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This is to certify that the
thesis entitled

THE PRECARIOUS RULE AGAINST
PRIOR RESTRAINT OF THE MEDIA:
THE PENTAGON PAPERS
MEET THE REHNQUIST COURT

presented by

Jennifer Dine

has been accepted towards fulfillment
of the requirements for

Master of Arts (mgeen1 Journalism

1/ 52‘ gr, 4 gage

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1/98 mummy.“

 

THE PRECARIOUS RULE AGAINST
PRIOR RESTRAINT OF THE MEDIA:
THE PENTAGON PAPERS MEET THE REHNQUIST COURT
By

Jennifer Dine

A THESIS
Submitted to
Michigan State University

in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS

School of Journalism

1997

ABSTRACT
THE PRECARIOUS RULE AGAINST
PRIOR RESTRAINT OF THE MEDIA:
THE PENTAGON PAPERS MEET THE REHNQUIST COURT
By

Jennifer Dine

The problem examined in this paper is whether the United States Supreme
Court would decide New Yorlg Tim_es v; United States, the landmark Pentagon
Papers case that invoked the rule against prior restraint of the media, the same
way in the 19974998 term as it did in 1971.

Each justice’s position on the issue is drawn from an evaluation of her or
his decisions in cases involving national security and prior restraint of speech.
Expert opinions, analyses from research articles and data from statistical studies
are incorporated in the discussion of the problem.

The paper concludes that the Supreme Court would favor the government
in a 5-4 decision, the opposite result of the 1971 decision, which favored the press
6-3. Such a decision would severely damage, if not eviscerate, the rule against

prior restraint of the media

Copyright by
JENNIFER DINE
1 997

Without censorship, things can get terribly confused in the public mind.
- General William Westmoreland

 

For Mickey and Alex

 

iv

ACKNOWLEDGMENTS

Thanks are due Professors William Cote, Todd Simon,

Eric Freedman and Sue Carter.

TABLE OF CONTENTS

INTRODUCTION .............................................................. 1
The History of Prior Restraint ................................................ 3
The Pentagon Papers ........................................................... 7
Methodology ................................................................... 1 3
THE JUSTICES ................................................................ 17
William H. Rehnquist ......................................................... 17
Stephen G. Breyer ............................................................ 30
Clarence Thomas .............................................................. 37
Ruth Bader Ginsburg ......................................................... 41
Antonin Scalia ................................................................. 50
David H. Souter ............................................................... 58
John Paul Stevens ............................................................. 63
Anthony M. Kennedy .......................................................... 76
Sandra Day O’Connor .......................................................... 87
CONCLUSION ................................................................ 95
BIBLIOGRAPHY ............................................................. l 03

vi

LIST OF FIGURES

Figure l ................................................................................... 97

vii

INTRODUCTION

In psychological warfare the intelligence
agencies of the democratic countries suffer from the
grave disadvantage that in attempting to damage the
adversary they must also deceive their own public.

- Victor Zorza

The Washington Post

November 15, 1965

 

New York Times v. United States1 is the landmark case that protects the

 

media against prior restraint by the government.2 Prior restraint occurs when an
official prohibition is imposed upon speech or other forms of expression in
advance of publication or dissemination. If the government had an across-the-
board right to prevent the press from printing information, the heart of the First
Amendment would dissolve. While no media organization has claimed in court
that the government has attempted to restrain the information it disseminates to

the same degree that it did with the Pentagon Papers, New York Times v. United

 

States does not completely protect the media against such an attempt. Shortly

after the decision was rendered, many criticized it for failing to establish just

 

1403 vs. 713 (1971)

2The government's effort to obtain a prior restraint to prevent The New York Times and The
Washington Post fiom publishing the Pentagon Papers placed "freedom as we know it in the
balance,” said William Glendon, who represented The Washington Post before the Supreme Court
in New York Times v. United States. David Rudenstine, The Day the Presses Stopped: A History
of the Pentagon Papers Case, (Univ. of Calif. Press, Berekley, 1996), 350.

 

 

 

when and under what circumstances the government could restrain the press.3

Clearly, the precedent established in Near v. Minnesota, 283 US. 697, 716 (1931)

 

-- that the government may restrain the press for the good of the nation such as in

time of war - survived New York Times v. United States. But does the

 

government's right go further? And how far? In 1971, when the Supreme Court
consisted of different justices who were considered more liberal as a whole than
the justices sitting today,‘ the decision was a 6-3 vote. In 1997, the Supreme
Court is considered more conservative and is led by a chief justice, William H.
Rehnquist, who often has not favored free speech advocates in expression cases.

How would this Court decide New York Times v. United States if it arose today?

 

This thesis predicts the outcome of New York Times v. United States if it

 

were argued in 1997 before the United States Supreme Court, and examines how
the likely decision of the current Supreme Court would affect the press. The
1997-1998 Supreme Court term is an ideal time to consider such a hypothetical
because, 26 years after the decision, the composition of the Court has completely
changed and the current justices, with the most recent addition appointed in 1994,

have each been sitting long enough to make a reasonable prediction as to how

 

3S_ee__ Don R. Pember, "The 'Pentagon Papa's' Decision: More Questions Than Answers,"
Journalism Quarterly (Autumn 1971), 403; Louis Henkin, ”The Right to Know and the Duty to
Withhold: The Case of the Pentagon Papers,” Univ. Penn. L. Rev., Vol. 120:179, 1971, 271 (New
York Times v. United States is ”some accident of immediate overwhelming interest which appeals
to the feelings and” - some will add - "distorts the judgment. ")

4The justices who decided the case were Chief Justice Warrm E. Burger and Associate Justices
John H. Harlan, Thurgood Marshall, Hugo L. Black, Potter Stewart, Byron R. White, William O.

 

 

 

 

each would decide the case.5 The Supreme Court is completely new, with new
perSpective. In most instances, justices are of different generations than those on
the Court during the Pentagon Papers case and have risen in their judicial careers
under different social, cultural and economic environments. The national and
international circumstances surrounding the Court are much different today than
in 1971. Now is the time to look at the Pentagon Papers floor the perspective ofa
different court in difl‘erent times.

The History of Prior Restraint

Before discussing in more detail New York Times v. United States, it is

 

necessary to understand where the aversion to governmental prior restraint in this
country came from. The importance of the doctrine against prior restraint in
American media would be difficult to ascertain without looking at its roots.
Journalism in this country, and its aggressiveness, was born of oppression. The
first printers and journalists were fiom England, where press licensing and
government censorship prevented printed circulation of criticism or ideas contrary
to the government opinion. In 1501, shortly afier the invention of the printing
press, Pope Alexander VI banned unlicensed printing. The Licensing Act of 1622
increasedcontmls. But whenthat hrwexpiredandwasnotrenewed,therightto

publish free of government licensing controls became a common law right in

 

Douglas, Harry A. Blackmm and William J. Brarnm.
sl-IaTry Blackmun, the last remaining justice who sat on the Pentagon Papers case, retired in April

England. Colonial printer Peter Zenger won a freedom of the press case in 1735.
When the First Amendment was adopted in 1791, the framers of the Constitution
intended to codify the English common law as taught by Sir William Blackstone,
which banned all prior restraints such as licensing or censorship.

The executive quickly began making exceptions on the basis of national
security, starting with President George Washington's complaints in 1797 of press
leaks. Then came the Sedition Act of 1798. Thomas Jefferson, in a June 17,
1807, letter to US. Attorney George W. Hay of the District of Virginia during the
trial of Aaron Burr for treason, presided over by Chief Justice John Marshall,
wrote that “[a]ll nations have found it necessary that, for the advantageous
conduct of their afl‘airs, some of these proceedings, at least, should remain known
to their Executive functionary only. He of course, from the nature of the case,
must be the sole judge of which of them the public interests will permit
publication.” Jefferson’s letter followed a motion by Burt’s counsel for issuance
of a subpoena to compel Jefferson to turn over a letter that the President had
written to an Army general.6

During the Civil War, the press in the North agreed to not print material
sensitive to national security. However, the voluntary agreement was violated so

often that President Abraham Lincoln issued an order providing for the court-

 

1994. Stephen G. Breyer took Blackmun's seat in the fall of 1994, completing the tin-never.
6 Whitney North Seymour, Jr., “Press Paranoia - Delusions of Persecution in the Pentagon Papers

martial of correspondents whose reports were found to be of aid to the enemy.7
William Cullen Bryant in an editorial in the Evening Post during the Civil War,
espouses the importance of editorial restraint during times of war: “The Evening
Post has been the consistent advocate of an unlimited freedom of discussion; it
will still continue to point out notorious instances of inefficiency; and to urge the
government to its duties, whenever it is lethargic or lax. But it will remember that
secrecy in war is often vital to success; that great measures cannot be carried out
in a day; that it is no less important to inculcate upon a naturally inpatient people
patience and confidence in those who have the control of affairs, than to watch the
conduct of the authorities, and lay open all instances of incompetency.”8

The government relied on voluntary censorship during World War 1,
although it could fall back on the Espionage Act recently passed in 1917.
Following the attack on Pearl Harbor in World War II, the government
established the Office of Censorship, which issued a Code of Wartime Practices
to press organizations. Under Office of Censorship rules, a correspondent was not
allowed in the theaters of war until he or she signed an agreement to submit all his

or her copy to military of navel censorship.9

 

Case,” New York State Bar Journal, February 1994, 10, 11.

7 Lincoln was, however, sparing in how often he applied this order, sometimes overturning his
own generals’ orders to court-martial correspondents.

8Seymour, Jr., sum note 6, citing Charles H. Brown, William Cullen Bryant, (Scribners, New
York, 1971), 436.

9 Brian William DelVecchio, “Press Access to American Military Operations and the First
Amendment: The Constitutionality of lrnposing Restrictions,” 31 Tulsa LJ. 227, 228 (1995).

 

 

The judicial branch, too, wrestled with the conflicting issues of a free
press and national security before the Pentagon Papers case. The clear and

present danger test was established in a dissent to Schenck v. United States in

 

1919. Near v. Minnesota in 1931 was the most important fi‘ee press/security case

 

prior to the Pentagon Papers.
Two other notable pre—Pentagon Papers cases established standards for

prior restraint cases. In Bantam Books, Inc. v. Sullivan, 372 US. 58 (1963), the

 

Supreme Court held that any system of prior restraint of expression comes to the
court bearing "a heavy presumption against its constitutional validity." In 1971,
just one month before it decided the Pentagon Papers case, the Court said in

Organization for a Better Austin v. Keefe that the government carries a heavy

 

burden of showing justification for the imposition of such a restraint.

In the country’s most recent major military action, the Persian Gulf War,
journalists were allowed access to the front through pools. However, a CNN pool
reporter inadvertently revealed, on live television, the identity of American forces
involved in an artillery duel with Iraqi forces. General H. Norman Schwarzkopf
later commented that “any halfway competent Iraqi intelligence officer watching
CNN would then discover that the 82“d [Airborne] was positioned for a

flanking attack, a fact .. . [that the military] had taken great pains to conceal,” and

which may have endangered fixture press access to military operations.'0
The Pentagon Papers

And that brings us to the Pentagon Papers. On June 15, 1971, the U.S.
Attorney General, on behalf of the United States government, brought legal action
against The New York Times, demanding it cease publication of stories about and
containing classified Pentagon reports on U.S. military involvement in Vietnam.
The government claimed the reports would threaten the nation's security. The
Pentagon's report had been leaked to the newspaper by Daniel Ellsberg, one of 36
authors of the study.”

At the request of the government, the Federal District Court for the
Southern District of New York issued a temporary restraining order against the
Times. However, Judge Murray Gurgein refused to grant the United States a
permanent injunction.

The U.S. Court of Appeals for the Second Circuit reversed Gurfein's
decision.

The Washington Post, meanwhile, began publishing the Pentagon Papers,

but the U.S. District Court for the District of Columbia denied the government's

 

‘° General H Norman Schwarzkopf, Ret., It Doesn’t Take A Hero, 440-459 (1992).

“ During a quastion-and-answer period following a speech in a Smithsarian Institute speakers
series in Washingtm, DC, in December 1996, Daniel Ellsberg said that “After 20 years, 25 years
now, of mainly Republicans putting people on the bench, both the District Court and the federal
court, the Supreme Corn-t particularly, the core of the Supreme Cornt has changed and the
Supreme Court’s approach to the Constitution is likely to change. Certainly my odds (of getting
the Pentagon Papers published in newspapers) would not be as good as they were then (1971).”

 

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request to restrain publication there. The U.S. Court of Appeals for the District of
Columbia also sided with the Post.

Following is the text of the short per curiam decision released by the U.S.
Supreme Court on June 30, 1971, less than three weeks after the Times published
its first article based on the Pentagon Papers. The decision favors the Times and
the Post. Each of the nine justices also wrote a separate opinion.

The complete per curiam opinion:

We granted certiorari in these cases in which
the United States seeks to enjoin the New York
Times and the Washington Post from publishing the
contents of a classified study entitled "History of
U.S. Decision-Making Process on Viet Nam
Policy." - U.S. - (1971). "Any system of prior
restraint of expression comes to this court bearing a
heavy presumption against its constitutional
validity." Bantam Books, Inc. v. Sullivan, 372 U.S.
58, 70 (1963); see also Near v. Minnesota, 283 U.S.
697 (1931). The Government "thus carries a heavy
burden of showing justification for the enforcement
of such a restraint." Organization for a Better
Austin v. Keefe - U.S. - (I971). The District Court
for the Southem District of New York in The New
York Times cases and the District Court for the
District of Columbia Circuit in The Washington
Post case held that the Government had not met that
burden.

We agree.

The judgment of the Court of Appeals for
the District of Columbia Circuit is therefore
affirmed. The order of the Court of Appeals for the
Second Circuit is reversed and the case is remanded
with directions to enter a judgment affirming the
judgment of the District Court for the Southern
District of New York. The stays entered June 25,

 

 

1971, by the court are vacated. The mandates shall
issue forthwith.
So ordered.

The constitutional issues were at odds in this case: the right of the press to
be free of prior restraint by the government, as mandated by the First
Amendment, and the asserted right of the President, as Commander in Chief, to
preside over national security and to conduct foreign aflahs in the best interest of
the country, as outlined in Article 11, section 2.

At issue addressed in four majority opinions is whether the Com had a
right, in light of the separation of powers doctrine, to abridge the freedom of the
press in the name of national security when Congress had specifically declined to
do so. Justice White notes in his concurring opinion that Congress had authorized
subsequent punishment for publishing information the executive rightly classified
as confidential, but had not authorized prior restraint. Therefore the Court could
not restrain publication, even if it believed the government's argument that
publication would threaten national security and foreign relations, Justice Stewart
states.

The three dissenting justices each state the speed with which the case was
decided -- "unseemly haste," Chief Justice Burger says -- was inappropriate, and
that haste was a significant issue in their deciding against joining the majority.

Justice Harlan in particular felt strongly that a number of questions should

10

have been answered before the Court decided the case, including a procedural
point right from the beginning: Does the Attorney General have the right to bring
suit in the name of the United States? Harlan calls the pace of the trial "almost
irresponsibly feverish" and states that the Court should not decide a case of such
magnitude while leaving some questions unanswered. Speed is imperative in a
case involving the right to publish, Justice Blackmun states in his dissent, but only
as long as speed does not result in carelessness and an unsound decision.

How, in America, could the government go fiom such aversion to
government control of the press to legal action approving it? The 1971 U.S.
Supreme Court justices asked themselves that, and came to varied opinions, as
shown in the decisions written by each in the case.

Two of the 1min arguments:

0 Government restraint of the press violated the First Amendment, plain

and simple, and could not be tolerated.

O The govermnent's demands were reasonable under Article H section 2
of the Constitution, which makes the president commander in chief
and responsible for national security and the welfare of his nation and
its people. The First Amendment is not absolute, as in cases in which
national security presents a greater harm than suppressed speech.

Two strong and valid points. How could they be reconciled? New York

Times v. United States did not completely answer that question, which has since

 

ll

arisen in courtrooms and scholarly media. What can be shown through this study
will not answer the question, either. But it can show how precarious the media's
privileges are, and how a case decided in its favor 26 years ago may not have the
same outcome under a different Court.

This analysis looks at how the current justices, with their varied
experiences and backgrounds, would decide the Pentagon Papers case if it were
presented to them. Some assumptions had to be made to put the 1997 case in
reasonably the same context as the 1971 case. The documents would be the same
age as they were when originally published in the newspapers, and the nation
would be at war.

For all its significance, the Pentagon Papers case left vital questions
unanswered. Why were the public interests asserted by the government
insufficient, and what rules could be followed to prove sufficient public interest?
The challenge to the reasonableness of the government's classification system was
not resolved. Also, some critics have noted that while the newspapers won the
case, the Pentagon Papers decision left the doctrine against prior restraint open to
revision by saying that the government could restrain a publication if it met the
burden of proof in a future national security case.

Since the Pentagon Papers case, the courts have denied that government
speech restrictions are prior restraints in several cases, and have ruled that prior

restraints are justified in other cases where a balancing test or theory such as

12

breach of trust was used instead of the standard used by the majority of justices in
the Pentagon Papers case. The clear-and-present-danger formula was apparemly
used by the majority of justices then, but was not part of the per curiam opinion,
so the Pentagon Papers case left the balancing test open for later cases.

The CIA cases that came afierthe Pentagon Paperscase showthe Court
may be more likely now to allow prior restraint when the government claims

national security is at stake. Two examples are U.S. v. Marchetti, 446 F.2d 1309

 

(1972), and Snepp v. U.S., 444 U.S. 507 (1980). In both cases, the Court upheld

 

the government's right to prepublication review of writings by former CIA agents
who had signed secrecy agreements while employed by the government.12 It was
assumed in both cases that the classification system used by the government was
constitutional - again, an issue lefi um'esolved in the Pentagon Papers case.

Since this paper examines the impact of the judicial branch's personality on a
case, it is important to take a glance at the changed personalities ofthe other two
branches and the Fourth Estate as well. Several researchers have pointed out that
no administration had ever taken such action as in the Pentagon Papers case
before 1971 and none has since, and that President Nixon had political and

personal reasons that influenced the decision to sue. Would the President take

 

”See also Weaver v. United States Information Am, 87 F.3d 1429 (1996) (regulation
requiring employees of federal agencies to submit for prepublication review materials regarding
matters of official concern did not violate the First Ammdrnent; c_iti_ng Snepp v. U.S., 444 U.S.
507 (1980)); Judge Wald, dissenting, at 1444, ("regulation significantly drills the speech").

 

 

 

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13

such an action today?

In 1986, Central Intelligence Agency Director William J. Casey
announced that six news organizations that had published information that he
asserted threatemd the nation’s security would be charged with espionage if they
continued to publish information about United States communications intelligence
activities. Casey's actions convinced the media to voluntarily censor itself. ‘3
DmingtheReaganyears,thepressdid notappeartopursue storiesas
aggressively as it did during the Nixon years. Would the press be likely to even
fight for the right to publish the Pentagon Papers today? Former Washington Post
court reporter Sanford J. Ungar questioned whether it would. In a 1988 preface

added to his 1972 book The Papers & the Papers: An Account of the Legal and

 

Political Battle After the Pentagon Papers, Ungar wrote that “it is not at all clear

 

thatthemediawould havethe staminaforabattle so bitterandonso many fronts,
were it to occur today.””
Methodology

In order to predict the outcome of a 1997 Pentagon Papers case, the
analysis looks at how the current justices have ruled in First Amendment, prior
restraint and national security cases. Some justices have a long record of

decisions in these areas, but a few have hardly any record at all There is no

 

13 .52 Reporters Committee for Freedom ofthe Press, The First Amendment Handbook, (3"l Ed),
pp. 57-59, for discussion of Casey, prior restraint of the media, and national security.

 

14

question that the Constitution speaks specifically to the issue of prior restraint of
the media, and the Supreme Court would likely unanimously agree on that point.

New York Times v. United States is unique, however, because it would bring

 

into conflict many of the justices' views on prior restraint and on government
rights when the national security is an issue. The Court in 1971 declined to
establish a general rule that could be called upon to resolve prior restraints cases
in general. The hypothetical here, then, asks the Court of 1997 to decide if the
rule against prior restraint is absolute and, if not, what burden the government
must meet before it can perrnissibly restrain the press from publishing
information. There has not been a case like the Pentagon Papers since 1971.
There have been cases on prior restraint of the press and there have been cases on
national security, but there have not been cases on prior restraint of the rrredia in

the name of national security that have gone up to the Supreme Court.” This

 

'4 Sanford J. Ungar, The Papers & the Papers: An Account of the Legal and Political Battle After
the Pentagon Papers, (Columbia University Press, New York, 1972), viii (preface, 1988).

”Restraining orders have, however, been rejected in a few prior restraint cases involving the
national security at the federal court level (446 PLI/Pat 517, 527):

Pfeift'er v. CIA, 60 F.3d 861 (DC. Cir. 1995). A CIA agent wrote a report about the Bay
of Pigs operation while employed with the CIA, and after he left wished to have it published The
CIA refilsed to review and release the report, and the agalt filed suit, claiming the government's
action was a prior restraint a1 his free speech. The circuit court held that the report was owned by
the government and ordered it returned, but that the agent could recreate it from memory and
publish any unclassified information.

Nation Magazine v. United States Dep‘t of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991).

The media challenged Department of Defense regulations governing coverage of the Persian Gulf
conflict. The district court flamed the complaint not as a prior restraint, but as a press access to
military operations. The issue was mooted upon the end of the conflict.

State of Israel v. St. Martin's Press, Inc., 165 A.D2d 712 (lst Dep't 1990), vacated, 166
A.D.2d 25 (lst Dep't 1990). After the Israeli government obtained an order barring publication of

 

 

 

 

 

15

study attempts to reconcile the justices’ opinions in both areas and predict how

they each would rule if the Pentagon Papers case were before him or her today.
The study is significant as a demonstration that a different ruling in a

landmark case such as the Pentagon Papers could have had a tremendous chilling

effect on the media and freedom of the press as we have known it since 1971.

In this analysis, each justice is important because the analysis concludes that the

vote would likely be 5-4 in favor of the government in a modem-day New York

Times v. United States. While every justice has the power in this case to swing

 

the vote, some are more likely to do so than others. Chief Justice Rehnquist is the
most likely justice to favor the government. Justices Breyer, Thomas, and
Ginsburg are also likely to favor the government. Justice Stevens is the most
likely justice to favor the press. Justices Souter and Scalia are the most likely to
also favor the press. Justice Kennedy stands in the middle, but would lean more
toward the press, Justice O’Connor would be the swing vote. This analysis
predicts She would ultimately favor the government.

Following are individual evaluations of each of the current justices. Only
cases in which a justice wrote the majority opinion or a dissenting or concurring
opinion in a prior restraint case are included in the overview and case history.

The overview also encompasses prior restraint cases decided since New York

 

a book by a former Mossad agent, the court of appeals vacated the order. The court held that
Israel had not supported its claim that the safety of its agents was jeopardized by further
publication of the book.

16

Times v. United States, in some cases including state and federal court decisions

 

written before a justice was named to the Supreme Court. Case histories include
only opinions written by a justice since he or she has been on the Supreme Court.
Cases in which a justice joined an opinion written by another may be included for
informational purposes in the overview preceding an individual justice's case
history. Justices are reviewed in order from the justice least likely to favor the
press, who is Chief Justice Rehnquist, to the justice most likely to favor the press,
who is Justice Stevens, with the exception of Justices Kennedy and O’Connor,
who are discussed last because either may be a swing vote in this case. Each case
history is followed by a conclusion stating the likely decision of each justice if he

or she were to hear New York Times v. United States.

 

Even if the Pentagon Papers case were to survive a round against today's
court, it is significant that the vote would likely be close. Awaiting the decision
under today's Court would be an on-the-edge-of-your-seat, suspense-filled waiting

game and, as in New York Times v. United States, the rule against prior restraint

 

of the media could be affirmed or reversed in a mere 18 days.

THE JUSTICES

William H. Rehnquist
Overview

The First Amendment really protects a
minority right For the average person, the right to
go down to the pub in the evening was a great deal
more important than the right to express oneself.

- Chief Justice Rehnquist, 1990,
quoting British philosopher
Michael Oakeshott.“

Two justices have given exceptionally clear indications of which party
each would favor if the Pentagon Papers case were before them, primarily
because they are the two longest-sitting justices and each has sat on several
significant free press cases. Each also sits at opposite ends of the spectrum on the
issue of prior restraint. John Paul Stevens would almost certainly favor the press.

William H. Rehnquist, whose record this paper now examines, would almost
certainly favor the government.17 The remainder of the Court falls
philosophically at varying points between these two men.

Rehnquist is the only member of the Court who actually was involved in

thePentagonPaperscase. HehelpedpreparethecaseagainstTheNewYork

 

 

”Tony Mauro, “A new outlook for the First: Recent Sipreme Cora-t appointees may turn the tide
against press freedoms,” The Quill, Oct. 1991, p. 5.
17 Marc Rohr, Freedom of Speech After Justice Brennan, 23 Golden Gate U.L.

 

17

.....

 

 

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18

 

Times and The Washington Post as assistant attorney general in charge of the
Justice Department's Office of Legal Counsel in 1971.18 In his book The Papers

& the Papers, former Washington Post comt reporter Sanford J. Ungar describes

 

the call to Post Executive Editor Benjamin Bradlee from Assistant Attorney
General Rehnquist on June 18, 1971, less than two weeks before the Court's

decision in New York Times v. United States.'9 Rehnquist read Bradlee the

 

following message from the Attorney General:

I have been advised by the Secretary of
Defense that the material published in The
Washington Post on June 18, 1971, captioned
"Documents Reveal U.S. Effort in '54 to Delay
Viet[sic] Election” contains information relating to
the national defense of the United States and bears a
top-secret classification. As such, publication of
this information is directly prohibited by the
provisions of the Espionage Law, title 18, United
States Code, Section 793. Moreover, filrther
publication of information of this character will
cause irreparable injury to the defense interests of
the United States. Accordingly, I respectfully
request that you publish no further information of
thischaracterandadvisemethatyouhavemade
arrangements for the return of these documents to
the Department of Defense.

The message Assistant Attorney General Rehnquist read to Bradlee could

 

Rev. 413 (1993).

18Shortly after the Pmtagm Papers case was decided, President Richard M. Nixon named William
H. Rehnquist an Associate Justice of the Supreme Court. President Ronald Reagan elevated
Justice Rehnquist to Chief Justice in 1986.

”Sanford J. Ungar, The Papers & the Papers: An Account of the Legal and political Battle after
the Pentagm Papers, (Colmnbia University Press, New York, 1972) 152-53 (“The Papers & the
M”). Ungar also states that Rehnquist is "the intellectually conservative 'President's lawyer's

 

 

 

19

just as well be the text of Chief Justice Rehnquist's opinion if the Pentagon Papers
case were before him today. Significantly, Rehnquist, frequently in the minority
during his years as an associate justice,20 now finds himself more often in the
majority as chief justice.21 Rehnquist’s role as chief justice would also be
especially important if the Pentagon Papers case were to come before the Court
today. In 1971, the Court heard the case on an expedited schedule. As chief
justice, Rehnquist presides over case selection. He opens discussion of cases,
frames the issues and presents the facts and the law. He also may assign
authorship, sometimes based on strategic or political reasons.

Rehnquist has been on the Court 26 years, longer than any other current
justice. He has been involved in numerous significant free expression cases. An
overview of his stance on national security and prior restraint issues reveals that

Rehnquist consistently decides such cases against the press.22 A review of the

 

lawyer,” lbid.

20As assistant attorney general, Rehnquist suppa'ted executive authority to order wiretapping and
surveillance without a court orda', no-knock entry by the police, preventive detention and
abolishing of the exclusionary rule. The Oxford Companion to the Supreme Comt of the United
States, Kermit L. Hall, ed., Oxford University Press, New York, 1992, 715. "Rehnquist was
considered politically loyal within the Nixon administration, having vigorously defended the
invasion of Cambodia and supported Nixon's law-and-order measures, including the right to
wiretap citizens when national security was involved.” David Rudenstine, The Day the Presses
Stopped: A History of the Pentagon Papers Case (University of California Press, Berkeley, 1996),
80.

2] Ungar, The Papers & the Papers. After the Pentagon Papers, Nixon's replacements for
Justices Black and Harlan, Justices Powell and Rehnquist, forebode a "prognosis (that) seemed
considerably worse for the press, with the consa'vative wing of the Supreme Court substantially
strengthened." p. 304.

22m Padgett's analysis of free expression eases between 1931-1979, Rehnquist supported fi'ee
expression in 21 percent of the cases on which he sat - the lowest of any justice in the study.

 

 

 

 

 

20

holding in each of these cases and the rationale for each will show strong support
for the conclusion that Rehnquist would vote in favor of the government if the
Pentagon Papers case were before him.

Case History

 

Rehnquist has written one majority opinion in a prior restraint case that

also involved national security issues. Kissinger v. Reporters Committee for

 

Freedom of the Press, 445 U.S. 136 (1980), examined whether records and notes

 

of Henry A. Kissinger's official telephone conversations during his service as
assistant to the president for national security affairs and as Secretary of State
were exempt under the Freedom of Information Act (F OIA).

The Court found that the State Department did not improperly withhold
documents where, at the time of the request, the documents had been removed to
the Library of Congress. The documents were not “agency records” under F OIA
because they consisted of information that threatened the internal secrecy of
White House policymaking and were compiled by the Secretary of State acting in
his capacity as presidential advisor, making them exempt under FOIA provisions.

Therefore, their disclosure was not mandated under F OIA. The

 

Another study shows Rehnquist supported speech and press cases not involving libel 29 percent of
the time and never supported the press in libel cases. F. Dennis Hale, “Free Expression: The First
Five Years of the Rehnquist Court,” Journalism Quarterly, Vol. 69, No. 1 (Spring 1992), p. 89.
Rehnquist favored speech in 29 percent of the cases he sat on from the 1986 term through the
1990 term (the first five years of his tenure as chief justice), which was less often than any other
justice in the study. He wrote opinions in 23 percent of those cases, was the majority author in 13
percent, dissented in 27 percent and heard 62 of the 64 flee expression cases before the court

 

21

Conference Report for the 1974 FOIA Amendments indicates that the President's
personal staff “whose sole function is to advise and assist the President" are not
included within the term "agency.” To the extent a newspaper columnist sought
discussions concerning information leaks that threatened the internal secrecy of
White House policymaking, he sought conversations in which Kissinger had acted
in his capacity as a presidential adviser, only.

Rehnquist wrote six other majority opinions in prior restraint cases:

0 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)

 

Although the majority opinion was written in part by Kennedy,

Rehnquist ’s portion addressed the First Amendment and prior restraint issues
that may be of use in this analysis. The case is therefore listed only under
Rehnquist in this paper. Kennedy’s opinion addressed the vagueness issue, which
is not pertinent to the Pentagon Papers case.

A lawyer challenged the Nevada Supreme Court rule that prohibits a
lawyer from making extrajudicial statements to the press that he or she knows or
reasonably should know have a "substantial likelihood of materially prejudicing"
the adjudicative proceeding. The issue was whether the rule violates a lawyer's
First Amendment right to free speech. The Court found that it did not. The
speech of lawyers representing clients in pending cases may be regulated under a

less demanding standard than the "clear and present danger" of actual prejudice or

 

during those terms.

22

the imminent tineat standard established for regulation of the press during
pending proceedings. The less demanding standard is designed to protect the
integrity and fairness of a state's judicial system and imposes only narrow and
necessary limitations on a lawyer's speech. The standard is neutral as to points of
view, applies equally to all the attorneys in a pending case and merely postpones
an attorney's comments until after the trial.

0 International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S.

 

672 (1992). (‘W’)

The Port Authority's restrictions on the distribution of literattu'e and
solicitation of contributions in an airport terminal do not deprive people of their
First Amendment flee speech rights. An airpOlt terminal is a nonpublic forum for
First Amendment purposes, and a prohibition on solicitation of contributions is
reasonable because it is a nonpublic forum and people have no light to speak flee
of restrictions there. The restrictions are reasonable because solicitation may
have a disruptive effect on business by slowing the path of both those who must
decide whether to contribute and those who must alter their paths to avoid the
solicitation. Solicitation under such circumstances invites flaud and targets
people on tight schedules who are unlikely to stop and complain to airport
authorities. Additionally, the Port Authority provides access for speakers to the
sidewalk outside of the terminals, which is a reasonable alternative channel of

communication.

23

0 Alexander v. United States, 509 U.S. 544 (1993)

 

A forfeiture of assets, including books and films used in an adult entertainment
business, complies with the First Amendment when it is incidental to a conviction
for participation in racketeering activities. Under those circumstances, a
forfeiture is a permissible criminal punishment, not a prior restraint on speech.
The term ”prior restrain " describes orders forbidding certain communications that
are issued before the communications occur. The order here poses no legal
impediment to engaging in expressive activity. Instead, the order prevents a
person from financing expressive activities with assets derived flom prior
racketeering offenses. The Racketeer Influenced and Corrupt Organizatiom Act
provisions applied here are oblivious to the expressive or nonexpressive nature of
the assets forfeited.

In Alexander, Rehnquist wrote that the threat of forfeitme has no more of
a "chilling" effect on flee expression than threats of a prison term or large fine,

which are constitutional under Fort Wayne Books.23 He also wrote that criminal

 

sanctions with some incidental effect on First Amendment activities are subject to
First Amendment scrutiny only when it was the expressive conduct that drew the

legal remedy, citing Arcara v. Cloud Books, Inc., 478 U.S.697, 706-707 (1986)

 

(a claim that the closure of an adult bookstore under a general nuisance statute

 

”For Wayne Books, lnc. v. Indiana, 439 U.S. 4o, 66 (1989) (“[M]ere probable cause to believe a
legal violation has transpired is not adequate to remove books or films flom circulation”)

 

24

was an improper prior restraint).

Three of Rehnquist’s majority opinions, half of the six he has written in
prior restraint cases, deal with restrictions on abortion-related speech. Although
these are primarily time, place and manner cases, they offer some insight into
Rehnquist’s position on government regulation of speech.

0 Schenk v. Pro-Choice Network of Western New York, 117 S.Ct. 855

 

(1 997).

A preliminary injunction that prohibits abortion protestors flom engaging
in efforts to prevent women flom obtaining abortions was not an unlawful prior
restraint on flee speech in light of alternative channels of communication left
open to protestors. The injunction provisions that impose "fixed buffer zone"
limitations are constitutional, but the provisions that impose "floating buffer
zone" limitations violate the First Amendment because they burden more speech
than is necessary to serve the relevant governmental interests. The injunction was
not issued because of the content of the protestor's expression, but rather because
of the protestor’s prior unlawful conduct. Government interests in ensuring
public safety and order and promoting the flee flow of traffic, protecting property
rights and protecting a woman's fleedom to seek pregnancy-related services, are
all significant enough to justify an appropriately tailored preliminary injunction to
secure unimpeded access to clinics.

0 Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994)

 

25

The issue in this case is whether an injunction entered by a Florida state
court that prohibits antiabortion protestors flom demonstrating in certain places
and in various ways outside a health clinic that performs abortions violates
protestors' First Amendment right to flee speech. The fact that the injunction only
restricts the speech of antiabortion protestors does not make it content-based. A
content-neutral injunction is upheld if its challenged provisions burden no more
speech than is necessary to serve a significant governmental interest. Therefore,
the provision of the injunction that establishes a 36-foot buffer zone around the
clinic entrances and driveway and imposes limited noise restrictions does not
violate the First Amendment. Provisions of the injunction that establish a 36-foot
buffer zone out onto private property and that ban observable images, establish a
300-foot no-approach zone around the clinic and establish a 300-foot buffer zone
around staff residences, burdens more speech than is necessary to serve

government interests and are therefore invalid under the First Amendment.

0 Rust v. Sullivan, 111 S.Ct. 1759 (1991)

 

Regulations prohibiting recipients of specific federal subsidies flom
espousing particular views on abortion are permissible under the First
Amendment. By forbidding counseling, referral and the provision of information
regarding abortion as a method of family planning, the regulations ensure that
appropriated funds are not used for activities, including speech, that are outside

the federal program's scope. The regulations do not unconstitutionally condition

26

receipt of a benefit on the relinquishment of a constitutional right because
grantees do not have to give up abortion-related speech. Instead, the regulations
require that such activities are kept separate and distinct flom the activities
supported by the federal funds. The Court found that the First Amendment
protection of the doctor-patient relationship is not significantly impinged. A
doctor's ability to provide, and a woman's right to receive, abortion-related
information remains unfettered outside the context of the specific federal
subsidies at issue here. The fact that most clients may be effectively precluded by
indigency flom seeing a health-care provider for abortion related services does
not affect the outcome here, according to the Court, since the financial constraints
on such a woman's ability to enjoy the fill] range of constitutionally protected
fleedom of choice are the product not of governmental restrictions, but of her
indigency.

Rehnquist wrote four dissenting opinions in prior restraint cases. One of
the cases, B_ogs_, i_n_fl_a page 90, also involved national security. Rehnquist wrote
that the portion of a code that prohibits signs within 500 feet of any embassy "if
that sign tends to bring that foreign government into "public odium" or "public
disrepute"" should be upheld.

Rehnquist came at Minneapolis Star, infla page 92, flom a very different

 

direction than the majority. He proffers a supposedly pro-press resolution of the

case that in fact rules against the press, in which he wrote “[t]oday we learn flom

27

the Court that a state nms afoul of the First Amendment proscription of laws
"abridging the fleedom of speech, or of the press" where the State structures its
taxing system to the advantage of newspapers. This seems very much akin to
protecting something so overzealously that in the end it is smothered.” Rehnquist
explained that the tax on newspapers does not “prohibit activities which in no
way diminish or curtail the fleedoms [that the First Amendment] protects,” as the
majority contends. Instead, newspapers would pay less under a use tax than if
theyweretaxedundertheregular salestax.

Thus, the Minnesota taxing scheme which
singles out newspapers for "differential treatment"
has benefited, not burdened, the “fleedom of
speech, [and] of the press.

To collect flom newspapers their fair share
oftaxes under the sales and use tax scheme and at
the same time avoid abridging the fleedoms of
speech and press, the Comt holds today that
Minnesota must subject newspapers to millions of
additional dollars in sales tax liability. Certainly
thisisahollow victory forthenewspapersandl
seriously doubt the Court's conclusion that this
result would have been intended by the "Framers of
the First Amendment."

While the majority had found an unconstitutional restraint on press
fleedom, Rehnquist found no abridgement of First Amendment guarantees
whatsoever, let alone a significant burden on First Amendment rights.

Rehnquist dissented in FCC v. League of Women Voters, 468 U.S. 364

(1984) (majority opinion per J. Brennan). At issue was a statute that prohlhited

 

 

t
Iv -
.. .
.. II
a}
. s.

28

the use of federal funds to subsidize noncommercial, educational broadcasting
stations which engage in editorializing or which support or oppose any political
candidate. Rehnquist, in his dissent, wrote, “I do not believe that anything in the
First Amendment to the United States Constitution prevents Congress flom
choosing to spend public monies in that manner.” He analogized the statute to
Faust and Mephistopheles: A broadcaster, well aware of the conditions attached to
accepting public funding, cannot later “seek to avoid the conditions which
Congress legitimately has attached to the receipt of that funding.”

In Forsyth County, Georgia v. Nationalist Movement, 112 S. Ct. 2395

 

(1992), an organization challenged the constitutionality of a county assembly and
parade ordinance. The Court, per Justice Blackmun, held that the county
ordinance was unconstitutional because it permitted the government administrator
to vary the fee for an assembly or parade to reflect the estimated cost of
maintaining public order during the event. The court also found the ordinance
unconstitutional because it required the administrator to examine the content of
the message conveyed and estimate public response to that content in order to
estimate the cost of police services. Rehnquist dissented, writing that a parade
ordinance fee isnotapriorrestraint because it isnotarevenuetax,butoneto
meet the expense incident to administration of the ordinance and maintenance of

public order.

29

Conclusion

Rehnquist would favor the government if he were to hear the Pentagon
Papers case today. Rehnquist’s position as part of the prosecution team during the
actual Pentagon Papers case and his consistently pro-government opinions in
numerous prior restraint cases, including those involving abortion clinic protests,
non-public forum solicitation, asset forfeiture and taxation, strongly indicate that
he would favor the government in this case. Rehnquist favored the government in
each of the 10 prior restraint cases for which he wrote an opinion. He has never

favored the press in a prior restraint case for which he wrote an opinion.

30

Stephen G. Breyer
Overview

Breyer, who was nominated to the Supreme Court by President Clinton
and took his seat on the Court in the fall of 1994,24 making him the newest
member of the Court, would likely view the Pentagon Papers case much as Chief
Justice Burger did in his dissent in the case: as one "conducted in unseemly
haste." Burger in his dissent stated (403 U.S. 713, 750):

It is not disputed that the Times has had
unauthorized possession of the documents for three
to four months, during which it has had its expert
analysts studying them, presumably digesting them
and preparing the material for publication. During
all of this time, the Times, presumably in its
capacity as trustee of the public's "right to know",
has held up publication for purposes it considered
proper and thus public knowledge was delayed.
But why should the United States Government,
flom whom this information was illegally acquired
by someone, along with all the counseL trial judges,
and appellate judges be placed under needless
pressure? After these months of deferral, the
alleged "right to know" has somehow and suddenly
become a right that must be vindicated instanter.

Like Burger, Breyer might agree generally with his fellow justices that
prior restraint has no place under the First Amendment, but he also might well not

be prepared to reach that conclusion on the merits of the case before him.

 

“Breyer was a judge, U.S. Com't of Appeals for the 1‘ Circuit, flom 1981-1994. He became chief
judge in 1990.

31

Breyer, a centrist on many legal issues, is known for his conservative
views on economic regulation and has a reputation as an antitrust and
administrative law expert25 who is leery of government interference in private
enterprise.26 Associates say his policy background will lead him to side more
often with individual rights than government interests.27 However, “it is in
economic regulation, not individual rights and liberties, that Breyer has a concrete
record.”28 He has scant background in prior restraint of the press or national
security cases.29 An analysis of his stance on related issues in cases involving
disputes over access to government information and records shows that he has
favored the government in part because he disfavors haste in constitutional
decisions}O

While on the federal bench, Breyer wrote the majority opinion for the en

banc hearing in Irons v. Federal Bureau of Investigation, 880 F.2d 1446 (1 st

 

Cir. 1989), ruling that historians were not entitled to FBI documents that contained

more information flom sources than the sources had revealed at a public trial.

 

25Breyer is best known for drafting legislation to deregulate airlines and for creating the federal
prison sentencing guidelines, both far cries flom prior restraint issues.

6Ann Devroy, "Boston Judge Breyer Nominated to High Court: After Long Process, Clinton's
Choice of Centrist Likely to Avoid Confirmation Controversy on Hill," The Washington Post,
Ma 14, 1994, A1 (at A4).

2 Joan Biskupic, "Boston Judge Breyer Nominated to High Court: A Moderate Pragmatist,
Nominee Widely Admired in Legal Circles," The Washington Post, May 14, 1994, A1 (at A4).
28Devroy, m note 26;

9F or an overview of Judge Breyer's record on media issues, g Reporters Committee for
Freedom of the Press, Summary of Judge Stephen Breyer's Decisions on Media Issues, 1994.

 

 

32

The dissent argued that informants who testified waived the right to have any
information related to their testimonies remain confidential. Other judges also
criticized Breyer's opinion. Judge Bownes, who joined in the dissent, wrote a
particularly scathing retort: "Under the rubric of 'security' and 'protecting
government sources,” the Freedom of Information Act "is slowly being strangled
to death. The majority decision tightens the garmtte one more notch."

In another case, El Dia Inc. v. Hernandez Colon, 963 F.2d 488 (1st Cir.

 

1992), a panel including Breyer reversed a lower court order that struck down the
governor of Puerto Rico's executive order restricting public access to government
documents. A daily newspaper had challenged the executive order in federal
court. The panel favored the government and found tint the constitutional
questions that led the lower court to overturn the executive order should be
decidedasalastresort, andthatthe district court actedtoo hastily instriking
down the order.

Breyer also joined in the en banc review of In Re Providence Journal, 820
F.2d 1354 (lst Cir. 1987), in which a newspaper had defied a gag order. A panel
opinion (reported at 809 F .2d 63 (lst Cir. 1986)) had reversed the trial court's
criminal contempt citation against the newspaper. The en banc per curiam

opinion modified the panel opinion, saying a publisher, even when it thinks it is

 

”My Marcia Coyle, "Breyer Olarts Moderate Course to High Court," The Nat'l Law
_Jl;n_:, July 25, 1994, All.

33

the subject of a transparently unconstitutional order of prior restraint, had to
"make a good faith effort to seek emergency relief flom the appellate court." The
panel opinion stated:
We realizethatourruling meansthata

publisher seeking to challenge an order it deems

transparently unconstitutional must concern itself

with establishing a record of its good faith effort.

Butthatistheprice we shouldpay forthe

preference of court over party determination of

invalidity.

Breyer would likely find tint The New York Times had not made a good
faith effort to ascertain the propriety of publishing information rooted in classified
documents, and continued to publish even after ordered by the government to stop
instead of prudently withholding publication and seeking emergency court relief.

Breyer voted in 1990 to strike down President Bush's gag orders on
abortion counseling at federally funded health clinics, an order the Supreme Court

later upheld in Rust v. Sullivan. Breyer's decision in Rust was based on whether

 

the com should defer to an agency decision when Congress has been silent on the
issue. His decision was not based on the flee speech rights of doctors.3 ' He
agreed that "the decisive question was whether the comt should defer to a
reasonable agency interpretation in which Congress has not decided the issues in

question" rather than the First Amendment issues.

 

3 1 See also Ernest Gellhrrn, "A Justice Breyer May Tip the Court's Balance,” The Nat! Law Jrn,
July 4, 1994, A19.

 

34

Breyer also participated in three cases in which the court upheld lower
court decisions denying access to CIA files, and in one case in which FBI files
remained closed after the FBI sufficiently explained the harm that would result
flom the release of the documents.

The age of some of the information in the Pentagon Papers would likely
not convince Breyer that it no longer posed a risk to national security. Breyer sat

on a three-judge panel on Maynard v. Central Intelligence Agency, 986 F. 2d 547

 

(1”t Cir. 1993), amended, slim (1St Cir., Feb. 11, 1993), that ruled that a court
should defer to the CIA’s “arguable” determination that 30-year-old information
is rightly exempted under the FOIA in the interest of national defense or foreign
policy.32

Case Histog

 

Breyer has not written any majority opinions in prior restraint cases since
he’s been on the Supreme Court. He wrote an opinion concurring with Stevens’
majority opinion in Mo____rse, 'mfla page 54, a prior restraint case that did not involve
any national security issue, in which he showed his dissatisfaction with hasty
decisions:

While these limitations exclude much party

activity -- including much that takes place at an
assembly of its members -- I recognize that some of

 

32Breyer also participated, but did not write an opinion, in a case in which the court found no right
of access to CIA operational files by next-of-kin. Sullivan v. Central Intellgence Agency, 992
F.2d 1249 (1‘ cir. 1993).

 

35

the First Amendment concerns raised by the
dissents may render these limits yet more restrictive
in the case of party conventions. Like the more
obviously evasive “all-white” devices, it is of a kind
that is the subject of a specific constitutional
Amendment. U.S. Const., Amdt. 24, s 1 (banning
poll tax). We go no further in this case because, as
the dissents indicate, First Amendment questions
about the extent to which the Federal Government,
through preclearance procedures, can regulate the
workings of a political party convention, are
difficult ones. (citations omitted) Those
questions, however, are properly left for a case that
squarely presents them.

Conclusion

Breyer would favor the government because he disfavors haste. In the one
prior restraint Supreme Court case in which he has written an opinion, Breyer
stated that although First Amendment concerns were raised, resolutions of those
concerns were better left for another case that would squarely address them. In

New York Times v. United States, Breyer would likely favor waiting to decide

 

such significant First Amendment issues in a case in which the Court had all the
facts in flont of it and time to weigh those facts carefully and thoroughly without
the pressure of an expedited argument.

If Breyer applied a cost-benefit analysis to the Pentagon Papers case, as
he so often does in regulation and antitrust law cases, he likely would deduce that

the benefits of slow, deliberate consideration outweigh the costs of a hasty, and

36

thus potentially catastrophic, decision that would favor the press but possibly

endanger national security.

37

Clarence Thomas
Overview

Justice Thomas does not provide much information useful for drawing a
conclusion in this study. Thomas served on the U.S. Court of Appeals for the
District of Columbia Circuit flom March 1990 until his nomination to the
Supreme Corut by President Bush in July 1991. At the time of his nomination, he
had written only 20 judicial opinions, all in routine cases. During his time on the
federal bench and on the Supreme Court, he has written only one relevant
opinion, a dissent in M. The dissent dealt primarily with a question of
statutory interpretation, but a small portion dealt directly with the First
Amendment right to flee expression

Thomas joined in a few relevant cases while on the federal bench. As a
member of a unanimous three-judge panel, he found a Justice Department memo
that discussed proposed amendments to the F 01A to be a predecisional inter-
agency document properly withheld flom the editors of a newsletter who had
requested it under the FOIA.33 Specifically, the memo analyzed the amendments,
which had recently been introduced in the Senate, and that listed specific news
stories that could not have been written if the new amendments had been in place.

Thomas was also on the panel that fOtmd that scholars and jourmlists

under deadline have no special right to be placed at the top of the FOIA

38

processing list and that "publishing deadlines do not necessitate expedited
treatment." The case involved an author under contract to write a book about J.
Edgar Hoover who had sued the FBI to expeditiously release Hoover's
appointment calendars, telephone logs and message slips. The district court
denied the author's request for expedited proceedings but did order the FBI to
submit progress reports on its processing of the request every 60 days.34

In a rehearing en bane of New York Times Co. v. NASA, 820 F .2d 1002

 

(DC. Cir. 1990), Thomas joined the majority Opinion that NASA could withhold
the audio tape recording of voice communications aboard the space shuttle
Challenger just before it exploded. The majority said that voice inflections on the
tape might contain "non-lexical" information, distinct flom the words themselves
already released in written documents, which if disclosed might constitute an
invasion of privacy.

In another case, a panel including Thomas said a businessman could not
travel to Cuba when the Trading with the Enemy Act is imposed, but a journalist
could because otherwise "news flom Cuba could be 'packaged' for transmission
only by non-citizens, in whom American audiences might have less trust." That
was one of the few cases where Thomas supported the press.

During his first terms on the Court, Thomas joined Chief Justice

 

33Access Reports v. Department of Justice, 926 F.2d 1192 (DC. Cir. 1991).
34Summers v. Department ofJustice, 925 F.2d 450 (he. Cir. 1991).

 

 

39

Rehnquist's dissent in City of Cincinnati v. Discovery Network, 113 S.Ct. 1505

 

(1993), in which the majority had said that a ban on newsracks containing
commercial handbills was unconstitutional. Thomas also dissented in ISKCON
when the majority ruled that a ban on distribution of literature in airports was
invalid under the First Amendment. Thomas also joined the dissent when the
majority had invalidated a parade permit ordinance because it was not content-
neutral.

Thomas did cast a positive vote for flee expression when he joined the

majority opinion in R.A.V. v. St. Paul, in which the majority said an ordinance

 

could not discriminate based on content in bias-motivated hate speech.

Case History

 

Like Breyer, Thomas has not written any directly relevant opinions while

on the Supreme Court except in Morse, infla page 54, 35 Thomas’ dissent

 

primarily dealt with statutory interpretation, but a small segment of it spoke
directly to the issue of prior restraint:

[T]he Court creates a classic prior restraint
on political expression. Legislative burdens on
associational rights are subject to scrutiny under the
First Amendment. [citations omitted]... Though
Justice Stevens and Justice Breyer glibly dismiss
this constitutional inquiry, [citations omitted] it is
not equally obvious to me that §5 [of the Freedom
of Information Act], as interpreted today, would
survive a First Amendment challenge. . ..

 

35 Breyer mounted with Stevens’ majority opinion in Morse. See discussion, supra _.

 

40

If there were no state involvement, the rule
would be permissible. Exclusion of political parties
flom the coverage of §5 obviates the foregoing First
Amendment problems. [citations omitted] By
letting stand a construction of §5 that encompasses
political parties, however, the Com begets these
weighty First Amendment issues. Ironically, the
Court generates these difficulties by contorting,

rather than giving the most natural meaning to, the

text of §5.
Conclusion

Thomas would most likely favor the government in this case. Although he

has only written one opinion in a prior restraint case, and he favored flee
expression in that opinion, he did not strongly advocate fleedom of expression (he
merely wrote that whether or not a part of the Freedom of Information Act would
survive a First Amendment challenge was not as “equally obvious” to him as it
was to the majority, which felt that the FOIA section would pass constitutional
muster). Thomas also joined in three decisions favoring the government while on
the federal bench and three while on the Supreme Court, and only one favoring
the press while on the Supreme Court. Even though Thomas usually joins Scalia

on decisions and Scalia has indicated he would likely favor the press in a case

similar to New York Times v. United States, Thomas’ record does not otherwise

 

indicate that he would vote alongside Scalia in this hypothetical case. This

analysis predicts Thomas would side with the government if New York Times v.

 

United States were before him.

 

41

Ruth Bader Ginsburg
Overview

Ginsburg was appointed to the Supreme Court by President Clinton in
1993. Although she has only been on the Court a relatively short time, Ginsburg
has a significant trail of media-related decisions on the U.S. Court of Appeals for
the District of Columbia Circuit, where she sat flom 1980 until her appointment to
the High Court.

In In Re Application of National Broadcasting Co., Inc., American

 

Broadcasting Companies, Inc., and CBS, Inc., 653 F .2d 609 (DC. Cir. 1981),

 

three broadcasting companies asked for permission to copy FBI audio and video
tapes introduced as evidence in the "Abscam" trial of former Congressman John
Jenrette. A three-judge panel, including Judge Ginsburg, reversed the district
court's decision to deny the broadcaster's access to the tapes. Following an
expedited appeal, the panel said the strong public interest in the information on
the tapes outweighed the government's interest in withholding them.

Ginsburg sat on a three-judge panel in 1991 that struck down a
magistrate's decision to seal a plea agreement because the government had failed
to provide a compelling reason to justify the seal.36 The Washington Post was the
plaintiff. Ginsburg also participated on but did not write an opinion in a case that

required the government to release information on whether two individuals

42

residing in Iran are U.S. citizens or hold U.S. passports,37 another in which the
court ruled that an agency may withhold the preliminary draft of an historical
work concerning the Air Force's role in Vietnam because it would reveal the
agency's deliberative process,38 and yet another that upheld broad exemptions for
the release of CIA files.39 She joined Judge Harry T. Edwards’ dissenting opinion

in the en banc rehearing of New York Times v. NASA, supra page 38, which said

 

that the majority ruling had created a general exemption for any information with
a privacy value greater than its public value. Finally, Ginsburg dissented flom a
ruling in 1989 that allowed the Bush administration to deny funds to clinics where
doctors discussed abortion as a family planning option.

It is difficult to draw a conclusion flom such a mixed bag of decisions.
Ginsburg is a moderate and, because she is close to the center politically, it is hard
to predict which way she will lean on a specific case. One case in which she

joined the Court’s opinion has facts similar enough to New York Times v. United

 

States that it warrants discussion, albeit outside of the case history, since it was
not a Supreme Court case and Ginsburg did not write it. The case is Dudman

Communications Corporation v. Department of the Air Force, 815 F.2d 1565

 

(1987), and the issue is whether a draft manuscript concerning the history ofthe

 

”Washington Post Co. v. Robinson, 935 F.2d 282 01c. Cir. 1991).

I‘Vashinfigton Post v. State Department, (110. Cir. 1981), rev’d, 456 U.S. 595 (1982).
”Dudman Communications Corporation v. Department ofthe Air Force, 815 F.2d 1565 (1987).

 

 

 

43

Air Force in South Vietnam between 1961 and 1964, requested by a radio
broadcaster, was exempt flom FOIA's general disclosure requirements. The court
held that the manuscript was exempt flom FOIA general disclosure because it
would reveal the Air Force's deliberative process and disclose alterations that the
Air Force made during the process of compiling the official history, possibly
stifling the creative thinking and candid exchange of ideas necessary to produce
good historical work.

The difference between "factual" material and "deliberative" material is
key to this decision. The latter consists primarily of governmental officials'
opinions and recommendations on matters of executive policy, and should be
withheld under the appmpriate FOIA exemption. The Court, per Judge Abner

Mikva, relied on Russell v. Dep’t of the Air Force, 682 F.2d 1045 (DC. Cir.

 

1982) (panel held a similar draft document exempt flom F OIA’s general
disclosure requirements), when rendering its decision:

Russell stated that an author [of such a
government manuscript] “would hesitate to advance
unorthodox approaches ifhe knew that the
Department's rejection of an approach could
become public knowledge. We think equally likely
that in these circumstances, editors would place
pressure on authors to write drafts that carefully toe
the party line”. ..

Dudman argues that this holding will allow
agencies to hide all manner of factual information

 

”gaggibbon v. Central Intelligence Agency, 911 F.2d 755 (DC. Cir. 1990)

 

flom public view. An agency, Dudman claims, will
need only to place factual inforrmtion within draft
documents in order to ensure that no member of the
public can gain access to it. Thus, Dudman claims,
our holding will give agencies full control over
what information will be made publicly available.
Our holding, however, can have no such
effect. If a person requests particular factual
material -- e.g., material relating to an investigation
of a war crime -- an agency cannot withhold the
material merely by stating that it is in a draft
document. In such a case, the agency will usually
be able to excise the material flom the draft
document and disguise the material's source, and
thus the agency will usually be able to release the
material without disclosing the deliberative process.

Dudman is an interesting case because in both Dudman and New York

Times v. United States, the media wanted to reveal the deliberative process,

 

which in the Pentagon Papers case was contrary to what the government had told
the public was happening in Vietnam. The deliberative process showed that the
government was lying and hiding information, and that is what the press wanted
to reveal and what the press should reveal in its function as the Fourth Estate.
Ginsburg has been labeled a "judicial-restraint liberal." During
confirmation hearings, she stressed the importance of other branches taking their

constitutional responsibilities seriously.40 The New York Times reported dining

 

 

4oJudges “play an interdependent part ill our democracy. They do not alone shape legal doctrine
[T ]hey participate in a dialogue with other organs of government, and with the people as well.”
Neal Devins, “The Last Word Debate: How social and political forces shape constitutional
values,” ABA Journal, Ocotber 1997, 46, 47.

45

Ginsburg’s confirmation hearing that, “In her view, equality — or any other goal —
is best achieved if all branches of government have a stake in achieving it. If
courts move too fast, a legal victory may be fleeting and the political support
necessary to sustain it may not develop.”41 Ginsburg would favor the government
because she is strongly opposed to hasty decisions on important issues that may
have lasting societal impact. During her 13 years on the federal bench, Ginsburg
often found her niche mid-way between warring factions. For instance, during
her first term on the Court, 1993-1994, Ginsburg voted almost as often with the
conservative Chief Justice Rehnquist as she did with liberal Justice Blackmun in
cases in which those justices were on opposite sides. She remains somewhat
unpredictable but, based upon her stance in cases involving both national security
and prior restraint, which she has had more occasion to consider than any other
justice, it is reasonable to conclude that she would ultimately side with the

government in New York Times v. United States.

 

Ginsburg has not written any relevant opinions, majority or otherwise,
since she became a justice in 1993. She did, however, write four relevant
majority opinions while on the federal bench. Because only Supreme Court cases
are considered in the case history, Ginsburg’s federal court opinions will be

discussed briefly here:

 

41Neil A. Lewis, “Ginsburg Embraces Right of a Woman to Have Abortion,” The New York
Times, July 22, 1993, Al, Al 1.

 

46

American Library Association v. Odom, 818 F .2d 81 (1987): The issue in

 

this case was whether the National Security Agency, in contravention of the First
Amendment, interfered with researchers' access to documents collected by a
cryptologist and kept in the private collection of a library by wrongly classifying
the documents. The court held that the researchers had no standing where the
library had not indicated a willingness to make the material available if it had
been legally flee to do so. There is no right to hear what a speaker does not
choose to say. Ginsburg found that the First Amendment did not block
classification of documents previously available to the public "where their
disclosure might endanger the national security." After reviewing in camera a
classified affidavit of NSA's deputy director, the district court concluded that the
agency had properly classified the 30-odd documents at issue because their
"[d]isclosure could be reasonably expected to cause serious damage to the
national security."

Senate of the Commonwealth of Puerto Rico v. United States Department

 

of Justice, 823 F.2d 574 (1987), looks at whether the Department of Justice
unconstitutionally denied the Puerto Rican Senate access to records in the
department’s possession regarding the 1978 killings of two Puerto Rican political
activists. The court found that the record did not bear out the DOJ's exemption
claims. The department failed to carry its burden of establishing exemption flom

disclosure although it claimed deliberative process privilege and work-product

47

shield. The names and other identifying information pertaining to individuals
who were subject to the Civil Rights Division investigation, potential defendants,
witnesses and the translator at the grand jury proceedings and several FBI agents,
were exempt flom disclosure under FOIA exemption for investigatory records
compiled for law enforcement purposes to the extent that disclosure would
constitute unwarranted invasion of personal privacy. Further, the district court's
declaration, without explanation, that exemption flom disclosure of documents
under FOIA on the gromd that disclosure would interfere with an ongoing
investigation, had been properly invoked and required remand for a more
complete accounting of ruling. The court stated in its opinion that it had never
embraced a reading ofthe rules so literal as to draw "a veil ofsecrecy over all
matters occurring in the world that happens to be investigated by a grandjury."
The majority opinion, written by Ginsburg, found that “[a]utonmtically sealing all
that a grand jury sees or hears would enable the government to shield any
information flom public view indefinitely by the simple expedient of presenting it
to the grand jury.”

In Strang v. United States Arms Control and Disarmament Agency, 864

 

F.2d 859 (DC. Cir.1989), the court had to decide whether the government had to
disclose a memoranda regarding a federal employee's alleged transmission
(without proper clearance) of classified information to Japanese officials. The

employee who had allegedly transmitted the information requested a copy of the

48

memoranda under the Privacy Act so that she could examine it and request
amendment if the documents were inaccurate. The part of the holding relevant to
a hypothetical Pentagon Papers case stated that "law enforcement" within F 01A
and Privacy Act exemptions encompasses enforcement of national security laws
as well as criminal laws. The court based its decision on Section (k)(2) of the
Privacy Act, which provides that an agency may promulgate rules exempting
flom the disclosure requirements investigatory materials compiled for law
enforcement purposes. Ginsburg wrote, “We do not interpret "law enforcement"
as limited to criminal law enforcement, as §t_r_a_ng would have us do, rather, we
read the term as encompassing the enforcement of national security laws as well.”
In the last of Ginsburg’s federal court national security and prior restraint

cases, Bonner v. United States Department of State, 928 F.2d 1148 (1991), the

 

court examined the State Department’s refilsal to release to a writer documents
relating to United States foreign policy in the Philippines. The cornt held that to
maintain the representativeness of a sample of the numerous materials requested,
a district court must determine whether the released material was properly
withheld when initially reviewed by the agency. The State Department at first
said that some of the information requested could not be released because it posed
a threat to national security, but two years later changed its position, leading the
court to doubt the accuracy of the State Department’s classification system. The

district com't decided to examine the documents closely to see "how disclosure of

49

the material would cause the requisite degree of harm to the national security."
If significant portions of the sample documents do not survive inspection upon
remand, the propriety of withholding other non-sample documents may be
unacceptable and the comt will require that the State Department reprocess all
documents.

Case History

 

Ginsburg has not written any opinions in prior restraint cases since taking
her seat on the Supreme Court.
Conclusion

Ginsburg would favor the government. Of all the justices, she has sat on a

case with facts most similar to New York Times v. United States and agreed with

 

the comt when it favored the government in that case. Ginsburg sided with the
government in three of the five cases she heard while on the federal bench that
involved both national security and prior restraint of the press, and remanded the
other two cases. Additionally, Ginsburg’s record of remanding cases indicates
that she, like Breyer and O’Connor, would not decide a case hurriedly and

without all facts available for thorough consideration.

50

Antonin Scalia
Overview

Justice Scalia42 is widely regarded as a conservative,43 and conservatives
are widely regarded as anti-press.44 A review of opinions Scalia has written in
prior restraint cases, however, indicates he would likely favor the press if New

York Times v. United States were before him.

 

Scalia takes plain language at face value. Although that means he may
deny access to government documents under FOIA, it also means that if the First
Amendment says no prior restraint, then there shall be no prior restraint. If Near

v. Minnesota says that prior restraint it permissible only when it involves the

 

imminent publication of "the sailing dates of transports or the number and
location of troops," then Scalia requires the imminent publication of sailing dates
of transports and the number and location of troops, and his reasoning in the
hypothetical Pentagon Papers case may well be that documents about old battle

plans do not pose such a danger, regardless of what the Executive Branch says

 

42Scalia was on the Circuit Court of Appeals for the District of Columbia for four years before he

was appointed to the Supreme Court by Republican Pfesident Ronald Reagan in 1986.
43"[T]o the liberals, (Scalia) is the Prince of Darkness; to conservatives, he's the deity." "Good for
the Left, Now Good for the Right: The Rehnquist court plays the same judicial politics that once
drove conservatives crazy," David A. Kaplan and Bob Cohn, L_ewsweek, July 8, 1991, 20, 22.
44"Scalia will probably continue to protect the government from expressive activity that might
make the work of the government more difficult." He will, for example, maintain his hard line
against access to government records." At the same time, "Scalia will continue to be opposed to
attempts at restricting the expression of either individuals or organizations, although he will allow
narrowly drawn restrictions.” W. Wat Hopkins and Timothy L. Yarbrough, “Antonin Scalia: Judge
& Justice,” Newspaper Research Journal, Spring 1989, p. 61, 69-70. Again, the two predictions

 

51

about such publication jeopardizing fiiture negotiations with foreign governments
or anything else that does not pose immediate danger to life or limb. A review of
Scalia’s prior restraint and national security cases shows that he strictly adheres
to the language of the Constitution in every case.45
His opinion concurring in part and dissenting in part in Matti}, a case

involving the speech rights of abortion protestors, may be telling on Scalia's likely

position in the Pentagon Papers case. Note especially his cite to New York Times

 

v. United States and his references to speech restrictions during time of war:

 

[A]n injunction against speech is the very
prototype of the greatest threat to First Amendment
values, the prior restraint. We have said that a
"prior restraint on expression comes to this Court
with a 'heavy presumption' against its constitutional
validity. Organization for a Better Austin v. Keefe,
402 U.S. 415, 419 (1971) [additional citations
omitted], and have repeatedly struck down speech-
restricting injunctions. New York Times v. United
States, 403 U.S. 713 (1971) [additional citations
omitted]....

In his dissent in Korematsu v. United States,
323 U.S. 214 (1944), the case in which this Court
permitted the wartime military internment of
Japanese-Americans, Justice Jackson wrote the
following:

 

 

 

 

"A military order, however
unconstitutional, is not apt to last
longer than the military emergency

 

come into conflict when confronted with the Pentagon Papers.

45See discussion of “textualist” movement, led by Scalia and Kennedy in Gellhom, 53m page 33,
at A19 (“[T]he text of the statute is the language Congress voted on and the president approved;
any less rigorous approach would violate the basic constitutional scheme”). As a sidenote,
“textualist movement” is a term that, based upon Scalia’s literal approach to language, would
make him cringe.

52

But once a judicial opinion

rationalizes the Constitution to show

that the Constitution sanctions such

an order, the Court for all time has

validated the principle of racial

discrimination in criminal procedure

and of transplanting American

citizens.

The principle then lies about

like a loaded weapon ready for the

hand of any authority that can bring

forward a plausible claim of an

urgent need." id, at 246.

What was true of a misguided military order
is true of a misguided trial-court injunction. And
the Court has left a powerful loaded weapon lying
about today. [I]t will go down in the lawbooks, it
will be cited, as a free-speech injunction case -- and
the darmge its novel principles produce will be
considerable.... [T ]he notion that injunctions against
speech need not be closely tied to any violation of
law, but may simply implement sound social policy;
and the practice of accepting trial—court conclusions
permitting injunctions without considering whether
those conclusions are supported by any findings of
fact -- these latest by-products of our abortion
jurisprudence ought to give all friends of liberty

great concern.
Case History
Scalia has not written any opinions in prior restraint cases involving
national security since he began his tenure on the Supreme Court. He has written
one majority opinion, one opinion in which he concurred in part and dissented in
part, and two in which he dissented in prior restraint cases not involving national

security.

53

His majority opinion was in R.A.V. v. City of St. Paul, Minnesota, 505

 

U.S. 377 (1992). The issue there was whether a city ordinance prohibiting bias-
motivated disorderly conduct (in this specific incidence, the burning of a cross on
a Black family's lawn) censored expressive conduct in violation of the First
Amendment. The majority found the ordinance facially invalid under the First
Amendment because it imposed special prohibitions on those speakers who
express views on the disfavored subjects of race, color, creed, religion or gender.
In its practical operation, the ordinance went beyond mere content, to actual
viewpoint, discrimination. “Displays containing ‘fighting words’ that do not
invoke the disfavored subjects would seemingly be useable by those arguing in
favor of tolerance and equality, but not by their opponents,” Scalia wrote. “(The
city of) St. Paul's desire to communicate to minority groups that it does not
condone the ‘group hatred’ of bias-motivated speech does not justify selectively
silencing speech on the basis of its content.”

Scalia concurred in part and dissented in part in Madsen, supra page 24, a

 

case in which regulation of abortion protestors speech was at issue:

Today the ad hoc nullification machine
claims its latest, greatest, and most surprising
victim: the First Amendment.

Because I believe that the judicial creation
of a 36—foot zone in which only a particular group,
which had broken no law, cannot exercise its rights
of speech, assembly, and association, and the
judicial enactment of a noise prohibition, applicable
to that group and that group alone, are profoundly at

54

odds with our First Amendment precedents and
traditions, I dissent.

The danger of content-based statutory
restrictions upon speech is that they may be
designed and used precisely to suppress the ideas in
question rather than to achieve any other proper
governmental aim.... The injunction was sought
against a single-issue advocacy group by persons
and organizations with a business or social interest
in suppressing that group's point of view.

[P]ersons subject to a speech-restricting
injunction who have not the money or not the time
to lodge an immediate appeal face a Hobson's
choice: they must remain silent, since if they speak
their First Amendment rights are no defense in
subsequent contempt proceedings. This is good
reason to require the strictest standard for issuance
of such orders

Scalia’s dissent in Morse, supra page 54, is worthy of a substantial excerpt

 

here because it provides a good glimpse into Scalia’s prior restraint philosophy.
Scalia’s dissent in Morse, together with his powerful words in Madsen, give a
view of a position solidly in favor of the press in prior restraint cases. Scalia’s

dissent in Morse v. Republican Party of Virgia, 116 S.Ct. 1186 (1996) is below:

 

Before today, this Court has not tolerated
such uncertainty in rules bearing upon First
Amendment activities, because it causes persons to
retrain from engaging in constitutionally protected
conduct for fear of violation. (citations omitted)
Surely such an effect can be expected here.
Political party officials will at least abstain fi'om
proceeding with certain convention activities
without notification; and in light of the high degree
of uncertainty they may well decide to hold no
conventions at all.

55

I find curious the proposition that certain
subsidiary determinations of the convention, such as
" 'adoption of resolutions or platforms outlining the
philosophy [of the party],'" are not subject to
Government oversight, whereas the determination
of who may attend the convention -- upon which all
else depends -- is subject to Government oversight.
This is a good bargain for the tyrant.

[T]his case involves a classic prior restraint.

Our cases have heavily disfavored all manner of
prior restraint upon the exercise of freedoms
guaranteed by the First Amendment. Although
most often imposed upon speech, prior restraints are
no less noxious, and have been no less condemned,
when directed against associational liberty (with
which, we have said, freedom of speech "overlap[s]
and blend[s]," Citizens Against Rent Control/
Coalition for Fair Housing v. City of Berkeley, 454
U.S. 290 (1981) (additional citations omitted).
Today, however, a majority of the Court readily
accepts the proposition that §5 can subject this First
Amendment freedom to a permit system, requiring
its exercise to be "precleared" with the government
even when it is not being used unlawfully. The
Court thus makes citizens supplicants in the
exercise of their First Amendment rights.

There would be reason enough for
astonishment and regret if today's judgment upheld
a statute clearly imposing a prior restraint upon
private, First Amendment conduct. But what makes
today's action astonishing and regrettable beyond
belief is that this Court itself is the architect of a
prior restraint that the law does not clearly express.

 

 

Finally, Scalia has some additional strong words against government

attempts to quell speech in his dissenting opinion in Schenk, supra page 24. The

 

Court held that an injunction on speech may be upheld even if not justified on the

56

basis of the interests asserted by the plaintiff, as long as it served "public safety."
A threat to public safety was never raised in the complaint. For the court to use
“public safety” as a basis for restricting speech is "a novel and dangerous
proposition," according to Scalia, who concurred in part and dissented in part in

The Court's effort to recharacterize this
responsibility of special care imposed by the First
Amendment as some sort of judicial gratuity is
perhaps the most alarming concept in an opinion
that contains much to be alarmed about....

Today's opinion makes a destructive inroad
upon First Amendment law in holding that the
validity of an injunction against speech is to be
determined by an appellate court on the basis of
what the issuing court might reasonably have found
as to necessity, rather than on the basis of what it in
fact found.

Conclusion

Scalia would likely favor the press in New York Times v. United States.

 

Scalia would favor the press because he interprets the Constitution and its
prohibition of government restrictions on speech strictly, and he would View the

government’s actions in New York Times v. United States as contrary to

 

constitutional mandate. Scalia’s concurring opinion in Madsen, in which he cites

New York Times v. United States to support his opinion that speech-restricting

 

injunctions imposed upon abortion clinics receiving federal funds are

impermissible prior restraints, indicates that he would find the government’s

57

imposition of a prior restraint in the Pentagon Papers case the equivalent of a
“misguided trial-court injunction, . .. a powerful loaded weapon lying about”
whose damage would be “considerable.” In fact, Scalia’s opinion in Madsen
specifically underscores Scalia’s suspicion of prior restraints imposed in the name
of national security during time of war.
Scalia favored the press in each of the four opinions he’s written in prior

restraint cases while on the Supreme Court. In each case, he had strong words for
government entities that attempted to restrain speech. Scalia’s record clearly

indicates that he would favor the press in New York Times v. United States.

fiApI

 

58

David H. Souter
Overview

Souter took his seat on the Supreme Court on October 9, 1990. He was
appointed by President Bush.

Judge Souter had been appointed to the United States Court of Appeals for
the lst Circuit in April 1990, less than six months before his debut on the
Supreme Court. Souter served as an associate justice of the New Hampshire
Supreme Court fiom 1983 to 1990, and as a trial judge for the Stafford County
(New Hampshire) Superior Court fi'om 1978-1983. He was attorney general of
New Hampshire from 1976-1978.“

Souter did not write any opinions during his brief tenure on the lst Circuit.

As a state judge, he wrote a lot, but little of significance to the issues in New

York Times v. United States. One case that offered some insight to his position

 

on prior restraint was New Hampshire v. Hodgkiss, 565 A.2d 1059 (N .H. 1989),

 

in which he wrote the majority opinion. He wrote that neither a city ordinance
prohibiting encumbrance of sidewalks nor an ordinance prohibiting posting of
signs on city property violated the First Amendment. Free speech advocates,

without much information to go on, took Hodgg' as a sign that Justice Souter

would favor government interests in expression cases. However, Souter has since

 

“For an estimation of Souter’s position on issues concerning the news media that was made prior
to his confirmation as a Supreme Court justice, _se_e The Reporters Committee for Freedom of the

59

been compared to retired Justice Blackmun, who made the transition from pro-
govemment justice to pro-press justice in the course of his tenure on the bench.47
The Pentagon Papers was one of Blackmun's first cases, and he ruled against the
press. By the time he retired, he was the greatest supporter of press freedoms on
the High Court. Souter may be making a similar transition, only more quickly.“
But for all the statistics and his decisions in expression cases during his first year,
Souter has now shifted to the left side of the Court and takes a pro-press stance.
One Supreme Court authority has said Souter may eventually prove to be as
friendly to the press as was Justice Brennan.49

Souter’s changed perspective is reflected in his decisions since 1991. In

F orsyth County, Georgia v. Nationalist Movement, supra page 28, Souter joined

 

the majority in striking down a parade permit ordinance that the Court said
unconstitutionally "conferred unbridled discretion upon administrative officials."

He joined the majority in R.A.V. v. St. Paul, which held that an ordinance

 

 

Press, Summary of Judge Souter’s Decisions on Media Issues, (July 26, 1990).
47Souter agreed with Blackmun more than twice as often as he agreed with Rehnquist when all
three were sitting on the Court

48Souter was considered conservative his first year on the Court. Souter agreed with Rehnquist,
generally a press foe, in 82 pacent office expression cases. Souter voted with Rehnquist in 86
percent of expression eases his first year on the court. In 1989, Brennan, a fiend to the press and
the justice whom Souter replaced, had voted with Rehnquist in only 38 percent of expression
cases. And in a number of 5-4 decisions during his first term, Souter joined the conservative
majority.

49One of Souter’s key traits is his respect for precedent, an aspect of his judicial personality that
some court experts have said has "helped to slow what some once predicted would be a
conservative tidal wave in key areas of the law." Marcia Coyle, "In Search of an Identity: For now,
a moderate-to—conservative core defines a less-ideological Supreme Court," The National Law Jrn,
Cl, Aug. 15,1994.

 

60

prohibiting bias-motivated disorderly conduct was facially invalid under the First

Amendment. Souter joined the dissent when the majority in Burson v. Freeman,

 

504 U.S. 191 (1992), said a statute prohibiting display or distribution of campaign
materials within 100 feet of an entrance to a polling place was permissible under

the First Amendment. Souter also joined the dissent in Gentile v. State Bar of

 

Nevada, 501 U.S. 1030 (1991), in which the court found a state rule that
prohibited attorneys fiom talking to the press acceptable because the "substantial
likelihood of material prejudice" test applied by the state passed First Amendment

scrutiny. In Cohen v. Cowles Media, Inc., 111 S.Ct. 2513 (1991), where the

 

majority had said a newspaper irnpermissibly breached a promise when it printed
the name of a person who had given information in confidence, Souter joined the
dissent, which said that "[flreedom of the press is ultimately founded on the value
of enhancing (public) discourse for the sake of a citizenry better informed and
thus more prudently governed." Souter found that enlarging public discourse
outweighs a state interest in enforcing promises on the press.

If the Pentagon Papers case were before the Court in 1991, Justice Souter

may have sided with the government. In 1997, he would likely favor the press.

61

Case History

 

Souter has written two opinions relevant to this study while on the
Supreme Court: a dissent and an opinion in which he concurred in part and
dissented in part. Both cases involved prior restraint; neither involved national
security.

1.) ISKCON, supra page 22, dissent: A total ban on solicitation of money
for immediate payment is wrong. Solicitation of money by charities is fully
protected speech and is considered dissemination of ideas.

2.) Alexander, supra page 23, concur/dissent: The petitioner has not

 

demonstrated that the forfeiture of books and films purchased with proceeds from
criminal activity qualifies as a prior restraint. However, the First Amendment
forbids the forfeiture of petitioner's expressive material in the absence of an
adjudication that it is obscene or otherwise of unprotected character. No such
adjudication was held in this case.
Conclusion

Souter would favor the press. Souter favored a free press or free speech in
all four prior restraint cases in which he joined in an opinion while on the federal
bench and in the one additional free press case that did not involve prior restraint

but nonetheless provided Souter with a platform for his View emphasizing the

62

importance of a free press to the democratic process. He also favored the press in

the two Supreme Court cases in which he wrote an opinion.

63

John Paul Stevens
Overview

Stevens was appointed to the Supreme Court by President Ford in 1975,
five years after President Nixon had appointed Stevens to the U.S. Court of
Appeals for the 7th Circuit.

Stevens, although appointed by Republicans and considered a moderate
most of his career, is the closest thing the Rehnquist Court has to a liberal.
However, he tends to distinguish between issues within issues, often rendering
what at first glance appear to be conflicting opinions in similar cases until further
examination shows smaller issues that led him to different conclusions. This
tendency has earned him a reputation as independent and unpredictable.
However, in free speech cases, regardless of how he structures the analysis,
Stevens’ outcome almost always favors a press free of government restriction. In
fact, Stevens provides a big hint on where he would stand and why on a

hypothetical Pentagon Papers case in his 1980 dissent in Snepp v. U.S.. In §p_Cpp,

 

Stevens dissented to the Court’s decision that a former CIA employee who failed
to submit his book manuscript to the CIA for prepublication review, as he had
agreed to do in an employment contract, had to give all book profits to the CIA.

Snepp is discussed in depth in the following case history section.

In a 1987 case, Stevens held that a federal act requiring registration,
reporting and disclosure by people engaging in propaganda on behalf of foreign
powers was constitutional because there was no evidence that the law had
interfered with the exhibition of a significant number of foreign-made films (the
plaintiff had been restricted from showing a Canadian fihn). The flip side of the
same rationale would apply in the Pentagon Papers case: Publishing the Pentagon
Papers is permissible under the Constitution, and a prior restraint therefore is
impermissible because there is no evidence that publication would interfere with
any immediate national security interest.

Additionally, it is notable that the only prior restraint cases in which
Stevens votes opposite the proponents of First Amendment rights are W

Keene, 481 U.S. 465 (1987), and Morse v. Republican Party of Virginia, 116

 

S.Ct. 1186 (1996), two of the three cases in which he wrote a majority opinion. It
seems a majority of justices has agreed with Stevens on press issues only in the
rare cases when he rules contrary to the press interest at issue, as he did in these
two cases.

Case History

 

In Meese v. Keene, the Court considered whether the Foreign Agents

 

Registration Act, which required a citizen who wanted to exhibit a Canadian film
to label it ”political propaganda," was unconstitutional. Stevens wrote in his

majority opinion that the act is constitutional in that its use of the term “political

6S

propagan ” is neutral and there is no evidence that public misunderstanding of
the term, or fear thereof, actually interfered with exhibition of a significant
number of foreign-made films. The act poses no obstacle to a citizen's access to
materials he wishes to exhibit.

In another case in which Stevens wrote the majority opinion, Mm

Remrblican Party of Virginia, the court found a political party’s requirement that a

 

person pay a registration fee to be a delegate to the state convention at which the
party nominates its candidate for United States Senate is constitutional.

Specifically, Stevens wrote that the requirement that the party preclear a
change in practices that imposes a registration fee on voters seeking to participate
in the nomination process is not a "classic prior restraint." In fact, the
requirement imposes no restraint at all on speech Because past discrimination
gave rise to the preclearance remedy, the minimal burden on the right of
association was justified.

In the most recent Stevens majority opinion, City of Ladue v. Gilleo, 512

 

U.S. 43 (1994), the Court found that a city ordinance that banmd all residential
signs except for those falling within one of 10 exemptions violated a city
resident’s free speech rights. The ordinance had been cited as grounds to prohibit
a resident fi'om displaying a sign reading "F or Peace in the Gulf" at her home.
The city’s attempt to justify the ordinance as a time, place and manner restriction

failed because alternatives such as handbills and newspaper advertisements are

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66

inadequate substitutes for the important medium that the city closed off. The
ordinance had “almost completely foreclosed a venerable means of
communication that is both unique and important." Displaying a sign at home
sends an important message that is intended for a specific audience, and which is
cheap and convenient.

Stevens condemned prior restraints in this context. He wrote that a special
respect for individual liberty in the home has long been part of this nation's
culture and law and has a special resonance when the government seeks to
constrain a person's ability to speak there. The decision did not leave the city of
Ladue powerless to address the ills that may be associated with residential signs.
In addition, residents' self-interest in maintaining pr0perty values and preventing
"visual clutter" in their yards and neighborhoods diminishes the danger of an
"unlimited" proliferation of signs.

Stevens could pull his dissenting opinion in Snepp v. United States50 out

 

of the closet, dust if off, change a fact or figure here and there, and submit it as his
opinion in the Pentagon Papers case. The issue in Snepp was whether the CIA's
employment contract agreement with a former agent constituted an impermissible
prior restraint. The contract required that the agent submit all future writings for
prepublication review. The agent published a book about his work with the CIA

despite the agreement. The agreement also called for imposition of a constructive

67

trust in the event of breach. Because the former agent had violated his fiduciary
obligations to the CIA, he would have to deposit all profits from his book into a
constructive trust for the government’s benefit. A second issue before the
Supreme Court was whether this constructive trust also constituted an
impermissible prior restraint. The Court found that agreement, although a prior
restraint, was not impermissible. When a former agent relies on his own
judgment about what information is detrimental, he may reveal information that
the CIA -— with its broader understanding of what may expose classified
information and confidential sources -- could have identified as harmful. In
addition to receiving intelligence from domestically based or controlled sources,
the CIA obtains information from the intelligence services of friendly nations and
from agents operating in foreign countries. The continued availability of these
foreign sources depends upon the CIA's ability to guarantee the security of
information that might compromise them and even endanger the personal safety
of foreign agents. The majority found that prior restraint of speech under these
circumstances, in the interest of national security, is permissible.

In his dissent, Stevens pointed out that the government conceded that the
book contained no classified, nonpublic material. Thus, by definition, Stevens
reasoned, the interest in confidentiality that Snepp's contract was designed to

protect was not compromised.

 

50444 U.S. 507 (1980).

68

Congress, he wrote, has enacted a number of criminal statutes punishing
the unauthorized dissemination of certain types of classified information. For
instance, 18 USC §794 makes it a criminal offense punishable by life in prison to
communicate national defense information to a foreign government. Thus, even in
the absence of a constructive trust remedy, an agent like Snepp would hardly be
free, as the majority suggested, "to publish whatever he pleases."

The public interest lies in a proper accommodation that will preserve the
intelligence mission of the agency while not abridging the fi'ee flow of
unclassified information. When the government seeks to enforce a harsh
restriction on the employee's freedom, despite its admission that the interest the
agreement was designed to protect -- the confidentiality of classified information -
- has not been compromised, an equity court might well be persuaded that the
case is not one in which the covenant should be enforced.

Stevens agreed with the majority that the government may regulate certain
activities of its employees that would be protected by the First Amendment in
other contexts. However, the Court had not previously considered the
enforceability of an employment contract that requires an employee to submit all
proposed public statements for prerelease censorship or approval, or the remedy
that would be imposed in the event of a breach. If Snepp had submitted the book
to the agency for prepublication review, the government's censorship authority

would surely have been limited to the excision of classified material. In this case,

69

then, it would have been obliged to clear the book for publication in precisely the
same form as it now stands.
Stevens also found it noteworthy that the Court does not disagree with the
4th Circuit's view in Marchetti, 446 F .2d 1309 (1972), reiterated in S_n_epp, that a
CIA employee has a First Amendment right to publish unclassified information.
Thus, despite the reference in the majority's opinion to the government's so-called
compelling interest in protecting "the appearance of confidentiality," and despite
some ambiguity in the Court's reference to "detrimental" and "harmful" as
opposed to "classified" information, the Court does not imply that the government
could obtain an injunction against the publication of unclassified information.
"[E]ven if such a wide-ranging prior restraint would be good national
security policy, I would have real difficulty reconciling it with the demands of the
First Amendment," Stevens wrote. Stevens said that the majority opinion was a
“drastic new remedy [that] has been fashioned to enforce a species of prior
restraint on a citizen's right to criticize his government” and that:
Inherent in this prior restraint is the risk that the
reviewing agency will misuse its authority to delay
the publication of a critical work or to persuade an
author to modify the contents of his work beyond
the demands of secrecy. The character of the
covenant as a prior restraint on free speech surely
imposes an especially heavy burden on the censor to
justify the remedy it seeks. It would take more than

the Court has writtento persuade me thatthat
burden has been met.

 

70

In a footnote, Stevens continues:

The mere fact that the agency has the authority
to review the text of a critical book in search of
classified information before it is published is
bound to have an inhibiting effect on the author's
writing. Moreover, the right to delay publication
until the review is completed is itself a form of prior
restraint that would not be tolerated in other
contexts. _S__e__e;, eg, New York Times Co. v. United
States, 403 U.S. 713 (1971); Nebraska Press
Association v. Stuart, 427 U.S. 539.

 

 

 

It is important to note that although Stevens favored the press in Snepp, he
concluded his dissent stating a narrow exception to the rule against prior restraint:

In view of the national interest in maintaining an
effective intelligence service, I am not prepared to
say that the restraint is necessarily intolerable in this
context. I am, however, prepared to say that,
certiorari having been granted, the issue surely
should not be resolved in the absence of full
briefing and argument.

Although Stevens concludes Snepp with a caveat, it is unlikely that New

York Times v. United States would fall under such an exception. Stevens ins

 

written numerous opinions in expression cases and his strong record against prior
restraint in other press cases indicates that prior restraint against a story based on
documents that do not pose immediate danger to troops would not satisfy the
§n_epp exception. And while Stevens would prefer to resolve the issues in §_n_epp

only after a “full briefing and argument,” he cites the Pentagon Papers decision to

71

support his argument that delayed publication is itself a prior restraint. Stevens
would almost certainly favor the press in the Pentagon Papers case if it were
before him today.

Stevens also dissented in Kissinger, supra page 20. He wrote that the

 

majority decision exempts documents that have been wrongfully removed from
agency files from any scrutiny whatsoever under F OIA, and thus creates an
incentive for outgoing agency officials to remove potentially embarrassing
documents from their files in order to frustrate future F OIA requests.

The answer to whether the State Department's withholding of documents
is improper depends on the agency's explanation for its failure to attempt to regain
the documents. If the agency is unable to advance a reasonable explanation, such
as no knowledge of where the documents are, for its failure to act, a presumption
arises that the agency is motivated by a desire to shield the documents from FOI A
scrutiny.

In Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), Chief

 

Justice Burger wrote in the majority opinion that a prior restraint is permissible
only if it meets a heavy burden of proof that it is necessary to protect another vital
right. An order restraining the news media fiom publishing or broadcasting
accounts of confessions by an accused criminal to law enforcement officers or
third parties (except to members of the press) and other facts "strongly

implicative" of the guilt of the accused violates the constitutional guarantee of

72

freedom of the press. The heavy burden of proof that such a prior restraint was .
necessary to protect the right of the accused to a fair trial was not met.

Stevens concurred in the unanimous to lift the court-imposed gag order on
the press during a criminal trial:

I agree that the judiciary is capable of
protecting the defendant's right to a fair trial without
enjoining the press from publishing information in
the public domain, and that it may not do so.
Whether the same absolute protection would apply
no matter how shabby or illegal the means by which
the information is obtained, no matter how serious
an intrusion on privacy might be involved, no
matter how demonstrably false the information
might be, no matter how prejudicial it might be to
the interests of innocent persons, and no rmtter how
perverse the motivation for publishing it, is a
question I would not answer without further
argument. S_ee Ashwander v. TVA, 297 U.S. 288,
346-347 (Brandeis, J., concurring). I do, however,
subscribe to most of what Mr. Justice Brennan says
[in his concurring opinion] and, if ever required to
face the issue squarely, may well accept his ultimate
conclusion

 

Stevens is sometimes poetic in his condemnation of prior restraint, so
impassioned is his abhorrence of government-imposed speech restrictions. His

dissent in FCC v. League of Women Voters , 468 U.S. 364 (1984), (per J.

 

Brennan) was perhaps his most eloquent lambasting:

The Court jester who mocks the King must
choose his words with great care. An artist is likely
to paint a flattering portrait of his patron. The child
who wants a new toy does not preface his request

73

with a comment on how fat his mother is.
Newspaper publishers have been known to listen to
their advertising managers. Elected officials may
remember how their elections were financed. By
enacting the statutory provision that the Court
invalidates today, a sophisticated group of
legislators expressed a concern about the potential
impact of government funds on pervasive and
powerful organs of mass communication. One need
not have heard the raucous voice of Adolf Hitler
over Radio Berlin to appreciate the importance of
that concern.

Stevens even more clearly outlined his view on prior restraint in his

opinions in two abortion clinic speech cases. In Rust v. Sullivan, supra page 25,

 

he dissented, stating that, “In a society that abhors censorship and in which
policymakers have traditionally placed the highest value on the freedom to
communicate, it is unrealistic to conclude that statutory authority to regulate
conduct implicitly authorized the Executive to regulate speech.” Stevens wrote
that the act that authorized funding for abortion clinics did not concurrently
authorize the government to censor the speech of grant recipients or their
employees. In Madsen, Stevens concurred in part and dissented in part with
Rehnquist’s majority opinion. There, he stated that the injunction at issue
prohibits conduct (“physically approaching patients”), not speech, and therefore
passes muster under the First Amendment.

In the last case in Stevens’ long line of fi'ee speech cases, R_._A._V., he

concurred with Scalia’s opinion, supra page 53, and found it significant that the

74

St. Paul ordinance at issue regulated speech not on the basis of its subject matter
or the viewpoint expressed, but rather on the basis of the harm the speech caused.
Stevens noted that the St. Paul ordinance is narrow, and leaves open and
protected a vast range of expression.
[The ordinance does not] raise the specter

that the Government may effectively drive certain

ideas or viewpoints from the marketplace, as the

majority fears. The petitioner is the to burn a cross

to announce a rally or to express his view about

racial supremacy, and he may do so on private

property or public land, at day or at night, so long as

the burning is not so threatening and so directed at

an individual as to by its very [execution] inflict

injury.

A limited proscription such as that provided by the ordinance “scarcely
offends the First Amendment,” Stevens wrote.
Conclusion
Stevens would vote in favor of the press. Stevens has been on the Court

for 22 years, and has consistently favored the press in many cases during that
time. While he wrote two majority opinions that favored the government in free
speech cases, his third majority opinion as well as all eight of his concurring and
dissenting opinions in prior restraint cases favored the press. In his opinion in
Snepp, Stevens writes that an “issue surely should not be resolved in the absence
of full briefing and argument,” an indication that he might favor the government

over the press in the Pentagon Papers case because of the speed with which a

75

decision would have to be made. However, the likelihood of Stevens not favoring

the press in New York Times v. United States on the grounds that the case was

 

being decided with “unseemly haste” is slim because Stevens only referred to
speed of decision-making in that one case, and even then it was not the sole basis

of his dissent, which strongly favored the press and condemned prior restraint.

76

Anthony M. Kennedy
Overview

Kennedy is a potential swing vote, although he is likely to ultimately side
with the press. Kennedy often reaches the same conclusion as the bloc of justices
often considered the conservative majority on the Rehnquist Court,5 1 but he does
so for different reasons than other members of that bloc,52 indicating that he could
go either way in his analysis of the Pentagon Papers case. Furthermore, analysis
of the conservative voting bloc’s position on prior restraint and national security
cases indicates that its members may split the vote in the hypothetical Pentagon
Papers case. An analysis of Kennedy’s position on prior restraint and national
security issues indicates that he could comfortably fall on either side of that
divide.

Kennedy was appointed to the Supreme Court by President Reagan and
took his seat on the bench on February 18, 1988. He served on the U.S. Court of
Appeals for the 9th Circuit from 1975 until 1988. He was appointed to that post
by President Gerald Ford at the recommendation of then-Gov. Ronald Reagan.

While on the Court of Appeals, Kennedy wrote two majority opinions that

dealt with broadcast news. In a 1978 case, Goldblum v. National Broadcasting

 

 

51Rehnquist, Scalia, O’Connor and Thomas, along with Kennedy, are the conservative majority
voting bloc on the current Court
52Kennedy’s concurring opinion in ISKCON, below, is a good example.

77

Cor;mration,5'3 a lawyer for NBC was jailed for refusing to submit for the court’s
review a copy of a newscast his client planned to air later that day. A prison
inmate had filed suit seeking to enjoin NBC fi'om airing the film, claiming that the
film would jeopardize his release on parole and his right to a fair trial in any
future proceedings against him. NBC filed an emergency petition with the Court
of Appeals. Kennedy wrote the opinion for a three-judge panel vacating the
orders to produce the film:

The express and sole purpose of the district
court's order to submit the film for viewing by the
court was to determine whether or not to issue an
injunction suspending its broadcast. Necessarily,
any such injunction would be a sweeping prior
restraint of speech and, therefore, presumptively
unconstitutional. _E_.g_., Nebraska Press Ass’n. v.
Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L.Ed. 2d
683 (1976).... Petitioner furs not established that
relief in the form of a prior restraint on publication
would, on any assumption of fact or law, be
appropriate with respect to the film in question.
The order to produce the film in aid of a fi'ivolous
application for a prior restraint suffers the
constitutional deficiencies of the application for an
injunction. The order not only created a reasonable
apprehension of an impending prior restraint, it was
also a threatened interference with the editorial
process. The district court's order was therefore
void.

It is a fundamental principle of the First
Amendment that the press may not be required to
justify or defend what it prints or says until after the
expression has taken place. [citations omitted]
The district court proceedings here intervened in the

 

 

53 584 F.2d 904 (9th Cir. 1978).

78

editorial process by ordering an official of the
broadcasting company to produce a film just before
its scheduled broadcast so that it could be examined
for inaccuracies. A procedure thus aimed toward
prepublication censorship is an inherent threat to
expression, one that chills speech

A broadcaster or publisher should not, in
circumstances such as those in this case, be required
to make a sudden appearance in court and then to
take urgent measures to secure appellate relief, all
the while weighing the delicate question of whether
or not refusal to comply with an apparently invalid
order constitutes a contempt. (citations omitted)
We have heretofore vacated forthwith the orders to
produce the film and all orders issued in aid of the
orders to produce the film.

In a imanimous decision by Kennedy in a 1985 case, he ordered a trial

court to unseal documents sought by CBS news in the post-conviction criminal

proceeding of John DeLorean. Kennedy wrote that most of the information could

"easily be surmised fiom what is already in the public record," and that the trial

court had alternatives to sealing, such as blacking out names on documents. CBS,

Inc. v. United States District Court for the Central District of California, 765 F .2d

 

823 (9:11 Cir. 1985). The oral argument and opinion in this case were expedited in

response to the network's emergency motion, similar to the emergency motion

under which the Supreme Court agreed to expedite the Pentagon Papers case.

Kennedy’s opinion:

We begin with the presumption that the public
and the press have a right of access to criminal
proceedings and documents filed therein. [citations

79

omitted]

We must make initial inquiry into what
interests or rights will overcome the right of
access...

The interest which overrides the presumption
of open procedures must be specified with
particularity, and there must be findings that the
closure remedy is narrowly confined to protect that
interest. The rule stated in Press-Enterprise is
controlling here:

The presumption of openness may be
overcome only by an overriding
interest based on findings that
closure is essential to preserve higher
values and is narrowly tailored to
serve that interest. The interest is to
be articulated along with findings
specific enough that a reviewing
court can determine whether the
closure order was properly entered.

 

Kennedy next chastised the government for having “compromised its own
position by trying to manufacture a secret document, reciting confidential
material.” The assistant U.S. attorney had submitted an affidavit to the court that
contained details of an ongoing criminal investigation in an attempt to render all
of the documents at issue classified. The court, per Kennedy, found that the
affidavit was unnecessary to consideration of the motion on its merits,

and was improvidently filed. The court ordered the document removed from the
record and returned to the government:
We recognize that information relating

to cooperating witnesses and criminal
investigations should be kept confidential in

80

some cases, but it does not follow that the
government is free to reduce such matters to
writing and then insist on filing the
document as a court record under seal.

The government and the trial court
here wentsofarastoassertthatthe
government's interests would be threatened
if even its position of support or opposition
to the motion were made known. That idea
is as remarkable as it is meritless.

Kennedy’s decision in CBS indicates that he not be persuaded by the

government’s argument in New York Times v. United States that all the Pentagon

 

Papers should be withheld fiom public view because portions may contain
classified material. Kennedy is even less likely to be persuaded by the
government’s argument that the documents should be withheld because, even if
they reveal no specific classified information, they could maybe reveal the
deliberative process underlying U.S. government involvement in Vietnam.
Despite Kennedy’s opinions against prior restraint in the 9th Circuit, he

would be a potential swing vote in New York Times v. United States because his

 

record as a justice supports the government on most issues before the Supreme

Court and is at least as strong as his federal court record against prior restraint.

81

Case History

 

Kennedy wrote a majority opinion in one case involving prior restraint,

Ward v. Rock Against Racism, 491 U.S. 781 (1989). He wrote no opinions in

 

cases involving both prior restraint and national security issues. Ward v. Rock

 

Against Racism said that a New York City regulation that required a city sound

 

technician be present at certain Central Park concerts "grants no authority to
forbid speech, but merely permits the city to regulate volume," and is therefore
constitutional as a reasonable regulation of the time, place and manner of
protected speech. The guidelines are content-neutral, narrowly tailored to serve a
significant government interest, and leave open ample alternative channels of
communication. The three dissenters viewed government "distortion" of a
performer's music as censorship.

The only other case in which Kennedy wrote the Court’s decision was

Cable News Network, Inc. v. Noreiga, 498 U.S. 976 (1990), in which Kennedy

 

referred an application to stay a restraining order to the Court, and cert was
denied.

Kennedy has also written three dissenting opinions and one concurring
opinion. The most recent, his concurrence in ISKCON, 505 U.S. 672 (1992),
S_um page 22, he said that airport corridors and shopping areas outside of
passenger security zones are public forums, and speech in those places is entitled

to protection against all government regulation inconsistent with public forum

82

principles. However, Kennedy wrote that a ban on distribution or sale of
literature is unconstitutional and a prohibition on solicitation and immediate
receipt of funds is consistent with these principles, and therefore constitutional.
Kennedy concurred, but at the same time found the majority’s opinion flawed:

This analysis is flawed at its very beginning. It
leaves the government with almost unlimited
authority to restrict speech on its property by doing
nothing more than articulating a nonspeech-related
purpose for the area, and it leaves almost no scope
for the development of new public forums absent
the rare approval of the govermnent. The Court's
error lies in its conclusion that the public forum
status of public property depends on the
government's defined purpose for the property, or
on an explicit decision by the government to
dedicate the property to expressive activity. In my
view, the inquiry must be an objective one, based
on the actual, physical characteristics and uses of
the property.

The First Amendment is a limitation on
government, not a grant of power. Its design is to
prevent the government from controlling speech.
Yet under the Court's view the authority of the
government to control speech on its property is
paramount, for in almost all cases the critical step in
the Court's analysis is a classification of the
property that turns on the government's own
definition or decision, unconstrained by an
independent duty to respect the speech its citizens
can voice there. The Court acknowledges as much,
by introducing today into our First Amendment law
a strict doctrinal line between the proprietary and
regulatory functions of government which I thought
has been abandoned long ago. [citations omitted]...

Because the Port Authority's solicitation ban is
directed at abusive practices and not at any
particular message, idea, or form of speech, the

83

regulation is a content-neutral rule serving a
significant government interest.

Kennedy wrote at some length about prior restraint in his dissent in

Alexander, supra page 23:

 

The Court today embraces a rule that would find
no affront to the First Amendment in the
Government's destruction of a book and film
business and its entire inventory of legitimate
expression as punishment for a single past speech
offense. Until now I had thought one could browse
through any book or film store in the United States
without fear that the proprietor had chosen each
item to avoid risk to the whole inventory and indeed
to the business itself. This ominous, onerous threat
undermines free speech and press principles
essential to our personal freedom. . ..

In its simple, most blatant form, a prior restraint
is a law which requires submission of speech to an
official who may grant or deny permission to utter
or publish it based upon its contents. [citations
omitted]. . .

[P]rior censorship, including licensing, was
the means by which the Crown and the Parliament
controlled speech and press [citation omitted]. As
those methods were the principal means used by
government to control speech and press, it follows
that an unyielding populace would devote its first
efforts to avoiding or repealing restrictions in that
form. . . .

The enactment of the alien and sedition laws
early in our own history is an unhappy testament to
the allure that restrictive measures have for
governments tempted to control the speech and
publications of their people. . ..

One wonders what today's majority would have
done if faced in Near [v. Minnesota] with a novel
argument to extend the traditional conception of the

 

84

prior restraint doctrine. In view of the formalistic
approach the Court advances today, the Court likely
would have rejected Near's pleas on the theory that
to accept his argument would be to "blur the line
separating prior restraints from subsequent
punishments to such a degree that it would be
impossible to determine with any certainty whether
a particular measure is a prior restraint or not."
[citation omitted] In so holding the Court would
have ignored, as the Court does today, that the
applicability of First Amendment analysis to a
governmental action depends not alone upon the
name by which the action is called, but upon its
operation and effect on the suppression of speech
@ing Near v. Minnesota] [additional citations
omitted].

What is happening here is simple: Books and
films are condemned and destroyed not for their
own content but for the content of their owner’s
prior speech. Our law does not permit the
government to binden future speech for this sort of
taint.

What isatworkinthiscase isnotthepowerto
punish an individual for his past transgressions but
the authority to suppress a particular class of
disfavored speech Pittsburgh Press Co. v.
Pittsburgh Comm’n on Human Relations, 413 U.S.
376, 390 (1973).

In a society committed to freedom of thought,
inquiry, and discussion without interference or
guidance item the state, public confidence in the
institutions devoted to the dissemination of written
matter and films is essential... Independence of
speech and press can be just as compromised by the
threat of official intervention as by the fact of it. See
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

The threat of censorial motive and of ongoing
speech supervision by the state justifies the
imposition of First Amendment protection. Free
speech principles, well established by our cases,
require in this case that the forfeiture of the

 

 

 

 

85

inventory and of the speech distribution facilities be
held invalid

Even when interim pretrial seizures are used, we
have been careful to say that First Amendment
materials cannot be taken out of circulation until
they have been determined to be unlawful.

"[W]hile the general rule under the Fourth
Amendment is that any and all contraband,
instrumentalities, and evidence of crimes may be
seized on probable cause ..., it is otherwise when
materials presumptively protected by the First
Amendment are involved." Fort Wayne Books, Inc.
v. Indiana, 489 U.S. at 46, 63 (1989) [additional
cites omitted].

The Court's failure to reverse this flagrant
violation of the right of free speech and expression
is a deplorable abandonment of fundamental First
Amendment principles.

 

Finally, Kennedy found no constitutional question in his dissent in Morse,
my page 54. The text of the law at issue in _M__o_r;_s__e reflects Congress' intent to
reach governmental, not private entities. Therefore, Kennedy reasoned, there is
no state action. Without state action, there can be no constitutional violation and
therefore no free speech issue. “Given the absence of any ambiguity in the
statutory text before us, there is no basis for a grasping and implausible
construction of the Act that brings constitutional problems to the fore."
Conclusion

Kennedy is close to the center on the issue important to this analysis,
although he may be more likely to favor the press than the government. Kennedy

wrote two majority opinions favoring the press in prior restraint cases while a

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86

federal judge. Kennedy also has written three opinions in prior restraint cases
since he’s been on the Supreme Court: one favoring the government, one favoring
the press, and a third favoring the press on one issue and the government on a
second issue. Such a split makes him unpredictable in an analysis of his stance on
the important issue of prior restraint and national security. A look at Kennedy’s
federal and Supreme Court opinions places Kennedy with the pro-press
contingency on the Court because he has, in total, written more opinions favoring

the press than opinions favoring the government.

87

Sandra Day O'Connor
Overview

O’Connor would be the swing vote in this case. O'Connor has supported
both government interests and press interests in her opinions. A review of her
cases indicates, however, that her decision in a Pentagon Papers case might lean
more in favor of the government than the press.

O'Connor was appointed to the Supreme Court by President Reagan and
has primarily joined the conservative wing of the Court since taking her seat in
1981. Before she was a state assistant attorney general, served in the Arizona
Senate, and was a judge in Arizona trial and appellate courts.

An important aspect of O'Connor's philosophy is that the Court should
limit its interference into the functioning of other government branches. She
frequently argues for limited constitutional protection for individuals. 5" Her
approach to cases emphasizes procedure, suggesting the Court should resolve
constitutional questions only when absolutely necessary.55 O'Connor's philosophy
could reasonably lead her to rule that the Legislature, not the Court, should make
a rule regarding what information the Executive may withhold, in his capacity as

Commander in Chief, for national security reasons. O’Connor’s opinions are

 

54Sic Robyn S. Goodman, “Supreme Court Justice Sandra Day O’Connor’s First Amendment
Approach to Free Expression: A Decade in Review,” (August 1992) (School of Journalism,
Michigan State University, paper presented to the Law Division of the Association for Education
in Journalism and Mass Communication, Montreal, Quebec, Canada), p. 3.

88

fact-specific and lead to narrow, limited holdings. She often writes concurring
opinions to suggest alternate narrower grounds?6 "When balancing the collective
interest in strong government against the legitimate fear of the potential abuse of
r157

government power, she often tips the scale in support of government power.

That phi1050phy shines through in her dissenting opinion in Rust v. Sullivan, in

 

which the Court upheld the government's right to prohibit abortion counseling in
federally firnded health clinics. O'Connor argued that the department had
overstepped its authority:

This court acts at the limits of its power
when it invalidates a law on constitutional grounds.
In recognition of our place in the constitutional
scheme, we must act with 'great gravity and
delicacy' when telling a coordinate branch that its
actions are absolutely prohibited absent
constitutional amendments8

With O'Connor, it is important to look at why she favors or disfavors the
media in a decision because her opinions in expression cases are not always

content-based. Instead, procedure is often the basis of her decisions. For

 

55Goodman, at 12, 21.
56Oxford Companion to the Supreme Court of the United States, at 604.

57Goodman, at l 1, citing R. Cordray and J. Vradelis, "The Emerging Jurisprudence of Justice
O'Connor," Univ. Chicago L. Rev. 52 (1985), 391, 437.

O'Connor illustrates this approach in one of her early cases on the Court, Board of
Education v. Pico, 457 U.S. 853 (1982) (plurality opinion), when in her opinion she rejected a
First Amendrnart challenge to a school board's decision to remove certain books from it
curriculum library. She based her argument on "the broad scope of the board's responsibilities.”
She wrote, "it is not the function of the courts to make the decisions that have been properly
relegated to the elected members of the school boards. It is the school board that must determine
educational suitability, and it has done so in this case."

 

 

89

instance, a decision favoring the rule against prior restraint in one case may not

necessarily indicate that O'Connor would rule against prior restraint in another

case because the decision may have been based on procedure rather than content.
She joined in a dissent, written by Justice Thurgood Marshall, in Cable

News Network, Inc. v.Norieg2_1, supra page 81, that indicates she may favor the

 

press in some circumstances. The dissent calls for re-examination of the

Nebraska Press rule in light of the court's refirsal to hear a case in which the

 

government wanted to enjoin publication of information alleged to threaten a
criminal defendant's right to a fair triaL The government did not make the
threshold showing that the information would cause harm and that suppression is
the only means of averting it. "This case is of extraordinary consequence for
fi'eedom of the press" because it brought into question the heavy burden required

for imposition of a prior restraint under Nebraska Press; Qr_ganization for a

 

 

Better Austin v. Keefe, and New York Times v. United States.

 

 

O’Connor agreed with Marshall’s dissent in Noreiga:

I do not see how the prior restraint imposed
in this case can be reconciled with these teachings.
Even more fimdamentally, if the lower courts in this
case are correct in their remarkable conclusion that
publication can be automatically restrained pending
application of the demanding test established by
Nebraska Press, then I think it is imperative that we
reexamine the premises and operation of Nebraska
Pr_es_s_ itself.

 

 

"Rust v. Sullivan, 111 S.Ct. 1759 (1991).

 

O’Connor’s dissenting opinion in Rust v. Sullivan cited the Court's failure

 

to act accordingly in deciding the case. Such a decision indicates she might vote

against the press in New York Times v. United States simply because she would

 

oppose a hasty decision on a constitutional issue. Although O'Connor would
come closer to the center than the most conservative members of the Court,59 her
overall record indicates she would not likely cross it in favor of the press.60

Case History

 

O’Connor wrote the majority opinion in two prior restraint cases, the most

recent of which involved national security issues. In Boos v. Barry, 485 U.S. 312

 

(1988), the issue was whether an ordinance prohibiting display of signs critical of
foreign governments within 500 feet of the embassies of those governments is
constitutional. The Court found the statute's display clause violated the First
Amendment because it was a content-based restriction on political speech in a
public forum that was not narrowly tailored to serve a compelling government

interest. O’Connor explained that he display clause is content-based because

 

59"Justice O'Connor would tend to decide expression cases by accepting the competing interests
between government and individual rights presented by various Justices and then would argue that
the Court's majority
opinion had struck a balance too protective of individual rights." R. Cordray and J. Vradelis, "The
Emerging Jurisprudence of Justice O'Connor," Unv. of Chicago L. Rev. 52, 391, 437 (1985).
Goodman's study showed O'Connor voted against individual rights in 14 of the 21 First
Amendmart opinions she wrote during he first 10 years on the Com-t, 1981-1991. Goodman’s
study formd O’Connor ruled in favor of individual and press rights rather than government rights
in three out of fun political press cases, suggesting that O'Connor is more likely to support

9l

“[w]hether individuals may picket in front of a foreign embassy depends entirely
upon whether their picket signs are critical of the foreign government or not,”
rendering the ordinance content-based and therefore unconstitutional, despite
national security interests:

The need to protect diplomats is grounded in
our Nation's important interest in international
relations. As a leading commentator observed in
1758, "[i]t is necessary that nations should treat and
hold intercourse together, in order to promote their
interests, -- to avoid injuring each other, - and to
adjust and terminate their disputes." E. Vattel, _T_h_e
Law of Nations, 452 (J. Chitty ed. 1844)
(translation). This observation is even more true
today given the global nature of the economy and
the extent to which actions in other parts of the
world affect our own national security. Diplomatic
personnel are essential to conduct the international
affairs so crucial to the well-being of this Nation.
At the same time, it is well established that "no
agreement with a foreign nation can confer power
on the Congress, or on any other branch of
Government, which is free fiom the restraints of the
Constitution. [citations omitted]. Thus, the fact that
an interest is recognized in international law does
not automatically render that interest "compelling"
for purposes of First Amendment analysis. Even if
we assume that international law recognizes a
dignity interest and that it should be considered
sufficiently “compelling” to support a content-based
restriction on speech, we conclude [that me display
clause] is not narrowly tailored to serve that
interest. [citations omitted]

 

The second case for which O’Connor wrote the majority opinion was

 

individual rights in press cases than in other First Amendment cases.

 

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92

Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460

 

U.S. 575 (1983). The Court found that a "use tax" on the cost of paper and ink
products consumed in the production of publications violated the guarantee of the
freedom of the press in the First Amendment. Because the tax exempted the first
$10,000 worth of paper and ink consumed in a year, the Court found that
Minnesota had singled out the press for special treatment and that the tax
specifically presented potential for government abuse of larger publications:

When the State singles out the press, though, the
political constraints that prevent a legislature fi'om
passing crippling taxes of general applicability are
weakened, and the threat of burdensome taxes
becomes acute. That threat can operate as
effectively as a censor to check critical comment by
the press, undercutting the basic assumption of our
political system that the press will often serve as an
important restraint on government. [citations
omitted] Further, differential treatment, unless
justified by some special characteristic of the press,
suggests that the goal of the regulation is not
unrelated to suppression of expression, and such a
goal is presumptively unconstitutional. [citations
omitted] Differential taxation of the press, then,
places such a burden on the interests protected by
the First Amendment that we cannot countenance
such treatment unless the State asserts a
counterbalancing interest of compelling importance
that it cannot achieve without differential taxation.

Minnesota’s inkandpapertaxviolatestheFirst
Amendment not only because it singles out the
press,butalsobecause ittargetsasmallgroupof
newspapers. . .. Whatever the motive of the
legislatm'e inthiscase, we thinkthat recognizing a
power in the State not only to single out the press
but also to tailor the tax so that it singles out a few

93

members of the press presents such a potential for
abuse that no interest suggested by Minnesota can
justify the scheme.

O’Connor dissented in Rust v. Sullivan, supra page 25, saying that

 

regulations that place content-based restrictions on the speech of federal fund
recipients directed precisely at speech concerning one of "the most divisive and
contentious issues that out Nation has faced in recent years" raises serious
constitutional problems.

She concurred with the majority opinion in three cases. In Gentile, supra

 

page 21, she agreed that a state may regulate speech by lawyers representing
clients in pending cases more readily than it may regulate the press. She clarified
her position by adding that lawyers do not therefore forfeit their First Amendment
rights in such cases, but that a less demanding standard applies. In ISKCON,
m page 22, she reiterates the majority opinion in her concurring opinion but

not add much other than her support. In City of Ladue, supra page 65, O’Connor

 

wrote that she would have preferred to use the examination of the content-based
city ordinance as an opportunity to modify the existing doctrine to take into
account special factors such as this case presents.
Conclusion

O’Connor would be the swing vote in this case. She more likely would

favor the government than the press in New York Times v. United States. Her

 

94

opinions reflect a philosophy that the Court should not in most cases interfere
with decisions of other government branches. O’Connor has voted in favor of
free speech in three prior restraint cases, in favor of the government once, and
split her opinions to favor some government arguments and some press arguments
in two other cases. Although her record does not clearly indicate a preference for
any particular type of party that would be involved in the Pentagon Papers case,
her adherence to procedure indicates that even if she were inclined to favor the

press in New York Times v. United States on the merits of the case, she would not

 

because she would disagree with the speed with which the decision would be

rendered.

CONCLUSION

Let the people know the facts, and the country will be safe.
- Abraham Lincoln

Vincent Marchetti, the former CIA agent who lost his case‘51 against

government prepublication review of his 1974 book The CIA and the Cult of

 

Intelligence, and then published the book with notations indicating government-
imposed edits and deletions, wrote about the impact of the Pentagon Papers on the
press:

[M]ost of the American press has at least tacitly
gone along, until the last few years, with the agency
view that covert operations are not a proper subject
for journalistic scrutiny. The credibility gap arising
out of the Vietnam war, however, may well have
changed the attitude of many reporters. The New
York Times’ Tom Wicker credits the Vietnam
experience with making the press “more concerned
with its fundamental duty.” Now that most
reporters have seen repeated examples government
lying, he believes, they are much less likely to
accept CIA denials of involvement in covert
operations at home and abroad. As Wicker points
out, “Lots of people today would believe that the
CIA overthrows government,” and most journalists
no longer believe in the sanctity of classified
material.” In the case of his own paper, the New
York Times, Wicker feels that “the Pentagon Papers
made the big difference. . ..”

 

6' U.S. v. Marchetti, 446 F.2d 1309 (1972).

 

95

96

Perhaps most important, the press has largely
rejected the “national secruity” defense used by the
White House to justify its actions. With any luck at
all, the American people can look forward to
learning from the news media what their
government — even its secret part—is doing. As
Congress abdicates its responsibility, and as the
President abuses his responsibility, we have
nowhere else to turn."2

However, if the Pentagon Papers case came before the Court today, the

result would likely favor the government, not the press. If New York Times v.

 

United States came before the United States Supreme Court in the 1997-1998

 

term, the likely outcome would be a 5-4 vote in firvor of the government. Chief
Justice Rehnquist and Justices Breyer, Thomas and Ginsburg would likely rule in
favor of the government. Justices Scalia, Souter and Stevens would likely favor
the press. Justices Kennedy and O’Connor would both sit near the middle, with
Justice Kennedy ultimately siding with the press and Justice O’Connor providing

the swing vote in favor of the government.

 

“2 Vincent Marchetti and John 1). Marks, 1111.- CIA and the Cult of Intelligence, (Dell Publishing

 

97

 

GOVE NT §ESS
°‘ 550 *3 ea 12 .2 t»
5 FE . 00 m
132’ 0 “o“

Figural

The chances that the Pentagon Papers case would have had a different
result dining the last several sessions are unlikely, despite the changing make-up
of the court and the change fi'om a Republican administration to a Democratic
administration. If this hypothetical were set in the 1992-93 term, the vote would
likely have again been 5-4. Justice White would likely have voted for the press,
as he did in the actual Pentagon Papers case. His replacement, Justice Ginsburg,
would probably vote the opposite way, reducing the Court fi'om the 6-3 vote of
1971 to the hypothetical 5-4 vote of 1997. If this thesis looked at the 1993-94
term, the result still would have likely been a 5-4 decision, with Blackmun
replacing Thomas's vote.

Ifthe case had arisen in 1968 rather than 1971, the result likely would
have been a stronger decision in favor of the press. Don R. Pember briefly

analyzed the decision shortly after it came out in his article, “The ‘Pentagon

 

Co., New York, 1974), 345-46.

 

98

Papers’ Decision: More Questions Than Answers,” Journalism Quarterly,

 

(Autumn 1971), 403. He speculated that the rule against prior restraint was
precarious even as the Pentagon Papers decision came off the presses:

Subtract, for a moment, the comt’s two elder
statesmen -— Black and Douglas — and add two new
appointees. The result clearly could have been five-
to-four against the newspapers. This case reveals
thatthis isafardifferent comtthanthe Warren
Court of just three years ago.

Pember found the case to be more of a wake-up call to the American
public than an important legal decision:

The great importance in this case, then,
might be an old lesson — one which each generation
must learn anew. It is simply that freedom of the
press is never secure, never certain, even in a
constitutional democracy such as ours. The
guarantees of the past can become meaningless in
an instant ifthe people drop their guard. For 15
days the government of the Untied States
successfully stopped the presses of two of the
nation’s most influential newspapers. For 15 days
the freedom of the press was held in abeyance. For
15 days the people were denied the right to read a
report prepared by their government about a war in
which they have fought and died. The rights of a
citizen are only as strong as his will to defend them.

This, perhaps, is the lesson of the case.

The hypothetical 1997 Pentagon Papers decision would probably be
similar to the actual 1971 decision in that it would be limited to the specific case,
and it would fail to establish a rule on when prior restraint falls within the bounds

of the Constitution and when it does not. New York Times v. United States left

 

99

questions unanswered in 1971. Most notably, it failed to determine what burden
the government must meet to restrict the press on national security grounds
without trampling the First Amendment. If the case came before the Court in
1997, it would leave the same troubling question for a nation built on democratic
principles: What burden must the press meet to earn the privilege to print news of
its government? And how much longer before that precarious right falls to one
more pro-government vote on our mtion's highest court?

This study could have been done from numerous perspectives. For
instance, what if the Pentagon Papers had not been papers at all? What if they

were audio tapes, as in New York Times v. NASA, supra page 38, or e-mail or a

 

video cassette? Some of the justices have held that electronic media are not
entitled to the same protections under the First Amendment as are the print media.
As a body, the Supreme Court has indicated that not all types of media are
allotted the same protection. There are many issues that may threaten the rule
against prior restraint in the near future.

It is an assumption that the Court would hear the Pentagon Papers case at
all. The Court has been taking fewer and fewer cases in recent years.63 There is a
faction on the conservative court that would avoid the political hot potato

presented by a Pentagon Papers case, and would not take it because it would feel

 

63For a comprehensive list of prior restraint cases heard by lower courts in the 1990s, E Kellie L.
Sager and Robert W. Lofton, “Prior Restraint in the ‘905: Twenty-five Years After the Pentagon

100

the decision should be left to the Executive.

Another factor is the popularity of the press. The Supreme Court
responds, at least in part, to the pulse of the people. The print media are not as
popular today as in 1971. The press has less credibility with the public, and likely
would not get the kind of support that it did in 1971. Journalists are no longer
seen as soldiers protecting the rights of the population, but are regarded more
often as pack wolves seeking readers or ratings. As Sanford Ungar says in his

book The Papers & the Papers, "The pendulum swings quickly." In a survey

 

conducted by the Gallup Organization for the Times Mirror Company in 1988, 48
percent of the respondents said they think that press reports are "often inaccurate"
and 59 percent said that the press "tend(s) to favor one side" when reporting on
political or social issues. Only 18 percent rated network television news "very
favorably," and 21 percent gave that rating to their daily newspapers; 78 percent
said they believe the press "often invades people's privacy." In every area, the
media were rated less favorably than in a similar survey in 1985.64

Today‘s Americans largely supported the war in the Persian Gulf in 1991,
even when political watchdogs were predicting it to be another Vietnam. Grenada
also did not raise many eyebrows amongst the public, and press restrictions did

not raise many questions among the press. Meanwhile, surveys show that people

 

Papers”, 446 PLl/Pat, 517 (1996).
64 Ungar, The Papers & the Papers at 310.

 

101

do not trust their media. Like many hard-won privileges in the United States, the
rule against prior restraint seems easily forgotten and left open to the whittling
away of government and the coruts.

Judge Murray Gurfein ruled on June 19, 1971, that the Nixon
administration had failed to establish its case for restraining The New York Times
from publishing articles based on the Pentagon Papers:

The securityofthemtionisnottheramparts
alone. Security also lies in the value of our flee
institutions. A cantankerous press, an obstinate
press, a ubiquitous press must he suffered by those
in authority in order to preserve the even greater
values of freedom of expression and the right of the
people to know It is not merely the opinion of the
editorial writer or of the columnist which is
protected by the First Amendment. It is the free
flow of information so that the public will be
informed about the government and its actions.
These are troubled times.

There is no greater safety valve for discontent
and cynicism about the affairs of government than
fieedom of expression in any form. This has been
the genius of our institutions throughout our history.
It is one ofthe marked traits ofour national life that
distinguishes us from other nations under difi'erent
forms of government.

Certainly justices on the crurent Rehnquist Court could write with equal
power and eloquence on the value of a free press to our nation. The question is

whether those justices would constitute a majority. The likely answer is “no”.

102

AND YE SHALL KNOW THE TRUTH
AND THE TRUTH SHALL MAKE You FREE
John, VIII:32
inscribed on the marble wall of the main lobby at CIA headquarters,

Langley, Virginia

BIBLIOGRAPHY

103

BIBLIOGRAPHY

Addresses

Daniel Ellsberg, Address in Voices of the Sixties, Then & Now, SMITHSONIAN
INSTITUTE SPEAKERS SERIES, Washington, DC. (December 1996).

Robyn S. Goodman, Supreme Court Justice Sandra Day 0 ’Connor ’s First
Amendment Approach to Free Expression: A Decade in Review,
PRESENTED BEFORE THE LAW DIVISION OF "IT-IE ASSOCIATION FOR
EDUCATTON 1N JOURNALISM AND MASS COMMUNICATIONS, Montreal,
Quebec, Canada (August 1992).

Books

Kermit L. Hall, ed., THE OXFORD COMPANION TO THE SUPREME COURT OF THE
UNITED STATES. (Oxford University Press, New York, 1992).

Victor Marchetti and John D. Marks, THE CIA AND THE CULT OF INTELLIGENCE.
(Dell Publishing Co., Inc., New York, 1974).

David Rudenstine, THE DAY THE PRESSES STOPPED: A HISTORY OF THE
PENTAGON PAPERS CASE, (University of California Press, Berkeley, 1996).

Ret. Gen. H. Norman Schwarzkopf, IT DOESN’T TAKE A HERO, (1992).

Sanford J. Ungar, THE PAPERS & THE PAPERS: AN ACCOUNT OF THE LEGAL AND
POLITICAL BATTLE OVER THE PENTAGON PAPERS. (New York: E.P. Dutton
& Co., Inc., 1972)

Cases

Access Reports v. Department of Justice, 926 F .2d 1192 (DC. Cir., 1991)

Alexander v. U.S., 509 U.S. 544 (1993).

104

American Library Association v. Odom, 818 F .2d 81 (DC. Cir., 1987).
Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986).

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 ( 1963).

Board of Education v. Pico, 457 U.S. 853 (1982).

Bonner v. U.S. Department of State, 928 F .2d 1148 (1991).

Boos v. Barry, 485 U.S. 312 (1988).

Burson v. Freeman, 504 U.S. 191 (1992).

Cable News Network v. Noreiga, 498 U.S. 976 (1990).

CBS, Inc. v. U.S. District Court, CD. Cal, 765 F.2d 823 (9th Cir., 1985).

Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454
U.S. 290 (1981).

City of Cincinnati v. Discover Network, Inc., 113 S.Ct. 1505 (1993).
City of Ladue v. Gilleo, 512 U.S. 43 (1994).
Cohen v. Cowles Media, 111 S.Ct. 2513 (1991).

Dudman Communications Corp. v. Department of the Air Force, 815 F .2d 1565
(DC. Cir., 1987).

El Dia, Inc. v. Hernandez Colon, 963 F.2d 488 (1St Cir., 1992).

FCC v. League of Women Voters, 468 U.S. 364 (1984).

Fitzgibbon v. CIA, 911 F2d 755 (DC. Cir. 1990).

Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992).
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989).

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).

105

Goldblum v. National Broadcasting Corp., 584 F .2d 904 (9th Cir., 1978).

In re Application of National Broadcasting Company, Inc., American
Broadcasting Companies, Inc., and CBS, Inc., 653 F2d 609 (DC. Cir.,
1981).

In re Providence Journal, 809 F2d 63 (1S" Cir., 1986)

In re Providence Journal, 820 F.2d 1354 (lSt Cir., 1987)

International Society for Krishna Consciousness, Inc., v. Lee, 505 U.S. 672
(1992)

Irons v. FBI, 880 F.2d 1446 (lSt Cir. 1989).

Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980).
Korematsu v. United States, 323 U.S. 214 (1944).

Madsen v. Women’s Health Center, 512 U.S. 1277 (1994).

Maynard v. Central Intelligence Agency, 986 F.2d 547 (1” Cir., 1993).

Meese v. Keene, 481 U.S. 465 (1987).

Minneapolis Star & Tribune Co. v. Minnesota Commr. Of Revenue, 460 U.S. 575
(1983).

Morse v. Republican Party of Virginia, 116 S.Ct. 1186 (1996).

Nation Magazine v. U.S. Dep’t of Defense, 762 F. Supp. 1558 (SD. New York,
1991)

Near v. Minnesota, 283 U.S. 697 (1931).
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).
New Hampshire v. Hodgkiss, 565 A.2d 1059 (N .H., 1989).

New York Times v. NASA, 920 F.2d 1002 (DC. Cir., 1990).

106

New York Times v. United States, 403 U.S. 713 (1971).

Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971).

Pfeiffer v. CIA, 60 F.3d 861 (DC. Cir., 1995).

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

Russell v. Dep’t of the Air Force, 682 F.2d 1045 (DC. Cir. 1982).

Rust v. Sullivan, 111 S. Ct. 1759 (1991).

Schenck v. Pro-Choice Network of Western New York, 117 S.Ct. 855 (1997).
Schenck v. United States, 249 U.S. 47 (1991).

Senate of the Commonwealth of Puerto Rico v. U.S. Department of Justice, 823
F.2d 574 (DC. Cir., 1987).

Snepp v. United States, 44 U.S. 507 (1980).
State of Israel v. St. Martin’s Press, Inc., 560 N.Y.S.2d 450 (1990).

Strang v. U.S. Arms Control and Disarmament Agency, 864 F .2d 859 (DC. Cir.,
1989).

Sullivan v. CIA, 992 F.2d 1249 (1" Cir. 1993).

Summers v. Department of Justice, 925 F.2d 450 (DC. Cir. 1991).
United States v. New York Times Co, 328 F.Supp. 324 (S.D.N.Y. 1971).
U.S. v. Marchetti, 466 F.2d 1309 (411. Cir., 1972).

U.S. v. Noriega, 917 F.2d 1543 (1990).

Ward v. Rock Against Racism, 491 U.S. 781 (1989).

Washington Post Co. v. Robinson, 935 F.2d 282 (DC. Cir. 1991).

 

107

Weaver V. United States lnforrmtion Agency, 87 F .3d 1429 (1996).

Law Journal Articles

R. Cordray and J. Vradelis, The Emerging Jurisprudence of Justice 0 ’Connor, 52
UNIV. OF CHICAGO L. REV. 39, 437 (1985).

Brian William DelVecchio, Press Access to American Military Operations and
the First Amendment: The Constitutionality of Imposing Restrictions, 31
TULSA LJ. 227 (Fall 1995).

Louis Henkin, The Right to Know and the Duty to Withhold: The Case of the
Pentagon Papers, 120 U. PA. L. REV. 271 (1971).

Mark Rohr, Freedom of Speech Afier Justice Brennan, 23 GOLDEN GATE
U.L.REV. 413 (Spring 1993).

Kelli L. Sager and Robert W. Lofton, Prior Restraint in the 90s: Twenty- rve
Years After the Pentagon Papers, 446 PLI/PAT 517 (June 20-21, 1996).

Magazine Articles

Neal Devins, The Last Word Debate: How social and political forces shape
constitutional values, ABA JOURNAL, October 1997, 46.

David A. Kaplan and Bob Cohn. Good for the Left, Now Good for the Right: The
Rehnquist court plays the same judicial politics that once drove
conservatives crazy, NEWSWEEK, July 8, 1991, 20.

Tony Mauro. A New Outlook for the First: Recent Supreme Court appointees
may turn the tide against press freedoms, THE QUILL, October 1991, 4.

Whitney North Seymour, Jr., Press Paranoia -— Delusions of Persecution in the
Pentagon Papers Case, NEW YORK STATE BAR JOURNAL, February 1994,
1 0.

108

Media Journal Articles

Dennis F. Hale, Free Expression: The First Five Years of the Rehnquist Court, 69
JOURNALISM Q. 89 (Spring 1992).

W. Wat Hopkins and Timothy L. Yarbrough, Antonin Scalia: Judge & Justice,
10 NEWSPAPER RESEARCH J. 61 (Spring 1989).

Don R. Pember, The ‘Pentagon Papers ’ Decision: More Questions Than
Answers, JOURNALISM Q. 403, (Autumn 1971).

Newspaper Articles

Joan Biskupic, Boston Judge Breyer Nominated to High Court: A Moderate
Pragmatist, Nominee Widely Admired in Legal Circles, THE WASHINGTON
POST, May 14, 1994, Al.

Marcia Coyle, Breyer Charts Moderate Course to High Court, THE NAT’L L.J.,
July 25, 1994, A11.

Marcia Coyle, In Search of an Identity: For now, a moderate-to-conservative
core defines a less-ideological Supreme Court, THE NAT’L L.J., August
15, 1994, C1.

Anne Devroy, Boston Judge Breyer Nominated to High Court: Afier Long
Process, Clinton’s Choice of Centrist Likely to Avoid Confirmation
Controversy on Hill, THE WASHINGTON POST, May 14, 1994, A1.

Ernest Gellhorn, A Justice Breyer May Tip the Court ’s Balance, THE NAT’L L.J.,
July 4, 1994, A19.

Neil A. Lewis, Ginsburg Embraces Right of A Woman to Have Abortion, THE
NEw YORK TIMES, July 2, 1993, A1.
Pamphlets

THE REPORTERS COMMITTEE FOR FREEDOM OF IHE PRESS, SUMMARY OF JUDGE
STEPHEN BREYER’S DECISION ON MEDIA ISSUES (1994).

109

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, THE FIRST
AMENDMENT HANDBOOK, 3RD ED.

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, SUMMARY OF JUDGE
SOUTER’S DECISION ON MEDIA ISSUES (1990).

General References

Books

Lee C. Bollinger, IMAGES OF A FREE PRESS, (The University Of Chicago Press,
Chicago, 1991).

Lucas A. POWC, Jr., THE FOURTH ESTATE AND THE CONSTITUTION: FREEDOM OF
THE PRESS IN AMERICA, (University Of California Press, Berkeley, 1991).

Kenneth W. Salter, THE PENTAGON PAPERS TRIAL (Editorial Justa Publications,
Inc., 1975).

Frederick Schauer, FREE SPEECH: A PHILOSOPHICAL ENQUIRY
(CambridgeUniversity Press, Cambridge, 1982).

Neil Sheehan, Hendrick Smith, E.W. Kenworthy and Fox Butterfield, THE
PENTAGON PAPERS AS PUBLISHED BY THE NEw YORK TIMES (Bantam
Books, 1971).

Laurence H. Tribe, GOD SAVE THIS HONORABLE COURT: How THE CHOICE OF
SUPREME COURT JUSTICES SHAPES OUR HISTORY (Penguin Books, New
York, 1985).

Cases

Agee v. CIA, 6 Med. L. Rptr. 1072 (DC. Cir. 1980).

Agee v. CIA, 6 Med. L. Rptr. 2006 (DC. Cir. 1980).

Alfred A. Knopf, Inc. v. Colby, 509 F. 2d 1362 (1975).

110

Alpha Lyracom, 8 FCC Rcd 376 (1992).

Branzburg v. Hayes, 08 U.S. 665 (1972).

CBS, Inc. V. Jefi' W. Davis, 114 S.Ct. 912 (1994).

City Of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988).
Curran v. Department Of Justice, 813 F.2d 473 (1St Cir., 1987).

Dennis V. United States, 341 U.S. 494 (1951).

Epstein v. Resor, 421 F.2d 930 (9th Cir. 1970).

Freedman V. State Of Maryland, 380 U.S. 51 (1965).

Haig v. Agee, 453 U.S. 278 (1981).

Irons V. Bell, 596 F .2d 468 (1St Cir., 1979).

Karn v. U.S. Dep’t. Of State, 925 F. Supp 1 (DC. Cir., 1996).

Lebron v. Washington Metropolitan Area Transit Authority, 749 F.2d 893 (DC.

Cir., 1984).
McGehee V. Casey, 7 Med. L. Rptr. 2270 (DC. Cir. 1981).
Miller v. Casey, 730 F.2d 773 (D.C.Cir., 1984).
Morland v. Sprecher, 443 U.S. 709 (1979).
National Socialist Party Of America v. Village Of SkOkie, 432 U.S. 43 (1977).

Osborne v. Ohio, 495 U.S. 103 (1990).

Papish V. Board Of Curators Of the University Of Missouri, 410 U.S. 667 (1973).

Penguin Books USA, Inc. v. Walsh, 929 F. 2d 69 (2"d Cir., 1991).

Pittsburgh Press CO. v. Pittsburgh Commission on Human Relations, 413 U.S.
376 (1972).

111

Spanish International Communications Corp., 2 FCC Red 3336 (1987).

Strang v. U.S. Arms Control and Disarmament Agency, 920 F .2d 30 (DC. Cir.,
1990).

Texas v. Johnson, 491 U.S. 397 (1989).

U.S. v. Morison, 844 F.2d 1057 (4" Cir., 1988).

U.S. v. Progressive, 467 F. Supp. 990 (W.D. Wis. 1980).

U.S. v. Reynolds, 345 U.S. 1 (1953).

U.S. v. Washington Post Co., 446 F.2d 1327 (DC. Cir. 1971).
Walsh v. Brady, 927 F.2d 1229 (DC. Cir., 1991).

Whitney v. California, 274 U.S. 357 (1926).

Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

Government Documents

Before the Pentagon Special Commission Studying Media Access to Military
Operations; In Re: Questions Concerning Possible Military-Media
Coordinated Guidelines for Coverage of Military Operations, RESPONSE
OF THE AMERICAN LEGAL FOUNDATION (submitted January 24, 1984).

U.S. Department of Justice, Guidelines on Enforcing Predissemination Review
Obligations, 6 MED. L. RPIR. 2261 (December 9, 1980).

Law Journal Articles

Floyd Abrams, Prior Restraints, 420 PLI/PAT 343 (1995).

David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455
(1983).

‘w

112

Stephen R. Barnett, The Puzzle of Prior Restraint, 29 STAN. L. REV. 539 (Feb.
1977).

Vincent Blasi, The Checking Value in First Amendment Theory, 3 AM. B. FOUND.
RES. J. 521 (1977).

Paul G. Cassell, Restrictions on Press Coverage of Military Operations: The
Right of Access, Grenada, and Ofl-the-Record Wars, 73 GEO. L.J. 931

(February, 1985).

Susan D. Charkes, The Constitutionality of the Intelligence Identities Protection
Act, 83 COLUM. L. REV. 727 (April, 1983).

Mich L. Charlson, The Constitutionality of Expanding Prepublication Review
of Government Employees ’ Speech, 72 CALIF. L. REV. 962 (September,
1984).

Mary M. Cheh, Symposium: National Security and Civil Liberties: Judicial
Supervision of Executive Secrecy: Rethinking Freedom of Expression for
Government Employees and The Public Right of Access to Government
Information, 69 CORNELL L. REV. 690 (April, 1984).

Norman Dorsen, The United States Constitution in its Third Century: Foreign
Affairs: Rights — Here and There: Foreign A flairs and Civil Liberties, 83
A.J.I.L. 840 (1989).

Thomas J. Emerson, The Doctrine of Prior Restraint, 20 LAW & CONTEMP.
PROBS. 648 (Autumn 1955).

Jomthan L. Entin, United States v. Progressive, Inc. : The Faustian Bargain and
the First Amendment, 75 NW. U.L. REV. 538 (1978).

Michael J. Gaynor, The Purloined Pentagon Papers and Prior Restraint: The
Press Prevailedl, 46 ST. JOHN’S L. REV. 81 (Ocotber 1971).

William R. Glendon, The Pentagon Papers: Excerpts fi'om the Record, 446
PLI/PAT 503 (June 20-21, 1996).

Michael J. Glennon, Publish And Perish: Congress ’s Effort to Snip Snepp (Before
and AFSA), 10 MICH. J. INT’L L. 163 (Winter 1989).

113

Stanley GOdOfsky and Howard M. Rogatnick, Prior Restraints: The Pentagon
Papers case Revisited, 18 CUMB. L. REV. 527 (1988).

Lawrence P. Gottesman, The Intelligence Identities Protection Act of I 982: An
Assessment of the Constitutionality of Section 601(c), 49 BROOKLYN L.
REV. 479 (Spring 1983).

Ned Greenberg, Mendelsohn v. Meese: A First Amendment Challenge to the Anti-
Terrorism Act of1987, 39 AM. U.L. REV. 355 (Winter, 1990).

Murray I. Gurfein, Nathaniel Goldstein Memorial Lecture, 2 CARDOZO L. REV. 5
(1980)

Howard 0. Hunter, Toward a Better Understanding of the Prior Restraint
Doctrine: A Reply to Professor Mayton, 67 CORNELL L. REV. 283 (1982).

Bruce E.H. Johnson, CBS, Inc. v. Davis: Oddball Lessons form a Typical Prior
Restraint Case, 13-SUM COMM. LAW. 1 (1995).

 

June D.W. Kalijarvi and Don Wallace Jr., Executive Authority to Impose Prior
Restraint upon Publication of Information Concerning National Security
Aflairs: A Constitutional Power, 9 CAL. W.L. REV. 468 (1973).

Harry Kalven, Jr., The Supreme Court 1970 Term. Foreward: Even When a
Nation is at War, 85 HARV. L. REV. 3 (1971).

Jane E. Kirtley, Vanity and Vexation: Shifling the Focus of Media Conduct, 4 WM
& MARY BILL RTS. J. 1069 (Summer 1996).

Erwin Knoll, National Security: The Ultimate Threat to the First Amendment, 66
MIN. L. REV. 161 (1981).

Judith Schenk Kofiler, and Bennett L. Gershman, Symposium: National Security
and Civil Liberties: The New Seditious Libel, 69 CORNELL L. REV. 816

(April, 1984).
Lee Levine, From the Chair, I4-SPG COMM. LAW 2 (Spring 1996).

Jennifer M. Marre, National Security Directive 84: An Unjustlfiably Broad
Approach to Intelligence Protection, 51 BROOKLYN L. REV. 147 (Fall

114

1984).

William T. Mayton, Toward a Theory of First Amendment Process: Injunctions of
Speech, Subsequent Punishment, and the Costs of the Prior Restraint
Doctrine, 67 CORNELL L. REV. 245 (1982).

James L. Oakes, Judge Gurfein and the Pentagon Papers, 2 CARDOZO L. REV. 5
(1980).

James L. Oakes, The Doctrine of Prior Restraint Since the Pentagon Papers, 15
U. MICH. J.L. REF. 497 (Spring 1982).

Robert M. O’Neil, Tainted Sources: First Amendment Rights and Journalistic
Wrongs, 4 WM. & MARY BILL RTS. J. 1005 (Summer 1996).

Lance R. Peterson, A First Amendment-Sixth Amendment Dilemma: Manuel
Noriega Pushes the American Judicial System to the Outer Limits of the
First Amendment, 25 J. MARSHALL L. REV. 563 (1992).

Prior Restraint and the Press Following the Pentagon Papers Case — Is the
Immunity Dissolving?, NOTRE DAME L. REV. 927 (1972).

Richard Alan Rubin, Foreign Policy, Secrecy, and the First Amendment: The
Pentagon Papers in Retrospect, 17 HOW. L.J. 579 (1972).

David Rudenstine, The Pentagon Papers Case: Recovering Its Meaning TWenty
Years Later, 12 CARDOZO L. REV. 1869 (1991).

Kelli L. Sager, Prior Restraints, 447 PLI/PAT 529, June 20, 1996.

Daniel Schorr, What are the Limitations on Freedom of the Press?, 18 HASTINGS
COMM/ENT L.J. 441 (1996).

Belinda J. Scrimenti, A Journalist ’s View of The Progressive Case: A Look at the
Press, Prior Restraint, and The First Amendment From the Pentagon

Papers to the Future, 41 OHIO ST. L.J. 1165 (1980).

Mark Tushnet, The Supreme Court and Its First Amendment Constituency, 44
HASTINGS L.J. 881 (April, 1993).

Capt. William A. Wilcox, Jr., Media Coverage of Military Operations: Oplaw

115

Meets the First Amendment, 1995-MAY ARMY LAW. 42.

Richard M. Winfield, Taking the First, 46 PLI/PAT 9 (June 20-21, 1996).

Magazine Articles
A Cautious Court, NAT’L L.JRN., July 18, 1994.

James Boylan, Pleading the First, COLUMBIA JOURNALISM REV.,
November/December 1991, pp. 41-43.

Covering Wars and Invasions: Defense department makes public the
recommendations of the Sidle Commission for press access to military
actions, EDITOR & PUBLISHER, Sept. 1, 1984.

Philip Elmer-Dewitt, Who ’s Reading Your Screen?: A ruling that White House
notes are public business raises questions about how private any E-mail
can be, TIME, January 18, 1993.

Howard Fineman, et. a1. How Far Right: Justice Marshall hands George Bush a
historic chance and apolitical risk, NEWSWEEK, July 8, 1991, pp. 19-20.

Ted Gest, Payback Time? Thomas on the court, U.S. NEWS & WORLD REPORT,
October 28, 1991, p. 38.

David A. Kaplan, et. al., Supreme Mystery (Clarence Thomas: Where he stands
and what he believes), NEWSWEEK, September 16, 1991, pp. 8-31.

Mark Leccese, 0f Phrack and Freedom, COLUMBIA JOURNALISM REV.,
November/December 1991, p. 30.

Angus Mackenzie and James F. Fitzpatrick, The Most Serious Threat Is ,
COLUMBIA JOURNALISM REV., November/December 1991, pp. 44-55.

Tom Mathews, et. al., A Great Original ’s Lives at the Law: Thurgood Marshall
made as much history in front of the Supreme Court as he did serving on
it, NEWSWEEK, July 8, 1991, pp. 24-26.

Tony Mauro, A test for the new justice: David Souter looked like a free-press
advocate during Cohen v. Cowles Media, THE QUILL, October 1991, 6.

116

Paul McMasters, Free press falls victim to war, THE QUILL, October 1991,

Divina Paredes-Japa, Bush flexes secrecy muscles: The administration continued
its practice of restrictive press policies, THE QUILL, October 1991, p. 28.

Steven V. Roberts, The crowning Thomas aflair, U.S. NEWS & WORLD REPORT,
September 16, 1991, p. 25.

The Secret History of Vietnam, NEWSWEEK, June 28, 1971, p. 12.

Jeffrey Toobin, The Burden of Clarence Thomas, THE NEW YORKER, September
27, 1993, p.38.

Media Journal Articles

Douglas A. Anderson and Marianne Murdock. Efiizcts of Communication Law
Decisions on Daily Newspaper Editors, 58 JOURNALISM Q.525. Winter
198 1 .

Ben H. Bagdikian, What did we learn? COLUMBIA JOURNALISM REV.
September/October 1971, 45.

Margaret A. Blanchard, Free Expression and Wartime: Lessons from the Past,
Hopes for the Future, 69 JOURNALISM Q. (Spring 1992).

Juliet Dee, Legal Confi'ontations Between Press, Ex-CIA Agents and the
Government, 66 JOURNALISM Q. 418, Summer 1989.

Thomas I. Emerson, Where we stand: a legal view, COLUMBIA JOURNALISM REV.
September/October 1971, 34.

Max Frankel, the ‘state secrets ’ myth, COLUMBIA JOURNALISM REV.
September/October 1971. 22.

Philip L. Geyelin, et. a1. Where we stand: A Washington view, COLUMBIA
JOURNALISM REV. September/October 1971. 27.

Dennis P. Hale, A Comparison of Coverage of Speech and Press Verdicts of the
Supreme Court, 56 JOURNALISM Q. 4347, Spring 1979.

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117

James McCartney, What should be secret?, COLUMBIA JOURNALISM REV.
September/October 1971. 40.

Deckle McLean, Justice White and the First Amendment, 56 JOURNALISM Q. 305.
Summer 1979.

Deckle McLean, Press May Find Justice Scalia Frequent Foe but Impressive
Adversary, 65 JOURNALISM Q.152 (Spring 1988).

Jack E. Orwant and John Ullmann. Pentagon Oflicers ’ Attitudes on Reporting of
Military News, 51 JOURNALISM Q. 463. Autumn 1974.

AM. Rosentahl, Why We Published, COLUMBIA JOURNALISM REV.
September/October 1971, 16.

Harry W. Stonecipher, Protection for the Editorial Function: Is First Amendment
Right Being Eroded? 58 JOURNALISM Q. 363. Autumn 1981 .

Jules Witcover, Two Weeks That Shook the Press, COLUMBIA JOURNALISM REV.
September/October 1971, 7.

Newspaper Articles

Laurie Asseo, Court Weighing What Publications May Use Sidewalk Boxes,
ASSOCIATED PRESS, Nov. 10, 1992.

Paul M. Barrett, If There is Blood on an Opinion, We Know Who Wrote It, THE
WALL STREET JOURNAL, October 4, 1993, A1.

Paul M. Barrett and Jeffli‘ey H. Birnbaum, The Final Choice: Bill Clinton
Nominates Ruth Bader Ginsburg, But at What Cost? THE WALL STREET
JOURNAL, June 15, 1993, A1.

Paul M. Barrett, Thomas is Emerging as Strong Conservative Out to Prove
Himself, THE WALL STREET JOURNAL, April 27, 1993, A1.

Richard L.Berke, Clinton Names Ruth Ginsburg, Advocate for Women, to Court:
Centrist Role Cited, THE NEW YORK TIMES, June 15, 1993, A1.

 

118

Richard L. Berke, Judge in Boston Is Called Likely for High Court, THE NEW
YORK TIMES, June 11, 1993, A1.

Joan Biskupic, A Different Sort of Court Awaits Blackmun Successor: Recent
Terms marked by Aversion to Change, THE WASHINGTON POST, April 17,
1994.

Joan Biskupic, A Moderate Pragmatist; Nominee Widely Admired in Legal
Circles, THE WASHINGTON POST, May 14, 1994, A1.

Joan Biskupic, An Ideological Odyssey Nears End: Jurist Says He Was Not
Transformed: “The Court has Changed THE WASHINGTON POST, April
7, 1994, A1.

Joan Biskupic, Balance of Power, THE WASHINGTON POST, July 5, 1996, A13.

Joan Biskupic, Blackmun Turns Away From Legal ‘Machinery of Death, ’
THEWASHINGTON POST, February 23, 1994, A1.

Joan Biskupic, Justice 0 ’Connor and Afiirmative Action: As Court Opens Term,
Ruling on Divisive Issue May Turn on Swing Vote, THE WASHINGTON
POST, October 5, 1997, Al.

Joan Biskupic, Listening In on the ‘Conversation ’ between Court and Congress,
THE WASHINGTON POST, May 1, 1994.

Joan Biskupic, Opening for Consensus-Builder: New Appointee Could
StabilizeBalance of Power, THE WASHINGTON POST, April 6, 1994, A1.

Joan Biskupic, Supreme Court to Decide Cases on Election Fliers, Chicago
Flood, THE WASHINGTON POST, February 23, 1994, A14.

Joan Biskupic, The Court of Last Resort: “ The Supremes ” Are America ’s
Ultimate Arbiters, THE WASHINGTON POST, October 9, 1996.

Benjamin C. Bradlee, BIG BEN: A few days in the life of Benjamin C. Bratflee,
editor, in which the First Amendment is saved, Deep Throat 's secret is
protected, and a president must take no for an answer, THE WASHINGTON
POST, September 17, 1995, F 1.

119

Richard Carelli, Clinton and Gore Meet Supreme Court Justices, ASSOCIATED
PRESS, December 8, 1992.

Clinton seeks declassification, THE FLINT JOURNAL, May 5, 1993, A7.

President William J. Clinton and Judge Ruth Bader Ginsburg, Transcript of

President’s Announcement and Judge Ginsburg ’s Remarks, THE NEW
YORK TIMES, June 15, 1993, A13.

Aaron Epstein, Once again, a justice disappoints his sponsor, DETROIT FREE
PRESS, July 1, 1992.

Aaron Epstein, White to retire; high court expected to tilt left, THE DETROIT NEWS
AND FREE PRESS, March 20, 1993, A1.

Excerpts from Senate Hearings of Ginsburg Supreme Court Nomination, THE
NEW YORK TIMES, July 23, 1993.

Marc Fisher, The No- Win Vietnam Memoir: Some Say Robert McNamara ’s
Confession Came Decades Too Late. For Others, It Came Too Soon, THE
WASHINGTON POST, April 20, 1995, D1.

Thomas L. Friedman, Clinton Expected to Pick Moderate for High Court, THE
NEW YORK TIMES, March 20, 1993, A7 .

Martin Garbus, Recalling The Papers and the Papers, THE NAT’L L.J., July 16,
1996, A15.

Linda Greenhouse, A Sense of Judicial Limits: A High Court Nominee with
Liberal Views Is Cautious About the Power of the Justices, THE NEW
YORK TIMES, July 2, 1993, A1.

Linda Greenhouse, Justice Blackmun ’s Odyssey: From Moderate to Liberal, THE
NEW YORK TIMES, April 7, 1994.

Linda Greenhouse, 2 Visions of Free Speech In Hate-Crime Case, Supreme Court
Splits Over the Purpose of the First Amendment, THE NEW YORK TIMES,
June 24, 1992, A1.

Linda Greenhouse, White Announces He ’II Step Down From High Court, THE
NEW YORK TIMES, March 20, 1993, A1.

120

John F. Harris, The Snooze Conference: Networks, Viewers Not Tuned In To
Clinton, THE WASHINGTON POST, April 20, 1995, D1.

Paul Hendrickson, Vietnam Spring, THE WASHINGTON POST MAGAZINE,
September 15, 1996, 10.

Neil A. Lewis, Rejected as Clerk, Now Headed for Bench: Ruth Bader Ginsburg,
THENEW YORK TIMES, June 15, 1993, A1.

Neil A. Lewis, Selection of Conservative Judges Part of Bush ’s Legacy, THE NEW
YORK TIMES, A9.

Mark Silverstein, Special Interests Produce Dull Court Nominees, THE NAT’L L.
J ., A21.

Pamphlets

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, LEGAL DEFENSE
ACTIVITIES (Autumn 1992-93).

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, SUMMARY OF JUDGE
RUTH BADER GINSBURG’S DECISION ON MEDIA ISSUES (1993).

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, THE CLINTON
ADMINISTRATION AND THE NEWS MEDIA (1994).

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, SUMMARY OF JUDGE
THOMAS’S DECISIONS ON MEDIA ISSUES (1991).

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, SUMMARY OF JUDGE
KENNEDY’S DECISIONS ON MEDIA ISSUES (1987).

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, AGENTS OF
DISCOVERY: A REPORT ON THE INCIDENCE 0F SUBPOENAS SERVED ON THE
NEWS MEDIA IN 1989 (1991).

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