Content Regulation / Censorship, National Security, Commercial Speech
The Case of the Kyaw Printing House
Closed Expands Expression
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In a landmark decision, the U.S. Supreme Court held that in certain cases the government could not prevent newspapers from publishing certain classified content. The U.S. government sought to prevent the New York Times and the Washington Post from publishing articles based on the Pentagon Papers, a leaked classified report on the U.S. role in Indochina, under Section 793 of the Espionage Act. The Court established that the government must prove that publication would result in “grave and irreparable” danger to justify prior restraint and had failed to do so in this case; it did not, however, rule that the Section or Act cited by the government was unconstitutional.
In 1971, the New York Times and the Washington Post attempted to publish the contents of a classified study, entitled “History of U.S. Decision-Making Process on Viet Nam Policy.” In order to prevent the newspapers from publishing, the U.S. Attorney General filed a case requesting injunctive relief, arguing that disclosure of the classified materials would endanger national security. Furthermore, the U.S. Attorney General argued that national security triumphed over the U.S. Constitution’s First Amendment protections on both freedom of speech and freedom of the press.
The Supreme Court of the United States held that the U.S. government carries a heavy burden to justify the need to infringe upon the rights protected under the First Amendment, a burden it failed to meet in this case. Therefore, the New York Times and the Washington Post were protected by the First Amendment and were allowed to publish the contents of the classified study.
Most notably, Justice Black in his concurrence argued that the First Amendment protection of the freedom of the press is an essential function of U.S. democracy. Black stated that the purpose of the freedom of the press is to serve the people and to preserve the right to censure the government. The First Amendment abolished the government’s ability to censor the press in order to ensure that the people have access to information that is free from government bias and to allow people to hold open public debates. The rights protected in First Amendment triumph over the government’s interest in security or civil obedience.
In his concurrence, Justice Douglas noted that secrecy in government is undemocratic, as is the government’s attempt to kept relevant information out of the public debate surrounding the Vietnam War. Justice Brennan differed in his concurrence, stating while the First Amendment acts as an absolute bar in the present case, this may not be the case for a temporary prevention of publishing information in the interest of national security, or if one of the exceptions established in Near v. Minnesota applies. Justice Stewart asserted in his concurrence that if the disclosure would cause a direct, immediate, and irreparable damage to the U.S. or to U.S. citizens, then the outcome may be different in the future. Justice White stated in his concurrence that the fact that information is sensitive to national security does not prevent the press from exercising its First Amendment rights.
Finally, Chief Justice Burger in his dissent argued that the First Amendment is not absolute in all cases: there are exceptions to the First Amendment, and these exceptions should be debated in the court system.
 In Near v. Minnesota, the Court outlined three exceptions to the First Amendment protection of freedom of the press: if the publication is obscene, would jeopardize national security in wartime, or threatens to incite violence and/or the overthrow the government. Here, the Court found that none of these exceptions applied.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court of the United States expanded freedom of expression in this case by placing a heavy burden on the U.S. government to justify its desired censorship of the press.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Decisions of the Supreme Court of the United States establish binding precedent for all lower courts.
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