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66 Minn. L. Rev. 11 (1981-1982)
Toward a Theory of Prior Restraint: The Central Linkage

handle is hein.journals/mnlr66 and id is 55 raw text is: Toward a Theory of Prior Restraint: The Central Linkage Vincent Blasi* L THE INQUIRY The doctrine of prior restraint embodies a temporal prefer- ence. Acts of expression that could be sanctioned by means of criminal punishment or a civil damage award may not be regu- lated in advance. The factor of timing, however, cannot serve to distinguish methods of regulation as neatly as this statement would seem to imply. In addition to a retrospective impact re- lating to punishment or compensation, criminal prohibitions and civil liability rules are meant to have a prospective im- pact-to deter speakers from engaging in harmful acts of ex- pression in the future. If impact on speech before the moment of its dissemination is not by itself a basis for distinguishing methods of speech regulation, what then is it that makes a law a prior restraint? And why are prior restraints disfavored at all? Even after fifty years, Near v. Minnesota' remains the Supreme Court's most important opinion on this subject. Near invalidated as a prior restraint one unusual type of injunction designed to abate a newspaper as a public nuisance. Chief Jus- tice Hughes's majority opinion analogized the Minnesota proce- dure at issue to the classic system of administrative licensing that, in Harry Kalven's words, has come down to us through English history with a bad name.2 The decision would be a * © Vincent Blasi, 1981. Professor of Law, University of Michigan Law School. I would like to thank the following persons for reading and comment- ing upon a preliminary draft of this paper Lee Bollinger, Jesse Choper, Ed- ward Cooper, Lyle Denniston, John Ely, Thomas Emerson, Owen Fiss, Marc Franklin, Mary Hendriksen, Yale Kamisar, Richard Lempert, Anthony Lewis, Paul Mishkin, Henry Monaghan, Richard Ovelmen, Thomas Scanlon, Martin Shapiro, Philip Soper, Geoffrey Stone, Peter Westen, and Christina Whitman. I would also like to acknowledge the resourceful research assistance of Stuart Gasner, Tracey Goldblum, and Carolyn Rosenberg. 1. 283 U.S. 697 (1931). 2. Kalven, Foreword: Even When a Nation Is at War-, 85 HARv. L REv. 3, 31 (1971).

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