1. Prior Restraint and National Security
Near v. MN leaves the door open a crack
The context and conduct of the war in Vietnam
Daniel Ellsberg--govt. employee/patriot?
Lower courts
District Ct-- temp. injunction against NYT publishing, permanent refused
Circuit Ct--publish, but edit out national security
Washington Post--similar rulings

2. New York Times v. US (1971) First installment published June 12, 1971
47 volume 1968 “History of US Decision-Making Process on Vietnam Policy”
S.Ct decision lifting PR, 6 separate opinions with no more than on any one
“…a heavy presumption against its constitutional validity” per curiam decision
Black and Douglas--PR never acceptable, freedom = national security

3. New York Times v. US
Brennan--”publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport at sea…”
White and Stewart--govt. erred by only going for PR, can still punish for the theft
Dissenting…CJ Burger--we don’t know all the facts, possession is unauthorized, go back to Circuit for complete NS review
Dissenting…Harlan and Blackmun--slow down! Give deference to the President on foreign policy

4. Subsequent PR Cases
US v. Marchetti--PR OK’d for government employee disclosure of secrets
The case of The Progressive
Snepp v. US--Prepublication review and PR OK for intelligence agents