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notes to chapter twelve

How the Free Speech Curriculum Ignores Electronic Media and Distorts Free Speech Doctrine,
Missouri Law Review 70 (2005): 59.
6. See David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers
Case (Berkeley: University of California Press, 1996), 101, 139.
7. Ibid., 100.
8. See ibid., 2.
9. See ibid., 2, 42.
10. Ibid., 4763.
11. Sanford J. Ungar, The Papers and the Papers: An Account of the Legal and Political Battle
over the Pentagon Papers (New York: Columbia University Press, 1989), 120; cited in Rudenstine,
The Day the Presses Stopped, 92.
12. See Rudenstine, The Day the Presses Stopped, 105.
13. Near v. Minnesota, 283 US 697, 716 (1931); cf. United States v. Noriega, 917 F2d 1543
(11th Cir 1990) (affirming the prior restraint of audiotapes of the defendants conversations
with his US 976 (1990) (Justice Thurgood Marshall dissenting).
14. See, for example, Organization for a Better Austin v. Keefe, 402 US 415, 41819 (1971);
Bantam Books, Inc., v. Sullivan, 372 US 58, 70 (1963); Near v. Minnesota, 283 US 697, 71314.
15. The standard arguments are summarized well by Kathleen M. Sullivan and Gerald
Gunther: (1) It is easier for an official to restrict speech by a simple stroke of the pen than by
the more cumbersome apparatus of subsequent punishment. . . . (2) Censors will have a professional bias in favor of censorship, and thus will systematically overvalue government interests
and undervalue speech. (3) Censors operate more informally than judges and so afford less
procedural safeguards to speakers. (4) Speech suppressed in advance never reaches the marketplace of ideas at all. (5) When speech is suppressed in advance, there is no empirical evidence
from which to measure its alleged likely harms; First Amendment Law (New York: Foundation
Press, 1999), 33940, citing Thomas Emerson, The Doctrine of Prior Restraint, Law and
Contemporary Problems 20 (1955): 648. Frederick Schauer offers a nice balance to this commonplace theory; see Fear, Risk, and the First Amendment: Unraveling the Chilling Effect,
Boston University Law Review 58 (1978): 685, 72530.
16. In a particularly telling exchange, Justice Stewart asked Professor Bickel about a case
in which disclosure would result in the sentencing to death of a hundred young men whose
only offense had been that they were nineteen years old and had low draft numbers. What
should we do? Bickel replied that his inclinations of humanity overcome the somewhat more
abstract devotion to the First Amendment in a case of that sort; May It Please the Court: The
Most Significant Oral Arguments Made Before the Supreme Court Since 1955, edited by Peter
Irons and Stephanie Guitton (New York: Free Press, 1993), 173.
17. In a concurring opinion, Justice Potter Stewart wrote that the prior restraint at issue
was invalid since he could not say that disclosure of [the Pentagon Papers] will surely result in
direct, immediate, and irreparable damage to our Nation or its people; New York Times Company v. United States, 403 US 713, 730 (1971) (per curiam). This standard has frequently been
thought to reflect the position of the Court; see Laurence H. Tribe, American Constitutional Law
(Mineola, N.Y.: Foundation Press, 1978), 731; Morton H. Halperin and Daniel N. Hoffman, Top
Secret: National Security and the Right to Know (Washington, D.C.: New Republic Books, 1977),
147 n.22; see also Alderman v. Philadelphia Housing Authority, 496 F2d 164, 170 (3d Cir 1974),
cert. denied, 419 US 844 (1974) (prior restraint must be supported by compelling proof that
it is essential to a vital government interest).
18. See United States v. Progressive, Inc., 467 FSupp 990 (WDWis 1979); see also L. A.
Powe Jr., The H-Bomb Injunction, University of Colorado Law Review 61 (1990): 55, 56.
19. The Milwaukee Sentinel and Fusion magazine had published articles dealing with similar concepts; see A. DeVolpi et al., Born Secret: The H-Bomb, The Progressive Case, and National