The Doctrine of Prior Restraint Since the Pentagon Papers

The purpose of this speech is to examine how the doctrine against prior restraint has evolved since the Pentagon Papers case. I intend to demonstrate that while traditional antipathy to prior restraint has for the most part remained strong, several recent cases foreshadow a dangerous expansion of well-established exceptions to the doctrine. To understand fully the significance of these recent cases, I will begin this lecture with a general discussion of the historical origins of the doctrine against prior restraint. I will then proceed with a critical overview of the landmark Pentagon Papers case, more formally called New York Times Co. v. United States. The remainder of the discussion will focus on five Supreme Court cases decided since the Pentagon Papers decision - Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, Southeastern Promotions, Ltd. v. Conrad, Young v. American Mini Theatres, Nebraska Press Association v. Stuart, and Snepp v. United States - as well as three recent lower court decisions involving national security considerations: United States v. Marchetti, Alfred A. Knopf, Inc. v. Colby, and United States v. The Progressive

On The Craft and Philosophy of Judging

A Review of The Ways of a Judge: Reflections from the Federal Appellate Bench by Frank M. Coffi

Property Rights in Constitutional Analysis Today

The concept of property rights in Supreme Court constitutional analysis today is in flux. It has been and is undergoing change—a change more rapid than those of us who have concentrated our attention on other personal rights can imagine. That this process of change raises anew some fundamental issues of justice is not surprising; the institution of property has always done so. Perhaps the change is simply a swing of the pendulum, as the quote from Justice Frankfurter suggests: individual property rights assume greater importance as a state moves toward a laissez-faire economy or away from a regulated one; they tend to have less significance when the state takes on a welfare cast. Perhaps change in viewing property rights under the Constitution is inevitable since the very philosophical concepts underlying property rights, if they are not mutually conflicting, at least constitute a spectrum of relationships between the individual and the state which secures those rights. This spectrum inevitably reflects political ebb and flow. From the Washington Law Review Jurisprudential Lecture Series

Tolerance Theory and the First Amendment

A Review of The Tolerant Society: Free Speech and Extremist Speech in America by Lee C. Bollinge

The Role of Courts in Government Today

It is elementary constitutional law that American courts have the power of judicial review. While a case can be made (and is still sometimes made by critics of too much judicial intervention) against the courts\u27 power to review federal actions against the Constitution or state actions contrary to the Federal Constitution or statutes, the principle of judicial review is so well ingrained in the American system that it need not be reargued here. Rather I shall examine the principal arguments counseling caution and restraint in the exercise of the power, even though some of these arguments seem to run against the very existence of the power, rather than its overexercise. I shall also touch upon the forces operating, even where courts recognize the need for restraint, to cast them even further into the vortex that is American government. What has happened is that, rather unwillingly (at least with much reluctance and considerable foot-dragging) the American courts have to a large extent become the crucible in which irresolvable political conflicts are solved, sometimes soon, sometimes long, after the fact