Prior Restraint and 1st Amendment Rights

Prior Restraint and 1st Amendment Rights
The American government has long feared that the release of classified information may jeopardize national security and has made special efforts to prevent publication of information considered top secret. There has been extensive debate over freedom of the press versus the right of the government to prevent publication of certain material. When the government intervenes before publication has occurred, it is called prior restraint. This paper seeks to examine the importance of the concept, define the restrictions associated with prior restraint, and determine whether a written document is an acceptable infringement of civil liberties by viewing Near v. Minnesota, New York Times Co. v. United States (The Pentagon Papers), and United States v. The Progressive Inc.; which are case studies on the subject matter. The Near v. Minnesota case, argued in 1931, takes this thought and attempts to expound on it. Justice Hughes cited the wartime argument of Schenk v. United States and then followed up with a standard definition. Chief Justice Charles Evans Hughes, for the Court, held the law unconstitutional in a decision that firmly established the freedom of the press against censorship by 5 to 4 vote. But Hughes went further to say that “this statute … raises questions of grave importance, transcending the local interests involved in the particular action. It is no longer open to doubt that the liberty of the press is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action” (Murphy 706). This set a precedent for other courts to follow.

One of the fundamental rights guaranteed by the First Amendment to the United States constitution is the freedom of the press. The Supreme Court was previously charged with determining whether the government had sufficiently met the burden of proof for the imposition of such a command. The Court’s ruling against prior restraint prohibits the government from banning the expression of ideas before publication, and it is based upon the principle that freedom of the press is essential to a free society.In Near v. Minnesota case, the Court responded to the Minnesota state law that permitted public officials to seek an Injunction by siding with Near. This set a precedent for other courts to follow. It meant that a person or organization had the right what he or she wanted in their newspaper, magazine, or other periodical. This does not include publication of any malicious, scandalous and defamatory that could be used to hurt national security. “This statute was used to suppress publication of a small Minneapolis newspaper, the Saturday Press, which had crudely maligned local police and political officials, often in anti-Semitic terms” (Finan 125). The law provided that once a newspaper was enjoined, further publication was punishable as contempt of court. This set a standing of a nation that is at war; the American citizens must abide by rules that are unnecessary at peacetime. What they express is what we hold dear in a peacetime, but it may not be acceptable in wartime. Justice Hughes also made clear that hostility to prior restraint is at the very core of the First Amendment. Only in exceptional circumstances could the possibility of turning to prior restraint be considered. Thus the “Gag Law” was struck down in its totality as delivered in the opinion of the Court: “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops” (Parker 79). Supreme Court ruling in Near v. Minnesota in which Chief Justice Charles Evans Hughes ruled that while prior restraint is unacceptable in most cases, there are times when it must be tolerated if the public’s safety is at risk. “Protecting the security of the nation is one of the most important...
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