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 instances cited by Hughes” (Parker 78) New York Times Co. v. United States 403 U.S. 713 (1971) argued this in 1971. In this case, the government brought suit against both the New York Times and Washington Post in separate district courts to exercise prior restraint over the publication of a 7,000 page paper on how the United States got involved in the Vietnam War. President Richard Nixon’s administration tried to prevent the New York Times and the Washington Post from publishing excerpts from a classified study (the Pentagon Papers) on the history of U.S. involvement in Vietnam War, arguing these publications would hurt national security interests. The Supreme Court, by a 6–3 vote, held that the government's efforts to block publication amounted to an unconstitutional prior restraint. The United States Supreme Court offered a per curiam opinion, stating only that the Court ruled in favor of the New York Times. Justice Brennan espoused on how this case did not meet the qualifiers set forth in Near v. Minnesota. He desires to stress the fact, that the Court’s ruling in this particular case should not set precedent for future cases of similar nature. Justice Brennan does not attack the question of constitutionality, but rather that the Government simply failed to obtain proof needed to justify its action.
The national security exception failed again in a 1979 case dealing with the publication of a magazine article that purported to explain the process for making a hydrogen bomb (United States v. Progressive, Inc., 467 F. Supp. 990 [W.D. Wis. 1979]). “The magazine was going to publish an article entitled “The H-Bomb Secret: How We Got It, Why We’re Telling It” (Newman 42). The federal government obtained a preliminary injunction against The Progressive, stopping publication of the article until a hearing on a permanent injunction could be held. Before the hearing, however, another publication printed a similar article. The government then dropped its lawsuit, and the magazine published the original article. The lower court’s decision of United States v. Progressive is as challenging as it involves the absolute suppression of speech, something the founding fathers of the Constitution were determined to establish, never to be abridged. The lower court ruled that the United States’ argument for prior restraint was effective and correct in its concern for national security. This ruling has been upheld in other cases; it was because of the prior restraint initiated in the United States. It is a heavy burden for any court who finds it within their rights to limit the sovereignty of the press. In wartime, explicit censorship is carried out with the intent of preventing the release of information that might be useful to an enemy. Typically it involves obfuscation of times or locations or delaying the release of information an operational objective until it is of no possible use to enemy forces. Any mention of specific weapons and equipment is usually censored as well. The moral issues here are often seen as somewhat different, as release of tactical information usually presents a greater risk of casualties among one's own country. Historically, attempt by the government to obtain a prior restraint has largely been unsuccessful. Many Americans believe that the first amendment is the most important. Most legal scholars believe that the adoption of the First Amendment in 1791 was designed to hinder prior restraint in this nation, however prior restraint still exists. A reason it still exists is the 1931 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” (Murphy). In the past quarter century in two important cases, the press has been stopped from publishing material the courts believed to be too sensitive. While the Supreme Court finally permitted The New York Times and the Washington Post to publish the so-called Pentagon Papers, the newspapers were blocked for two weeks from printing this material. And in the end, the high court’s decided that the government had failed to make its case, not that the newspapers had a First Amendment right under any circumstance to publish this history of the Vietnam War. Eight years later, the Progressive magazine was enjoined from publishing an article about making an H-Bomb. Only the publication of the same material by a small newspaper in Wisconsin made the government's efforts to permanently stop publication of this article in the Progressive. There is even still today a debate within the legal-historical community over the meaning of the First Amendment. Some people argue that it was intended to block both censorship and prosecution for seditious libel. Others argue that it was intended to prohibit only prior censorship. We will probably never know what the guarantee of freedom of expression meant to the persons who drafted it, but it is a good bet that the American people had a wide variety of meaning of the First Amendment when it became law.1581
1. Finan M. Christopher, From the Palmer Raids to the Patriot Act, The Boston Press; Boston, Massachusetts. 2007.
2. Newman K. Roger, The Constitution and Its Amendments, Vol. 3 Macmillan Reference USA; New York, NY. 1999.
3. Parker A. Richard, Free Speech on Trail, “Communication Perspectives on Landmark Supreme Court Decisions” The University of Alabama Press; Tuscaloosa, Alabama, 2003.
4. Murphy, Paul L. “The Case of the Miscreant Purveyor of Scandal”, in Quarrels That Have Shaped the Constitution, edited by John A. Garraty (New York: Harper & Row, 1987)