either the executive branch or the judicial branch at the creation of a general rule; both are barred from taking action on expression before communication. With this structure in mind, a two-part definition for prior restraint can be articulated: (1) A prior restraint occurs whenever judges or executive branch personnel are authorized to take notice of specific expression intended for communication rather than that which has actually been communicated. (2) For those rare cases when the Constitution permits the regulation of expression before it is communicated [such as censorship of obscene films], a prior restraint also occurs if either (a) the judiciary can initiate enforcement or delimit the speech that is prohibited; or (b) the executive can make a final determination of illegality. Restrictions that do not threaten the separation of powers, such as judicial orders governing trial participants or executive branch contracts limiting speech by executive branch employees, should not be regarded as prior restraints. Similarly, taxes on speakers that do not require a particularized analysis of the content of expression should not be treated as a prior restraint. Finally, regulation of conduct or property rights should not be regarded as a prior restraint, even when expression is combined with the conduct (as in commercial speech) or the property right (as with copyrights). Of course, even though these should not be considered 'prior restraints', they are still governed by the First Amendment and may be struck down pursuant to other, more appropriate, forms of analysis.
Rewriting Near v. Minnesota: Creating a Complete Definition of Prior Restraint, 52 Mercer L. Rev. 1087 (2001)