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make the authorities’ decision subject to court appeal. But this creates a
different problem; control by the authorities of the timing of the flow of
information is a considerable power. Challenging a decision to censor
information will be an expensive and slow process, which many may not

even use. Furthermore, news is a perishable commodity, so that success
in court after lengthy proceedings will often prove a pyrrhic victory.
Because of the risk of abuse compared to sanctions after the fact,

the American Convention on Human Rights prohibits prior censorship
altogether, except to protect children. Article 13(2) of the ACHR states:
The exercise of the right provided for in the foregoing paragraph
shall not be subject to prior censorship

Nevertheless, some courts have been reluctant to rule prior
restraints out categorically, mainly because the damage done by a
publication may not in all cases be reparable through subsequent

sanctions. This dilemma was posed starkly in one American case, after a
magazine, The Progressive, had attempted to publish an article
explaining in some detail how to construct a hydrogen bomb. The author

and publisher argued that they were merely synthesising publicly
available documents, with the purpose of raising awareness of the threat
of nuclear weapons. The District Judge held:

A mistake in ruling against The Progressive [will] curtail
defendants’ [right to freedom of expression] in a drastic and substantial
fashion. [But a] mistake in ruling against the United States could pave
the way for thermonuclear annihilation for us all. In that event, our right

to life is extinguished and the right to publish becomes moot.
The case did not reach the US Supreme Court. In other disputes,
however, the Supreme Court has repeatedly stated the following

position: “Any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its constitutional validity.”
International bodies have echoed this point of view. In a report on
the Republic of Korea, the UN Special Reporter on Freedom of Opinion

and Expression stated that “any system of prior restraint on freedom of
expression carries with it a heavy presumption of invalidity under
international human rights law.” The ECtHR ruled that “the dangers

inherent in prior restraints are such that they call for the most careful
scrutiny”.
This last case involved the ad hoc application of prior restraint to a

specific harmful expression – the authorities had gotten wind of the
upcoming publication, and had applied to a court to prevent it. Systems