Comments on: How is a Criminal Law not a Prior Restraint?

By: Josh C

Josh C — Wed, 07 Feb 2018 22:45:01 +0000

You could plausibly argue that law provides a basis for prior restraint, but does not itself provide the restraint. That would seem to follow the same model as the Flag Code, which is “law” in some sense, but is not enforceable.

By: Andrew Fleischman

Andrew Fleischman — Tue, 06 Feb 2018 15:23:02 +0000

In reply to Mark Bennett.

Also, nobody throws a “litigant’s” ass in jail and makes them pay a bond before a court decides likely success on the merits. Every criminal defendant who pays a bond is subject to a variety of injunctions.

Sorry, I’m sure I’m preaching to the choir.

By: Mark Bennett

Mark Bennett — Mon, 05 Feb 2018 21:56:00 +0000

In reply to Andrew Fleischman.

Here’s a distinction, from a Fifth Circuit case:

“While the unconstitutionality of a statute may be raised as a defense to prosecution for its violation, a litigant who disobeys an injunction is precluded from raising its constitutional invalidity as a defense in contempt proceedings.”

It’s true, but the litigant who is subject to an injunction knows it before the contempt proceedings. Someone who might be prosecuted for violating a content-based restriction seldom gets to challenge its constitutionality before he is accused of violating it.

By: Andrew Fleischman

Andrew Fleischman — Mon, 05 Feb 2018 21:49:20 +0000

This seems like a particularly silly distinction when you consider that the First Amendment says “Congress shall make no law.”

What’s the sense in lessening the burden on the one branch singled out?