In this article for Bench & Bar Magazine (the Kentucky Bar Association\u27s magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict

Salamanca, Paul E.

English

University of Kentucky

University of Kentucky UKnowledge Law Faculty Popular Media Law Faculty Publications 1-2002 Prior Restraint in Wartime Paul E. Salamanca University of Kentucky College of Law, psalaman@uky.edu Follow this and additional works at: https://uknowledge.uky.edu/law_facpub_pop  Part of the Constitutional Law Commons, and the First Amendment Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Repository Citation Salamanca, Paul E., "Prior Restraint in Wartime" (2002). Law Faculty Popular Media. 28. https://uknowledge.uky.edu/law_facpub_pop/28 This Commentary is brought to you for free and open access by the Law Faculty Publications at UKnowledge. It has been accepted for inclusion in Law Faculty Popular Media by an authorized administrator of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu. Prior Restraint in Wartime Notes/Citation Information Paul E. Salamanca, Prior Restraint in Wartime, 66 Bench & B. 15 (Jan. 2002). This commentary is available at UKnowledge: https://uknowledge.uky.edu/law_facpub_pop/28 PRIOR RESTRAINTIN WARTIMEInstrumental Justifications For The ProtectionOf Speech Are Especially CompellingIn A Time Of WarBy Paul E. Salamancaumerous justifications aregiven for the protection ofspeech. Most dependupon its instrumental value; othersdepend upon its intrinsic value. Forexample, many have argued that weprotect speech because it facilitateselective democracy.1 Because thepeople are the ultimate government ina democracy, they must have freeaccess to ideas and information.Otherwise they will make uninformedchoices and be incapable of articulat-ing their concerns to each other andto public officials. Others haveargued that we protect speech toensure an unrestrained "marketplaceof ideas" in which good ideas willdrive out bad ones, and in which truthwill be the residue of a lengthycontest between rival proposals.2Finally, mindful of the intrinsic valueof speech, some have argued that weprotect speech because it promotesindividual development -because itserves as a means of "self-actualiza-tion."3Instrumental justifications for theprotection of speech are especiallycompelling in a time of war. War is atime of exigency, of felt necessity. Itis a relatively poor answer to anasserted governmental need tosuppress speech in a time of exigencythat the would-be speaker has apersonal call to expression, howevercompelling that call might be in asubjective sense. Far more persua-sive is the answer that, as a matter ofexigency, a polity needs expression asmuch in wartime as in a time ofpeace, if not more.Expression has profound instru-mental value in drawing every sectorof a polity into public matters. Whilea govrn en thaour soldiers and sailors are engagingan enemy overseas, we can feelinvolved - and perhaps be involved -by keeping track of what our militaryis doing, by engaging our friends andcolleagues in discussion as to thewisdom of our nation's acts, and byoffering our suggestions as to how awar might better be prosecuted - or,for that matter, why a war ought notto be prosecuted. The greatestmilitary strength of a democracy isthat, once roused, a high percentageof its population is capable of movingbehind a war effort. Similar state-ments cannot be made about politicalsystems in which the citizenry doesnot identify with the government orwith its objectives.In addition, a government thatoperates in a milieu of free, privateexpression has an enormous claim tocredibility that is not available to arepressive state. When the citizenryof a country believes that the media issufficiently intrusive and powerful toexpose official deception, a concomi-tant belief arises that the governmentwill be deterred from engaging in suchdeception. Of course, this argumentmust not be taken too far. Publicofficials have infamously misjudgedtheir ability to prevent the media fromexposing their failings and deceptions.But the lesson to such officials mustbe clear in the aggregate: a largefraction of deception relating to highlyimportant matters will eventually bediscovered by a free media, with ahigh cost to pay if the deception hurtsthe nation in a material way. Giventhe general appreciation of this fact,the public will have reason to trust thepronouncements of the government ina milieu of open discussion of ideasand dissemination of information.n light of these considerations,a wartime government checkedby a powerful, free media isable to speak to the electorate with ahigh degree of credibility. Requestsfor patience, calm, and sacrifice aremore likely to be acceded to.' This isnot to say that the government isincapable of abusing or simplymishandling its ability to inform andengage the electorate, but the ex-cesses of the government are morelikely to arise from poor judgmentthan from outright attempts to de-ceive.Despite the foregoing justificationsfor a free media in a time of war, wemust remember that such a media isnot self-actuating. The bar and thebench play important roles in promot-Bench & Bar, January 2002 15ing and protecting a free media. Infact, it is imperative that the bar standup to vindicate the rights of freeexpression in times of nationalemergency, and that the bench upholdthe constitutional rights of the mediaagainst unjustifiable regulation. Thisis not simply a matter of protectingthe media for its own sake. Althoughexpression has intrinsic value, it alsohas instrumental value. As I haveargued, the courts do no one a favor- including public officials - bypermitting arbitrary restraints on freeexpression.Although the focus of thisessay is on prior restraint-1 governmental orders thatprevent speech from occurring on anex ante basis - regulation of themedia can also take the form ofpunishment after the fact. Indeed,one could plausibly argue that thesetwo forms of regulation presentcomparable threats to the freeValuations of*Businesses* Professional PracticesFor* Divorce Litigation* Insurance Claims* Family Limited Partnerships* Estate and Gift Tax* ESOPS* DamagesExperienced in Providing Testimony as anExpert WitnessReferences AvailableJohn N. CraftCertified Public AccountantAccredited Business ValuatorCertified Valuation AnalystPost Office Box 827Richmond, Kentucky 40476-0827(859) 623-4027V CRAFT & COMPANY, P.S.C.CERTIFIED PUBLIC ACCOUNTANTS16 Bench & Bar, January 2002exchange of information. After all,threats of punishment after the factcan deter the media from disseminat-ing information just as surely as a priorrestraint prevents such disseminationin the first place.5 But prior restraintspresent at least two dangers that arenot readily presented by after-the-factpunishment.First, prior restraints often consistof judicial orders, which cannotordinarily be tested on constitutionalgrounds because of the collateral barrule. Under this rule, a person whoviolates a judicial order is generally notpermitted to argue as a defense to acitation for contempt that the orderabridged a constitutional right. As theU.S. Supreme Court explained inWalker v. City of Birmingham, 6 acase from the civil rights movementthat reiterated the collateral bar rule,"respect for judicial process is a smallprice to pay for the civilizing hand oflaw, which alone can give abidingmeaning to constitutional freedom."7Because of this rule, a judiciallyimposed prior restraint that appears toviolate the Constitution may not beignored and later tested in the sameway as similarly defective legislation.Second, prior restraints - unlessthey are flouted - deprive the mediaof the option of disseminating informa-tion notwithstanding the threat ofsanction.8 Although the media maychoose to squelch a story to avoidexposure to liability, even in theabsence of a prior restraint, such adecision would lie outside thegovernment's hands. Leaving thedecision with the media is generallypreferable. Because the media has aneconomic and professional incentive todisseminate information, as well as acounteracting incentive to avoidpunishment, it can be counted on togive proper weight to all consider-ations. The government, by contrast,may lose sight of the long-term valueof sharing information with the public.If so, it cannot generally be reliedupon to strike the proper balancebetween allowing expression andimposing restraint.9his is not to say that thegovernment should never beable to restrain the dissemi-nation of information. As ProfessorChemerinsky has argued, even free-speech absolutists surely would havepermitted the government to enjoindisclosure of the fact that the Allieshad broken the Nazi code.10 But thegovernment's burden in justifying suchmeasures must be exceedingly heavy.And in fact it is. As a matter ofsettled constitutional law, it is verydifficult for the government to restrainthe media, even in a time of war. Theseminal case in the area is New YorkTimes Co. v. United States." Atissue in that case was an attempt bythe Nixon Administration to suppressthe "Pentagon Papers," a classifiedhistory of the Vietnam War that hadbeen compiled by the Department ofDefense and leaked to the press. In ashort per curiam opinion, the SupremeCourt held that the Papers could notbe suppressed." There were sixconcurring and three dissentingopinions.For the most part, the concurringjustices came out strongly in favor ofprotecting the press. In fact, JusticesBlack and Douglas seemed to rejectout of hand the very idea of a priorrestraint. 3 Similarly, although theother concurring justices indicated awillingness to uphold a prior restraintin dire circumstances, none foundsuch circumstances to exist in thecase at bar. Justice Brennan, forexample, set forth the exactingstandard that "only governmentalallegation and proof that publicationmust inevitably, directly, and immedi-ately cause the occurrence of anevent kindred to imperiling the safetyof a transport already at sea cansupport even the issuance of aninterim restraining order."' 4 Likewise,although Justice Stewart was "con-vinced" that publication of certain ofthe Papers would harm the nationalinterest, he nevertheless concurred inthe per curiam opinion, reasoning thatsuch publication would not "surelyresult in direct, immediate, andirreparable damage to our Nation orits people."15 Justice White alsoacknowledged that a prior restraintcould constitutionally issue in theappropriate circumstances, butconcluded that the government hadfailed to discharge the "very heavyburden" against such a restraint in thecase before the Court.16A theme that ran just below/ the surface in four of the1. .Lfirst five concurringopinions, and that dominated JusticeMarshall's concurrence, was theabsence of specific congressionalauthority for the injunction that theNixon Administration sought.17 Giventhis theme, the Pentagon PapersCase gave rise to a separation ofpowers spin to the prior restraintdebate, at least in situations implicat-ing national security. This spin laterplayed out in United States v. TheProgressive, Inc. 8The issue in Progressive waswhether a periodical could publish anarticle entitled "The H-Bomb Secret:How We Got It, Why We're TellingIt," which purported to describe indetail how a hydrogen-bomb works.Indeed, in the opinion of government,the article contained a significantamount of restricted data, notwith-standing the fact that its author lackedsecurity clearance. 9 Distinguishingthe Pentagon Papers Case, the U.S.District Court for the Western Districtof Wisconsin acceded to thegovernment's request for interiminjunctive relief.2° In granting thisrequest, the district court laid greatstress on the fact that two specificprovisions of the Atomic Energy Actof 1954 appeared to authorize thegovernment to seek equitable relief ina case like the one at bar.21 Thecourt also held that the governmenthad met the precise constitutionalstandard for justifying a prior restraintset by Justices Brennan and Stewartin the Pentagon Papers Case, bydemonstrating "grave, direct, immedi-ate and irreparable harm to the UnitedStates" in the event of publication.22Scholars have supposed, however,that the Progressive judge was usingthe word "immediate" loosely, forthere was little reason to believe thatpublication of the article would causeimmediate nuclear proliferation. Thejudge seems to have compensated forthis deficiency by stressing theenormity of the consequences werean unfriendly power eventually todevelop a thermonuclear device,noting that:A mistake in rulingagainst the United Statescould pave the way forthermonuclearannihilation for us all.In that event, our right tolife is extinguished andthe right to publishbecomes moot.23Ironically, the case was dismissedas moot on appeal because anotherperiodical published a lengthy letterthat was substantively similar to theenjoined article.24In light of the high bar for priorrestraints set by the PentagonPapers Case, as well as thegovernment's inability to suppress thearticle at issue in The Progressive -even with an injunction in hand - it ishard to imagine how the governmentcould effectively control the mediathrough the courts. Indeed, the realityof the situation often leads to negotia-tion rather than a standoff in court.2In the vast majority of cases, this isclearly a desirable outcome. After all,the media is part of the polity, andthere is no clear reason to assumethat the media will be insensitive to anurgent need for secrecy set forth bythe government.26Professor PaulE. Salamancateachescourses inconstitutionallaw andfed-eral jurisdic-tion at theUniversity of Kentucky Collegeof Law. He specializes in matterspertaining to the First Amend-ment. Before his teaching career,Professor Salamanca served as alaw clerk to Associate JusticeDavid H. Souter of the U.S.Supreme Court and as an associ-ate at the firm of Debevoise &Plimpton in New York. He is agraduate of Dartmouth Collegeand Boston College Law School.ENDNOTES1. See, eg., ALEXANDER MEIKLEJOHN, FREESPEECH AND ITS RELATION TO SELF-GOVERNMENT 27 (1948) (arguing thatfree speech is a "deduction from thebasic American agreement that publicissues shall be decided by universalsuffrage").2. See, .g., Abrams v. United States, 250U.S. 616, 630 (1919) (Holmes, J.,dissenting) ("[T]he best test of truth isthe power of the thought to get itselfaccepted in the competition of themarket.").3. See Procunierv. Martinez, 416 U.S. 396,427 (1974) (Marshall, J., concurring)("The First Amendment serves notonly the needs of the polity but alsothose of the human spirit - a spirit thatdemands self-expression."). See alsoC. Edwin Baker, Scope of the FirstAmendment Freedom of Speech, 25UCLA L. REV. 964,994 (1978).4. Cf. New York Times Co. v. UnitedStates, 403 U.S. 713,729 (1971)(Stewart, J., concurring) ("[S]ecrecycan best be preserved only whencredibility is truly maintained.").5. See John Calvin Jeffries, Jr.,Continued on page 42Bench & Bar, January 2002 17Prior RestraintContinued from page 17Rethinking Prior Restraint, 92YALE L.J. 409, 427-30 (1983).6. 388 U.S. 307 (1967).7. Id. at 321.8. See ALEXANDER M. BICKEL, THEMORALITY OF CONSENT 61 (1975)(published posthumously) ("Acriminal statute chills, priorrestraint freezes.").9. Another important distinctionbetween a prior restraint andafter-the-fact punishment, at leastin the criminal context, is thatcriminal prosecutions are hard tobring, and are subject to theprotections of the criminal process.See THOMAS I. EMERSON, THESYSTEM OF FREEDOM OF EXPRESSION506 (1970).10. See ERWIN CHEMER1NSKY,CONSTITUTIONAL LAW: PRINCIPLESAND POLICIES 778 (1997).11. 403 U.S. 713 (1971) (percuriam).12. See id. at 714.13. See id. at 715 (concurring opinionof Black, J., joined by Douglas,J.) ("In my view it is unfortunatethat some of my Brethren areapparently willing to hold thatthe publication of news maysometimes be enjoined.").14. Id. at 726-27 (Brennan, J.,concurring).15. Id. at 730 (Stewart, J.,concurring).16. I. at 731 (White, J., concurring).17. See id. at 718 (Black, J.,concurring) ("The Governmentdoes not even attempt to rely onany act of Congress."); id at 720(Douglas, J., concurring) ("Thereis, moreover, no statute barringthe publication by the press of thematerial which the Times and thePost seek to use."); i& at 730(Stewart, J., concurring) ("[I]fCongress should pass a specificlaw authorizing civil proceedingsin this field, the courts would...have the duty to decide theconstitutionality of such a law aswell as its applicability to thefacts proved."); id. at 731 (White,J., concurring) (noting "theabsence of express andappropriately limitedcongressional authorization forprior restraints in circumstances42 Bench & Bar, January 2002such as these"); id. at 742(Marshall, J., concurring) ("Itwould... be utterly inconsistentwith the concept of separation ofpowers for this Court to use itspower of contempt to preventbehavior that Congress hasspecifically declined to prohibit.").Another theme that ran throughthe concurring opinions was theextent to which publication of thePapers might subject thenewspapers to criminalindictments. Because the casearose from a request for equitablerelief, the Court did not reach suchissues, but several of theconcurring justices neverthelessdiscussed potentially applicablecriminal statutes. See id. at 720-22 (Douglas, J., concurring); id. at733-40 (White, J., concurring); id.at 743-44, 745 (Marshall, J.,concurring).18. 467 F.Supp. 990 (W.D. Wis.),appeal dismissed, 610 F.2d 819(7th Cir. 1979).19. See L.A. Powe, Jr., The H-BombInjunction, 61 U. COLO. L. REv.55, 56 (1990).20. See 467 F.Supp. at 996.21. See 467 F.Supp. at 994 (discussing42 U.S.C. § 2274(b), whichprohibited the disclosure ofrestricted data by any person whohas "reason to believe such datawill be utilized to injure the UnitedStates or to secure an advantageto any foreign nation"); icl at 1000(discussing 42 U.S.C. § 2280,which authorized injunctive reliefto enforce the provisions of theAtomic Energy Act).22. Id. at 996.23. Id. at 996.24. See United States v. Progressive,Inc., 610 F.2d 819 (7th Cir. 1979).See also Powe, spr note 19, at70.25. For example, in October 2001 themajor networks agreed to editvideotapes prepared by Osama binLaden or his followers after aconference call with NationalSecurity Advisor CondoleezaRice. See Bill Carter and FelicityBarringer, Networks Agree toU.S. Request To Edit Future binLaden Tapes, NEW YORK TIMES,Oct. 11, 2001, at Al.26. As a practical matter, the mediahas less cause for concern aboutprior restraints in wartime thanabout obtaining access toinformation. Because thegovernment often exercises heavy,if not exclusive, control over thesources of information regardingthe progress of a war, the media ismade unusually dependent uponthe government's willingness toshare information. See MichaelR. Gordon, Pentagon CornersOutput of Satellite Images ofAfghanistan, NEW YORK TIMES,Oct. 19, 2001, at B2; StevenLivingston, Media are toodependent on Pentagon for warcoverage, LEXINGTON HERALD-LEADER, Oct. 23, 2001, at A7. Thepressure on the media to probeinconsistencies in officialstatements and to exploit leaks istherefore enhanced. All of thisadds to the sense in which themedia can be seen to negotiatewith the government.Letter To The EditorContinued from page 4was simply not created for atheistsor agnostics, and we certainly donot have to cater to them in ourlaw and government. That wouldbe turning America on its head.Finally, I believe that Lemon andStone are both bad law, and shouldbe reversed. Lemon has fallen intodisuse and has been criticizedgreatly over the years. Stone wasnot even argued or briefed beforethe Court. It is now time for theSupreme Court to clarify this areaof the law with a new and wisedecision, based on the principlesthat made America great. There isno concrete "wall of separationbetween church and state" andgovernment must not be hostile toreligion. Rather, there should be apartnership between church andstate, where the state honors thechurch and all it has done and all itcan do for our country.Sincerely,Judge John Marshall Meisburg, Jr.

Prior Restraint in Wartime

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Prior Restraint in Wartime

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