566
Kennedy, J., dissenting
tected titles, thus depriving the public of access to lawful expression. This is restraint in more than theory. It is censorship all too real.
Relying on the distinction between prior restraints and subsequent punishments, ante, at 548, 553-554, the majority labels the forfeiture imposed here a punishment and dismisses any further debate over the constitutionality of the forfeiture penalty under the First Amendment. Our cases do recognize a distinction between prior restraints and subsequent punishments, but that distinction is neither so rigid nor so precise that it can bear the weight the Court places upon it to sustain the destruction of a speech business and its inventory as a punishment for past expression.
In its simple, most blatant form, a prior restraint is a law which requires submission of speech to an official who may grant or deny permission to utter or publish it based upon its contents. See Staub v. City of Baxley, 355 U. S. 313, 322 (1958); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952); A Quantity of Copies of Books v. Kansas, 378 U. S. 205, 222 (1964) (Harlan, J., dissenting); see also M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984). In contrast are laws which punish speech or expression only after it has occurred and been found unlawful. See Kingsley Books, Inc. v. Brown, 354 U. S. 436, 440-442 (1957). While each mechanism, once imposed, may abridge speech in a direct way by suppressing it, or in an indirect way by chilling its dissemination, we have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments. See, e. g., Arcara v. Cloud Books, Inc., supra, at 705-706; Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 558-559 (1975); Kingsley Books, Inc. v. Brown, supra, at 440-442. In Southeastern Promotions, Ltd. v. Conrad, we explained that "[b]ehind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007