Prior Restraint

An order that prohibits future communications. Because to restrict speech that has not happened, prior restraints run headfirst into First Amendment issues and are considered the “least tolerable” of infringements on the First Amendment. To be constitutional, a prior restraint must be narrowly tailored (i.e., it cannot cover more speech than what is necessary) and must serve a compelling government interest (i.e., the court or state must have a justifiable and highly persuasive reason for needing the order).

In Yanez v. Sanchez, the father controversially posted a video of the parties’ child in the throes of a seizure as part of his advocacy for children with special needs; the court issued an order prohibiting him from posting about the child on social media in the future. The Court found this order violated the Constitution. It further found that for the Court to issue a prior restraint and meet the compelling governmental interest requirement, there must be evidence of actual or threatened physical or emotional harm, none of which was present in Yanez.