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    CASE FACTS ISSUE HELD CONSTI ISSUE PRIOR RESTRAINT Near v. Minnesota Katrine Chapter 285 of the Session Laws of Minnesota for the year 1925 provides for the abatement, as a public nuisance, of a malicious scandalous and defamatory newspaper, magazine or other periodical. Under this article, clause (b), the County Attorney of Hennepin County brought this action to enjoin the publication of what was described as a malicious, scandalous and defamatory newspaper, magazine and periodical known as The Saturday Press. The complaint alleged that the defendants, on September 24, 1027, and on 8 subsequent dates, published and circulated editions of that periodical which were largely devoted to malicious, scandalous and defamatory articles concerning Charles G. Davis, Frank W. Brunskill, the Minneapolis Tribune, the Minneapolis Journal, Melvine C. Passolt, George E. Leach, the Jewish Race, the members of the grand jury of Hennepin County impaneled in November 1927 and then holding office, and other persons, as more fully appeared in exhibits annexed in the complaint. Defendant Near, avered that he was the sole owner and proprietor of the publication in question. He admitted the publication of the articles in the issues described in the complaint but denied that they were malicious, scandalous or defamatory as alleged. He expressly invoked the protection of the due process clause of the 14 th  amendment. W/N a statute authorizing such proceedings in restraint of publication is consistent with the conception of the liberty of the press as historically conceived and guaranteed? NO. The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is punishable with good motives and for justifiable ends. If such a statute, authorizing suppression and injunction on such a basis, is constitutionally valid, it would be equally permissible for the legislature to provide that any time the publisher for any newspaper could be brought before a court, or even an administrative officer (as the constitutional protection may not be regarded as resting to product proof of the truth of his publication, or of what he intended to publish, and of his motives, or stand enjoined. The exceptional nature  of its (free speech) limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally, although not exclusively, immunity from previous restraints or censorship   . GENERAL RULE:   Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for the enforcement of such restraint. EXCEPTION:   When a nation is at war (there are other exceptions too but not really mentioned in this case) The statute must be tested by its operation and effect: 1 st  – it is apparent under the statute, the publication is to be regarded as defamatory   if it injures reputation   , and that it is scandalous  if it circulates charges of reprehensible conduct  , whether criminal or otherwise, and the publication is thus deemed to invite public reprobation and to constitute a public scandal …  2 nd  – the statute is directed not simply at the circulation of scandalous and defamatory statements with regard to private citizens, but at the continued publication  by newspapers and periodicals or charges against public officers of corruption, malfeasance in office, or serious neglect of duty. Such charges by their very nature create a public scandal. 3 rd  – the object of the statute is not punishment, in the ordinary sense, but suppression of the offending newspaper or  periodical  ; this suppression is accomplished by enjoining publication and that restraint is the object and effect of the statute 4 th    – the statute not only operates to suppress the offending newspaper or periodical but to  put the publisher under an effective censorship the law give no definition except that covered by the words “scandalous and defamatory” and publications charging official misconduct are of that class essence of censorship:   public authorities may bring the owners or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter – in particular that the matter consists of charges against public officers of official derelication – and unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and  further publication is made punishable as a contempt New York Times Co. v. United States Nat The petition for certiorari was granted in cases where the U.s. seeked to enjoin the NY Times and Washington Post from publishing the contents of a classified study entitled “ History of U.S. Decision-Making Process of Viet Nam Policy.” W/N the enforcement of prior restraint by the government was valid. It was not valid! Any system of prior restraint bears a heavy presumption against its constitutionality. The government must carry a heavy burden of showing justification for the validity of the restraint. The court agrees with the Southern District Court of New York in the Times case   and District Court for the District of Columbia in the Post case  held that the Government did not meet that burden. Separate Opinions: Justice Black (Justice Douglas joins), concurring Both the history and language of the First Amendment support the view that the press must be left free to publish the news, whatever the source, without censorship, injunctions, or prior restraints. The First Amendment gives the press the protection it must have to fulfill its essential role in our democracy. It was protected so it can bare the secrets of the government and inform the people. In Justice Black’s view these reporters should be commended. Justice Brennan, concurring The error from the onset was the issuance of any injunctive relief whatsoever. The First Amendment does not tolerate any prior judicial restraint of the press predicated upon surmise or conjecture that untoward consequences may result. There is only an extremely narrow class of cases where the first amendment’s ban on prior restraint may be overridden, in times of war (Schenck v. U.S.). Unless the government has clearly proven its cases, no injunction may be issued. Justice Stewart (Justice White joins), concurring A free press ensures that there is an informed public that can protect the values of democracy but it is well-known that the sucess of an effective national defense requires both confidentiality and secrecy. The only way to balance both is to have a truly effective internal security system that would be the maximum possible disclosure, recognizing the secrecy can be best preserved only when credibility is truly maintained. I am convinced that the Executive department is correct with respect to some of the documents but it cannot say that the disclosure of any of them will result to direct, immediate and irreparable damage to our Nation or its people.  Justice White (Justice Stewart joins), concurring I am confident that the disclosure of these documents will result to a substantial damages to public interest but the U.S. government was not able to justify the heavy burden to warrant the injunction against the publication in these cases. Even though prior restraints require an unusually heavy justification failure by the government to do so does not measure its constitutional entitlement to a conviction for criminal publication. Justice Harlan (Chief Justice and Justice Blackmun joins), dissenting This case was hastily decided. Due regard for the extraordinary importan and difficult questions involved in these litigations should have led the Court to shun such a precipitate timetable. In order to decided these cases properly the following questions should have been considered: 1. W/N the attorney general is authorized to bring these suits in the name of the U.S. 2. W/N first amendement permits the federal courts to enjoin publication of stories which would present a serious threat to national security 3. W/N the threat to publish hihgly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that regardless of the contents of the documents harm enough results simply from the demonstration of such breach of secrecy 4. W/N unauthorised disclosure of any of these particular documents would seriously impair national security 5. What weight should be given to the opinion of high officers in the Executive branch for 3 and 4 6. W/N newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents were purloined from the government’s possession and that the newspapers received them with  knowledge that they have been feloniously acquired. 7. W/N threatened harm to the national security justifies the issuance of an injunction in light of- a. First amendment policy against prior restraint b. Doctrine against enjoining conduct in violation of criminal statutes c. Extent to which the materials at issue have apparently already been disseminated The time that has been given to the lower courts to evaluate the case has been inadequate. It must be observed that in the Times case the government was not given enough time to adequately present its case to the District court. In the post case the government had more time to prepare; this was the reason why the CA of the District of Columbia refused on rehearing to conform its judgement to that of the Second Circuit. It is plain that the scope of judicial function in passing upon the activities of the executive branch on foreign affairs is very narrowly restricted. The power to evaluate the “pernicious influence” of premature disclosure is not lodged in the Executive alone. The judiciary may insist that the subject matter would irreparably impair the national security be made by the head of the Executive Department concerned - Sec. of State or Sec. of Defense - after actual personal consideration by that officer. But (in his  judgment) the judiciary may not properly go beyond these two inquiries and redetermine for itself the probable impact of disclosure on national security. There is no indication that the opinions of either the District Court of the CA in the Post litigation that the conclusions of the Executive were given the deference owing to an administrative agency, much less that owing to a co-equal branch of the Government. Accordingly, I would vacate the judgement of the CA for the district of columbia circuit on this ground and remand the case for further proceeding in the District court. Before the commence of further proceedings, due opportunity should be given to the government to procure from the sec. Of state or sec. of defense their views on the issue
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