Prior Restraint

Prior restraint refers to a legal principle embodied in the First Amendment to the U.S. Constitution that relates to guarantees of freedom of the press. At the most fundamental level, it provides protection against censorship by the government, and it is particularly relevant to survey research because of legal disputes about the presentation of exit poll results on Election Night.

Prior restraint actually refers to any injunction that would prohibit the publication of information, an infringement on the so-called freedom of the press. Many consider it an especially serious issue because it prevents the dissemination of information to the public, as distinct from an injunction issued after the information has been released that prohibits further dissemination or provides for some kind of relief as in the instance of libel, slander, or defamation of character.

The case law history of the principle is generally credited as starting with Near v. Minnesota, in which the U.S. Supreme Court decided in 1931 that a small Minnesota paper could not be prevented in advance from publishing information about elected officials. In this 5–1 decision, the Justices left open the possibility of prior restraint in some cases, especially those involving national security. Censorship was practiced during World War II, but the issue of national security was not addressed explicitly until The New York [Page 613]Times Co. v. United States, a case in which the Nixon administration went to the court in 1971 to prohibit the publication of the Pentagon Papers by The Washington Post and The New York Times. The Court decided that an injunction was not warranted.

Another important area of litigation involved censorship of artistic content in the theater and films, usually related to obscenity. In order to avoid new legislation and formal constraints, many industry groups developed so-called voluntary codes that circumscribed content. This approach was adopted in the film and comic book industries, and a rating system developed by the Motion Picture Association of America is still in force. Many content producers do not see any significant difference between a formal law and the prior restraint that results from such practices.

It is in this context that the states and the Congress have unsuccessfully attempted to limit or prohibit the collection and dissemination of exit poll data since 1980. This contentious issue arose from a number of considerations. They include the geopolitics of American presidential elections, the role of the Electoral College, and the fact that the election takes place across four time zones in the continental United States and six time zones if Alaska and Hawaii are included. The exit poll data are used to project the outcome of the presidential contest in each state, since the Electoral College generally involves a “winner takes all” allocation of a state's electoral votes, and then each state projection is added to a running total of each candidate's electoral votes. In recent presidential elections, the Democrats have done well on the east and west coasts and contested the Great Lakes region. The Republicans have done well in the South, Midwest, and West, not including the west coast, and they have contested the Great Lakes too.

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