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Prior Restraints: National security

The Supreme Court has recognized that, theoretically, publication of some information may be restrained to protect national security. However, when The Washington Post and The New York Times began publishing the Pentagon Papers, a study regarding U.S. involvement in Vietnam, and the government tried to stop publication, the Supreme Court refused to uphold prior restraints because the government had failed to make a sufficient showing of harm to national security.³

A federal district court issued a restraining order when The Progressive threatened to publish an article explaining the design of a hydrogen bomb. An appeals court ultimately dismissed the case after the article appeared in another publication.⁴

Courts have recognized that prior restraints may be imposed where the activity restrained presents a clear and present danger or a serious and imminent threat to the administration of justice.⁵ In the earliest incarnation of the "clear and present danger" test, Justice Oliver Wendell Holmes stated that expression could be punished when "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."⁶

The "clear and present danger" test subsequently evolved in Brandenburg v. Ohio.⁷ In that case, the Supreme Court held that the advocacy of force or criminal activity may not be penalized unless such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

In 1996, the U.S. Court of Appeals in Washington, D.C., upheld a policy that requires employees of the State Department, the U.S. Information Agency and the Agency for International Development to submit for prepublication review articles, speeches and teaching materials that discuss those agencies or U.S. foreign policy matters. A divided three-judge appellate panel held that because the policy requires only agency review and not agency consent, it is not an unconstitutional restriction on speech.⁸

Notes

3. New York Times v. United States, 403 U.S. 713 (1971).

4. United States v. Progressive, 467 F.Supp. 990 (W.D. Wis.), dismissed without opinion, 610 F.2d 819 (7th Cir. 1979).

5. Wood v. Georgia, 370 U.S. 375, 385 (1961).

6. Schenk v. United States, 249 U.S. 47 (1919).

7. Brandenburg v. Ohio, 395 U.S. 444 (1969).

8. Weaver v. USIA, 87 F.3d 1429 (D.C. Cir. 1996), cert. denied, 117 S.Ct. 2407 (1997).

Next section: Prior Restraints: Law enforcement investigations