Sanford J. Ungar, The Papers and the Papers: An Account of the Legal and Political Battle over the Pentagon Papers (New York: Columbia University Press, 1989), 120; cited in Rudenstine, The Day the Presses Stopped , 92.
See Rudenstine, The Day the Presses Stopped , 105.
Near v. Minnesota, 283 US 697, 716 (1931); cf. United States v. Noriega, 917 F2d 1543 (11th Cir 1990) (affirming the prior restraint of audiotapes of the defendant's conversations with his US 976 (1990) (Justice Thurgood Marshall dissenting).
See, for example, Organization for a Better Austin v. Keefe, 402 US 415, 418–19 (1971); Bantam Books, Inc., v. Sullivan, 372 US 58, 70 (1963); Near v. Minnesota, 283 US 697, 713–14.
The standard arguments are summarized well by Kathleen M. Sullivan and Gerald Gunther: '(1) It is easier for an official to restrict speech `by a simple stroke of the pen' than by the more cumbersome apparatus of subsequent punishment. . . . (2) Censors will have a professional bias in favor of censorship, and thus will systematically overvalue government interests and undervalue speech. (3) Censors operate more informally than judges and so afford less procedural safeguards to speakers. (4) Speech suppressed in advance never reaches the marketplace of ideas at all. (5) When speech is suppressed in advance, there is no empirical evidence from which to measure its alleged likely harms'; First Amendment Law (New York: Foundation Press, 1999), 339–40, citing Thomas Emerson, 'The Doctrine of Prior Restraint,' Law and Contemporary Problems 20 (1955): 648. Frederick Schauer offers a nice balance to this commonplace theory; see 'Fear, Risk, and the First Amendment: Unraveling the `Chilling Effect,'' Boston University Law Review 58 (1978): 685, 725–30.
In a particularly telling exchange, Justice Stewart asked Professor Bickel about a case in which disclosure 'would result in the sentencing to death of a hundred young men whose only offense had been that they were nineteen years old and had low draft numbers. What should we do?' Bickel replied that his 'inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort'; May It Please the Court: The Most Significant Oral Arguments Made Before the Supreme Court Since 1955, edited by Peter Irons and Stephanie Guitton (New York: Free Press, 1993), 173.
In a concurring opinion, Justice Potter Stewart wrote that the prior restraint at issue was invalid since he could not 'say that disclosure of the Pentagon Papers will surely result in direct, immediate, and irreparable damage to our Nation or its people'; New York Times Company v. United States, 403 US 713, 730 (1971) (per curiam). This standard has frequently been thought to reflect the position of the Court; see Laurence H. Tribe, American Constitutional Law (Mineola, N.Y.: Foundation Press, 1978), 731; Morton H. Halperin and Daniel N. Hoffman, Top Secret: National Security and the Right to Know (Washington, D.C.: New Republic Books, 1977), 147 n.22; see also Alderman v. Philadelphia Housing Authority, 496 F2d 164, 170 (3d Cir 1974), cert. denied, 419 US 844 (1974) (prior restraint must be supported by 'compelling proof' that it is 'essential to a vital government interest').
See United States v. Progressive, Inc., 467 FSupp 990 (WDWis 1979); see also L. A. Powe Jr., 'The H-Bomb Injunction,' University of Colorado Law Review 61 (1990): 55, 56.
The Milwaukee Sentinel and Fusion magazine had published articles dealing with sim ilar concepts; see A. DeVolpi et al., Born Secret: The H-Bomb, The Progressive Case, and National Security (New York: Pergamon Press, 1981), 102, 106; see also Howard Morland, The Secret That Exploded (New York: Random House, 1981), 223, 225–26.
See Floyd Abrams, 'First Amendment Postcards from the Edge of Cyberspace,' St. John's Journal of Legal Commentary 11 (1996): 693, 699.
NTSB Chairman Jim Hall announced later that investigations confirmed that a fuel tank explosion caused the crash; see 'Statement of Jim Hall, Chairman, National Transportation Safety Board,' July 16, 1998, available at http:// www.ntsb.gov/pressrel/1998/980716.htm (cached: http://www.webcitation.org/5J6lprahZ).
