Document Type

Article

Publication Date

1981

Disciplines

Constitutional Law | Law

Abstract

The doctrine of prior restraint embodies a temporal preference. Acts of expression that could be sanctioned by means of criminal punishment or a civil damage award may not be regulated "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 relating to punishment or compensation, criminal prohibitions and civil liability rules are meant to have a prospective impact – to deter speakers from engaging in harmful acts of expression 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?

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