In some countries (e.g., United States,[2] Argentina[3]) prior restraint by the government is forbidden, subject to exceptions (such as classifying certain matters of national security), by their respective constitutions.
It is widely accepted that publication of information affecting national security, particularly in wartime[clarify], may be restricted, even when there are laws that protect freedom of expression.
The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.
Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.
[citation needed] Prior restraint is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all.
The four dissenting justices strongly approved of the "gag law", and felt that the nature of the articles in The Saturday Press, including their recurrent antisemitism, their frequent (allegedly false) accusations of official misconduct, and their disrespectful and confrontational tone, made them unworthy of protection.
After the Near decision, newspapers had a clearly established freedom to criticize public officials without fear of retribution, even when charges made by the papers could not be proven in court.
'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.'
No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.
[4]: 321 In a later case (Nebraska Press Ass'n v. Stuart), the Court wrote: The principles enunciated in Near were so universally accepted that the precise issue did not come before us again until Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971).
Noting the similarity to Near vs. Minnesota, a unanimous Court held: Here, as in that case, the injunction operates, not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution of literature 'of any kind' in a city of 18,000. .
On March 15, 1950 Scientific American magazine published an article by Hans Bethe about thermonuclear fusion, the mechanism by which stars generate energy and emit electromagnetic radiation (light, etc.).
[citation needed] In February 1979, an anti-nuclear activist named Howard Morland drafted an article for The Progressive magazine, entitled "The H-Bomb Secret: To Know How is to Ask Why".
The article was an attempt by Morland to publish what he thought the "H-Bomb Secret" was (the Teller–Ulam design), derived from various unclassified sources and informal interviews with scientists and plant workers.
After a lengthy set of hearings (one in camera, another open to the public), and attracting considerable attention as a "freedom of the press" case, the government dropped its charges after it claimed the case became moot when another bomb speculator (Chuck Hansen) published his own views on the "secret" (many commentators speculated that they were afraid the Atomic Energy Act would be overturned under such scrutiny).
It ruled that alternative methods to help ensure a fair trial, short of prior restraints, might have been used, and that it was not all clear, under the circumstances, that the gag order would have the desired effect even if upheld.
It wrote: Our analysis ends as it began, with a confrontation between prior restraint imposed to protect one vital constitutional guarantee and the explicit command of another that the freedom to speak and publish shall not be abridged.
We reaffirm that the guarantees of freedom of expression are not an absolute prohibition under all circumstances, but the barriers to prior restraint remain high and the presumption against its use continues intact.In the United Kingdom judicial gag orders are much more frequently employed, and the strong prejudice against them reflected in the above quote does not seem to be felt by British courts.
The district court wrote that the computer code "... does more, in other words, than convey a message" and that "... it has a distinctly functional, non-speech aspect in addition to reflecting the thoughts of the programmers."
The United States Supreme Court upheld the use of a board of censors in Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230 (1915) by deciding that the First Amendment did not apply to motion pictures.
Maryland abandoned its board in the 1980s, and a 2004 decision of the Ontario Court of Appeal, reversing a previous trend in favor of the Ontario Film Classification Board's right to insist on cuts, ruled that the province had no right to insist on cuts as a condition of release as Canadian federal obscenity laws were sufficient to deal with obscene material.
Many industries have formulated "voluntary" codes limiting the content of expression, generally affecting perceived effects on public morality rather than revelation of secrets.
The movie rating system currently in effect in the United States, run by the Motion Picture Association of America (MPAA) is another such industry code.
[citation needed] In April 1993, Francisco Martorell published a book titled 'Impunidad diplomática' (Diplomatic Impunity) in Argentina with Editorial Planeta.
The book -- scheduled to start selling in Chile the day after its launch in Argentina -- met with a protection remedy by a Chilean businessman before the Santiago Court of Appeals, who argued the text injured his right to privacy.
Thus, the court issued an interlocutory injunction ('orden de no innovar') that temporarily prohibited the book's entry, distribution and circulation in Chile pending a final ruling on the case.
In this sense, the right can only be legitimately restricted through the imposition of subsequent liabilities provided for by law and deemed necessary to ensure the objectives established in the Convention.
The Commission underscored ACHR as the only human rights instrument containing this prohibition, indicating the veritable importance the Inter-American system placed on the freedom of expression.
In May 1993, the Court of Appeals granted the judicial remedy brought by the Chilean businessman and affirmed the measure that 'prohibited the entrance and commercialization of the book in Chile'.
In the case under review, the Commission considered the decision to ban the entry, circulation and distribution of the book Diplomatic Impunity in Chile was contrary to Article 13 of the ACHR.