Freedom of the Press #9 – “Prior Restraint”

Freedom of the Press #9
“Prior Restraint”

Gary Hunt

Outpost of Freedom
February 22, 2017  – George Washington’s Birthday

In the previous article, though suggested in the government’s Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause, of February 7, 2017, it really didn’t get to the heart of “Prior Restraint”.  So, let’s get to the heart of that matter.

Let’s start with the law that explains the potential severity of publication of certain information, in a case similar to what the government and Judge Anna J. Brown are attempting to construct against me.  Section 793 (e) of the Espionage Act was cited as the authority by which the government attempted to impose “Prior Restraint” on the New York Times for publishing what was known as the “Pentagon Papers”.  The Papers had been leaked to the press by a government employee who had signed a non-disclosure agreement (not just based upon a Protective Order), which precluded that employee from divulging any information protected by Section, 793 (e):

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.
… Shall be fined under this title or imprisoned not more than ten years, or both.

There, in a rather large nutshell, is the extent of the government’s authority to impose upon a party limitations in communicating certain information, and/or retaining and/or not delivering it to the government.  However, as we shall see, even that did not have the effect implied in the wording of the Act.

To understand the legal limitations of government’s authority, we need to look at New York Times Co. v. United States 403 U.S. 713 (1971).  The case taken up by the Supreme Court included a similar action brought against the Washington Post.  The cases were joined and the Supreme Court granted certiorari, in which the United States sought to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.”  Prior to the Supreme Court decision, the District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia, and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden of proof.

The Second Circuit Court of Appeals overruled the District Court in the New York Times case, putting a stay on publication on June 25, 1971.  The Supreme Court then ordered that the stay be vacated.

Now, before we go on, this is not about the source that provided the information to the newspapers.  It is solely about the right of the press to publish what it had obtained, regardless of the source.  With that in mind, we must take the reader back to a statement in the Supplement Memorandum (linked above), which states:

The government is not seeking the testimony of third-party Gary Hunt to identify the source or sources of the protected discovery information. The government intends to investigate that on its own. The government is merely seeking the removal of protected discovery material that this Court has ordered protected. Nothing about Gary Hunt’s blogging[sic] activities is implicated by the Motion to Show Cause. Third-party Gary Hunt is continuing to disseminate protected discovery material in the face of three Court Orders. No privilege is implicated.

This demonstrates the similarity of the parties in New York Times Co. and the current situation.  In neither case is the source of the information sought, though there can be little doubt that in both cases, the government was investigating the source.


In the very first paragraph of Justice Black’s Decision, Justice Douglas concurring, we find:

I adhere to the view that the Government’s case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this CourtI believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.

It would have been impossible for the Times and the Post to remove newspapers already sold.  Though in my case, the Orders (yes, there have been three of them) have directed me to remove the prohibited material, not only from my website, but every website where they are posted.

In the Times/Post situation, the injunction was described as “a flagrant, indefensible, and continuing violation of the First Amendment.”  In my case, the Orders have attempted to restrain my continued publication of prohibited material.  The Supreme Court determined that this was prior restraint of the press.  Of course, in Oregon, they do not have wise and just judges and shysters, so the government and judge have attempted to impose prior restraint on me.

Continuing through the Times decision, we find an interesting historical note:

Our Government was launched in 1789 with the adoption of the Constitution.  The Bill of Rights, including the First Amendment, followed in 1791.  Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

Now, that is quite profound.  The intention of the First Amendment is to protect the press and the people from the government, which prefers to control what can, and what cannot, be written.  The publication of information regarding misdeeds of government is the rightful and proper role of the press.

This is expounded upon, in Black’s decision, with,

The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly.  Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later.  I can imagine no greater perversion of history.  Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: “Congress shall make no law . . . abridging the freedom . . . of the press . . . .”  Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracyThe press was to serve the governed, not the governors.  The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government.  The press was protected so that it could bare the secrets of government and inform the peopleOnly a free and unrestrained press can effectively expose deception in government.  And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.  In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly.  In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

And, that is what this is all about.  Though the current matter is about prohibited material, basically, about spies amongst our own people, it is equally, if not more important, as the use of informants against the people is nothing less than the tool of tyrants.

Justice Black concludes his decision by citing from De Jonge v. Oregon, 299 U.S. 353, 365 (1937):

“The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.  Therein lies the security of the Republic, the very foundation of constitutional government.”

This paragraph warrants special consideration, as it gets to the heart of not only the Freedom of the Press, but the Freedom of Speech and Assembly, as both were expressed in January 2016, at the Malheur National Wildlife Refuge.

In that incident, the peaceful intention of the occupiers, in seeking Redress of Grievances, was repeatedly stated and demonstrated.  The weapons used by the occupiers were simply words (speech).  It was government that chose not to be peaceful when it brought hundreds of militarily outfitted, armed, “law enforcement officers” to bear.  The final un-peaceful act, at the hands of agents of government was the firing of non-lethal and lethal bullets at some of the occupiers, resulting in the murder of LaVoy Finicum.  The endeavors of the occupiers is what was addressed in De Jonge, and, ironically, from the same state, Oregon.

It is so clearly stated, the those rights are necessary for “the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion“.  And, it was for this very reason, “that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means“, which began by that protected process and ended with a government unwilling to listen to the people regarding the abuse of federal land agencies.

Next, we will look at Justice Douglas, Justice Black concurring, in which Douglas added his views:

It should be noted at the outset that the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”  That leaves, in my view, no room for governmental restraint on the press.

There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use.  Title 18 U.S.C. 793 (e) provides that “[w]hoever having unauthorized possession of, access to, or control over any document, writing . . . or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined[403 U.S. 713, 721]   not more than $10,000 or imprisoned not more than ten years, or both.”

The Government suggests that the word “communicates” is broad enough to encompass publication.

There are eight sections in the chapter on espionage and censorship, 792-799.  In three of those eight “publish” is specifically mentioned: 794 (b) applies to “Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates . . . [the disposition of armed forces].”

Section 797 applies to whoever “reproduces, publishes, sells, or gives away” photographs of defense installations.

Section 798 relating to cryptography applies to whoever: “communicates, furnishes, transmits, or otherwise makes available . . . or publishes” the described material.

The use of the word “whoever” does not include all.  He then explains that “publishes” is specifically applied to only certain provisions.  And, in this instance, the concern is of national security.  It is not a mere protective order that the government wants to use to protect their contract employees.

Douglas continues, citing Near v. Minnesota, 283 U.S. 697 (1931), which refutes the expansive doctrine, the intent to broaden the powers of government when he states:

The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information.  It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be.

There, you have it.  The government, and the Judge, want to continue “the widespread practice of governmental suppression of embarrassing information“.  They also want “to punish the dissemination of material that is embarrassing to the powers-that-be.”  Why else would they persist in trying to suppress my exposure of informants, particularly when once the informant is identified, the informants privilege ceases to exist.

Justice Marshall concurred with Justices Black and Douglas, and he made a quite prescient observation:

It would… be utterly inconsistent with the concept of separation of powers for this Court to use its power of contempt to prevent behavior that Congress has specifically declined to prohibit.

That very aspect, the “separation of powers“, was the subject of a previous article, “Burns Chronicles No 57 Collusion or Conspiracy?

After all is said and done, it is OUR government.  It is not for the government to act omnipotent.  It is for the government to serve the people, and to remain within the limitations imposed upon it by the Constitution.


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