570
Kennedy, J., dissenting
ture violations of the state statute. Id., at 705. In one sense the injunctive order, which paralleled the nuisance statute, did nothing more than announce the conditions under which some later punishment might be imposed, for one presumes that contempt could not be found until there was a further violation in contravention of the order. But in Near the publisher, because of past wrongs, was subjected to active state intervention for the control of future speech. We found that the scheme was a prior restraint because it embodied "the essence of censorship." Id., at 713. This understanding is confirmed by our later decision in Kingsley Books v. Brown, where we said that it had been enough to condemn the injunction in Near that Minnesota had "empowered its courts to enjoin the dissemination of future issues of a publication because its past issues had been found offensive." 354 U. S., at 445.
Indeed the Court has been consistent in adopting a speech-protective definition of prior restraint when the state attempts to attack future speech in retribution for a speaker's past transgressions. See Vance v. Universal Amusement Co., 445 U. S. 308 (1980) (per curiam) (invalidating as a prior restraint procedure authorizing state courts to abate as a nuisance an adult theater which had exhibited obscene films in the past because the effect of the procedure was to prevent future exhibitions of pictures not yet found to be obscene). It is a flat misreading of our precedents to declare as the majority does that the definition of a prior restraint includes only those measures which impose a "legal impediment," ante, at 551, on a speaker's ability to engage in future expressive activity. Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963), best illustrates the point. There a state commission did nothing more than warn booksellers that certain titles could be obscene, implying that criminal prosecutions could follow if their warnings were not heeded. The commission had no formal enforcement powers, and failure to heed its warnings was not a criminal offense. Although
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