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Prior Restraint of Speech – First Amendment Violations


December 20, 2012 by Tom Roberts, Esq.


You Can Help Defray the Legal Fees of Cox and Karn – To Help In This Battle

The law firm of Thomas H. Roberts & Associates, P.C., an affiliate law firm of Freedom Works Foundation, is proud to stand against prior restraints and censorship of speech protected under the United States and Virginia Constitutions.  Freedom Works Foundation was founded in 1999 as a non-profit foundation in Virginia to defend against attacks on freedom, to promote, assure and enhance freedom.

The American tradition stands in stark contrast to the English licensing system, which expired in 1695, where all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities.   All despotic and tyrannical governments attack the freedom of the people to speak.

One of the more famous cases in the United States involved the attempt of the government to restrain the publication of the “Pentagon Papers”, the Vietnam Study Task Force report created by Secretary of Defense Robert McNamara, consisting of thousands of pages including documents classified as “Top Secret—Sensitive”  At first President Nixon was not opposed to the publication since it was perceived to be embarrassing to the prior administrations of Kennedy and Johnson, but his National Security Adviser Henry Kissinger convinced President Nixon that the publication might establish a negative precedent.  The administration then attacked Daniel Ellsberg and Anthony Russo, who allegedly leaked the documents, arguing that they were guilty of a felony under the Espionage Act of 1917.  Attorney General John N. Mitchell and Nixon obtained a federal injunction ordering the New York Times to cease publication, which was appealed.  Then Assistant United States Attorney General William Rehnquist unsuccessfully sought an injunction against the Washington Post, which was denied.  Judge Murray Gurfein wrote that “[t]he security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.”  The government appealed.  The United States Court of Appeals confirmed that the prior restraint of speech was unlawful, in a 6-3 decision with nine different opinions.

Justice Black wrote “Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.


The law firm of Thomas H. Roberts & Associates, P.C. stands behind police forces when they uphold and enforce the law — the firm opposes any police force when the power entrusted to it by the people for the people is used to oppress and rob those they are to serve of the benefit and protection of the law and the constitutions they have sworn to uphold.  It is our sworn duty!


In City of Richmond Police Department, et. al.  v. Moriah Karn, et. al., Case No. CL 12-4939, the law firm of Thomas H. Roberts & Associates, P.C. is defending Nathan Cox and Moriah Karn against the outrageous attack by the City of Richmond Police Department and the City of Richmond on their rights of free speech under the 1st Amendment to the United States Constitution and Article I § 12 of the Virginia Constitution.

In that suit, the Richmond PD alleged that defendants “somehow obtained certain confidential information of the Department” including the names, addresses, telephone numbers and/or “other confidential information” concerning certain officers and employees of the Department.”

The suit does not allege who specifically posted the information online, but does allege that Karn and/or Cox posted links to the information on websites.  The suit among other things seeks to prevent Karn and Cox from pointing the public to this information released to the public.

In addressing the likelihood of prevailing on the merits, Richmond PD failed to recognize the “heavy presumption” it must overcome to secure an injunction that places a prior restraint on the freedom of speech. See Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971); New York Times Co. v. United States, 403 U.S. 713 (1971); Neb. Press Ass’n v. Stuart, 427 U.S. 539, (1976).

This “heavy burden” cannot be ignored. In New York Times Co. v. United States, 403 U.S. 713 (1971), the Supreme Court in a per curium opinion affirmed a trial court’s ruling that classified documents obtained by the press could be published over an injunction to delay the publication. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Supreme Court overruled an injunction prohibiting an organization from publishing materials within a specific geographic area. In Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976), the Supreme Court held that the entry of an order temporarily limiting what the press could publish about a criminal case so as to secure a defendant’s right to a fair trial was improper.  Here, the injunction sought deals with something less than classified documents, the injunction would not be limited to a geographic area, and there is no direct and countervailing constitutional right such as the right to a fair trial.

Richmond PD undervalues the public interest in transparency.  As stated in Va. Code § 2.2-3700, “The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.” In view of this, the Virginia FOIA mandates the release of most documents help by chiefs of police, including personnel files.  See Va. Code § 2.2-3706(g), (i); § 15.2-1722. In light of the General Assembly’s mandate in Va. Code § 2.2-3706(g), Richmond PD can hardly claim that the public interest favors this injunction.

To paraphrase the words of Justice Black in New York Times, the word “confidential” is “a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.” New York Times Co., 403 U.S. at 719 (Black, J., concurring) (writing about “security”).  In line with what Justice Stewart said in the same case, if this information is indeed confidential, the responsibility to keep it confidential so as to ensure its nonpublication lies with the Richmond PD. Id. at 728-729. (Stewart, J., concurring) (“The responsibility must be where the power is. If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully.”).

Now that the Richmond PD has apparently failed to maintain the confidence of that “confidential information,” it asks the court to use its injunctive powers, backed by the threat of criminal contempt, to repair a breach of that confidence.  “[I]t makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to ‘make’ a law abridging freedom of [speech] in the name of equity . . . even when the representatives of the people . . . have adhered to the command of the First Amendment and refused to make  such a law.” Id. at 718 (Black, J., concurring)

In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Supreme Court of the United States reversed an Illinois court’s issuance of a temporary injunction after an evidentiary hearing. The injunction barred a local organization from “from passing out pamphlets, leaflets or literature of any kind, and from picketing, anywhere in the City of Westchester, Illinois.” Id. at 417. The Illinois court had found that the literature distributed invaded respondent’s right of privacy, had caused irreparable harm, and the plaintiff was without an adequate remedy at law.  The Supreme Court held, however, that “[u]nder Near v. Minnesota, 283 U.S. 697 (1931), the injunction, so far as it imposes prior restraint on speech and publication, constitutes an impermissible restraint on First Amendment rights.”  The Court continued:

  • Any prior restraint on expression comes to this Court with a “heavy presumption” against its constitutional validity. Carroll v. Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). Respondent  thus carries a heavy burden of showing justification for the imposition of such a restraint. He has not met that burden. No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record. Rowan v. United States Post Office Dept., 397 U.S. 728 (1970), relied on by respondent, is not in point; the right of privacy involved in that case is not shown here. Among other important distinctions, respondent is not attempting to stop the flow of information into his own household, but to the public. Accordingly, the injunction issued by the Illinois court must be vacated.

In New York Times Co. v. United States, 403 U.S. 713 (1971), the Government sought to enjoin the publication of excerpts from a massive, classified study of this Nation’s involvement in the Vietnam conflict. The Supreme Court affirmed the denial of the injunction. The dispositive, per curium opinion of the Court simply concluded that the Government had not met its heavy burden of showing justification for the prior restraint. Each of the six concurring Justices and the three dissenting Justices expressed his views separately, but “every member of the Court, tacitly or explicitly, accepted the Near and Keefe condemnation of prior restraint as preemptively unconstitutional.”  Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376, 396 (1973) (Burger, C.J., dissenting). The Court’s conclusion in New York Times suggests that the burden on the Government is not reduced by the temporary nature of a restraint; in that case the Government asked for a temporary restraint solely to permit it to study and assess the impact on national security of the lengthy documents at issue.  Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558-559 (1976).

Similarly in Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976), the Supreme Court reviewed an order entered by a Nebraska court prohibiting the press from publishing a criminal confession in order to help ensure the defendant’s Constitutional right to a fair and impartial trial in a murder case.  The Court there stated: “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”  Id. at 559.  The Court held the order to be unconstitutional.

In this case, Richmond PD seeks a permanent injunction on the publication of documents obtained by the defendants. These documents were not classified documents, as in New York Times Co. v. United States. The injunction is not limited to a particular jurisdiction, as in Keefe.  There is no clear and pressing countervailing Constitutional interest that could justify the restraint, such as the right to a fair and impartial criminal trial in Stuart. The harms alleged in this case are insufficient to overcome the “heavy presumption” in light of these cases.


Organized Press Coverage – Doesn’t Quite Get it.

Richmond Times Dispatch Coverage

The case was resolved to the satisfaction of our clients–You Can Help Defray the Legal Fees of People like Cox and Karn who need Legal Protection – To Help In This Battle


For another example of 1st Amendment Litigation – See Liverman v. Petersburg.


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