Freedom of speech, assembly, and the press 125Freedom of the Press The task of balancing interests is central to many First
Amendment cases involving freedom of the press. Which is more important, the First
Amendment freedom of the press to disclose details about current events or the Sixth
Amendment right to a fair trial, which may require keeping important information out
of the public eye? When do national security concerns prevail over journalists’ right
to keep citizens informed? The general issue here is prior restraint, the government’s
right to prevent the media from publishing something.
Prior restraint has never been clearly defined by the Court, but several landmark
cases have set a very high bar for applying it. In 1971, the Pentagon Papers case involved
disclosure of parts of the top-secret report on internal planning for the Vietnam War.
This incredibly divided case had nine separate written opinions! In a 6–3 decision the
Court said that the government could not prevent the publication of the Pentagon
Papers, but at least five justices supported the view that, under some circumstances,
the government could use prior restraint—although they could not agree on the
standard.^82 For some of the justices, a crucial consideration was the Pentagon Papers’
revelation that the U.S. government had lied about its involvement in and the progress
of the Vietnam War. Justice Hugo Black noted the importance of this point, saying,
“Only a free and unrestrained press can effectively expose deception in government.”^83
The debate over restraining the media heated up in 2010, when WikiLeaks released
a classified video of an air strike in Baghdad showing U.S. pilots mistakenly firing on
two Reuters reporters and more than 91,000 classified battlefield incident reports
from Iraq and Afghanistan and U.S. State Department cables. All of these documents
had been leaked by U.S. Army Private First Class Bradley (now Chelsea) Manning.
This sensational leaking ratcheted up the stakes, and some members of Congress
called the leaks treason and urged for prosecution (Manning was tried and convicted
in a military court for violations of the Espionage Act and for copying and releasing
classified information; he served seven years in prison before President Obama
pardoned him, commuting the rest of Manning’s 35-year sentence). President Trump
has frequently expressed frustration about leaks to the media, and in August 2017
Attorney General Jeff Sessions declared that the “culture of leaking must stop” and
threatened that the Department of Justice would subpoena media outlets that publish
leaked information.^84prior restraint
A limit on freedom of the press that
allows the government to prohibit
the media from publishing certain
materials.Bradley (now Chelsea) Manning
(center), whose job in the U.S.
military gave him access to classified
information, downloaded thousands
of classified videos, diplomatic cables,
reports, and other information and
gave them to the website WikiLeaks.Full_05_APT_64431_ch04_102-147.indd 125 16/11/18 1:29 PM