I have an article in Discourse about how the Supreme Court's recent decision in the New York gun-rights case relates to all laws that require you to get a permit to do something. Will the New York case spur lower courts into enforcing the constitutional protections that the Supreme Court mandated decades ago? Excerpt:
Courts have struggled with applying that anti-prior restraint rule in other contexts, however. Take motion pictures, for example. Between the 1920s and the 1960s, state and local governments often required theaters to obtain permits before showing films—which gave licensing officials broad power to censor movies they thought people shouldn’t see. Amazingly enough, the Supreme Court initially denied that films were entitled to any constitutional protection at all—a position it only reversed in the 1950s, when it finally admitted that movies are “included in the definition of ‘press’ whose freedom is guaranteed by the First Amendment.”Yet the justices allowed movie permit requirements to remain in place. Watering down what had once been an absolute rule against prior restraints on speech, they instead declared that such requirements were acceptable as long as they provided certain “procedural safeguards”: (1) the criteria for getting the permit must be clear and unambiguous; (2) the government must give anyone applying for a permit a specific deadline within which that permit would be granted or denied; and (3) the applicant must be given a hearing before a neutral judge in case the government wrongly withheld the permit. And the Court made clear that these “safeguards” were required not only when government imposed a prior restraint on speech, but whenever the government “makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon . . . a permit or license”—that is, whenever government imposes a licensing law on any constitutional right.
Comments policy