102 CHAPTER 4|CIVIL LIBERTIES
report on internal planning for the Vietnam War. Ultimately,
the Court decided that the government could not prevent pub-
lication of the Pentagon Papers, but at least fi ve justices sup-
ported the view that under some circumstances the govern-
ment could use prior restraint—though they could not agree on
the standard.^33
Recently, prior restraint has gained new signifi cance in the
war on terrorism. The media, especially the New York Times,
skirmished with the Bush administration over publishing sto-
ries on classifi ed programs, including extraordinary rendition
of suspected terrorists, domestic surveillance, and the Terrorist
Finance Tracking Program, which monitors all large fi nancial
transactions in the international banking system. The sensa-
tional leaking of more than 91,000 reports concerning the war
in Afghanistan by WikiLeaks ratcheted up the stakes. Some
members of Congress labeled the leaks “treason” and called for prosecution. How-
ever, supporters of an unrestrained press point to the Pentagon Papers case as
precedent for the role of journalists in holding the government accountable. They
argue that the conduct of war and programs such as warrantless wiretapping of
U.S. citizens may violate international or domestic law and that the public has the
right to know about them. None of these issues has yet to appear in a suit before the
Supreme Court.
The forms of expression discussed in this section—speech, assembly, and
press—all have strong protection from the First Amendment. The strongest pro-
tections are for content-based expression. However, there are exceptions, such as
speech that directly incites an imminent danger. If the regulation is content neu-
tral and does not favor one viewpoint over another, then it is easier to uphold. But
even then, the government must have a substantial reason for limiting expression.Less Protected Speech and Publications
Some forms of speech do not warrant the same level of protection as political
speech because they do not contribute to public debate or express ideas that have
important social value. Governments may more easily regulate four categories of
such speech: fi ghting words, slander and libel, commercial speech, and obscenity.FIGHTING WORDS
Governments may regulate fi ghting words, “which by their very utterance infl ict
injury or tend to incite an immediate breach of the peace.”^34 Such laws must be
narrowly written; it is not acceptable to ban all foul language, and the prohibited
speech must target a single person rather than a group. Moreover, the question of
whether certain words provoke a backlash depends on the reaction of the targeted
person. Infl ammatory words directed at a pacifi st would not be fi ghting words
because he or she would turn the other cheek, whereas the same words yelled at
a hothead would be fi ghting words because that individual would likely respond
with violence. The Court has further clarifi ed the test, based on “what persons
of common intelligence would understand to be words likely to cause an average
addressee to fi ght.”^35fi ghting words Forms of expres-
sion that “by their very utterance”
can incite violence. These can be
regulated by the government but
are often diffi cult to defi ne.
THE PUBLICATION OF THOUSANDS
of government documents,
including some sensitive reports
and communications, raised new
questions about press freedom
and national security. Here,
WikiLeaks founder Julian Assange
discusses the leaked documents.