UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 4, No.1FALL 1980
COMMENTS
The Broadening Of The Pentagon Papers Standard: An Impermissible Misapplication Of The National Security Exception To The Prior Restraint Doctrine
Sherrie L. Bennett
In the 1971 case of New York Times Co. v. United States,(fn1) the United States government sought to restrain the Washington Post and the New York Times from printing classified information pertaining to the government's decision-making process during the Vietnam conflict. In deciding the case [hereinafter referred to as Pentagon Papers], the Supreme Court enunciated a new first amendment(fn2) test for the validity of prior restraint(fn3)-suppression of news prior to publication-in cases involving national security. Although the per curiam opinion gave no indication of the appropriate standard to apply, Justices Brennan, White, and Stewart clearly delineated the test in their concurring opinions. The three Justices held that, to restrain the press from publishing any article affecting national security, the government must prove at a minimum that dissemination of the article will directly and immediately cause inevitable, grave, and irreparable injury.(fn4) The Justices found such a strict standard necessary to protect the American people's constitutional right to know about government activities and to avoid a detrimental chilling effect upon political speech.(fn5) Despite these compelling reasons, some lower courts trying subsequent media cases(fn6) have nevertheless allowed the government to prevail upon a lesser showing of injury. One such court is the Fourth Circuit Court of Appeals, which in 1972 misinterpreted the relatively new Pentagon Papers test in United States v. Marchetti,(fn7) a case involving release of Central Intelligence Agency (CIA) secrets.(fn8) The misuse of the test continues and threatens gradually to dissolve the press's immunity from prior restraint. Recently, the District Court for the Western District of Wisconsin followed similar reasoning in United States v. Progressive, Inc.,(fn9) where it enjoined a magazine from publishing the formula for the hydrogen bomb. By failing to demand proof of inevitable rather than merely speculative injury, both courts contradicted the traditional rule against prior restraint: that only in the rarest situations should courts allow restrictions on the press prior to publication.(fn10) Such broadening of the high Pentagon Papers standard has chilled the quantity and quality of political speech and endangered press freedom in future national security cases.
This comment examines the history of the national security exception(fn11) to the prior restraint rule and discusses the elements of the Pentagon Papers standard in the context of the Marchet-ti and Progressive opinions. Application of those elements to the reasoning of the cases demonstrates the failure of these lower courts to follow the Supreme Court's strict view of when restraint is justified. Examining the theoretical basis underlying the first amendment, the comment concludes that strict application of the Pentagon Papers standard is essential to continuing protection of the American people's right to be informed of government activities.(fn12)
I. The Evolution of the Pentagon Papers Standard
Based on the rationale that every person has the right to form and espouse his individual opinion, the prior restraint doctrine states that there will be time after publication to punish the very few persons who publish material not protected by the first amendment.(fn13) The doctrine also rests on the premises that everyone has the right to read published material(fn14) and that society generally benefits from this exchange of information.(fn15 ) Originating in the struggle against licensing and censorship in 16th and 17th century England,(fn16) the prior restraint doctrine was a response to licensing systems in which the government required printers to submit all their copy for official approval prior to publication.(fn17) The history of the doctrine demonstrates that one of the primary purposes of the first amendment was to prevent prior government restraint on publication.(fn18)
Despite the venerability of the prior restraint doctrine, the United States Supreme Court did not employ the rule until 1931, in Near v. Minnesota ex rel. Olson.(fn19) Although recognizing the historical guarantee against prior restraint on publication, Chief Justice Hughes, in dictum, delineated three exceptions. The first exception, obstruction of wartime military operations,(fn20) suspends the rule in wartime for matters of military strategy and troop placement that are vital to national security. The second exception, obscene publication,(fn21) allows the prior restraint of obscene communications that are utterly without redeeming social importance. The third exception, "incitements to acts of violence and the overthrow by force of orderly government,"(fn22) limits the rule in sedition and syndicalism cases. These exceptions all involve circumstances where a particularly strong pre-publication showing of harm minimizes the effects of the loss of press freedom.(fn23) All three exceptions remain a part of modern prior restraint analysis. Until 1971, however, the Near dictum on wartime military operations was the only Supreme Court authority supporting prior restraint in cases involving national security. Whether a similar national security exception could be made in peacetime remained unclear.
After forty years of silence on the matter, the Pentagon Papers case provided an occasion for the Supreme Court to formulate the peacetime national security exception. In June, 1971, the New York Times and the Washington Post published portions of a classified study on the decision-making process that guided American actions in Vietnam. After conflicting lower court decisions,(fn24) those courts issued temporary restraining orders allowing the goverment to appeal prior to publication. The Supreme Court, taking the cases on certiorari, resolved the conflict(fn25) in favor of the newspapers. The decision built on Chief Justice Hughes's first exception to find a fourth exception covering all information essential to national security,(fn26) whether the country is at war or not, but at the same time indicated that the new exception required a high evidentiary standard.
In a 6-to-3 per curiam opinion,(fn27) the Court held that the government had not met the burden to overcome the heavy presumption that prior restraint is unjustified,(fn28) and vacated the restraining orders. Of six Justices concurring(fn29) with the per curiam decision, Justices Black and Douglas took the absolutist view never to permit prior restraint on publication.(fn30) Justice Brennan stated that for a court to issue even an interim restraining order, the government must prove that publication "must inevitably, directly, and immediately cause"(fn31) an event similar to the endangering of troops or transports mentioned in Near.(fn32) Similarly, Justice Stewart and Justice White found prior restraint appropriate only where publication would "surely result in direct, immediate, and irreparable damage" to the United States or the American people.(fn33) Justice Marshall, concurring, did not discuss the standard of proof that should apply.(fn34) Thus, while the per curiam opinion of the Court did not establish a standard of proof to apply in subsequent national security cases, five of the six concurring Justices advocated a standard that requires, at a minimum, a showing of direct, immediate, irreparable, and certain damage in order to restrain publication.(fn35)
Accordingly, when seeking prior restraint of the press on national security grounds, the government bears a rigorous standard of proof. First, it must show that publication will "surely" or "inevitably" cause public harm. The Supreme Court's use of this language ensures that mere speculation of harm is not enough. Second, the government also must prove that the resultant harm will be direct and immediate; this guarantees that publication cannot be restrained merely because of possible repercussions that are uncertain or collateral. Third, the government bears the burden of proving that the resultant injury is "grave and irreparable," thus ensuring that it cannot restrain publication except in cases of actual necessity.
II. The Marchetti Case
Despite the five Justices' language calling for strict interpretation of the national security exception, the Fourth Circuit Court of Appeals, in the subsequent case of United States v. Marchetti,(fn36) unnecessarily broadened the Pentagon Papers standard to include situations where the causal link was only speculative. In Marchetti, the circuit court affirmed a lower court's injunction prohibiting a former CIA agent from violating a secrecy agreement by publishing information he obtained during his employment in the CIA.(fn37) Chief Judge Haynsworth, relying on three factors, concluded that the government had overcome the heavy presumption against prior restraint. The chief judge reasoned, first, that the government has a right to internal security about governmental affairs where "disclosure may reasonably be thought to be inconsistent with the national interest."(fn38) Second, he stated that although ordinary criminal sanctions might deter unauthorized disclosure of the information, the risk of harm...
