II

In the sixty years since Near , the prior-restraint doctrine has acquired less procedural and more substantive baggage. Furthermore, although injunctions have been merged into licensing, there are differences. For a real licensing system, complete with a requirement of preclearance for all publications, one need go no farther than the Central Intelligence Agency (CIA). All employees are required before beginning work to sign a secrecy agreement promising not to publish "any information or material relating to the Agency, its activities or intelligence activities generally" without prior approval from the CIA. Prior approval means just that: giving the materials to a CIA officer who is authorized to make whatever deletions he wishes.^[14]

Snepp v. United States held that even though the CIA review is a classic prior restraint—an administrative official reading what an individual wishes to publish and deciding what must go—it is constitutional and may be enforced with an injunction (as well as other remedies). Although the ex-agent is free to publish without submission any general criticisms of the intelligence community, as well as materials already in the public domain, any specifics run afoul of the preclearance requirement.^[15]

How the CIA review operates also demonstrates that true prior restraints have the same characteristics over time. The agency has admitted in congressional testimony that it exercises its powers of censorship more heavily when the material to be censored is critical rather than supportive of the agency. Victor Marchetti, an exagent, knows this too well. When he submitted for review (under court order) his manuscript, The CIA and the Cult of Intelligence , the agency demanded that 339 deletions (some 15 to 20 percent of the entire manuscript) be made prior to publication. The history of

prior restraints is a history of administrative overreaction, and the CIA lived up to its role. With commendable zeal the agency attempted to block a statement showing that then Chilean President Salvador Allende had been a major candidate in the election he won: "The Chilean election was scheduled for the following September, and Allende, a declared Marxist, was one of the principal candidates."^[16]

After a meeting with Marchetti and his lawyer, the agency dropped 114 objections. Later another 29 went, and still later another 57. After that, with 168 remaining, the agency would not budge. Marchetti then challenged these in court (his appeal from the licensor's decision), and the trial judge held that all but 26 items could be published. The judge stated that there were no explanations of why the 142 other items had been previously classified; and he disbelieved the testimony of four deputy directors of intelligence that the classification had been done prior to reading Marchetti's manuscript. The Fourth Circuit Court of Appeals, which naturally had seen none of the testimony at trial, then told the trial judge that there was "a presumption of regularity" so high it left no room for speculation or conclusions contrary to what the agency said. The 168 items never saw the light of day; the published version of the book contains blank spaces corresponding to the deleted items, with boldface capitals announcing "DELETED."^[17]

The authorization of full-scale administrative prior restraints in some circumstances is persuasive evidence that judicial prior restraints, if sufficiently precise, will be held valid in others. The national security cases, whether involving ex-CIA agents or the Pentagon Papers themselves, present the easiest, most obvious application for prior restraints. But Hughes's famous passage suggested that the limits on the Blackstonian doctrine went beyond national security. In full it reads: "No one would question but that a government [during actual war] might prevent actual obstruction to its recruiting service or the publication of the sailing dates of troops and transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications."^[18]

An unfortunate incoherence to Hughes's statements is not limited to equating the probable immediate death of troops in war to, "on similar grounds," the effects of the distribution of obscenity.

The passage, complete with an earlier citation to Schenck , seems to be equating the ability of government to punish subsequently—for obstruction (Schenck ), for publishing the sailing dates of troop ships (which is quite probably treason), for publishing obscenity—with the ability to issue a prior restraint. While this may make terrific sense, it is the antithesis of the Blackstonian prior-restraint doctrine, which prohibits injunctions to suppress speech that will later be subjected to punishment. Near's exceptions allow prior restraints even though, and maybe because, the availability of subsequent punishment is clear. Yet Hughes understood the Blackstonian point, because the premise of his opinion was that Near's Saturday Press was legally responsible for its unprotected libelous speech, but nevertheless the Saturday Press could not be enjoined. That some unprotected speech enjoys Blackstonian freedom from prior restraints while other unprotected speech does not demands some criterion for deciding where to draw the line. Hughes provided none; subsequent cases have followed suit. Apart from obstruction of the armed forces, which has been happily ignored (probably because it is impossible to conceive how mere writing could cause such obstruction), Near's categories have been treated as givens, but not as defining the only possible exceptions to the Blackstonian rule.

Laurence Tribe has suggested that the cases conform to the rule that the presumption against prior restraints can be overcome "where the expected loss from impeding speech in advance is minimized by the unusual clarity of the prepublication showing of harm." It might be nice to have such a sensible rule, but in at least one case a newspaper was enjoined without any clear prepublication showing of harm: the Pittsburgh Press simply ran afoul of a determination by the Pittsburgh Commission on Human Relations that gender-specific "Help Wanted" advertisements violated city law. That determination was then enforced by issuance of a ceaseand-desist order, which was affirmed by the Pennsylvania courts. The Pittsburgh Press was thus enjoined from printing the offending advertisements. At the time the case was decided, the Supreme Court's operative rule was that all "commercial speech"—such as advertisements—was deemed beneath constitutional protection. Since the speech was not constitutionally protected, the case presented a prior-restraint problem. When the newspaper argued that

prior restraints chill, the Court responded that the expression was unprotected anyway, so the chill did not matter. Tribe's synthesis can explain some cases, but not this one; which suggests that his synthesis does not describe what the Court is doing.^[19]

Although the Court continues with its rubric that prior restraints bear a heavy burden of persuasion, some prior restraints make it. National security can sometimes persuade, because when the information is confidential and important, lives may be lost by publication. In other cases the heavy burden appears to be carried by the conclusion that the writing is beneath concern. Later in the chapter, I will turn to whether injunctions can protect national security and confidentiality; but for now what matters is that the Court has walked a considerable distance from strict adherence to a Blackstonian view. Kalven observed, with reason, that "it is not altogether clear just what a prior restraint is or just what is the matter with it." Excepting the special problems of CIA contracts, where the Court is willing to see would-be authors subjected to full administrative review, the Court may have been turning the Blackstonian rule, which forbids restraints prior to publication, into a modern rule that forbids restraints prior to adjudication. By so doing, much of the procedural detriment of prior restraints vanishes.^[20]

As the Court has modernized the rule, it has also severed many of the procedural aspects of prior restraints from Near's era that assisted in reinforcing the stigma of prior restraints. Recall that the assumption from Near was that any future publications by Near would be fully scrutinized for transgressions of the injunction, and that if there was any transgression, Near would then be hauled before the issuing judge, who, without jury, would proceed to find the defendant in contempt of court. Although there is ample reason to question whether a jury can be placed in the mood to protect unpopular speech, modern rules require that if a judge wishes to impose a sentence of six months or more for violation of a court order, a jury must be made available at the defendant's option, and the prosecution is required to prove violation beyond a reasonable doubt. At a minimum, enpaneling a jury and trying the case to it makes the prosecution more expensive.^[21]

The real difference between enforcing an injunction and enforcing a criminal statute is the "collateral bar" rule, which forbids

challenging the legality of an injunction by disobeying its terms. Resting on the need to "respect the civilizing hand of the law," the rule forbids such a challenge even on the ground that the injunction violates the First Amendment. An injunction can be challenged only by appealing to a higher court. Thus the only time that Martin Luther King, Jr., was found by the Supreme Court to have violated the law was when he participated in the Good Friday march in Birmingham in violation of a state court's injunction forbidding the march. On the basis of a Vague—and clearly unconstitutional—city ordinance on parade permits, Birmingham officials obtained an ex parte temporary injunction that forbade King to march without first complying with the city ordinance. All the judge required King to do was obtain the permission of the notorious Bull Connor! Instead of either making the obviously futile gesture of going to Connor or taking the time to appeal the injunction, which would have required postponing the march and thus eliminating the symbolism of Good Friday and the Christian Passion, King marched, and was later held to be in contempt of court. Because of the collateral bar rule, King was not allowed to put in issue the injunction's unconstitutionality, and the Supreme Court upheld his conviction for contempt, even though it would hold the city ordinance patently unconstitutional just two years later.^[22]

The collateral bar rule is an important procedural aspect of injunctions. But ex parte injunctions in the First Amendment area have subsequently been banned; and the Court has suggested that a "really" unconstitutional injunction does not merit the respect of the collateral bar rule (although it is hard to think of a more unconstitutional one than the Birmingham one). These rulings may provide wedges for doing away with the collateral bar rule. If it is abandoned, the procedural aspects of the law of prior injunctive restraint will have been tamed to conform to the law of subsequent punishments.^[23]