Blackstone and Common-Law Prohibition on Prior Restraints

2011-12-01 10:25:24

In the fourth volume of his famous Commentaries on the Laws of England, published in 1769, William Blackstone argued that freedom of the press under the common law was limited to a prohibition on prior restraints. As Blackstone explained,

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 consequences of his own temerity.

Blackstone’s formulation—which imposed an absolute bar on state censorship prior to publication, but permitted punishment after the fact—was widely influential in eighteenth- and nineteenth-century America. In the 1907 case of Patterson v. Colorado, the Supreme Court, citing Blackstone, held that freedom of the press under the First Amendment consisted solely of a prohibition on prior restraints. In 1919, however, the Court intimated in Schenck v. United States that freedom of the press extended more broadly, a holding confirmed in subsequent cases.

Blackstone’s denunciation of prior restraints has nonetheless remained a vital aspect of American law. In Near v. Minnesota (1931), the Supreme Court relied heavily on Blackstone and the prohibition on prior restraints to invalidate a Minnesota law providing for the abatement of certain newspapers as public nuisances.


References and Further Reading

  • Blackstone, William. Commentaries on the Laws of England. Vol. 4. Oxford: Clarendon Press, 1769
  • Friendly, Fred W. Minnesota Rag: The Dramatic Story of the Landmark Supreme Court Case that Gave New Meaning to Freedom of the Press. New York: Random House, 1981
  • Levy, Leonard. Emergence of a Free Press. New York: Oxford University Press, 1985

Cases and Statutes Cited

  • Patterson v. Colorado, 205 U.S. 454 (1907) 
  • Near v. Minnesota, 283 U.S. 697 (1931) 
  • Schenck v. United States, 249 U.S. 47 (1919) 

See also Freedom of Speech and Press: Nineteenth Century; Freedom of Speech and Press under the Constitution: Early History (1791–1917)