National Security Prior Restraints

A prior restraint in constitutional law is, loosely speaking, a prohibition or restriction on publication before the material is published (as opposed to punishment after publication). It typically takes one of two forms—an administrative licensing requirement or a judicial injunction. Many regard prior restraint as the more pernicious, as it prevents the words in question from ever being uttered; if subsequent punishment chills speech, prior restraint freezes it. Furthermore, post-publication defendants are free to challenge the constitutionality of the law and escape the sanction if they are right, but, under the collateral bar rule, violating a judicial order brings its own punishment, even if the order is eventually determined to be illegal or unconstitutional. Post-publication punishment is discussed in more detail in a separate entry, National Security and Freedom of Speech.

As early as 1769, Blackstone, in his Commentaries on the Laws of England, had written that ‘‘liberty of the press ... consists in laying no previous restraints upon publication ....’’ In the United States, it was generally accepted that the First Amendment went at least that far. Even the Sedition Act of 1798 made no effort to establish a licensing system alongside its severe post-publication penalties for seditious libel. The White House version of the Espionage Act of 1917 contained a ‘‘press censorship’’ clause that would have made it an offense to publish information that the president had determined ‘‘is or might be useful to the enemy.’’ After bitter criticism from the press and civil libertarians, who objected to the unfettered discretion granted to the president, Congress removed the provision, although it retained others that raised serious concerns among civil libertarians and that became the basis of controversial prosecutions during and after World War I.

It was not clear until 1939 that the First Amendment strongly disfavored injunctions as well as licensing. Near v. Minnesota (1931), which overturned a state’s attempt to prevent a scandal sheet from publishing scurrilous, anti-Semitic material, had no direct relevance to national security, but, in a famous dictum, Chief Justice Hughes made clear that, like most constitutional rules, the prohibition on prior restraints was not absolute and that an injunction might legitimately prevent, for example, the publication in wartime of sailing dates or the location of troops.

For four decades after Near, prior restraints were litigated in a number of other contexts: obscenity (which is not protected speech under the First Amendment) and efforts by state or local government to control public demonstrations and the distribution of literature. To survive judicial scrutiny, a licensing scheme had to be content neutral, have an important governmental purpose, allow administrative officials virtually no discretion, and provide procedural safeguards including a prompt hearing and judicial review. Judicial injunctions were occasionally upheld as well when the state could show that the release of certain information could interfere with a criminal defendant’s Sixth Amendment right to a fair trial.

Then in 1971, U.S. District Judge Murray Gurfein, in his first case since being appointed to the bench, became the first federal judge in U.S. history to prohibit a newspaper from publishing particular information. He issued a temporary restraining order (TRO) against the New York Times, which had begun publishing installments of the Pentagon Papers, a 7,000-page, forty-seven-volume ‘‘History of U.S. Decision-Making Process on Vietnam Policy, 1945–1967,’’ which Daniel Ellsberg, one of the study’s compilers, had copied and passed to the Times. The government persuaded the judge that further publication would undermine national security. After the Times complied with the TRO, the Washington Post began publishing the papers. Judge Gerhard Gesell refused to grant a TRO or an injunction on the ground that the government had not identified any material that would injure the United States and was misusing the Espionage Act of 1917 (discussed above) in an effort to censor the press. The Supreme Court quickly agreed to hear the case, New York Times Co. v. United States (1971). Meanwhile, at least nine other papers began to publish excerpts. The Supreme Court held, six-to-three in a per curiam opinion, that the Times and the Post could resume publication because the government had not satisfied its ‘‘heavy burden of showing justification’’ for a prior restraint on the press. Critics have suggested that this was, in the long run, a defeat for the press in that the opinion substituted a Balancing Test for Near’s almost absolute disapproval of prior restraints, particularly as it offered no guidance on how the ‘‘heavy burden’’ might be satisfied. Some justices who voted to allow the publication wondered whether the injunction might have been upheld had there been authorizing congressional legislation.

In 1979, an article in The Progressive purporting to show how to build a hydrogen bomb presented a case as close as one might hope to get to Hughes’s troopship dictum in Near. The case had the potential to resolve two open questions from the Pentagon Papers case: how to define the government’s burden, and whether Congress could authorize such injunctions. The government argued in United States v. The Progressive, Inc. (1979) that material in the article was classified, even though it had all been gathered from public sources, and persuaded a federal district judge that its publication would violate the Atomic Energy Act. As The Progressive was preparing an appeal from the preliminary injunction, the article was published by others overseas and the case became moot, so the appeal was dismissed. There has been widespread speculation that the government was relieved to see the case dismissed, as it feared that it would lose and even that portions of the Atomic Energy Act would be declared unconstitutional.

In a fair-trial case tangentially related to national security, a federal court in Florida enjoined CNN from broadcasting conversations between Manuel Noriega, Panama’s deposed president, and his attorney taped in a U.S. prison where Noriega was awaiting trial on drug charges (Cable News Network Inc. v. Noriega [1990]; United States v. Noriega [1990]). The Court of Appeals refused to intervene, as did the Supreme Court. Two justices, Thurgood Marshall and Sandra Day O’Connor, dissented, however, because the trial court had issued the TRO ‘‘without any finding that suppression of the broadcast was necessary to protect Noriega’s right to a fair trial, reasoning that no such determination need be made unless CNN surrendered the tapes for the court’s inspection.’’ CNN went ahead and broadcast the tapes anyway, the court lifted the order, and CNN was eventually convicted of criminal contempt.

Yet another technique for keeping national security information from leaking has been upheld by the courts—contract law—but it is effective only against government employes, not the press. Since 1972, the courts have upheld secrecy agreements in which incoming and outgoing employees of the Central Intelligence Agency (CIA) agree not to divulge Classified Information or to publish any information whatsoever without first obtaining clearance from the CIA. In United States v. Marchetti (1972), the Court of Appeals upheld an injunction against a former agent, but stressed that it could apply only to Classified Information not previously disclosed, that the CIA must act promptly to approve or disapprove the submissions, and that the author was entitled to judicial review of the CIA decision. The Supreme Court declined to review the decision, but eight years later, in Snepp v. United States (1980), it not only upheld the validity of the secrecy agreements but authorized the government to establish a constructive trust to impound any royalties from any work published without CIA clearance.

WILLIAM V. DUNLAP

References and Further Reading

• Dycus, Stephen, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen. National Security Law. 3rd ed. New York: Aspen, 2002 (and annual supplements).
• Milton, John. Areopagitica, A Speech of Mr. John Milton for the Liberty of Unlicensed Printing, to the Parliament of England. Vol. III, Part 3. The Harvard Classics. New York: P.F. Collier & Son, 1909–14. Bartleby.com, 2001. https://www.bartleby.com/3/3/.
• Moore, John Norton, and Robert F. Turner, eds. National Security Law. 2nd ed. Durham, NC: Carolina Academic Press, 2005.
• Rabban, David M. Free Speech in Its Forgotten Years. Cambridge: Cambridge University Press, 1997.
• Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: Norton, 2004.

Cases and Statutes Cited

• Cable News Network Inc. v. Noriega, 498 U.S. 976 (1990); United States v. Noriega, 752 F. Supp. 1045 (1990)
• Near v. Minnesota, 283 U.S. 697 (1931)
• New York Times Co. v. United States, 403 U.S. 713 (1971)
• Snepp v. United States, 444 U.S. 507 (1980)
• United States v. Marchetti, 466 F.2d 1309 (1972)
• United States v. The Progressive, Inc., 467 F.Supp. 990, 486 F.Supp. 5 (1979)

See also National Security and Freedom of Speech