The Doctrine of Prior Restraint Since the Pentagon Papers

Authors

James L. Oakes, United States Court of Appeals for the Second CircuitFollow

Abstract

The purpose of this speech is to examine how the doctrine against prior restraint has evolved since the Pentagon Papers case. I intend to demonstrate that while traditional antipathy to prior restraint has for the most part remained strong, several recent cases foreshadow a dangerous expansion of well-established exceptions to the doctrine. To understand fully the significance of these recent cases, I will begin this lecture with a general discussion of the historical origins of the doctrine against prior restraint. I will then proceed with a critical overview of the landmark Pentagon Papers case, more formally called New York Times Co. v. United States. The remainder of the discussion will focus on five Supreme Court cases decided since the Pentagon Papers decision - Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, Southeastern Promotions, Ltd. v. Conrad, Young v. American Mini Theatres," Nebraska Press Association v. Stuart, and Snepp v. United States - as well as three recent lower court decisions involving national security considerations: United States v. Marchetti, Alfred A. Knopf, Inc. v. Colby, and United States v. The Progressive.

Recommended Citation

James L. Oakes, The Doctrine of Prior Restraint Since the Pentagon Papers, 15 U. Mich. J. L. Reform 497 (1982).
Available at: https://repository.law.umich.edu/mjlr/vol15/iss3/2