Hastings Law Journal


Elliot Mincberg


Although a number of recent Supreme Court decisions have upheld First Amendment claims, other decisions have deferred to government regulation and seriously impaired First Amendment rights. One explanation for this apparent inconsistency is that the Court has been willing to provide extensive protection in cases in which it believes that the First Amendment is applicable, but has severely narrowed the range of cases to which it believes the First Amendment applies in the first place.

Mr. Mincberg argues that this type of "prior restraint" on First Amendment analysis has been utilized by the Court majority in limiting freedom of religion, freedom of expression, and freedom of the press in cases such as Employment Division v. Smith, Rust v. Sullivan, and Cohen v. Cowles Media. He examines these and related cases in more detail, and explores the potential future implications of judicial "prior restraint" on the First Amendment.

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