Prior restraint
The Pitch Weekly reports a clearly unconstitutional judicial order. Having obtained a document which apparently showed how the Kansas City Kansas Board of Public Utilities may have violated clean air laws, the Pitch and the Kansas City Star each ran stories about the potential fines that the Board could be accountable for, according to its own attorneys. When the articles were published, the BPU sued, and astoundingly, a judge ordered the articles to be spiked. Not only that:
Moorhouse … barred the papers from publishing information contained in the confidential document, copying it or “otherwise referring to it in any public medium.”
Indeed, the articles by the Pitch, Star and Post-Dispatch seem to violate that order (as does the judge’s order – PDF file).
What Judge Moorhouse seems unaware of is that there is an established body of law expressly forbidding this sort of restraint on the free press.
The famous ruling permitting the publication of the classified Pentagon Papers quoted an earlier case in which the Supreme Court ruled that “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”
The ruling in New York Times v. United States is striking, even so many years later. Here is its conclusion:
we are asked to hold that despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of “national security.” The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to “make” a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. To find that the President has “inherent power” to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make “secure.” No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.
The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.
Surely, if national security cannot justify such prior restraint on publication, the inconvenience of a public utility cannot override the 1st amendment.
But that ruling goes further than just freedom of the press. Just as it was in 1971, “security” is a word bandied about as if it could cover all sins. For reasons of security, the 4th Circuit Court of Appeals ruled that the CIA could not be sued for illegally torturing a prisoner. Journalists who photograph insurgents in Iraq, or who report on illegal wiretapping, or on quasilegal surveillance of financial transactions, are routinely pilloried for undermining security, without any thought to the broader sense of security that Justice Black rightly identified. If the press cannot freely report without government interference, we lose the key tools of representative democracy, and with it all the freedoms and security we cherish.
