Columbia Journalism Review: Prior restraints—or government orders not to publish information—have long been considered a quintessential First Amendment violation. The Supreme Court has never upheld one against the press, even when the government claimed grave national security threats. The potential for abuse of censorship powers is simply too vast for the First Amendment to tolerate.  

Prior restraints have historically been rare in lower courts as well. Even judges with little First Amendment expertise know better than to cross that line. When they do, appellate courts have expedited journalists’ emergency appeals to restore order.

But that seems to be changing. The Freedom of the Press Foundation’s US Press Freedom Tracker documented eleven prior restraints in 2023—the most since it started recording them, in 2017. Trial courts are ignoring clear-cut precedents when they find them inconvenient. And appellate courts are increasingly content to let prior restraints against the press gradually work their way through the system. As the wheels of justice grind, the news value of the censored content rapidly fades.

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