The National Security Exception to the First Amendment Prohibition on Prior Restraints
By Bree Evans
The release of former National Security Advisor Ambassador John Bolton’s memoir has been held up while the National Security Council reviews the manuscript. It is a cardinal rule of First Amendment jurisprudence that there generally should be no prior restraints on publication. According to the Supreme Court, “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Perhaps the most famous example of this canon is the Court’s decision in New York Times Co. v. United States to reverse lower court injunctions blocking the publication of the Pentagon Papers.
However, there is widely considered to be an exception to this rule, introduced in Schenck v. United States, and reiterated in Near v. Minnesota. In theory, the exception permits prior restraints in the interest of national security, but this has been a high bar, and one that is rarely met. Indeed, despite the exception, the Court in New York Times Co. v United States repeated its prior mantras that a system of prior restraints bears a heavy presumption against constitutional validity, and that the government carries a heavy burden of showing justification for the imposition of such a restraint. Yet no Supreme Court case has dealt squarely with the issue of what national security circumstances would permit a restraint on publication.
In his dissent, Justice Harlan (joined by Justice Blackmun and Chief Justice Burger), did articulate a compelling seven-part inquiry he believed the Court should have taken in addressing the release of the Pentagon Papers. Specifically relevant to Ambassador Bolton’s manuscript are the assessments of whether the First Amendment would prevent federal courts from blocking publication of information which would present a serious threat to national security; whether the unauthorized disclosure of any of the materials would seriously impair national security; what weight should be given to “the opinion of high officers in the Executive Branch” with respect to the previous question; and whether the threatened harm to national security justifies an injunction against publication considering the First Amendment policy against prior restraints and the extent to which the materials have apparently already been otherwise disseminated.
As noted above, the Supreme Court has not directly addressed the balance between national security interests and the power of the First Amendment. Moreover, whether the disclosure of the material would seriously impair national security is likely to be a fact-specific inquiry, and is likely to be a classified one. Given the heavy burden of showing justification for a restraint and the suggestion that the disclosure must “seriously impair” national security, it is probably safe to assume this would be a demanding test.
The most presently compelling inquiries with respect to Ambassador Bolton’s manuscript are the other two questions. First, what weight should be given to the opinions of “high officers in the Executive Branch?” Since the prepublication process filters through the White House and the National Security Council, it is likely that a significant amount of deference would be given to the decisions of those entities on whether publication would seriously impair national security. But, with respect to the final question—more specifically, whether the materials have apparently already been otherwise disseminated—some of the revelations of Bolton’s memoir may have already been reported. If that is the case, the restraint on publication becomes almost moot.
Curiously, a fascinating case out of Wisconsin was dismissed on appeal when the material enjoined from publication was published elsewhere. In United States v. Progressive, Inc., the United States argued that national security could be jeopardized by the publication of an article explaining how to build a hydrogen bomb, largely written based on publicly available material. The Western District of Wisconsin sided with the United States because of a provision in the Atomic Energy Act prohibiting communications about the design, manufacture, or use of atomic weapons, and enjoined publication. However, because the material was published anyway, the appeal was dismissed, and it remains unclear what weight a court would place on a national security argument undercut by the concurrent publication of the material.
Ambassador Bolton’s manuscript is likely subject to the prepublication review requirements, which include a mandate that protected information not be disclosed, and compliance with a lifelong nondisclosure agreement to engage in prepublication review and report unauthorized disclosure of protected information. Not surprisingly, the major requirement is that published material be unclassified (and unprotected by statute). Yet the current gridlock on the manuscript appears to be a disagreement over whether information the book contains is actually classified: Bolton claims the book contains no classified information, whereas the White House claims the book contains a lot of classified information. This has raised concerns about whether the White House is censoring the book for other, perhaps political reasons. Since this process occurs behind the scenes, it is difficult to determine the nature of the exact standards, depth of inquiry, and scope of censorship inherent in prepublication review.
In any case, these current events unfold against the backdrop of the uncertain domain of the national security exception to prior restraints on publication. It is not clear what test a court would use to balance these interests. It is not clear how penetrating a review the court would make about classification decisions and claims of harm to national security interests. A lawsuit has recently been filed in district court challenging the constitutionality of the prepublication review process. This may be an area to watch in the coming months, and it will be interesting to see if a court gets a chance to rule on this matter.