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May 1, 2018

Lesson 11: Freedom of the Press (Part II)

Harm to national interests has been outweighed by the need to preserve freedom of the press

“Congress shall make no law,” reads the First Amendment to the Constitution, “abridging the freedom of speech, or of the press.”

The “main purpose” of this clause, wrote Justice Oliver Wendell Holmes in 1907, was “to prevent all such previous restraints on publication as had been practiced by other governments” and in 1969, Justice John Marshall Harlan wrote that the Court “rejected all manner of prior restraint on publication.” However, in 1931 the Court wrote that prior restraints could be permissible in “only the narrowest circumstances — such as publication of the dates of departure of ships in wartime.” And in 1951, the Court wrote that prior restraint could be permissible in cases of “grave and irreparable danger” to the American public.

The issue of prior restraint was raised in June 1971 when the Nixon administration, citing the Espionage Act of 1917, sought to restrain further publication of excerpts from the Pentagon Papers — government documents pertaining to the Vietnam war assembled by the Johnson administration in 1967. The government argued that publication would gravely harm American interests and harm the nation’s reputation for maintaining confidential diplomatic relations.

The Supreme Court, in an expedited procedure, by a 6-3 margin rejected the government’s demand for an injunction against publication by the New York Times and Washington Post. Any harm to national interests was outweighed by the need to preserve freedom of the press. One factor that may have swayed the justices was that the documents all related to past events and not to current administration actions and policies. The dissenting judges argued that there had not been time to examine the voluminous documents to determine whether publication would harm the national interest.

Subsequent administrations have been reluctant to seek prior restraint of publication of even classified material, although the Obama administration did make greater administrative use of the broad (arguably overbroad) provisions of the Espionage Act of 1917 barring publication of classified material.

May 1, 2018