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Prior Restraint

What is Prior Restraint?

President Trump, from his official photo.
President Trump

The term "prior restraint" is appearing in the news quite a bit lately as a function of President Trump's affair with porn actress and director Stormy Daniels. In context: Trump and lawyers seek to prevent a recorded CBS interview with Daniels from airing.

The notion of such an injuction is tricky, according to an expert cited in Washington Post reporting, because "A judicial 'gag order' against Ms. Daniels or CBS would constitute a 'prior restraint' of free speech, which under First Amendment doctrine is almost never permissable." A separate lawyer quoted in the same article "said she thought the president's lawyers have few options" to prevent the segment from airing, adding, "If [President Trump's lawyers] succeed, it is a prior restraint of speech. If they fail, they look like they lost." 1

Separate reporting published today from The Washington Post offers additional explanation. Recall that then-citizen Donald Trump and his personal lawyer Michael Cohen presented Daniels with a non-disclosure agreement. Recent media reports indicated that Daniels no longer recognizes the validity of the agreement because Mr. Trump did not sign it. A defamation attorney quoted in the March 12th article noted that "CBS would need to be a party to the suit to be restrained from airing the interview, and since the obligation on Ms. Daniels arose as part of a private settlement, I don't see much legal basis to enjoin CBS — a stranger to the settlement agreement — from doing anything."2

That part's important: CBS was not party of the initial agreement, which is currently being contested. This is where the notion of prior restraint comes in. "To thwart '60 Minutes,' Trump would need to secure a separate order against CBS — a prior restraint of speech that legal precedent suggests is unconstitutional," says Callum Borchers, author of the March 12th article. "Trump's attorneys could argue that CBS is going to defame the president by airing the Daniels interview, but 'the law is, as a general rule, you don't get injunctions because of an anticipated defamation,' said George Freeman, a former in-house lawyer for [The New York Times] who is now executive director of the Media Law Resource Center."

An article on Cornell Law School's Legal Information Institute website describes two common forms of prior restraint: one characterized as licensing, and the other "is a judicial injunction that prohibits certain speech." 3.

The doctrine of prior restraint is further explored in this article on, and Duke University has online an exerpt from the book "Law and Contemporary Problems", featuring a chapter titled "The Doctrine of Prior Restraint" written by Thomas I. Emerson, which features a history of its use starting in Europe in the sixteenth century and explains the significance of Near vs. Minnesota, a case synonymous with the modern legal concept.

Perhaps the most significant feature of systems of prior restraint is that they contain within themselves forces which drive irresistably toward unintelligent, overzealous, and usually absurd administration. (Emerson, 658).

Finally, if you're looking for more information on the history of the Stormy Daniels events, Vox published Stormy Daniels's legal battle against Trump, explained, which walks through the whole story so far.

UPDATE: President Trump's lawyer's correct name is Michael Cohen, not James Cohen.

personal statement

Humor posts aside, I only seek to understand the events I describe in these posts, and to form an opinion after considering the material I've gathered. I believe we need leaders in Washington to act in the best interest of the United States as a citizen nation of the world, and who represent the interests of the people they serve above the interests of party affiliation.