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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*
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
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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