Prior Restraint - History

Prior Restraint - History


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Prior Restraint

One of the fundamental rights guaranteed by the FIRST AMENDMENT to the U.S. Constitution is the freedom from prior restraint. Derived from English COMMON LAW, the rule against prior restraint prohibits government from banning expression of ideas prior to their publication. The rule against prior restraint is based on the principle that FREEDOM OF THE PRESS is essential to a free society. Attempts by government to obtain a prior restraint have largely been unsuccessful.

The rule against prior restraint was undisputed for much of U.S. history. The landmark case of NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), finally settled the issue, with the U.S. Supreme Court finding that the First Amendment imposed a heavy presumption against the validity of a prior restraint.

In Near, the Court struck down a Minnesota state law that permitted public officials to seek an INJUNCTION to stop publication of any "malicious, scandalous and defamatory newspaper, magazine, or other periodical." The 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. The law provided that once a newspaper was enjoined, further publication was punishable as CONTEMPT of court.

Chief Justice CHARLES EVANS HUGHES, in his majority opinion, called the law "the essence of censorship" and declared it unconstitutional. With its decision, the Court incorporated the First Amendment freedom of the press into the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT. This incorporation made freedom of the press fully applicable to the states.

Though Hughes agreed that a rule against prior restraint was needed, he acknowledged that this restriction was not absolute. The rule would not, for example, prevent government in time of war from prohibiting publication of "the sailing dates of transports or the number and location of troops." Threats to national security interests are almost certain to prevail over freedom of the press, but it has proved difficult to invoke the "national security" justification.

This was illustrated in the Pentagon Papers case of 1971 (NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822). President RICHARD NIXON's administration sought 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, arguing that publication would hurt national security interests. The Supreme Court, by a 6&ndash3 vote, held that the government's efforts to block publication amounted to an unconstitutional prior restraint.

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 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.

Prior restraint issues have arisen over prejudicial PRETRIAL PUBLICITY in sensational criminal proceedings. The defendant's right to a fair trial by an unbiased jury must be considered as well as freedom of the press. In exceptional circumstances, a court may depart from prior restraint doctrine by restricting news coverage of a criminal case. These restrictions must be narrowly tailored, and they must not unduly restrict the right of the press to inform the public. The U.S. Supreme Court, in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), made clear, however, that these restrictions are severely limited. The Court invalidated a GAG ORDER issued by a state trial judge that forbade the publishing or broadcasting of any confessions, admissions, or facts that strongly implicated the defendant charged with a grisly mass murder.

The rule against prior restraint does not apply to the publication of student-operated school newspapers. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988), the Supreme Court upheld a public school principal's decision to remove certain controversial material from the school newspaper. The principal based his decision on fears that the articles on teen pregnancy and DIVORCE would allow students to identify classmates who had encountered such difficulties. Justice BYRON R. WHITE ruled that educators did not "offend the First Amendment by exercising editorial control &hellip so long as their actions are reasonably related to legitimate pedagogical concerns."

Prior restraint issues have also appeared in cases involving the picketing of clinics where ABORTIONS are performed. In Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Supreme Court upheld a Colorado law that required anti-abortion demonstrators to stay at least eight feet away from anyone entering or leaving medical facilities. The protesters had argued that this restriction was a prior restraint on their First Amendment right to express their views on abortion. Justice JOHN PAUL STEVENS stated that prior restraint related to restrictions "imposed by official censorship." The Colorado law only applied if the "pedestrian does not consent to the approach." Therefore, the private individual, not the government, exercise the right not to hear the protesters views in close proximity. The protesters were free to display signs that could be seen eight feet away from the person entering or leaving the clinic.


McNamara commissioned a secret Vietnam War study

In 1967 then Secretary of Defense Robert McNamara commissioned a secret government study on American involvement in Vietnam. When completed in 1968, the project comprised 47 volumes containing more than 7,000 pages. The work was labeled classified, and only 15 copies were made.

In early 1971 Daniel Ellsberg, a RAND Corporation employee who had worked on the project, secretly made copies of the documents and passed them to reporters for the New York Times. On June 13, 1971, after several months of review, the Times began to publish these so-called &ldquoPentagon Papers.&rdquo

After the first three installments were published, the Nixon administration, citing national security concerns, obtained a restraining order barring further publication of the Papers. When the Second Circuit Court of Appeals affirmed the order, the Times made an emergency appeal to the Supreme Court, which agreed to hear the case the next day (June 26). The Court issued its opinions on June 30 in all, the entire legal process had taken only 15 days.

Dr. Daniel Ellsberg, source of published reports based on Pentagon Papers, places his hand on his wife's shoulder as he talks to newsmen at the Boston federal building on June 28, 1971. Ellsberg, charged in federal warrants with unauthorized possession of top secret documents and failure to return them, arrived to surrender himself to the U.S. Attorney. Ellsberg had passed the documents to reporters at the New York Times, resulting in the case New York Times v. United States (1971). The Court decided 6-3 to allow the Times to publish the papers. (AP Photo, used with permission from the Associated Press)


Gag Orders, Prior Restraint And ‘The Post’


The Pentagon Papers on display at the LBJ Presidential Library. Photo courtesy the LBJ Library on Flickr.

If you have seen “The Post,” Steven Spielberg’s well-crafted docudrama about the Nixon administration’s 1971 effort to block publication of the Pentagon Papers, you might think the First Amendment legal battle was novel at the time.

You might also leave that film believing the Supreme Court definitively settled the rules on prior restraint when it ruled in favor of The New York Times and The Washington Post. You would be justified, but wrong, on both counts.

The extent of permissible limits on the freedom to write and speak remains unclear even today. Some of the most recent examples have grown out of the efforts by Robert Mueller to prosecute two of President Trump’s former campaign aides in connection with their prior work for foreign governments. But I am getting about 45 years ahead of myself.

If you are not familiar with the history and haven’t seen the recent film, the Pentagon Papers documented the United States’ role in Indochina, especially Vietnam, from World War II until 1968. Daniel Ellsberg, a senior research associate at the Massachusetts Institute of Technology, leaked the documents to The New York Times. The Times, joined by The Washington Post, faced and fought a temporary restraining order from the Justice Department forbidding the (further) publication of the records.

With the benefit of hindsight, or maybe with hindsight bias augmented by my own strong sentiments about freedom of expression, it seems obvious to me that the newspapers had the much better argument. They proposed to finally tell the official truth about American involvement in Vietnam, as opposed to the government’s claim that publication of a record of government action that ended three years prior to disclosure was somehow a clear and present danger to the republic. The case was closer than it should have been, with the newspapers winning on a 6-3 vote of the high court.

The basic rules involving prepublication censorship had been set out much earlier, in the Supreme Court’s 1931 decision in Near v. Minnesota. The First Amendment necessitates a strong presumption against “prior restraint” on publication, the court ruled. With a few narrow exceptions, the government could not censor a publication in advance without violating the Constitution, even if the material published might be punishable after publication. Witness the complete failure of President Trump’s effort (which amounted to mere bluster rather than actual legal action) to prevent Macmillan from publishing Michael Wolff’s book “Fire and Fury,” and the reaction to the attempt from the publisher’s CEO. In the postwar years, there was also an accelerating trend away from censorship of films, which the courts considered outside the realm of First Amendment protection in the early days of the medium it took until 1952 for the Supreme Court to acknowledge films are entitled to such protection in any degree.

The court did leave an exception to the presumption against prior restraint for information that could prove harmful to Americans or helpful to enemies in wartime – the classic example being publication of planned troop movements.

The really pivotal litigation over prior restraint came five years after the Pentagon Papers case, in Nebraska Press Association v. Stewart. This case centered on press coverage of a criminal proceeding, which the accused individual’s attorneys said was so extensive as to potentially infringe upon their client’s right to a fair trial. The trial judge entered an order forbidding publications to print or broadcast accounts of any confessions made by the accused to police. Several media outlets sued.

In the wake of some ghastly conduct by press and prosecutors in earlier notorious criminal cases, notably the Lindbergh and Sheppard trials, courts in the 1970s (and today) believed they needed to balance the right of public access to information with the right of an accused to a fair trial. But that power clearly stopped at the point where a judge tried to impose limits on what the press could report about an ongoing criminal case. In this instance, it was not a close call the Supreme Court was unanimous in ruling in favor of the press. Chief Justice Warren Burger, in writing for the court, observed, “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

But even in light of the decisive Nebraska Press Association ruling, the government and the trial courts have never really given up on trying to limit speech. They just tend to retreat strategically when confronting the possibility of losing a big case.

The biggest case of all arguably arrived at the end of the 1970s. The Progressive, a left-leaning magazine, had commissioned freelance journalist Howard Morland to draft an article about the secrecy surrounding nuclear weapons in the United States. The editors and Morland hoped to boost the environmental case for nuclear disarmament by demystifying how nuclear weapons functioned. Using publicly available sources, Morland pieced together a design for a hydrogen bomb, and made this the centerpiece of his article.

The Energy Department, which The Progressive had contacted to solicit comment on the article, tried and failed to dissuade the editors from running the piece. When the editors stood firm, the Energy Department filed a motion to suppress publication. Ironically, only a few years after the Pentagon Papers victory, major publications including The Washington Post supported the government’s case. Meanwhile, The Daily Californian obtained a letter from a group of scientists expressing concern about the information at issue in the Progressive case, tacitly confirming that Morland’s hypothetical bomb design was workable, a fact that had not been available to the public. After The Daily Californian published excerpts of this letter, the Energy Department obtained a court order to try to prevent further publication the periodical published the full text of the letter anyway.

Rather than litigate its case against The Daily Californian and continue to litigate its case against The Progressive to extend the orders banning publication – which The Daily Californian, at least, had already disregarded – the government dropped the matter entirely.

Although judges almost never try to gag the press or other nonparticipants anymore, they routinely bar participants in proceedings from discussing a pending case. As applied to prosecutors, who are government officials conducting the public’s business, such restrictions are well-supported there is a case to be made for restrictions on defense lawyers, who are considered officers of the court. But when it comes to defendants themselves, the judges are on pretty shaky ground. Today perhaps none is shakier than the ground on which U.S. District Judge Amy Berman Jackson rested her gag order against Trump’s former associates Paul Manafort and Rick Gates.

Jackson asserts that she has the power to prevent the defendants from publicly professing their innocence or criticizing the motives and methods of their prosecutors. She is most likely wrong – and my guess is that the Harvard-educated judge is well aware that she is.

Superficially, her gag order would seem meant to ensure both parties a fair trial. But prosecutors are not guaranteed a “fair” criminal trial under the Constitution the Sixth Amendment’s guarantees are explicitly directed only toward the rights of those accused. The fact that defendants are not members of “the press” is constitutionally meaningless the First Amendment addresses the right to speak as well as to publish. Journalists are not certified or licensed in this country in any case, and they have no greater or lesser rights than anyone else.

So Jackson has blustered and bullied the defendants into restricting their commentary about their cases, but she has not punished them for behavior that she views as infractions. Imposing sanctions would give the defendants a vehicle through which to challenge Jackson’s power to limit their speech. The judge appears to have about as little appetite to test that power as does most of the media to defend the free-speech rights of Trump associates that many revile.

I’ll give a critical two thumbs up to “The Post.” The movie captures a moment when two leading news organizations went after the story – not the people behind the story – in the public’s interest. They took a principled stand and vindicated that stand against heavy political and social pressure. In the process, the journalists of that era shaped my deep appreciation for how much our First Amendment freedom has given us, and how much it calls upon each generation to defend the right to report and to speak against those who claim, almost always wrongly, to represent some greater good.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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Contents

Secretary of Defense Robert McNamara created the Vietnam Study Task Force on June 17, 1967, for the purpose of writing an "encyclopedic history of the Vietnam War". [8] McNamara claimed that he wanted to leave a written record for historians, to prevent policy errors in future administrations, [9] although Les Gelb, then director of Policy Planning at the Pentagon, has said that the notion that they were commissioned as a "cautionary tale" is a motive that McNamara only used in retrospect. McNamara told others, such as Dean Rusk, that he only asked for a collection of documents rather than the studies he received. [10] Motives aside, McNamara neglected to inform either President Lyndon Johnson or Secretary of State Dean Rusk about the study. [8] One report claimed that McNamara had planned to give the work to his friend, Robert F. Kennedy, who was seeking the Democratic presidential nomination in 1968. [11] [12] which he later denied, though admitting that he should have informed Johnson and Rusk. [12]

Instead of using existing Defense Department historians, McNamara assigned his close aide and Assistant Secretary of Defense John T. McNaughton to collect the papers. [8] McNaughton died in a plane crash one month after work began in June 1967, but the project continued under the direction of Defense Department official Leslie H. Gelb. [8] Thirty-six analysts—half of them active-duty military officers, the rest academics and civilian federal employees—worked on the study. [8] The analysts largely used existing files in the Office of the Secretary of Defense. In order to keep the study secret from others, including National Security Advisor Walt W. Rostow, they conducted no interviews or consultations with the armed forces, with the White House, or with other federal agencies. [11]

McNamara left the Defense Department in February 1968, and his successor Clark M. Clifford received the finished study on January 15, 1969, five days before Richard Nixon's inauguration, although Clifford claimed he never read it. The study consisted of 3,000 pages of historical analysis and 4,000 pages of original government documents in 47 volumes, and was classified as "Top Secret – Sensitive". ("Sensitive" is not an official security designation it meant that access to the study should be controlled.) The task force published 15 copies the think tank RAND Corporation received two of the copies from Gelb, Morton Halperin and Paul Warnke, with access granted if at least two of the three approved. [11] [13]

Actual objective of the Vietnam War: Containment of China Edit

Although President Johnson stated that the aim of the Vietnam War was to secure an "independent, non-Communist South Vietnam", a January 1965 memorandum by Assistant Secretary of Defense John McNaughton stated that an underlying justification was "not to help friend, but to contain China". [14] [15] [16]

On November 3, 1965, Secretary of Defense Robert McNamara sent a memorandum to President Johnson, in which he explained the "major policy decisions with respect to our course of action in Vietnam". The memorandum begins by disclosing the rationale behind the bombing of North Vietnam in February 1965:

The February decision to bomb North Vietnam and the July approval of Phase I deployments make sense only if they are in support of a long-run United States policy to contain China. [17]

McNamara accused China of harboring imperial aspirations like those of Nazi Germany and Imperial Japan. According to McNamara, the Chinese were conspiring to "organize all of Asia" against the United States:

China—like Germany in 1917, like Germany in the West and Japan in the East in the late 30s, and like the USSR in 1947—looms as a major power threatening to undercut our importance and effectiveness in the world and, more remotely but more menacingly, to organize all of Asia against us. [17]

To encircle the Chinese, the United States aimed to establish "three fronts" as part of a "long-run effort to contain China":

There are three fronts to a long-run effort to contain China (realizing that the USSR "contains" China on the north and northwest):

(a) the Japan–Korea front

(b) the India–Pakistan front and

(c) the Southeast Asia front. [17]

However, McNamara admitted that the containment of China would ultimately sacrifice a significant amount of America's time, money and lives. [17]

Internal affairs of Vietnam Edit

  • 1950 ( 1950 ) : The United States provided large-scale military equipment to the French in its fight against the communistViet Minh[18]
  • 1954 ( 1954 ) : The United States began to engage in "acts of sabotage and terror warfare" in the defense of South Vietnam against communist North Vietnam [18]
  • 1955 ( 1955 ) : The United States encouraged and directly assisted South Vietnamese President Ngô Đình Diệm's rise to power [19]
  • 1963 ( 1963 ) : The United States encouraged and directly assisted the overthrow of the South Vietnamese President Ngô Đình Diệm [18]
  • August 2, 1964 ( 1964-08-02 ) : Following the Gulf of Tonkin incident, the United States manipulated public opinion in its preparation for open warfare against a communist takeover of South Vietnam [18]

Years before the Gulf of Tonkin incident occurred on August 2, 1964, the U.S. government was indirectly involved in Vietnam's affairs by sending advisors or (military personnel) to train the South Vietnamese soldiers:

  • Under President Harry S. Truman, the U.S. government aided France in its war against the communist-led Viet Minh during the First Indochina War. [18]
  • Under President Dwight D. Eisenhower, the U.S. government played a "direct role in the ultimate breakdown of the Geneva settlement" in 1954 by supporting the fledgling South Vietnam and covertly undermining the communist country of North Vietnam. [18]
  • Under President John F. Kennedy, the U.S. government transformed its policy towards Vietnam from a limited "gamble" to a broad "commitment". [18]
  • Under President Johnson, the U.S. government began waging covert military operations against communist North Vietnam in defense of South Vietnam. [18]

Role of the United States in the rise of President Diem Edit

In a section of the Pentagon Papers titled "Kennedy Commitments and Programs", America's commitment to South Vietnam was attributed to the creation of the country by the United States. As acknowledged by the papers:

We must note that South Vietnam (unlike any of the other countries in Southeast Asia) was essentially the creation of the United States. [19]

In a sub-section titled "Special American Commitment to Vietnam", the papers emphasized once again the role played by the United States:

  • Without U.S. support [Ngo Dinh] Diem almost certainly could not have consolidated his hold on the South during 1955 and 1956.
  • Without the threat of U.S. intervention, South Vietnam could not have refused to even discuss the elections called for in 1956 under the Geneva settlement without being immediately overrun by the Viet Minh armies.
  • Without U.S. aid in the years following, the Diem regime certainly, and an independent South Vietnam almost as certainly, could not have survived. [19]

More specifically, the United States sent US$28.4 million worth of equipment and supplies to help the Diem regime strengthen its army. In addition, 32,000 men from South Vietnam's Civil Guard were trained by the United States at a cost of US$12.7 million. It was hoped that Diem's regime, after receiving a significant amount of U.S. assistance, would be able to withstand the Viet Cong. [19]

The papers identified General Edward Lansdale, who served in the Office of Strategic Services (OSS) and worked for the Central Intelligence Agency (CIA), as a "key figure" in the establishment of Diem as the President of South Vietnam, and the backing of Diem's regime thereafter. As written by Lansdale in a 1961 memorandum: "We (the U.S.) must support Ngo Dinh Diem until another strong executive can replace him legally." [19]

Role of the United States in the overthrow of Diem's regime Edit

According to the Pentagon Papers, the U.S. government played a key role in the 1963 South Vietnamese coup, in which Diem was assassinated. While maintaining "clandestine contact" with Vietnamese generals planning a coup, the U.S. cut off its aid to President Diem and openly supported a successor government in what the authors called an "essentially leaderless Vietnam":

For the military coup d'etat against Ngo Dinh Diem, the U.S. must accept its full share of responsibility. Beginning in August 1963 we variously authorized, sanctioned and encouraged the coup efforts of the Vietnamese generals and offered full support for a successor government.

In October we cut off aid to Diem in a direct rebuff, giving a green light to the generals. We maintained clandestine contact with them throughout the planning and execution of the coup and sought to review their operational plans and proposed new government.

Thus, as the nine-year rule of Diem came to a bloody end, our complicity in his overthrow heightened our responsibilities and our commitment in an essentially leaderless Vietnam. [20]

As early as August 23, 1963, an unnamed U.S. representative had met with Vietnamese generals planning a coup against Diem. [20] According to The New York Times, this U.S. representative was later identified to be CIA officer Lucien Conein. [21]

Proposed operations Edit

The Director of Central Intelligence, John A. McCone, proposed the following categories of military action:

  • Category 1 – Air raids on major Viet Cong supply centers, conducted simultaneously by the Republic of Vietnam Air Force and the United States Air Force (codenamed Farmgate) [22]
  • Category 2 – Cross-border raids on major Viet Cong supply centers, conducted by South Vietnamese units and US military advisors. [22]
  • Category 3 – Limited air strikes on North Vietnamese targets by unmarked planes flown exclusively by non-US aircrews. [22]

However, McCone did not believe these military actions alone could lead to an escalation of the situation because the "fear of escalation would probably restrain the Communists". [22] In a memorandum addressed to President Johnson on July 28, 1964, McCone explained:

In response to the first or second categories of action, local Communist military forces in the areas of actual attack would react vigorously, but we believe that none of the Communist powers involved would respond with major military moves designed to change the nature of the conflict . Air strikes on North Vietnam itself (Category 3) would evoke sharper Communist reactions than air strikes confined to targets in Laos, but even in this case fear of escalation would probably restrain the Communists from a major military response . [22]

Barely a month after the Gulf of Tonkin incident on August 2, 1964, National Security Advisor McGeorge Bundy warned that further provocations should not be undertaken until October, when the government of South Vietnam (GVN) would become fully prepared for a full-scale war against North Vietnam. In a memorandum addressed to President Johnson on September 8, 1964, Bundy wrote:

The main further question is the extent to which we should add elements to the above actions that would tend deliberately to provoke a DRV reaction, and consequent retaliation by us.

Examples of actions to be considered were running US naval patrols increasingly close to the North Vietnamese coast and/or [sic] associating them with 34A operations.

We believe such deliberately provocative elements should not be added in the immediate future while the GVN is still struggling to its feet. By early October, however, we may recommend such actions depending on GVN progress and Communist reaction in the meantime, especially to US naval patrols. [23]

While maritime operations played a key role in the provocation of North Vietnam, U.S. military officials had initially proposed to fly a Lockheed U-2 reconnaissance aircraft over the country, but this was to be replaced by other plans. [14]

Daniel Ellsberg knew the leaders of the task force well. He had worked as an aide to McNaughton from 1964 to 1965, had worked on the study for several months in 1967, and Gelb and Halperin approved his access to the work at RAND in 1969. [11] Now opposing the war, Ellsberg and his friend Anthony Russo [24] photocopied the study in October 1969 intending to disclose it. Ellsberg approached Nixon's National Security Advisor Henry Kissinger, Senators William Fulbright and George McGovern, and others, but none were interested. [11]

In February 1971, Ellsberg discussed the study with The New York Times reporter Neil Sheehan, and gave 43 of the volumes to him in March. Before publication, The New York Times sought legal advice. The paper's regular outside counsel, Lord Day & Lord, advised against publication, [11] but in-house counsel James Goodale prevailed with his argument that the press had a First Amendment right to publish information significant to the people's understanding of their government's policy.

The New York Times began publishing excerpts on June 13, 1971 the first article in the series was titled "Vietnam Archive: Pentagon Study Traces Three Decades of Growing US Involvement". The study was dubbed The Pentagon Papers during the resulting media publicity. [11] [25] Street protests, political controversy, and lawsuits followed.

To ensure the possibility of public debate about the papers' content, on June 29, US Senator Mike Gravel, an Alaska Democrat, entered 4,100 pages of the papers into the record of his Subcommittee on Public Buildings and Grounds. These portions of the papers, which were edited for Gravel by Howard Zinn and Noam Chomsky, were subsequently published by Beacon Press, the publishing arm of the Unitarian Universalist Association of Congregations. [26] A federal grand jury was subsequently empaneled to investigate possible violations of federal law in the release of the report. Leonard Rodberg, a Gravel aide, was subpoenaed to testify about his role in obtaining and arranging for publication of the Pentagon Papers. Gravel asked the court (in Gravel v. United States) to quash the subpoena on the basis of the Speech or Debate Clause in Article I, Section 6 of the United States Constitution.

That clause provides that "for any Speech or Debate in either House, [a Senator or Representative] shall not be questioned in any other Place", meaning that Gravel could not be prosecuted for anything said on the Senate floor, and, by extension, for anything entered to the Congressional Record, allowing the papers to be publicly read without threat of a treason trial and conviction. When Gravel's request was reviewed by the U.S. Supreme Court, the Court denied the request to extend this protection to Gravel or Rodberg because the grand jury subpoena served on them related to a third party rather than any act they themselves committed for the preparation of materials later entered into the Congressional Record. Nevertheless, the grand jury investigation was halted, and the publication of the papers was never prosecuted.

Later, Ellsberg said the documents "demonstrated unconstitutional behavior by a succession of presidents, the violation of their oath and the violation of the oath of every one of their subordinates." [27] He added that he leaked the Papers to end what he perceived to be "a wrongful war". [27]

The Nixon administration's restraint of the media Edit

President Nixon at first planned to do nothing about publication of the study since it embarrassed the Johnson and Kennedy administrations rather than his. But Henry Kissinger convinced the president that not opposing the publication set a negative precedent for future secrets. [11] The administration argued Ellsberg and Russo were guilty of a felony under the Espionage Act of 1917, because they had no authority to publish classified documents. [28] After failing to persuade The New York Times to voluntarily cease publication on June 14, [11] Attorney General John N. Mitchell and Nixon obtained a federal court injunction forcing The New York Times to cease publication after three articles. [11] The New York Times publisher Arthur Ochs Sulzberger said:

These papers, as our editorial said this morning, were really a part of history that should have been made available considerably longer ago. I just didn't feel there was any breach of national security, in the sense that we were giving secrets to the enemy. [29]

The newspaper appealed the injunction, and the case New York Times Co. v. United States (403 U.S. 713) quickly rose through the U.S. legal system to the Supreme Court. [30]

On June 18, 1971, The Washington Post began publishing its own series of articles based upon the Pentagon Papers [11] Ellsberg had given portions to The Washington Post reporter Ben Bagdikian. Bagdikian brought the information to editor Ben Bradlee. That day, Assistant U.S. Attorney General William Rehnquist asked The Washington Post to cease publication. After the paper refused, Rehnquist sought an injunction in U.S. district court. Judge Murray Gurfein declined to issue such an injunction, writing that "[t]he security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority to preserve the even greater values of freedom of expression and the right of the people to know." [31] The government appealed that decision, and on June 26 the Supreme Court agreed to hear it jointly with The New York Times case. [30] Fifteen other newspapers received copies of the study and began publishing it. [11]

The Supreme Court allows further publication Edit

On June 30, 1971, the Supreme Court decided, 6–3, that the government failed to meet the heavy burden of proof required for prior restraint injunction. The nine justices wrote nine opinions disagreeing on significant, substantive matters.

Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

Thomas Tedford and Dale Herbeck summarized the reaction of editors and journalists at the time:

As the press rooms of the Times and the Post began to hum to the lifting of the censorship order, the journalists of America pondered with grave concern the fact that for fifteen days the 'free press' of the nation had been prevented from publishing an important document and for their troubles had been given an inconclusive and uninspiring 'burden-of-proof' decision by a sharply divided Supreme Court. There was relief, but no great rejoicing, in the editorial offices of America's publishers and broadcasters.

Legal charges against Ellsberg Edit

Ellsberg surrendered to authorities in Boston, and admitted that he had given the papers to the press: "I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision". [29] He was indicted by a grand jury in Los Angeles on charges of stealing and holding secret documents. [29] Federal District Judge William Matthew Byrne, Jr. declared a mistrial and dismissed all charges against Ellsberg and Russo on May 11, 1973, after it was revealed that agents acting on the orders of the Nixon administration illegally broke into the office of Ellsberg's psychiatrist and attempted to steal files representatives of the Nixon administration approached the Ellsberg trial judge with an offer of the job of FBI directorship several irregularities appeared in the government's case including its claim that it had lost records of illegal wiretapping against Ellsberg conducted by the White House Plumbers in the contemporaneous Watergate scandal. Byrne ruled: "The totality of the circumstances of this case which I have only briefly sketched offend a sense of justice. The bizarre events have incurably infected the prosecution of this case." Ellsberg and Russo were freed due to the mistrial they were not acquitted of violating the Espionage Act. [11]

In March 1972, political scientist Samuel L. Popkin, then assistant professor of Government at Harvard University, was jailed for a week for his refusal to answer questions before a grand jury investigating the Pentagon Papers case, during a hearing before the Boston Federal District Court. The Faculty Council later passed a resolution condemning the government's interrogation of scholars on the grounds that "an unlimited right of grand juries to ask any question and to expose a witness to citations for contempt could easily threaten scholarly research". [34]

Gelb estimated that The New York Times only published about five percent of the study's 7,000 pages. The Beacon Press edition was also incomplete. Halperin, who had originally classified the study as secret, obtained most of the unpublished portions under the Freedom of Information Act and the University of Texas published them in 1983. The National Security Archive published the remaining portions in 2002. The study itself remained formally classified until 2011. [11]

The Pentagon Papers revealed that the United States had expanded its war with the bombing of Cambodia and Laos, coastal raids on North Vietnam, and Marine Corps attacks, none of which had been reported by the American media. [35] The most damaging revelations in the papers revealed that four administrations (Truman, Eisenhower, Kennedy, and Johnson) had misled the public regarding their intentions. For example, the Eisenhower administration actively worked against the Geneva Accords. The John F. Kennedy administration knew of plans to overthrow South Vietnamese leader Ngo Dinh Diem before his death in a November 1963 coup. President Johnson had decided to expand the war while promising "we seek no wider war" during his 1964 presidential campaign, [11] including plans to bomb North Vietnam well before the 1964 Election. President Johnson had been outspoken against doing so during the election and claimed that his opponent Barry Goldwater was the one that wanted to bomb North Vietnam. [29]

In another example, a memo from the Defense Department under the Johnson Administration listed the reasons for American persistence:

  • 70% – To avoid a humiliating U.S. defeat (to our reputation as a guarantor).
  • 20% – To keep [South Vietnam] (and the adjacent) territory from Chinese hands.
  • 10% – To permit the people [of South Vietnam] to enjoy a better, freer way of life.
  • ALSO – To emerge from the crisis without unacceptable taint from methods used.
  • NOT – To help a friend, although it would be hard to stay in if asked out. [11][36][37]

Another controversy was that President Johnson sent combat troops to Vietnam by July 17, 1965, [ citation needed ] before pretending to consult his advisors on July 21–27, per the cable stating that "Deputy Secretary of Defense Cyrus Vance informs McNamara that President had approved 34 Battalion Plan and will try to push through reserve call-up." [38]

In 1988, when that cable was declassified, it revealed "there was a continuing uncertainty as to [Johnson's] final decision, which would have to await Secretary McNamara's recommendation and the views of Congressional leaders, particularly the views of Senator [Richard] Russell." [39]

Nixon's Solicitor General Erwin N. Griswold later called the Pentagon Papers an example of "massive overclassification" with "no trace of a threat to the national security". The Pentagon Papers' publication had little or no effect on the ongoing war because they dealt with documents written years before publication. [11]

After the release of the Pentagon Papers, Goldwater said:

During the campaign, President Johnson kept reiterating that he would never send American boys to fight in Vietnam. As I say, he knew at the time that American boys were going to be sent. In fact, I knew about ten days before the Republican Convention. You see I was being called a trigger-happy, warmonger, bomb happy, and all the time Johnson was saying, he would never send American boys, I knew damn well he would. [29]

Senator Birch Bayh, who thought the publishing of the Pentagon Papers was justified, said:

The existence of these documents, and the fact that they said one thing and the people were led to believe something else, is a reason we have a credibility gap today, the reason people don't believe the government. This is the same thing that's been going on over the last two-and-a-half years of this administration. There is a difference between what the President says and what the government actually does, and I have confidence that they are going to make the right decision, if they have all the facts. [29]

Les Gelb reflected in 2018 that many people have misunderstood the most important lessons of the Pentagon Papers:

. my first instinct was that if they just hit the papers, people would think this was the definitive history of the war, which they were not, and that people would, would think it was all about lying, rather than beliefs. And look, because we'd never learned that darn lesson about believing our way into these wars, we went into Afghanistan and we went into Iraq. You know, we get involved in these wars and we don't know a damn thing about those countries, the culture, the history, the politics, people on top and even down below. And, my heavens, these are not wars like World War II and World War I, where you have battalions fighting battalions. These are wars that depend on knowledge of who the people are, with the culture is like. And we jumped into them without knowing. That's the damned essential message of the Pentagon Papers. [10]

On May 4, 2011, the National Archives and Records Administration announced that the papers would be declassified and released to the Richard Nixon Presidential Library and Museum in Yorba Linda, California, on June 13, 2011. [40] [41] The release date included the Nixon, Kennedy, and Johnson Libraries and the Archives office in College Park, Maryland. [42]

The full release was coordinated by the Archives's National Declassification Center (NDC) as a special project to mark the anniversary of the report. [43] There were still eleven words that the agencies having classification control over the material wanted to redact, and the NDC worked with them, successfully, to prevent that redaction. [43] It is unknown which 11 words were at issue and the government has declined requests to identify them, but the issue was made moot when it was pointed out that those words had already been made public, in a version of the documents released by the House Armed Services Committee in 1972. [44]

The Archives released each volume of the Pentagon Papers as a separate PDF file, [43] available on their website. [45]


PRIOR RESTRAINT AND CENSORSHIP

History has rooted in our constitutional tradition of freedom of expression the strongest aversion to official censorship. We have learned from the English rejection of press licensing and from our own experiences that the psychology of censors tends to drive them to excess, that censors have a stake in finding things to suppress, and that—in systems of wholesale review before publication—doubt tends to produce suppression. American law tolerated motion picture censorship for a time, but only because movies were not thought to be "the press" in first amendment terms. Censorship of the movies is now virtually dead, smothered by stringent procedural requirements imposed by unsympathetic courts, by the voluntary rating system, and, most of all, by public distaste for the absurdities of censorship in operation.

American law has tolerated requirements of prior official approval of expression in several important areas, however. No one may broadcast without a license, and the government issues licenses without charge to those it believes will serve the "public interest." Licensing is also grudgingly tolerated—because of the desirability of giving notice and of avoiding conflicts or other disruptions of the normal functions of public places—in the regulation of parades, demonstrations, leafleting, and other expressive activities in public places. But the courts have taken pains to eliminate administrative discretion that would allow officials to censor public forum expression because they do not approve its message.

Notwithstanding these areas where censorship has been permitted, the clearest principle of First Amendment law is that the least tolerable form of official regulation of expression is a requirement of prior official approval for publication. It is easy to see the suffocating tendency of prior restraints where all expression—whether or not ultimately deemed protected by the First Amendment for publication—must be submitted for clearance before it may be disseminated. The harder question of First Amendment theory has been whether advance prohibitions on expression in specific cases should be discredited by our historical aversion to censorship. The question has arisen most frequently in the context of judicial injunctions against publication. Even though injunctions do not involve many of the worst vices of wholesale licensing and censorship, the Supreme court has tarred them with the brush of "prior restraint."

The seminal case was near v. minnesota (1931), handed down by a closely divided Court but never questioned since. A state statute provided for injunctions against any "malicious, scandalous, and defamatory newspaper," and a state judge had enjoined a scandal sheet from publishing anything scandalous in the future. The Minnesota scheme did not require advance approval of all publications, but came into play only after a publication had been found scandalous, and then only to prevent further similar publications. Nevertheless, the majority of the Justices concluded that to enjoin future editions under such vague standards in effect put the newspaper under judicial censorship. Chief Justice charles evans hughes's historic opinion made clear, however, that the First Amendment's bar against prior restraint was not absolute. Various exceptional instances would justify prior restraints, including this pregnant one: "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."

It was forty years before the scope of the troop ship exception was tested. The Pentagon Papers decision of 1971, new york times co. v. united states, reaffirmed that judicial injunctions are considered prior restraints and are tolerated only in the most compelling circumstances. This principle barred an injunction against publication of a classified history of the government's decisions in the Vietnam war, although—unlike Near—the government had sought to enjoin only readily identifiable material, not unidentified similar publications in the future. Ten different opinions discussed the problem of injunctions in national security cases, and the only proposition commanding a majority was the unexplained conclusion that the government had not justified injunctive relief.

The central theme sounded in the opinions of the six majority Justices was reluctance to act in such difficult circumstances without guidance from Congress. Accepting the premise that there was no statutory authority for an injunction, several considerations support the Court's refusal to forge new rules concerning the disclosure of national secrets. First, the Court's tools are inadequate for the task ad hoc evaluations of executive claims of risk are not easily balanced against the First Amendment's language and judicial interpretation. Second, dissemination of secret information often arises in the context of heated disagreements about the proper direction of national policy. One's assessment of the disclosure's impact on security will depend on one's reaction to the policy. Third, it would be particularly unsatisfactory to build a judge-made system of rules in an area where much litigation must be done in camera. Thus, general rules about specific categories of defense-related information cannot be fashioned by courts. The best hope in a nuclear age for accommodating the needs of secrecy and the public's right to know lies in the legislative process where, removed from pressures of adjudicting particular cases, general rules can be fashioned. The courts' proper role in this area is to review legislation, not try to devise rules of secrecy case by case.

Chilling this victory for freedom of the press were admonitions, loosely endorsed by four Justices, that the espionage statutes might support criminal sanctions against the New York Times and its reporters. No journalists were indicted, but the prosecutions of Daniel Ellsberg and Anthony Russo rested on a view of several statutes that would reach the press by punishing news-gathering activities necessarily incident to publication. Since the dismissal of these cases for reasons irrelevant to these issues, the extent of possible criminal liability for publishing national security secrets remains unclear.

The Pentagon Papers case underlines how little the United States has relied on law to control press coverage of national defense and foreign policy matters. For most of our history the press has rarely tested the limits of its rights to publish. Secrets were kept because people in and out of government with access to military and diplomatic secrets shared basic assumptions about national aims. The Vietnam war changed all that. The Pentagon Papers dispute marked the passing of an era in which journalists could be counted on to work within understood limits of discretion in handling secret information.

The third major decision striking down a judicial order not to publish involved neither national security nor scandal but the right of a criminal defendant to a fair trial. A state court enjoined publication of an accused's confession and some other incriminating material on the ground that if prospective jurors learned about it they might be incapable of impartiality. In nebraska press association v. stuart (1976) the Supreme Court decided that the potential prejudice was speculative, and it rejected enjoining publication on speculation. The majority opinion examined the evidence to determine the nature and extent of pretrial publicity, the effectiveness of other measures in mitigating prejudice, and the effectiveness of a prior restraint in reducing the dangers. This opinion determined that the impact of pretrial publicity was necessarily speculative, that alternative measures short of prior restraint had not been considered by the lower courts, and that prior restraint would not significantly reduce the dangers presented.

On one issue of considerable importance, the Court seemed to be in full agreement. The opinions endorsed controls on parties, lawyers, witnesses, and law enforcement personnel as sources of information for journalists. These gag orders have been controversial among many journalists and publishers who think the First Amendment should guarantee the right to gather news. Although freeing the press from direct control by limiting prior restraint, the Court approved an indirect method of reaching the same result, guaranteeing that the press print no prejudicial publicity, by approving direct controls on sources of prejudicial information. The Court has subsequently held that pretrial motions may be closed to the public and the press with the consent of the prosecutor and the accused but over the objection of the press, in gannett co. v. depasquale (1979). This case involved access to judicial proceedings, not prior restraints on the press, and was decided largely on Sixth Amendment grounds. The Court reached the opposite result with respect to trials in richmond newspapers v. virginia (1980), but acknowledged that the right of access to trials is not absolute.

These decisions and others have firmly established that the First Amendment tolerates virtually no prior restraints. This doctrine is one of the central principles of our law of freedom of the press. On the surface, the doctrine concerns only the form of controls on expression. It bars controls prior to publication, even if imposition of criminal or civil liability following publication would be constitutional. But, as with most limitations of form, the prior restraint doctrine has important substantive consequences. Perhaps the most important of these consequences is that the doctrine is presumably an absolute bar to any wholesale system of administrative licensing or censorship of the press, which is the most repellent form of government suppression of expression. Second, the prior restraint doctrine removes most of the opportunities for official control of those types of expression for which general rules of control are difficult to formulate. The message of the prior restraint doctrine is that if you cannot control expression pursuant to general legislative standards, you cannot control it at all—or nearly at all, as the Pentagon Papers decision suggests, by suggesting an exception allowing an injunction in a truly compelling case of national security. A third effect of the doctrine is that by transferring questions of control over expression from the judiciary to the legislatures, it provides an enormously beneficial protection for the politically powerful mass media, if not for other elements of society with strong First Amendment interests but weaker influence in the legislative process.

Although the Supreme Court has exceeded its historical warrant in subjecting judicial injunctions to the full burden of our law's traditional aversion to prior restraints, there are sound reasons for viewing all prior controls—not only wholesale licensing and censorship—as dangerous to free expression. Generally it is administratively easier to prevent expression in advance than to punish it after the fact. The inertia of public officials in responding to a fait accompli, the chance to look at whether expression has actually caused harm rather than speculate about the matter, public support for the speaker, and the interposition of juries and other procedural safeguards of the usual criminal or civil process all tend to reinforce tolerance when expression can only be dealt with by subsequent punishment. Moreover, all prior restraint systems, including injunctions, tend to divert attention from the central question of whether expression is protected to the subsidiary problem of promoting the effectiveness of the prior restraint system. Once a prior restraint is issued, the authority and prestige of the restraining agent are at stake. If it is disobeyed, the legality of the expression takes a back seat to the enforcement of obedience to the prior restraint process. Moreover, the time it takes a prior restraint process to decide produces a systematic delay of expression. On the other hand, where law must wait to move against expression after it has been published, time is on the side of freedom. All in all, even such prior restraints as judicial injunctions—which are more discriminating than wholesale censorship—tend toward irresponsible administration and an exaggerated assessment of the dangers of free expression.


Rejecting prior restraint: 1931 ‘Near v. Minnesota’ case set important First Amendment precedent

The case challenged Minnesota’s 1925 Public Nuisance Bill, which had been designed to close down newspapers deemed obscene or slanderous.

In early June 1931, the U.S. Supreme Court ruled that a little-known Minnesota statute was unconstitutional. The 1925 Public Nuisance Bill had been designed to close down newspapers deemed obscene or slanderous. The court’s decision set a national precedent for freedom of the press and censorship issues.

In 1925, as a reaction to personal attacks printed in John Morrison’s Duluth newspaper Rip-saw, State Senator Mike Boylan and State Representative George Lommen drafted a bill that quickly became law. The bill allowed a judge — without jury — to shut down a publication if it was deemed obscene or scandalous. Before the law could be used against Rip-saw, however, Morrison died.

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Two years later, Howard Guilford and Jay Near began publishing the Saturday Press in Minneapolis. The paper was vehemently anti-Semitic and purported to expose government involvement with the criminal underworld. In particular, it attacked Police Commissioner Frank Brunskill and County Attorney Floyd B. Olson. As a result, Olson filed a complaint against the paper. Backed by the 1925 law, in November 1927 Judge Mathias Baldwin issued a temporary restraining order against the Saturday Press.

The case was brought to the State Supreme Court on April 16, 1928. Near’s lawyer, Thomas Latimer, argued that the Public Nuisance Law was unconstitutional. He claimed that it violated the right to freedom of the press guaranteed by the First Amendment to trial by jury, guaranteed by the Sixth Amendment and to due process, guaranteed by the Fifth Amendment (made applicable to the states by the Fourteenth Amendment).

The heart of the issue was the 1925 bill’s allowance for prior restraint of the press (e.g., enjoining a paper before it published anything slanderous). Existing libel laws punished publishers after the fact. The court, however, ruled in favor of the Public Nuisance Law the order against the Saturday Press was thus upheld. Judge Baldwin made the temporary injunction against the paper permanent. This was then appealed at the State Supreme Court, which upheld Baldwin’s ruling.

Around this time, the nascent American Civil Liberties Union and Robert McCormick (the influential publisher of the Chicago Tribune and a staunch defender of the First Amendment) became interested in the case. Through McCormick’s pugnacious efforts, the American Newspaper Publishers Association threw their support behind Near, bankrolling the legal team to argue the case. With their help, the case rose to the national stage. On April 26, 1930, Near v. Minnesota was docketed at the U.S. Supreme Court. It was the first time a First Amendment case involving prior restraints was heard at the court.

The court itself had undergone significant change in March as a result of the deaths of Chief Justice William Howard Taft and Justice Edward Sanford. The Taft court was solidly conservative and would have likely spelled doom for Near’s case. Even after the appointment of two new justices, Owen Roberts and Chief Justice Charles Evans Hughes, the case was not a sure thing. Only Justices Oliver Wendell Holmes and Louis Brandeis could be counted on to side with Near. On the other hand, four justices were certain to support the law—most notably Minnesotan Pierce Butler, who would go on to pen a scathing dissent for the case.

In a strange twist, however, the Minnesota Legislature, prodded by Representative Lommen and newly elected governor Floyd Olson, discussed whether to repeal the law, which would make any Supreme Court ruling unnecessary. The house voted to repeal but was blocked by the Senate.

Oral arguments were heard in late January 1931, and four months later the Supreme Court handed down its decision. By the smallest margin (five to four), the justices sided with Near the Minnesota Public Nuisance Law was ruled unconstitutional.

The decision established that prior restraint of the press was a direct violation of the First Amendment. Even more fundamental, it made clear that the Bill of Rights applied to the states and not just the federal government. The ruling is thus considered a landmark and has been cited regularly in other cases dealing with censorship and freedom of the press.

For more information on this topic, check out the original entry on MNopedia.

Ehsan Alam

Ehsan has a BA in history from the University of Minnesota and an MLIS from the University of Wisconsin. He has interned at special collections repositories at Hennepin County Library and University of Minnesota Libraries.


Trump’s efforts to block publication of books highlights concerns about prior restraint orders

So far this summer, President Trump and members of his family have made several attempts to prevent the publication of high-profile books offering an inside look at the president and his administration.

In June, the Trump administration tried to stop John Bolton from publishing a memoir about his time as the president’s former national security adviser. Two weeks later, the president’s brother sued his niece, Mary Trump, and her publisher over her book, “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.” And most recently, a federal judge ruled that the government returned the president’s former lawyer, Michael Cohen, to prison in retaliation for his plan to publish a book about President Trump.

These efforts to block books about the president are all examples of unconstitutional prior restraints, government orders meant to prohibit journalists, news organizations and others from publishing information. Prior restraints are considered particularly egregious violations of the First Amendment because they prevent information from being published in the first instance.

While prior restraints have garnered significant public attention this summer, attempts by government officials to prevent publication are nothing new — and neither are the Reporters Committee’s efforts to fight them.

The U.S. Supreme Court has established key legal precedents rejecting prior restraint orders, and Reporters Committee attorneys frequently cite these landmark cases to defend authors, journalists and news organizations against efforts to prevent publication — as they did in friend-of-the-court briefs they filed in the Mary Trump and John Bolton lawsuits.

But the Reporters Committee has also challenged prior restraints in a wide variety of other cases in federal and state courts around the country, cases that have received much less coverage but that similarly threaten First Amendment freedoms.

‘This is of the essence of censorship’

In 1931, The U.S. Supreme Court established the prior restraint doctrine in Near v. Minnesota. In the case, an anti-Semitic Minnesota newspaper, The Saturday Press, accused local officials of being involved with gangsters. In response, the officials sought a permanent injunction against the newspaper through an obscure Minnesota censorship statute. The Supreme Court found the statute vague and concluded that it was a prior restraint. In the opinion, the court cited Sir William Blackstone, whose 18th century “Commentaries on the Laws of England” greatly influenced the First Amendment:

“The liberty of the press is indeed essential to the nature of a free state but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matters when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public to forbid this is to destroy the freedom of the press but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.”

Near set a precedent for later prior restraint cases, most notably the Supreme Court’s decision in New York Times Company v. United States. In 1971, the Supreme Court rejected a Nixon administration lawsuit seeking to prevent The New York Times and The Washington Post from publishing the “Pentagon Papers,” a massive trove of documents detailing U.S. military involvement in Vietnam. Nixon argued that publishing the information could damage national security interests, but in a 6-3 decision, the Court found that the First Amendment prohibited the government from prohibiting its publication.

In his opinion, Justice Hugo L. Black said, “Only a free and unrestrained press can effectively expose deception in government.”

The Pentagon Papers case set the standard that there is a “heavy presumption against [the] constitutional validity” of prior restraint, which can only be overcome in the most extraordinary circumstances. It also solidified the news media’s role as an external check on the government’s actions — an integral part of a well-oiled democracy.

Four years later, the Court upheld the Pentagon Papers case in Nebraska Press Association v. Stuart, finding that prior restraint still remains unconstitutional, absent the most extraordinary circumstances. In Nebraska, a state trial judge issued a “gag order” preventing members of the press and public from reporting suspects’ confessions related to a murder trial in 1975, concerned that widespread media coverage might bias a jury. When the Supreme Court heard the case a year later, its unanimous decision held that the “heavy burden imposed as a condition to securing a prior restraint was not met in this case.”

Citing Near and New York Times, Justice Warren Burger wrote in the Court’s opinion, “The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

A threat against ‘the liberty of the American people’

As an organization committed to maintaining First Amendment freedoms, the Reporters Committee has long fought prior restraints in federal and state courts. In addition to filing briefs in support of Mary Trump and John Bolton, Reporters Committee attorneys have argued against unconstitutional government orders to silence journalists, news organizations, think tanks, and even tech companies.

In 2018, for example, the Reporters Committee led dozens of media organizations in urging the U.S. Court of Appeals for the Ninth Circuit to block a prior restraint on the Los Angeles Times. The Reporters Committee’s friend-of-the-court letter came in response to a temporary restraining order directing the newspaper to delete an article about a plea deal agreed to by a narcotics detective accused of working with the Mexican Mafia.

The plea agreement was supposed to be filed under seal but was mistakenly made publicly available in PACER, an online database for court documents. The judge later vacated the restraining order, allowing the Times to publish uncensored articles about the plea deal.

Also in 2018, the Reporters Committee supported the Las Vegas Journal-Review and Associated Press after a Nevada court ordered the publications to destroy and stop reporting on an autopsy report related to the Las Vegas mass shooting. In a friend-of-the-court brief filed with the Nevada Supreme Court, the Reporters Committee and the Nevada Press Association argued that the court order constituted a prior restraint and infringed upon the publications’ First Amendment rights.

“[T]he district court has ignored decades of established precedent under the First Amendment, protecting the flow of information to the public, and issued a gag order that is plainly unconstitutional,” Reporters Committee attorneys wrote in the brief. “Gag orders such as this significantly limit the ability of the press to report on topics of public concern and thus threaten the liberty of the American people.”

The Nevada Supreme Court sided with the Las Vegas Journal-Review and the Associated Press, holding that the Nevada court order amounted to an unconstitutional prior restraint.

To read about other prior restraint cases the Reporters Committee has been involved with, visit this page.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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[email protected] of Baltimore School of Law

The prior restraint doctrine, once so fundamental to Constitutional Jurisprudence, has lost much of its effectiveness over the years. Nevertheless, prior restraint doctrine is crucial to preserving the line between protected and unprotected speech. One of the fundamental problems that contribute to the current ineffectiveness of prior restraint doctrine is that there exists no comprehensive definition of "prior restraint". This article chronicles the historical roots of prior restraint in order to arrive at a generally accepted legal definition. Through the course of this historical journey, the article yields a heretofore unexplored aspect of prior restraint doctrine, namely that prior restraint embodies principles of both free speech and separation of powers.

The history of prior restraint begins in the Fifteenth Century, not coincidentally around the time of invention of the Gutenberg printing press. This article traces censorship laws in England from their inception. It chronicles the growing dissent against prior restraint, beginning with the Seventeenth Century scholars who spoke out against prior restrain. The article then discusses the movement for juror autonomy that grew out of the Eighteenth Century and the laws of the Nineteenth Century enjoining prior restraint on libelous statements. The article traces the transition of prior restraint doctrine to the American Colonies, through the revolution, the cases leading up to Near v. Minnesota in 1931, and to its current permutations. Using this extensive historical background, the article fully and comprehensively defines prior restraint and connects it to the fundamental doctrine of separation of powers.

Recommended Citation

The Neglected History of the Prior Restraint Doctrine: Rediscovering the Link between the First Amendment and the Separation of Powers, 34 Ind. L. Rev. 295 (2001)


Prior Restraint

Jack Pollock, his wife Beverly and 30 to 40 other Nebraska Press Association members were in Las Vegas in October 1975, enjoying the National Newspaper Association convention.

On the morning of Oct. 18, a fellow NPA member showed Pollock a headline and shocking story in that day’s Las Vegas paper. The story said a killer had murdered six members of a single family.

Pollock said his first thought was that the horrific murders must have taken place in Las Vegas itself or in some other big city. Then he saw the dateline: Sutherland, Neb. Pollock owned the weekly newspaper in Sutherland.

The shocking wire story report was the beginning of an odyssey that would wend its way through the United States Supreme Court and into the history books as Nebraska Press Association v. Stuart, a landmark First Amendment ruling.

Pollock, now retired publisher of the Keith County News at Ogallala, and nine others talked about the facts and the legal implications of the case to a standing-room-only crowd at the Nebraska Press Association convention in Kearney on April 27. The panel presentation commemorated the 25th anniversary of the Supreme Court decision, which was handed down in July 1976.

Robert O’Neil
Robert O’Neil, former president of the University of Virginia and founding director of the Thomas Jefferson Center for the Protection of Free Expression, set the stage for the presentation.

The case in question, O’Neil said, is one of three “all-star” cases regarding freedom of the press.

It began as no ordinary homicide O’Neil said. Instead, Erwin Charles Simants’ murder of six members of the Henry Kellie family in a small Nebraska town was the case of the decade. The county and district court judges were keenly aware of their obligations to assure a fair trial in circumstances that could easily become sensational, O’Neil said.

Furthermore, Nebraska law offered only limited options to prevent press coverage that might make it difficult to find an impartial jury. Change of venue was a possibility — but only to an adjacent county, where a case like this one was still likely to be big news.

In addition, O’Neil said, the judges at all levels were aware that the U.S. Supreme Court had, within the previous decade, reversed the convictions of Billy Sol Estes and Sam Sheppard in high-profile trials the justices said were tainted by bad publicity. The court seemed to be giving precedence to a fair trial above all else.

So Lincoln County Court Judge Ronald Ruff, who presided at Simants’ preliminary hearing, granted a motion by the defense counsel and supported by the prosecution to ban press coverage of parts of the case.

When Simants was bound over to the Lincoln County District Court, Judge Hugh Stuart revised Ruff’s decision but kept it essentially intact, restraining publication or broadcast — until a jury could be impaneled — of any alleged confessions by Simants or facts strongly implicating him in the murders.

The NPA, the Nebraska Broadcasters Association, Media of Nebraska and several individual newspapers challenged the gag order, charging that it amounted to prior restraint on publication, a principle that had been anathema to the American system of justice from the time of the nation’s beginnings. The Nebraska Supreme Court revised Stuart’s order but, again, left it mostly intact.

That left the U.S. Supreme Court as the final resort, and the NPA and its co-plaintiffs appealed there. The high court agreed to hear the case and to fit it into a calendar already established for the term.

In the meantime, Simants was tried, convicted and sentenced to death. At that point, the state argued the case was moot since the gag order disappeared once the trial had begun. But the Supreme Court justices, who usually refuse to take up moot cases, decided to follow their own precedent and make an exception for a situation they believed was likely to come up again.
“Few of us anticipated a unanimous Supreme Court decision,” O’Neil said. The Burger Court of 1975 was sharply divided on many issues related to press freedom — obscenity, commercial speech, protest speech — but a unanimous decision was what the NPA received.
Chief Justice Burger, not known as a friend of the media, wrote the decision himself. It was a “remarkable opinion, a beacon to freedom of the press,” O’Neil said. Burger’s decision said freedom of the press cannot be limited without being lost and that even pervasive adverse publicity need not inevitably lead to denial of a fair trial.

Burger suggested that, rather than try to control the press, a judge should control the court and its officers in order to prevent prejudicial information from appearing in print or on the air. A court should use every other possible alternative before resorting to a gag order, the Chief Justice wrote. “The barriers to prior restraint remain high and the presumption against its use continues intact.”

Judge Hugh Stuart
Retired Judge Hugh Stuart, who presided over the Simants trial and was the named defendant in the NPA v. Stuart case, remembered the trial and the case that grew out of it. He emphasized that he was speaking about his own perspective on and recollections about the crime, the trial and the Supreme Court case, not necessarily from records.

On Oct. 18, 1975, Stuart said, Erwin Charles Simants was an unemployed, beer-drinking man who lived with his sister and brother-in-law in Sutherland. On that particular Saturday, Simants apparently began drinking in the morning. He returned to his sister’s house in the afternoon. Finding it empty, he took a rifle and went next door to the Henry Kellie home.

Kellie’s 10-year-old granddaughter was playing outside in the yard. Simants apparently took her into the house and tried to sexually assault her, Stuart said. When she resisted, he shot and killed her with the rifle, then continued his assault.

When Henry Kellie came home a short time later, Simants shot and killed him as he came in the door, then dragged the body into the bedroom. When Kellie’s wife came home, he shot her, too, then sexually assaulted her and dragged her into the same bedroom, Stuart said.

Then one of Henry Kellie’s sons and two more grandchildren arrived. Simants shot them all, then went to his father’s home and confessed what he had done. Simants’ father couldn’t believe what he was hearing, but a look through the bedroom window of the Kellie home convinced him his son was telling the truth. The father encouraged Simants to give himself up.
Instead, Simants ran from the house and hid. When he returned to his sister’s home the next morning, police were waiting, and he was arrested.

The first court action took place in Lincoln County Court in North Platte where Judge Ruff held a preliminary hearing four days after the crime. While the preliminary hearing was open to the public, few citizens actually attended. But the press was there in force. It was at the hearing that the defense made its motion for prior restraint on parts of the case.

“I knew multiple murders caused lots of publicity,” Stuart said, especially in a small rural town. And Simants had been interviewed by the sheriff and “sort of confessed,” saying he “had to kill them.”

Stuart said he was concerned about Ruff’s order for prior restraint, but he was also concerned about the safety of the defendant. So, in addition to continuing a modified gag order, Stuart ordered the sheriff to bring Simants to the courthouse through a back entrance and through a corridor cleared of people.

The judge set the trial for Jan. 7, 1976, which attorneys on both sides protested was too early. The order for prior restraint — part of which, Stuart said, was “not to expound on the shocking parts of the crime — was to remain in place until the trial began.

Stuart said he patterned his order on the one issued by the county court and on the newly-issued Nebraska Bar-Press Guidelines, which encouraged care in pretrial publicity. But the NPA objected. “They said as a guideline it’s OK, but it should be voluntary. Don’t make it an order,” Stuart said.

Stuart also fretted about having to sequester a jury, he said, but he found a way to make it work, hiring extra bailiffs to supervise the jury members during every hour the jurors were together.

The trial didn’t take long: Simants was found guilty on Jan. 17, 1976. “On Jan. 26, I sentenced him to death on six counts,” Stuart said.

In the meantime, of course, the NPA challenge to the gag order was making its way through the higher courts. “I didn’t pay a lot of attention to the NPA case,” Stuart said.

The judge emphasized that he had softened Ruff’s original gag order and that the Nebraska Supreme Court had softened Stuart’s order. But it was Judge Stuart against whom the NPA brought suit.

Keith Blackledge
Keith Blackledge, now retired, was editor of the North Platte Telegraph at the time of the murders.

Blackledge had been working on an ongoing story about a North Platte high school bond issue when the Simants case appeared in court. “I was a reluctant participant,” Blackledge recalled. “On the evening of Judge Ruff’s decision (to grant the gag order), I was celebrating passage of the bond issue.”

The fight over the gag order began in the same way many wars start, Blackledge said: People have differences. They draw the lines too soon. Other people choose sides, and the battle starts. Judge Ruff was only 34 years old at the time, Blackledge said. The county attorney was 27, the public defender not a lot older. Perhaps they did not exercise the best possible judgment, Blackledge said.

“But, as Judge Stuart said, we all wanted it to be fair and (the verdict) not to be overturned” for whatever reason, including prejudicial publicity. However, Blackledge spoke out against the gag order, writing an Oct. 23 editorial headlined “Subservient right is no right at all.”

As the NPA case got under way, several Omaha attorneys joined NPA attorneys at North Platte. In one hearing before Judge Stuart, one of the Omaha lawyers said he would rather see a guilty man go free than to see a court order a violation of free speech.

“It was noble sentiment, but I cringed,” Blackledge said. “I knew what we were in for.”

The letters to the editor and the comments to reporters began. The community, generally, was in favor of the gag order. So were many lawyers, Blackledge said. The crime was so heinous that the public was willing to sacrifice some press freedoms in order to assure the man convicted of the murders stayed that way.

Leonard Vyhnalek
A North Platte attorney, Vyhnalek was the court-appointed defense attorney in the Simants case.

Vyhnalek had resigned in spring 1975 as Lincoln County deputy county attorney but had agreed to stay on in the position until the county found a replacement. He was training an August law school graduate to take over when “this happened.” Vyhnalek was appointed to defend Simants.

“The facts were atrocious,” he said, “and our objective was noble. We wanted to be sure we couldn’t be accused of contaminating the jury pool. We were not prepared for the firestorm.”

The original story about the murders set out the facts with only a few exceptions, Vyhnalek said. And those facts were repeated in every subsequent story about both the Simants trial and the NPA challenge to the gag order. “Everyone in the county knew what was happening anyway.”

Eventually, Simants’ conviction was overturned not because of stories in the media but because the county sheriff played cards with members of the jury during the trial. Simants was tried again in Lancaster County and found innocent by reason of insanity, Vyhnalek said. Simants continues to live at the Lincoln Regional Center.

Woody Howe
G. Woodson Howe, senior vice president for news of the Omaha World-Herald Company, was executive editor and editor of the World-Herald and chairman of Media of Nebraska at the time of the Sutherland murders.

NPA v. Stuart was, indeed, a landmark case, Howe said. “We’re talking about censorship when we say gag order or prior restraint. This case brought an end to attempts to censor the press.”

The Supreme Court decision was a huge victory, Howe said. “This would be a different country if it were not for this case.”

The Nebraska Bar-Press Guidelines were negotiated after the Sheppard conviction was overturned, in large part because of the media circus that had ensued at the trial. “We were afraid if we had no guidelines we’d be excluded from the courts and records and access to the police,” Howe said.

Judge Stuart may think it odd the press would agree to the guidelines but then take issue with making them legal orders, Howe said, but the guidelines should not be considered law. They are and should be open to interpretation, he said.

The NPA members demonstrated a lot of courage in pursuing the case, Howe said, raising a great deal of money and putting the respected name of the Nebraska Press Association behind the effort. As the case proceeded, some publishers across the state were subject to public hostility, but they did not bow out of the process.

“They did this for a principle,” he said, “not self-interest but in the interest of protecting the fundamental rights of the American people.”

Gil Savery
Gil Savery, now retired, was assistant managing editor of the Lincoln Journal at the time of the Simants murder trial and national vice chairman of the Freedom of Information Committee of the Society of Professional Journalists.

Savery reminded the audience about the “time and temperature” of the 1970s. The media were under attack. First Amendment issues were near the boiling point. Between 1973 and 1976, Savery said, U.S. courts had issued 170 orders restricting the press. And with the NPA v. Stuart case, Nebraska became a focal point.

Privacy laws were in the making. For its part, the media sought shield laws to protect sources and laws that would make public records and meetings open to press and public.

Not everyone agrees on the reach of the First Amendment in specific situations, Savery said, “but this case altered the landscape.”

It is the duty of the press to monitor the institutions of society, most particularly the institutions of the government, he said. That duty, Savery said, was probably what the framers of the Nebraska Constitution had in mind when they included the words, “All courts shall remain open.”

Larry Walklin
Larry Walklin is a member of the broadcasting faculty at NU. At the time of the NPA v. Stuart case, Walklin was president of the Nebraska Professional Chapter of the Society of Professional Journalists and the treasurer of the Nebraska Broadcasters Association.

Walklin said the involvement of the Society of Professional Journalists in the case was significant because SPJ is made up of individual journalists rather than of newspapers or broadcast stations. “This went to the soul of individual journalists,” he said.

The victory came largely because of the collaboration and cooperation of so many groups and individuals. All the associations and newspapers who pursued the case worked hard to raise the $110,000 necessary to take the argument all the way to the U.S. Supreme Court, Walklin said. That kind of collaborative effort “worked here but may not have worked elsewhere in the United States,” he said.

Alan Peterson
Alan Peterson has been a member of the Lincoln-Omaha-Aurora law firm Cline Williams Wright Johnson and Oldfather since 1968. Since the mid 1970s, he has been the attorney and lobbyist for Media of Nebraska, the First Amendment rights coalition of the Nebraska news media.

Peterson was the attorney who began the legal process in NPA v. Stuart after receiving a phone call from Joe R. Seacrest, the late publisher of the Lincoln Journal, who said something intolerable had happened in the Simants case.
The case was special, Peterson said it was about the fundamental freedom to report on what the government does.
The case was special in another way, too, Peterson said. In only a handful of cases have the “unanimous passion and power of the media been combined to fight with no indication they would ever give up … We knew from the beginning it would go all the way, win or lose.”

Peterson said those involved expected a backlash, and a backlash, indeed, materialized. In the six to eight years after the decision in NPA v. Stuart, many efforts were made to close courts in Nebraska.

“We fought every one,” Peterson said. “We still do. If Nebraska ever quits leading in this area, it will be long after we’re gone.”

Floyd Abrams and Bill Eddy
Bill Eddy, assistant city editor for the Lincoln Journal Star, was a reporter and associate editor of the North Platte Telegraph. He presented some of his personal recollections about covering the Simants trial.

Floyd Abrams, noted First Amendment attorney, addressed the gathering in a brief telephone conference call. One of the two attorneys who argued the case before the U.S. Supreme Court, Abrams said, “If it had come out a different way, we’d have a different body of law and a different country.”

Conclusion
Wrapping up the panel presentation, O’Neil said the decision in NPA v. Stuart still matters today.

“This was classically Nebraska’s victory,” he said, “indicating that the First Amendment applies as fully to trial courts in North Platte as it does to the highest and mightiest anywhere.”


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