Cite as: 509 U. S. 544 (1993)
Kennedy, J., dissenting
the commission could impose no legal impediment on a speaker's ability to engage in future expressive activity, we held that scheme was an impermissible "system of prior administrative restraints." Ibid. There we said: "We are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief." Id., at 67. If mere warning against sale of certain materials was a prior restraint, I fail to see why the physical destruction of a speech enterprise and its protected inventory is not condemned by the same doctrinal principles.
One wonders what today's majority would have done if faced in Near with a novel argument to extend the traditional conception of the prior restraint doctrine. In view of the formalistic approach the Court advances today, the Court likely would have rejected Near's pleas on the theory that to accept his argument would be to "blur the line separating prior restraints from subsequent punishments to such a degree that it would be impossible to determine with any certainty whether a particular measure is a prior restraint or not." Ante, at 554. In so holding the Court would have ignored, as the Court does today, that the applicability of First Amendment analysis to a governmental action depends not alone upon the name by which the action is called, but upon its operation and effect on the suppression of speech. Near, supra, at 708 ("[T]he court has regard to substance and not to mere matters of form, and . . . in accordance with familiar principles . . . statute[s] must be tested by [their] operation and effect"). See also Smith v. Daily Mail Publishing Co., 443 U. S. 97, 101 (1979) (the First Amendment's application to a civil or criminal sanction is not determined solely by whether that action is viewed "as a prior restraint or as a penal sanction"); Southeastern Promotions, Ltd. v. Conrad, 420 U. S., at 552-553 (challenged action is "indistinguishable in its censoring effect" from official actions consistently identified as prior restraints); Schneider v. State (Town
571
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