Printed Page 420

In the United States, the First Amendment theoretically prohibits censorship. Over time, Supreme Court decisions have defined censorship as prior restraint—meaning that courts and governments cannot block any publication or speech before it actually occurs. The principle behind prior restraint is that a law has not been broken until an illegal act has been committed. However, the Court left open the idea that the judiciary could halt publication of news in exceptional cases—for example, if such publication would threaten national security. In the 1970s, two pivotal court decisions tested the idea of prior restraint.

The Pentagon Papers Decision

In 1971, with the Vietnam War still raging, Daniel Ellsberg, a former Defense Department employee, stole a copy of the forty-seven-volume report, “History of U.S. Decision-Making Process on Vietnam Policy.” A thorough study of U.S. involvement in Vietnam since World War II, the report was classified by the government as top secret. Ellsberg and a friend leaked the report—nicknamed the Pentagon Papers—to the New York Times and the Washington Post. In June 1971, the Times began publishing articles based on the report. To block any further publications, the Nixon administration applied for and received a federal court injunction against the Times to halt publication of the stories, arguing that the publication of these documents posed “a clear and present danger” to national security by revealing military strategy to the enemy.

In a 6–3 vote, the Supreme Court sided with the newspaper. Justice Hugo Black, in his majority opinion, attacked the government’s attempt to suppress publication: “Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.” ⁶

The Progressive Magazine Decision

The conflict between prior restraint and national security surfaced again in 1979, when the U.S. government issued an injunction to block publication of the Progressive, a national left-wing magazine. The editors had planned to publish an article titled “The H-Bomb Secret: How We Got It, Why We’re Telling It.” The dispute began when the magazine’s editor sent a draft to the Department of Energy to verify technical portions of the article. Believing that the article contained sensitive data that might damage U.S. efforts to halt the proliferation of nuclear weapons, the Energy Department asked the magazine not to publish it. When the magazine said it would proceed anyway, the government sued the Progressive and asked a federal district court to block publication.

In an unprecedented action, Justice Robert Warren sided with the government, deciding that “a mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.” ⁷ Warren was seeking to balance the Progressive’sFirst Amendment rights against the possibility that the article, if published, would spread dangerous information and undermine national security. During appeals, several other publications printed their own stories about the H-bomb, and the U.S. government eventually dropped the case. None of the articles, including one ultimately published by the Progressive, contained precise details on how to design a nuclear weapon. But Warren’s decision represented the first time in American history that a prior-restraint order imposed in the name of national security stopped initial publication of a news report.