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Prior restraints & National Security – NYT v. US (or the Pentagon Papers case)

Prior restraints & National Security – NYT v. US (or the Pentagon Papers case).

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Prior restraints & National Security – NYT v. US (or the Pentagon Papers case)

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  1. Prior restraints & National Security – NYT v. US (or the Pentagon Papers case) • In June 1971 (during the Nixon Administration), the New York Times/Wash. Postpublished excerpts from a classified DOD document titled "History of the US Decision-Making Process on Viet Nam Policy"(aka Pentagon Papers) that they obtained from Daniel Ellsberg, a former Pentagon official. • Materials involved a study of the formation of US policy in Vietnam (mostly historical) and included several unflattering revelations about the Johnson administration. NYT published a summary AND some excerpts of classified docs. • Nixon Admin. sought injunction of further publication arguing that it would amount to a “serious breach of security of the US”and cause “irreparable injury to the national defense.” • Nixon officials based request for injunction on the inherent authority of the executive to protect national security (art. II powers)

  2. Pentagon Papers - the per curiam • Per Curiam– the “case that made no law” • “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." See Bantam Books, Inc. v. Sullivan; Near v. Minnesota. The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." The District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in the Washington Post case, held that the Government had not met that burden. We agree. ..” • Is it so obvious that this injunction is a prior restraint in the same way that Near’s was? • Decision was 6-3 supporting the per curiam but there were nine separate opinions as to standards to consider re issuing an injunction in this context.

  3. Pentagon Papers - other possible standards • Harlan: Leave decisions about national security to the Exec. (Art. II vests President with complete control over this area) • White/Marshall – if a statute authorized the injunction in well-defined circumstances then its issuance might not be a prior restraint • Black/Douglas – Injunction of speech always a prior restraint • Stewart – Injunction only allowed if danger from publication will cause “direct, immediate and irreparable harm” to the Nation and its people” • Brennan – Harm must be “inevitable, direct and immediate” • What state interest meets these standards? • Does it matter whether seeking preliminary or permanent relief?

  4. Pentagon Papers & criminal penalties • Some concurrences noted criminal prosecution of NYT/WP under Section 793(e) of the Espionage Act might be appropriate • Section 792(e) imposes criminal penalties on anyone who has “unauthorized possession of . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” and who “willfully communicates, delivers, [or] transmits . . . the same to any person not entitled to receive it.” • Do the NYT/WP fall within the statute - just from a purely technical reading? • Should we find them guilty then or impose a 1A gloss as the Landmark Court did – i.e., requiring some sort of harm showing?

  5. Espionage Act Section 793(e), Third Party Publishers and the First Amendment • United State v. Rosen – only case to date to interpret Section 793(e) in application to 3rd party publishers. • Application of Section 793(e) is constitutional to “intentional disclosures of “closely held” information that a defendant knows is “‘potentially damaging to the United States or . . . useful to an enemy of the United States.” • DCT found that “closely held” = gov’t has tried to keep info secret (has not selectively leaked the info) • What does “D knows is potentially damaging to US or useful to an enemy of the US” mean? • Is simple awareness that other countries or terrorists could access the information by reading the publication enough? • Or does the publisher have to have knowledge about how damaging the information will be – knowledge of resulting harm?

  6. Prosecution of the Leaker – Daniel Ellsberg – the Pentagon Papers • Could the government go after him for “leaking” the classified information to the NYT? • He had legitimate access to the information due to a security clearance. But he likely signed a contract agreeing not disclose. Plus his disclosure also falls under Section 793(e). • Should the government’s burden under Section 793(e) be easier here?

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