In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Supreme Court held that those seeking a prior restraint on expression carry “a heavy burden of showing justification for the imposition of such a restraint.”

Keefe obtained injunction against literature criticizing his real estate activities

Keefe, a real estate agent, obtained a temporary injunction prohibiting the Organization for a Better Austin (OBA) from passing out literature criticizing Keefe’s real estate activities in Austin, Illinois, arguing that the literature distributed by OBA in his neighborhood of Westchester, seven miles from Austin, invaded his right of privacy and was coercive rather than informative. By an 8-1 vote, the Court reversed the Illinois state court ruling.

Court reversed injunction

Justice John Marshall Harlan II based his dissent not on disagreement with the majority’s reasoning on prior restraint, but on his understanding that the Court lacked appellate jurisdiction. This decision made it even more difficult to justify prior restraints through the series of cases begun in Near v. Minnesota (1931). In Near the Court asserted that the protection from prior restraints is “not absolutely unlimited. But the limitation has been recognized only in exceptional cases.” These four exceptional cases are when speech jeopardizes public safety in wartime, threatens the primary requirements of decency, incites acts of violence and the overthrow of government, or invades private rights.

Majority opinion said those seeking prior restraint have a heavy burden of justification

However, in the majority opinion, Chief Justice Warren E. Burger cited Carroll v. President and Commissioners of Princess Anne (1968) and Bantam Books v. Sullivan (1963) to emphasize that “[a]ny prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.”

Burger argued that the respondent had failed to meet the “heavy burden” required to convince the Court that it should disregard this presumption on both points. First, Burger argued that the “claim that the expressions were intended to exercise a coercive impact ... does not remove them from the reach of the First Amendment” because the means of expression were peaceful and, similar to a newspaper, were attempts to influence conduct. Second, on the privacy argument, Burger emphasized that the “respondent is not attempting to stop the flow of information into his own household, but to the public.”

This article was originally published in 2009. Dr. Tim Meinke is currently Professor of Political Science at The University of Lynchburg. His teaching and research interests include state and local politics, public policy, political philosophy, and First Amendment issues. He was awarded the 2013-14 Shirley E. Rosser Award for Excellence in Teaching, which is the University’s highest teaching honor. He also teaches an annual class on American politics which uses First Amendment issues as the case study for the semester’s coverage of public policy.

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