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Rewriting Near V. Minnesota: Creating A Complete Definition Of Prior Restraint, Michael I. Meyerson
Rewriting Near V. Minnesota: Creating A Complete Definition Of Prior Restraint, Michael I. Meyerson
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The decision in Near v. Minnesota, while establishing the prior restraint doctrine as a critical element for First Amendment analysis, failed to give a definition of prior restraint. The result has been inconsistent and unpredictable application of the doctrine as well as diminished protection of free expression. This article takes the next critical step in the journey begun by Near v. Minnesota; it attempts to create a comprehensive definition of prior restraint using the principles of separation of powers. Because all three branches can create 'prior restraints,' the prevention of unconstitutional restraints will necessitate different safeguards depending on which branch …
The Neglected History Of The Prior Restraint Doctrine: Rediscovering The Link Between The First Amendment And The Separation Of Powers, Michael I. Meyerson
The Neglected History Of The Prior Restraint Doctrine: Rediscovering The Link Between The First Amendment And The Separation Of Powers, Michael I. Meyerson
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The prior restraint doctrine, once so fundamental to Constitutional Jurisprudence, has lost much of its effectiveness over the years. Nevertheless, prior restraint doctrine is crucial to preserving the line between protected and unprotected speech. One of the fundamental problems that contribute to the current ineffectiveness of prior restraint doctrine is that there exists no comprehensive definition of "prior restraint". This article chronicles the historical roots of prior restraint in order to arrive at a generally accepted legal definition. Through the course of this historical journey, the article yields a heretofore unexplored aspect of prior restraint doctrine, namely that prior restraint …