In answer to Mr. Anger’s question about the First Amendment, preventing the press from publishing military information that could compromise military success is the quintessential compelling government interest justifying limits on freedom of the press. The most famous case on the issue is New York Times v. United States, 403 U.S. 713 (1971), also known as the “Pentagon Papers case.” There the Supreme Court held that the government could not prevent the publication of military documents on the history of the Vietnam War, which the Nixon Administration said would compromise national security if they were published. The decision was a “per curiam” decision—meaning it was not signed by an individual justice, but issued in the name of the Court. The decision reads, in its entirety:
We granted certiorari...in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.”
“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case, 328 F.Supp. 324, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, 446 F.2d 1327, in the Washington Post case held that the Government had not met that burden. We agree.
The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed, 444 F.2d 544, and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.
So ordered.
What does this mean? Well, the Justices then wrote separate concurring and dissenting opinions on the degree to which the Constitution allows government to censor speech that might compromise military operations. The case mostly hinged on the term “prior restraint,” which means, a government action forbidding the publication of material. This is generally considered the most severe form of censorship, and the one the First Amendment was primarily written to prevent. Justices Hugo Black and William Douglas, notoriously First Amendment “absolutists,” (who liked to say “no law means no law,”) argued that the government may never prohibit publication of information, apparently regardless of the military effect of such dissemination. As Erwin Chemerinsky notes, it’s hard to believe their absolutism was really sincere: “one wonders whether even they would allow such restrictions if there were compelling proof of a need to protect national security. For example, if a newspaper during World War II were going to report that America had broken the Nazi code, probably even Black and Douglas would have allowed an injunction to stop that information from being published....” Erwin Chemerinsky, Constitutional Law: Principles And Policies 778 (1997). But hard as it is to believe, I see no reason they would have.
Justice William Brennan’s concurring opinion argued for strict scrutiny of prior restraints, meaning that they would need to be “narrowly tailored to advance a compelling government interest.” That is, he would allow them, but rarely, and only if a judge was convinced of a powerfully good reason for them. Moreover, “[o]ur cases have thus far indicated that such cases may arise only when the Nation ‘is at war.’” New York Times, 403 U.S. at 726 (Brennan, J., concurring). Justices Byron White and Thurgood Marshall argued that courts lacked the statutory power to issue an injunction against the publication of the Pentagon Papers. A good argument, but it doesn’t really say what the First Amendment’s limitations are. Justice John Harlan, Justice Harry Blackmun, and Chief Justice Warren Burger wrote dissents, arguing that the case had been heard so fast that they didn’t really know whether these materials were a threat to national security or not, and that an injunction should at least be granted to allow them to figure that out.
Justice Blackmun wrote that
I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. First Amendment absolutism has never commanded a majority of this Court.... What is needed here is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed. The parties here are in disagreement as to what those standards should be. But even the newspapers concede that there are situations where restraint is in order and is constitutional. Mr. Justice Holmes gave us a suggestion when he said in Schenck, “It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”
Id. at 761 (Blackmun, J., dissenting).
Because the per curiam opinion isn’t very clear on what degree of evidence would justify a prior restraint, and because there was no solid majority of justices supporting Douglas’ and Black’s opinion that prior restraints are entirely forbidden, the New York Times case seems to stand for the proposition that government may censor the publication of information, even in the most extreme manner, but only when there is really, really, really strong reason to believe that the publication of the information would harm the national interest, especially by causing “‘the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,’ to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners,” id. at 763 (Blackmun, J., dissenting). But, as Chemerinsky notes, “[n]o Supreme Court case has dealt with these issues since the Pentagon Papers case.” Supra at 780. So the answer is, nobody really knows.
I suspect that the very high standard of proof that seems to be required by the Pentagon Papers case would not be met if the government tried to stop CNN from informing our enemies that the Fallujah offensive was not really starting. For one thing, the Pentagon Papers case seems to allow censorship only if the press is going to report information, like, say, troop movements, that the government has tried to keep secret, and which will result in harm to our military. In the CNN situation, though, the government would be attempting to stop the media from reporting the fact that there aren’t American troops in the field—that is, it would be trying to get CNN to participate in the promulgation of false information. As far as tactics are concerned, that may be the same thing, but as far as the Pentagon Papers case is concerned, I don’t think it is. The publication of the information by CNN would not directly result in the deaths of American soldiers (theoretically). So I doubt the First Amendment would allow the government to prohibit CNN from publishing this information.
Incidentally, in the foregoing, I’ve assumed that we the current war is a declared war, which I do believe. Someone who thinks not might think the government would have an even harder time justifying such censorship of CNN.
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