For nearly 60 years, the doctrine of prior restraint has held a central position in first amendment jurisprudence. A law that acts as a prior restraint on speech comes under such searching judicial scrutiny that it almost always is invalidated. Professor Marin Scordato makes a frontal attack on the existing prior restraint doctrine in this Article. ie first maintains that the traditional definition of prior restraint defies the common-sense meaning of the term. Then he examines the policy justifications for identifying prior restraints by their asserted tendency to produce constitutionally undesirable results compared with their definitional opposites, subsequent sanctions. He asserts that these justifications lack logical coherence and, in some cases, constitutional relevance. Professor Scordato suggests a redefinition of the doctrine that would limit its application to literal prior restraints, such as the physical seizure by the government of a speaker's medium of expression.
He concludes that a literal approach would correct the doctrine's logical flaws and might spur the development of a more direct and relevant jurisprudence regarding the traditional prior restraints that would fall outside his redefinition, namely judicial injunctions and licensing systems.
Marin Roger Scordato, Distinction Without a Difference: A Reappraisal of the Doctrine of Prior Restraint, 68 N.C. L. REV. 1 (1989).