As noted in the Introduction, one of the original purposes of the First Amendment was to prevent the government from imposing the kind of prior restraints on speech that existed under the law of England at the time. Near v. Minnesota was one of the Supreme Court’s earliest in-depth examinations of a prior restraint on speech.

51 S. Ct. 625.

Supreme Court of the United States.

NEAR

v.

STATE OF MINNESOTA ex rel. OLSON, Co. Atty.

No. 91.

Argued Jan. 30, 1930.

Decided June 1, 1931.

Chief Justice HUGHES delivered the opinion of the Court.

Chapter 285 of the Session Laws of Minnesota for the year 1925 provides for the abatement, as a public nuisance, of a ‘malicious, scandalous and defamatory newspaper, magazine or other periodical.’ Under this statute, the county attorney of Hennepin county brought this action to enjoin the publication of what was described as a ‘malicious, scandalous and defamatory newspaper, magazine or other periodical,’ known as The Saturday Press, published by the defendants in the city of Minneapolis. The complaint alleged that the defendants, on September 24, 1927, and on eight subsequent dates in October and November, 1927, published and circulated editions of that periodical which were ‘largely devoted to malicious, scandalous and defamatory articles’ concerning Charles G. Davis, Frank W. Brunskill, the Minneapolis Tribune, the Minneapolis Journal, Melvin C. Passolt, George E. Leach, the Jewish Race, the members of the grand jury of Hennepin county impaneled in November, 1927, and other persons. [Charles G. Davis was a special law enforcement officer employed by a civic organization, George E. Leach was mayor of Minneapolis, Frank W. Brunskill was its chief of police, and Floyd B. Olson was county attorney.]

[T]he articles charged, in substance, that a gangster was in control of gambling, bootlegging, and racketeering in Minneapolis, and that law enforcing officers and agencies were not energetically performing their duties. Most of the charges were directed against the chief of police; he was charged with gross neglect of duty, illicit relations with gangsters, and with participation in graft. The county attorney was charged with knowing the existing conditions and with failure to take adequate measures to remedy them. The mayor was accused of inefficiency and dereliction. One member of the grand jury was stated to be in sympathy with the gangsters. There is no question but that the articles made serious accusations against the public officers named and others in connection with the prevalence of crimes and the failure to expose and punish them.

At the beginning of the action on November 22, 1927, an order was made directing the defendants to show cause why a temporary injunction should not issue and meanwhile forbidding the defendants to publish, circulate, or have in their possession any editions of the periodical from September 24, 1927, to November 19, 1927, inclusive, and from publishing, circulating or having in their possession, ‘any future editions of said The Saturday Press’ and ‘any publication, known by any other name whatsoever containing malicious, scandalous and defamatory matter of the kind alleged in plaintiff’s complaint herein or otherwise.’

The defendants challenged the constitutionality of the statute. The district court certified the question of constitutionality to the Supreme Court of the state. The Supreme Court sustained the statute.

Thereupon the defendant Near, the present appellant, answered the complaint. He admitted the publication of the articles in the issues described in the complaint, but denied that they were malicious, scandalous, or defamatory as alleged. He expressly invoked the protection of the due process clause of the Fourteenth Amendment. The case then came on for trial. The plaintiff offered in evidence the verified complaint, together with the issues of the publication in question, which were attached to the complaint as exhibits. The defendant objected to the introduction of the evidence, invoking the constitutional provisions to which his answer referred. The objection was overruled, no further evidence was presented, and the plaintiff rested. The defendant then rested, without offering evidence. The plaintiff moved that the court direct the issue of a permanent injunction, and this was done.

The district court made findings of fact, which followed the allegations of the complaint and found in general terms that the editions in question were ‘chiefly devoted to malicious, scandalous and defamatory articles’ concerning the individuals named. The court further found that the defendants through these publications ‘did engage in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper,’ and that ‘the said publication’ ‘under said name of The Saturday Press, or any other name, constitutes a public nuisance under the laws of the State.’ Judgment was thereupon entered adjudging that ‘the newspaper, magazine and periodical known as The Saturday Press,’ as a public nuisance, ‘be and is hereby abated.’ The judgment perpetually enjoined the defendants ‘from producing, editing, publishing, circulating, having in their possession, selling or giving away any publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law,’ and also ‘from further conducting said nuisance under the name and title of said The Saturday Press or any other name or title.’

The defendant Near appealed from this judgment to the Supreme Court of the State, again asserting his right under the Federal Constitution, and the judgment was affirmed upon the authority of the former decision. With respect to the contention that the judgment went too far, and prevented the defendants from publishing any kind of a newspaper, the court added that it saw no reason ‘for defendants to construe the judgment as restraining them from operating a newspaper in harmony with the public welfare, to which all must yield,’ and that the allegations of the complaint had been found to be true. From the judgment as thus affirmed, the defendant Near appeals to this Court.

This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not unique, and raises questions of grave importance transcending the local interests involved in the particular action. It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. In maintaining this guaranty, the authority of the state to enact laws to promote the health, safety, morals, and general welfare of its people is necessarily admitted. The limits of this sovereign power must always be determined with appropriate regard to the particular subject of its exercise. Liberty of speech and of the press is not an absolute right, and the state may punish its abuse. Whitney v. California. Liberty, in each of its phases, has its history and connotation, and, in the present instance, the inquiry is as to the historic conception of the liberty of the press and whether the statute under review violates the essential attributes of that liberty.

If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter-in particular that the matter consists of charges against public officers of official dereliction-and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.

The question is whether a statute authorizing such proceedings in restraint of publication is consistent with the conception of the liberty of the press as historically conceived and guaranteed. In determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication. The struggle in England, directed against the legislative power of the licenser, resulted in renunciation of the censorship of the press. The liberty deemed to be established was thus described by Blackstone: ‘The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.’ The distinction was early pointed out between the extent of the freedom with respect to censorship under our constitutional system and that enjoyed in England. Here, as Madison said, ‘the great and essential rights of the people are secured against legislative as well as against executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt not only from previous restraint by the Executive, as in Great Britain, but from legislative restraint also.’ This Court said, in Patterson v. Colorado, 205 U.S. 454: ‘In the first place, the main purpose of such constitutional provisions is ‘to prevent all such previous restraints upon publications as had been practiced by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false.’

The criticism upon Blackstone’s statement has not been because immunity from previous restraint upon publication has not been regarded as deserving of special emphasis, but chiefly because that immunity cannot be deemed to exhaust the conception of the liberty guaranteed by State and Federal Constitutions. The point of criticism has been ‘that the mere exemption from restraints cannot be all that is secured by the constitutional provisions,’ and that ‘the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a by-word, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications.’ But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common-law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our Constitutions.

In the present case, we have no occasion to inquire as to the permissible scope of subsequent punishment. For whatever wrong the appellant has committed or may commit by his publications, the state appropriately affords both public and private redress by its libel laws. As has been noted, the statute in question does not deal with punishments; it provides for no punishment, except in case of contempt for violation of the court’s order, but for suppression and injunction-that is, for restraint upon publication.

The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. ‘When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’ Schenck v. United States.  No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not protect a man from an injunction against uttering words that may have all the effect of force. [But] these limitations are not applicable here.

The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship. Madison, who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, thus described the practice and sentiment which led to the guaranties of liberty of the press in State Constitutions:

‘In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this footing it yet stands. Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigor of those yielding the proper fruits.’

The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right. Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals.

The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. If such a statute, authorizing suppression and injunction on such a basis, is constitutionally valid, it would be equally permissible for the Legislature to provide that at any time the publisher of any newspaper could be brought before a court and required to produce proof of the truth of his publication, or of what he intended to publish and of his motives, or stand enjoined. If this can be done, the Legislature may provide machinery for determining in the complete exercise of its discretion what are justifiable ends and restrain publication accordingly.

Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which tends to disturb the public peace and to provoke assaults and the commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication. There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well-understood tendency did not alter the determination to protect the press against censorship and restrain upon publication. As was said in New Yorker Staats-Zeitung v. Nolan, 105 A. 72: ‘If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and [so] resent its circulation [that they] resort to physical violence, there is no limit to what may be prohibited.’

For these reasons we hold the statute to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment.

Judgment reversed.

Notes and Questions:

1. The First Amendment restrains Congress from abridging the freedom of speech. Near (like many other cases), however, involved an abridgment of speech by a state government. Why and how exactly does the First Amendment apply to the actions of state and local governments?

2. The very strong presumption that prior restraints are unconstitutional seems to be premised on the belief that ex ante suppression of speech is worse from a constitutional perspective than post hoc punishment or liability for speech. Why would that be the case? Near as well as the cases that follow offer some insights on this question.

3. New York Times v. United States (also known as The Pentagon Papers case) was an epochal Supreme Court decision. Some brief background about the case is first presented below, then the case itself.

Behind the Race to Publish the Top-Secret Pentagon Papers

by Niraj Chokshi, New York Times, Dec. 20, 2017

In 1971, Neil Sheehan, a New York Times reporter in Washington, scored the scoop of a lifetime.

Daniel Ellsberg, a former military analyst, had become disillusioned with the Vietnam War and decided to leak a top-secret history of the decision-making behind the conflict. Frustrated by his attempts to have lawmakers draw attention to the cache, now known as the Pentagon Papers, Mr. Ellsberg turned to The Times and, later, almost 20 other newspapers.

The saga, which had dramatic consequences for press freedom and the presidency, is the subject of the movie “The Post,” which will be released in some theaters on Friday. Directed by Steven Spielberg and starring Meryl Streep and Tom Hanks, the film depicts the race at The Washington Post to catch up to Mr. Sheehan’s exclusive.

The Pentagon Papers had been commissioned in 1967 by Robert McNamara, the Defense Secretary at the time. The study, written by multiple authors, including Mr. Ellsberg, offered a detailed history of the decision-making behind the United States’ involvement in Southeast Asia. It also revealed the Johnson administration’s lies about that involvement.

Here’s how Mr. Ellsberg got the Pentagon Papers to the public, first through The Times and later The Post and others.

Mr. Ellsberg’s disillusionment with the conflict had simmered for years before boiling over in the summer of 1969, at a conference on resisting the war, according to his 2002 book, “Secrets: A Memoir of Vietnam and the Pentagon Papers.” There, a man named Randy Kehler gave a stirring talk about resisting and preparing to be jailed. Devastated by the speech, Mr. Ellsberg escaped to a men’s room where he remained, crying, for more than an hour. “Then it was as though an ax had split my head, and my heart broke open,” he wrote. “But what had really happened was that my life had split in two.” The phrase “we are eating our young” kept entering Mr. Ellsberg’s mind, according to the memoir. That evening, he realized that he had the power to do something.

A few weeks later, on the night of Oct. 1, he opened the safe in his office at the RAND Corporation, a nonprofit research institution, and began sneaking out portions of the 7,000-page, top-secret report, which he photocopied page by page, night after night. Mr. Ellsberg spent much of 1970 trying to get sympathetic lawmakers to publicize the report, but by early 1971, he had decided that the news media was a better option. At the suggestion of the lawmakers and others, Mr. Ellsberg turned to The Times. “Only The Times might publish the entire study, and it had the prestige to carry it through,” he wrote in his memoir.

Mr. Ellsberg said he had worked with Mr. Sheehan before, having leaked top-secret news to him in 1968. So, late on March 2, 1971, Mr. Ellsberg called Mr. Sheehan at his home in Washington and asked for a place to stay. When Mr. Ellsberg arrived, Mr. Sheehan showed him to the den, and the two men talked through the night about the war and the Pentagon Papers, according to the memoir. After a few weeks of discussions, the pair arranged to transport copies of the documents to New York. They were first stored in the Manhattan apartment of the paper’s foreign editor, James L. Greenfield, who described the episode in the foreword to the book “The Pentagon Papers: The Secret History of the Vietnam War.”

Gerald Gold, an assistant foreign editor at the time, got the team a suite at the New York Hilton Hotel on Avenue of the Americas to use as a makeshift office. There, he, Mr. Sheehan and Allan M. Siegal, also an assistant foreign editor, got to work. The adjoining rooms were rented for the staff to sleep in, and other writers joined the effort, including the veteran Vietnam reporters Hedrick Smith, E. W. (Ned) Kenworthy and Fox Butterfield, according to Mr. Greenfield. “Together they made sure that every sentence written corresponded to a reference in one of the documents,” he wrote. “Adding one’s own reporting was unacceptable.”

When the newspaper’s outside law firm, Lord Day &Lord, learned that all 7,000 pages were classified, it warned The Times against publishing them, refused to represent the paper, and nearly told the Justice Department of what was coming, according to Mr. Greenfield.

On June 13, 1971, after weeks of diligent preparation, Mr. Sheehan introduced readers to what the documents revealed. The story appeared atop the front page of The Times that Sunday, though it was sandwiched among three other pieces: one on the wedding of President Richard M. Nixon’s daughter, another on the New York City budget, and one on tensions between India and Pakistan.

Here is how readers learned about the top-secret documents:

“A massive study of how the United States went to war in Indochina, conducted by the Pentagon three years ago, demonstrates that four administrations progressively developed a sense of commitment to a non‐Communist Vietnam, a readiness to fight the North to protect the South, and an ultimate frustration with this effort—to a much greater extent than their public statements acknowledged at the time.”

The Times is widely praised for revealing what the Pentagon Papers contained, but it was not the first to report on their existence. Months earlier, Thomas Oliphant of The Boston Globe had reported that the few men who had read the report in full all supported withdrawing from the war.

The next day, The Times published its second article on the documents—and heard from an angry Nixon administration. In a telegram that night, John N. Mitchell, the United States attorney general, asked The Times to stop publishing information from the top-secret report, arguing that the newspaper was in violation of a law prohibiting disclosure of government secrets. “Further publication of information of this character will cause irreparable injury to the defense interests of the United States,” he said, according to a contemporaneous Times report on his letter. The Times refused and the federal government sued the paper. A federal judge then issued a temporary restraining order barring the paper from publishing anything further. The Times complied, but fought to continue the series.

When The Times published its first story that Sunday, The Washington Post found itself with the unenviable task of writing a story sourced completely to a competitor, according to Ben Bradlee , the editor of The Post at the time. “The Post did not have a copy, and we found ourselves in the humiliating position of having to rewrite the competition. Every other paragraph of the Post story had to include some form of the words ‘according to The New York Times,’ blood—visible only to us—on every word,” Mr. Bradlee later wrote of the episode. But Mr. Bradlee’s frustration with what he described as The Times’s “blockbuster” exclusive would be short-lived.

On Wednesday, Mr. Ellsberg reached out through an intermediary to Ben H. Bagdikian, The Post’s national editor and a former RAND Corporation colleague, according to Mr. Ellsberg’s memoir. That night, Mr. Bagdikian flew to Boston. On Thursday morning, Mr. Bagdikian flew back with a pair of first-class seats, one for himself and another for a copy of the Pentagon Papers, according to Mr. Bradlee.

“With The Times silenced by the federal court in New York, we decided almost immediately that we would publish a story the next morning, Friday, June 18,” Mr. Bradlee wrote, adding that he had had to overcome the objections of The Post’s lawyers. On Friday afternoon, Mr. Bradlee got a call from William H. Rehnquist, the assistant attorney general and future chief justice of the Supreme Court. Mr. Rehnquist asked The Post to stop publishing information from the documents. Mr. Bradlee refused and The Post, too, was dragged into a legal battle. As The Post and The Times waged their legal war against the administration, Mr. Ellsberg continued to leak the documents to newspapers across the country, according to his memoir. In the end, he gave copies to nearly two dozen newspapers.

On Friday, June 25, 1971, the Supreme Court agreed to hear the case. It was argued the next day and, on June 30, less than three weeks after The Times published its first story on the Pentagon Papers, the court ruled in favor of The Times and The Post, allowing them to continue publishing the material.

“In revealing the workings of government that led to the Vietnam War, the newspapers nobly did that which the Founders hoped and trusted they would do,” Hugo L. Black, one of the justices, wrote in an opinion supporting the publications. The ruling was a landmark decision for press freedom. It appeared to restrict the government’s use of the legal concept “prior restraint” to censor stories before publication. The decision did not, however, prevent federal officials from continuing to try to limit speech in such ways.

The consequences of Mr. Ellsberg’s leak reverberated well beyond the court, too. Furious about the publication of the Pentagon Papers, Mr. Nixon created a team of “plumbers” to prevent similar leaks in the future. The next year, the team broke into the Watergate offices of the Democratic Party, setting off a scandal that would end with the president’s resignation.

91 S. Ct. 2140.

Supreme Court of the United States.

NEW YORK TIMES COMPANY, Petitioner,

v.

UNITED STATES.

UNITED STATES, Petitioner,

v.

The WASHINGTON POST COMPANY et al.

Nos. 1873, 1885.

Argued June 26, 1971.

Decided June 30, 1971.

PER CURIAM.

We granted certiorari in these cases in which the United States seeks 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.’

Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. See Near v. Minnesota, 283 U.S. 697 (1931). The Government thus carries a heavy burden of showing justification for the imposition of such a restraint. 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. We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed, 444 F.2d 544, and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.

So ordered.

Justice BLACK, with whom Justice DOUGLAS joins, concurring.

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 Court. I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.

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.

In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: ‘The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.’ The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. 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 democracy. The 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 people. Only 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.

The Government argues in its brief that in spite of the First Amendment, ‘(t)he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief.’

In other words, we are asked to hold that despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of ‘national security.’ The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to ‘make’ a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. To find that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’ No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.

Justice DOUGLAS, with whom Justice BLACK joins, concurring.

While I join the opinion of the Court I believe it necessary to express my views more fully.

There is no statute [at issue here] barring the publication by the press of the material which the Times and the Post seek to use. So, any power that the Government possesses must come from its ‘inherent power.’

The power to wage war is ‘the power to wage war successfully.’ See Hirabayashi v. United States, 320 U.S. 81 (1943). But the war power stems from a declaration of war. The Constitution by Art. I, s 8, gives Congress, not the President, power ‘(t)o declare War.’ Nowhere are presidential wars authorized. We need not decide therefore what leveling effect the war power of Congress might have.

These disclosures3 may have a serious impact. But that is no basis for sanctioning a previous restraint on the press. As stated by Chief Justice Hughes in Near v. Minnesota:

‘While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.’

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. The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress.

Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be ‘uninhibited, robust, and wide-open’ debate. New York Times Co. v. Sullivan.

Justice BRENNAN, concurring.

The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government’s claim throughout these cases has been that publication of the material sought to be enjoined ‘could,’ or ‘might,’ or ‘may’ prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.* Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment’s ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation ‘is at war,’ Schenck v. United States, during which times ‘(n)o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.’ Near v. Minnesota. Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature. ‘(T)he chief purpose of (the First Amendment’s) guaranty (is) to prevent previous restraints upon publication.’ Near v. Minnesota.  Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufficient: for if the Executive Branch seeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And therefore, every restraint issued in this case, whatever its form, has violated the First Amendment—and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands that no injunction may issue.

Justice WHITE, with whom Justice STEWART joins, concurring.

I concur in today’s judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system. I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations. Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraints in circumstances such as these.

The Government’s position is simply stated: The responsibility of the Executive for the conduct of the foreign affairs and for the security of the Nation is so basic that the President is entitled to an injunction against publication of a newspaper story whenever he can convince a court that the information to be revealed threatens ‘grave and irreparable’ injury to the public interest; and the injunction should issue whether or not the material to be published is classified, whether or not publication would be lawful under relevant criminal statutes enacted by Congress, and regardless of the circumstances by which the newspaper came into possession of the information.

At least in the absence of legislation by Congress, based on its own investigations and findings, I am quite unable to agree that the inherent powers of the Executive and the courts reach so far as to authorize remedies having such sweeping potential for inhibiting publications by the press. Much of the difficulty inheres in the ‘grave and irreparable danger’ standard suggested by the United States. If the United States were to have judgment under such a standard in these cases, our decision would be of little guidance to other courts in other cases, for the material at issue here would not be available from the Court’s opinion or from public records, nor would it be published by the press. Indeed, even today where we hold that the United States has not met its burden, the material remains sealed in court records and it is properly not discussed in today’s opinions. Moreover, because the material poses substantial dangers to national interests and because of the hazards of criminal sanctions, a responsible press may choose never to publish the more sensitive materials. To sustain the Government in these cases would start the courts down a long and hazardous road that I am not willing to travel, at least without congressional guidance and direction.

Terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.

Justice BLACKMUN, dissenting

Almost 70 years ago Justice Holmes, dissenting in a celebrated case, observed:

‘Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure.’

The present cases, if not great, are at least unusual in their posture and implications, and the Holmes observation certainly has pertinent application.

The New York Times clandestinely devoted a period of three months to examining the 47 volumes that came into its unauthorized possession. Once it had begun publication of material from those volumes, the New York case now before us emerged. It immediately assumed, and ever since has maintained, a frenetic pace and character. Seemingly once publication started, the material could not be made public fast enough. Seemingly, from then on, every deferral or delay, by restraint or otherwise, was abhorrent and was to be deemed violative of the First Amendment and of the public’s ‘right immediately to know.’

Two federal district courts, two United States courts of appeals, and this Court—within a period of less than three weeks from inception until today—have been pressed into hurried decision of profound constitutional issues on inadequately developed and largely assumed facts without the careful deliberation that, one would hope, should characterize the American judicial process.

With such respect as may be due to the contrary view, this, in my opinion, is not the way to try a lawsuit of this magnitude and asserted importance. It is not the way for federal courts to adjudicate, and to be required to adjudicate, issues that allegedly concern the Nation’s vital welfare. The country would be none the worse off were the cases tried quickly, to be sure, but in the customary and properly deliberative manner. The most recent of the material, it is said, dates no later than 1968, already about three years ago, and the Times itself took three months to formulate its plan of procedure and, thus, deprived its public for that period.

*          *          *          *

The First Amendment is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation’s safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. First Amendment absolutism has never commanded a majority of this Court. See, for example, Near v. Minnesota and Schenck v. United States. What is needed here is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed. The parties here are in disagreement as to what those standards should be. But even the newspapers concede that there are situations where restraint is in order and is constitutional. Justice Holmes gave us a suggestion when he said in Schenck:

‘It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’

I therefore would remand these cases to be developed expeditiously, of course, but on a schedule permitting the orderly presentation of evidence from both sides, with the use of discovery, if necessary, as authorized by the rules, and with the preparation of briefs, oral argument, and court opinions of a quality better than has been seen to this point. In making this last statement, I criticize no lawyer or judge. I know from past personal experience the agony of time pressure in the preparation of litigation. But these cases and the issues involved and the courts, including this one, deserve better than has been produced thus far.

I add one final comment:

I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate responsibilities to the United States of America. Judge Wilkey, dissenting in the District of Columbia case, after a review of only the affidavits before his court (the basic papers had not then been made available by either party), concluded that there were a number of examples of documents that, if published, ‘could clearly result in great harm to the nation,’ and he defined ‘harm’ to mean ‘the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate . . . .’ I, for one, have now been able to give at least some cursory study not only to the affidavits, but to the material itself. I regret to say that from this examination I fear that Judge Wilkey’s statements have possible foundation. I therefore share his concern. I hope that damage has not already been done. If, however, damage has been done, and if, with the Court’s action today, these newspapers proceed to publish the critical documents and there results therefrom ‘the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,’ to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation’s people will know where the responsibility for these sad consequences rests.

Notes and Questions:

1. The Court’s brief per curiam opinion in The Pentagon Papers case offers no substantive analysis. Hence, it is from the individual Justices’ concurring opinions that we must seek to draw the rule of the case. What is the legal standard regarding prior restraints that we should draw from The Pentagon Papers?

2. In balancing the various interests at stake, even the Justices in the majority seem to admit that publication of the material might cause some harm. They differ with the government (and among themselves) about the magnitude of the harm, the likelihood of the harm actually occurring, whether the government has sufficiently proven that the harm is likely to actually manifest, etc., but none of the Justices seems to deny that some harm might occur. Justice White’s concurrence suggests one way to address such harm: “[F]ailure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.” So, to be clear: it is entirely possible for a prior restraint on speech to be unconstitutional but for a subsequent prosecution for that same speech to be constitutional. Phrased differently: prior restraints are so constitutionally suspect that even speech that may subsequently be punished consistent with the First Amendment cannot be prevented from occurring in the first place via a prior restraint.

3. How much of a difference should the magnitude of the potential harm make in the courts’ analysis of whether a prior restraint is permissible? Is there any magnitude of potential harm that, standing alone (and if adequately proven by the government), would justify a prior restraint even if the feared harm is not likely to be immediate? Consider these questions both with regard to the Pentagon Papers case above as well as the Defense Distributed and “H-Bomb” cases presented immediately below.

838 F.3d 451.

United States Court of Appeals, Fifth Circuit.

DEFENSE DISTRIBUTED

v.

UNITED STATES DEPARTMENT OF STATE.

No. 15–50759.

Filed September 20, 2016.

Opinion

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs-Appellants Defense Distributed and Second Amendment Foundation, Inc. have sued [the State Department], seeking to enjoin enforcement of certain laws governing the export of unclassified technical data relating to prohibited munitions. Because the district court concluded that the public interest in national security outweighs Plaintiffs-Appellants’ interest in protecting their constitutional rights, it denied a preliminary injunction, and they timely appealed. We conclude the district court did not abuse its discretion and therefore affirm.

I. Background

Defense Distributed is a nonprofit organization operated, in its own words, “for the purpose of promoting popular access to arms guaranteed by the United States Constitution” by “facilitating global access to, and the collaborative production of, information and knowledge related to the 3D printing of arms; and by publishing and distributing such information and knowledge on the Internet at no cost to the public.” Second Amendment Foundation, Inc. is a nonprofit devoted more generally to promoting Second Amendment rights.

Defense Distributed furthers its goals by creating computer files used to create weapons and weapon parts, including lower receivers for AR‑15 rifles. The lower receiver is the part of the firearm to which the other parts are attached. It is the only part of the rifle that is legally considered a firearm under federal law, and it ordinarily contains the serial number, which in part allows law enforcement to trace the weapon. Because the other gun parts, such as the barrel and magazine, are not legally considered firearms, they are not regulated as such. Consequently, the purchase of a lower receiver is restricted and may require a background check or registration, while the other parts ordinarily may be purchased anonymously.

The law provides a loophole, however: anyone may make his or her own unserialized, untraceable lower receiver for personal use, though it is illegal to transfer such weapons in any way. Typically, this involves starting with an “80% lower receiver,” which is simply an unfinished piece of metal that looks quite a bit like a lower receiver but is not legally considered one and may therefore be bought and sold freely. It requires additional milling and other work to turn into a functional lower receiver. Typically this would involve using jigs (milling patterns), a drill press, other tools, and some degree of machining expertise to carefully complete the lower receiver. The result, combined with the other, unregulated gun parts, is an unserialized, untraceable rifle.

Defense Distributed’s innovation was to create computer files to allow people to easily produce their own weapons and weapon parts using relatively affordable and readily available equipment. Defense Distributed has explained the technologies as follows:

Three-dimensional (“3D”) printing technology allows a computer to “print” a physical object (as opposed to a two-dimensional image on paper). Today, 3D printers are sold at stores such as Home Depot and Best Buy, and the instructions for printing everything from jewelry to toys to car parts are shared and exchanged freely online. Computer numeric control (“CNC”) milling, an older industrial technology, involves a computer directing the operation of a drill upon an object. 3D printing is “additive;” using raw materials, the printer constructs a new object. CNC milling is “subtractive,” carving something (more) useful from an existing object.

Both technologies require some instruction set or “recipe”—in the case of 3D printers, computer aided design (“CAD”) files, typically in .stl format; for CNC machines, text files setting out coordinates and functions to direct a drill.

Defense Distributed’s files allow virtually anyone with access to a 3D printer to produce, among other things, Defense Distributed’s single-shot plastic pistol called the Liberator and a fully functional plastic AR‑15 lower receiver. In addition to 3D printing files, Defense Distributed also sells its own desktop CNC mill marketed as the Ghost Gunner, as well as metal 80% lower receivers. With CNC milling files supplied by Defense Distributed, Ghost Gunner operators are able to produce fully functional, unserialized, and untraceable metal AR‑15 lower receivers in a largely automated fashion.

Everything discussed above is legal for United States citizens and will remain legal for United States citizens regardless of the outcome of this case. This case concerns Defense Distributed’s desire to share all of its 3D printing and CNC milling files online, available without cost to anyone located anywhere in the world, free of regulatory restrictions.

Beginning in 2012, Defense Distributed posted online, for free download by anyone in the world, a number of computer files, including those for the Liberator pistol (the “Published Files”). On May 8, 2013, the State Department sent a letter to Defense Distributed requesting that it remove the files from the internet on the ground that sharing them in that manner violates certain laws. The district court summarized the relevant statutory and regulatory framework as follows:

Under the Arms Export Control Act (“AECA”), “the President is authorized to control the import and the export of defense articles and defense services” and to “promulgate regulations for the import and export of such articles and services.” The AECA imposes both civil and criminal penalties for violation of its provisions and implementing regulations, including monetary fines and imprisonment. The President has delegated his authority to promulgate implementing regulations to the Secretary of State. Those regulations, the International Traffic in Arms Regulation (“ITAR”), are in turn administered by the DDTC [Directorate of Defense Trade Controls] and its employees.

The AECA directs that the “defense articles” designated under its terms constitute the United States “Munitions List.” The Munitions List “is not a compendium of specific controlled items,” rather it is a “series of categories describing the kinds of items” qualifying as “defense articles.” Put another way, the Munitions List contains “attributes rather than names.” The term “defense articles” also specifically includes “technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in” the Munitions List.

A party unsure about whether a particular item is a “defense article” covered by the Munitions List may file a “commodity jurisdiction” request with the DDTC. The regulations state the DDTC “will provide a preliminary response within 10 working days of receipt of a complete request for commodity jurisdiction.” If a final determination is not provided after 45 days, “the applicant may request in writing to the Director, Office of Defense Trade Controls Policy that this determination be given expedited processing.”

In short, the State Department contended: (1) the Published Files were potentially related to ITAR-controlled “technical data” relating to items on the USML; (2) posting ITAR-controlled files on the internet for foreign nationals to download constitutes “export”; and (3) Defense Distributed therefore must obtain prior approval from the State Department before “exporting” those files. Defense Distributed complied with the State Department’s request by taking down the Published Files and seeking commodity jurisdiction requests for them. It did eventually obtain approval to post some of the non-regulated files, but all of the Published Files continue to be shared online on third party sites like The Pirate Bay.

Since then, Defense Distributed has not posted any new files online. Instead, it is seeking prior approval from the State Department and/or DDTC before doing so, and it has not obtained such approval. The new files Defense Distributed seeks to share online include the CNC milling files required to produce an AR‑15 lower receiver with the Ghost Gunner and various other 3D printed weapons or weapon parts.

District Court Proceedings

In the meantime, Defense Distributed and Second Amendment Foundation, Inc., sued the State Department, seeking to enjoin them from enforcing the regulations discussed above. Plaintiffs-Appellants argue that the State Department’s interpretation of the AECA, through the ITAR regulations, constitutes an unconstitutional prior restraint on protected First Amendment speech, to wit, the 3D printing and CNC milling files they seek to place online.

Plaintiffs-Appellants sought a preliminary injunction against the State Department, essentially seeking to have the district court suspend enforcement of ITAR’s prepublication approval requirement pending final resolution of this case. The district court denied the preliminary injunction, and Plaintiffs-Appellants timely filed this appeal. We review the denial of a preliminary injunction for abuse of discretion, but we review any questions of law de novo.

To obtain a preliminary injunction, the applicant must show (1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) that his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) that granting the preliminary injunction will not disserve the public interest. “We have cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion’ on all four requirements.”

The district court concluded that the preliminary injunction should be denied because Plaintiffs-Appellants failed to satisfy the balance of harm and public interest requirements, which do not concern the merits. (Assuming without deciding that Plaintiffs-Appellants have suffered the loss of First and Second Amendment freedoms, they have satisfied the irreparable harm requirement because any such loss, however intangible or limited in time, constitutes irreparable injury.) In extensive dicta comprising nearly two-thirds of its memorandum opinion, the district court also concluded that Plaintiffs-Appellants failed to show a likelihood of success on the merits. Plaintiffs-Appellants timely appealed, asserting essentially the same arguments on appeal. Plaintiffs-Appellants continue to bear the burden of persuasion on appeal.

Analysis

The crux of the district court’s decision is essentially its finding that the government’s exceptionally strong interest in national defense and national security outweighs Plaintiffs-Appellants’ very strong constitutional rights under these circumstances. Before the district court, as on appeal, Plaintiffs-Appellants failed to give any weight to the public interest in national defense and national security, summarily asserting that the balance of interests tilts in their favor because “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Department’s stated interest in preventing foreign nationals—including all manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.

Plaintiffs-Appellants suggest the district court disregarded their paramount interest in protecting their constitutional rights. That is not so. The district court’s decision was based not on discounting Plaintiffs-Appellants’ interest but rather on finding that the public interest in national defense and national security is stronger here, and the harm to the government is greater than the harm to Plaintiffs-Appellants. We cannot say the district court abused its discretion on these facts.

Because both public interests asserted here are strong, we find it most helpful to focus on the balance of harm requirement, which looks to the relative harm to both parties if the injunction is granted or denied. If we affirm the district court’s denial, but Plaintiffs-Appellants eventually prove they are entitled to a permanent injunction, their constitutional rights will have been violated in the meantime, but only temporarily. Plaintiffs-Appellants argue that this result is absurd because the Published Files are already available through third party websites such as the Pirate Bay.  But granting the preliminary injunction sought by Plaintiffs-Appellants would allow them to share online not only the Published Files but also any new, previously unpublished files. That leads us to the other side of the balance of harm inquiry.

If we reverse the district court’s denial and instead grant the preliminary injunction, Plaintiffs-Appellants would legally be permitted to post on the internet as many 3D printing and CNC milling files as they wish, including the Ghost Gunner CNC milling files for producing AR‑15 lower receivers and additional 3D-printed weapons and weapon parts. Even if Plaintiffs-Appellants eventually fail to obtain a permanent injunction, the files posted in the interim would remain online essentially forever, hosted by foreign websites such as the Pirate Bay and freely available worldwide. That is not a far-fetched hypothetical: the initial Published Files are still available on such sites, and Plaintiffs-Appellants have indicated they will share additional, previously unreleased files as soon as they are permitted to do so. Because those files would never go away, a preliminary injunction would function, in effect, as a permanent injunction as to all files released in the interim. Thus, the national defense and national security interest would be harmed forever. The fact that national security might be permanently harmed while Plaintiffs-Appellants’ constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.

In sum, we conclude that the district court did not abuse its discretion in denying Plaintiffs-Appellants’ preliminary injunction based on their failure to carry their burden of persuasion on two of the three non-merits requirements for preliminary injunctive relief, namely the balance of harm and the public interest. We therefore affirm the district court’s denial and decline to reach the question of whether Plaintiffs-Appellants have demonstrated a substantial likelihood of success on the merits.12

We are mindful of the fact that the parties and the amici curiae in this case focused on the merits, and understandably so. This case presents a number of novel legal questions, including whether the 3D printing and/or CNC milling files at issue here may constitute protected speech under the First Amendment, the level of scrutiny applicable to the statutory and regulatory scheme here, whether posting files online for unrestricted download may constitute “export,” and whether the ITAR regulations establish an impermissible prior restraint scheme. These are difficult questions, and we take no position on the ultimate outcome other than to agree with the district court that it is not yet time to address the merits. On remand, the district court eventually will have to address the merits, and it will be able to do so with the benefit of a more fully developed record.

Conclusion

For the reasons set out above, we conclude that the district court did not abuse its discretion by denying the preliminary injunction on the non-merits requirements. AFFIRMED.

JONES, Circuit Judge, dissenting:

This case poses starkly the question of the national government’s power to impose a prior restraint on the publication of lawful, unclassified, not-otherwise-restricted technical data to the Internet under the guise of regulating the “export” of “defense articles.” I dissent from this court’s failure to treat the issues raised before us with the seriousness that direct abridgements of free speech demand.

I.

From late 2012 to early 2013, plaintiff Defense Distributed posted on the Internet, free of charge, technical information including computer assisted design files (CAD files) about gun-related items including a trigger guard, two receivers, an ArmaLite Rifle-15 magazine, and a handgun named “The Liberator.” None of the published information was illegal, classified for national security purposes, or subject to contractual or other distribution restrictions. In these respects the information was no different from technical data available through multiple Internet sources from widely diverse publishers. From scientific discussions to popular mechanical publications to personal blog sites, information about lethal devices of all sorts, or modifications to commercially manufactured firearms and explosives, is readily available on the Internet.

What distinguished Defense Distributed’s information at that time, however, was its computer files designed for 3D printer technology that could be used to “print” parts and manufacture, with the proper equipment and know-how, a largely plastic single-shot handgun. The Liberator technology drew considerable press attention and the relevant files were downloaded “hundreds of thousands of times.” In May 2013, Defense Distributed received a warning letter from the U.S. State Department. The letter then advised Defense Distributed that it must “remove [its information] from public access” immediately, pending its prompt request for and receipt of approval from DDTC.

In a nearly forty-year history of munitions “export” controls, the State Department had never sought enforcement against the posting of any kind of files on the Internet. Because violations of the cited regulations carry severe civil and criminal penalties, Defense Distributed had no practical choice but to remove the information and seek approval to publish from DDTC. It took the government entities two years to refuse to exempt most of the files from the licensing regime.

Defense Distributed filed suit in federal court to vindicate, inter alia, its First Amendment right to publish without prior restraint and sought the customary relief of a temporary injunction to renew publication. This appeal stems from the district court’s denial of relief. Undoubtedly, the denial of a temporary injunction in this case will encourage the State Department to threaten and harass publishers of similar non-classified information. There is also little certainty that the government will confine its censorship to Internet publication. Yet my colleagues in the majority seem deaf to this imminent threat to protected speech. More precisely, they are willing to overlook it with a rote incantation of national security, an incantation belied by the facts here and nearly forty years of contrary Executive Branch pronouncements.

This preliminary injunction request deserved our utmost care and attention. Interference with First Amendment rights for any period of time, even for short periods, constitutes irreparable injury. New York Times Co. v. United States, 403 U.S. 713 (1971). Defense Distributed has been denied publication rights for over three years. The district court, moreover, clearly erred in gauging the level of constitutional protection to which this speech is entitled: intermediate scrutiny is inappropriate for the content-based restriction at issue here. (Why the majority is unwilling to correct this obvious error for the sake of the lower court’s getting it right on remand is a mystery).

The district court’s mischaracterization of the standard of scrutiny fatally affected its approach to the remaining prongs of the test for preliminary injunctive relief. Without a proper assessment of plaintiff’s likelihood of success on the merits—arguably the most important of the four factors necessary to grant a preliminary injunction, the district court’s balancing of harms went awry.

Since the majority are close to missing in action, and for the benefit of the district court on remand, I will explain why I conclude that the State Department’s application of its “export” control regulations to this domestic Internet posting appears to violate the First Amendment as a content-based regulation and a prior restraint.

II.

A. Regulatory Framework

Under the ITAR it is unlawful to “export or attempt to export from the United States any defense article or technical data” without first obtaining a license or written approval from the Directorate of Defense Trade Controls (“DDTC”), a division of the State Department. When Defense Distributed published technical data on the Internet, the State Department defined “export” broadly, as, inter alia, “[d]isclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad.” Should the DDTC determine, as here, that technical data are subject to the ITAR, an “export” license is required before the information may be posted online. But the license may be denied whenever the State Department “deems such action to be in furtherance of world peace, the national security of the United States, or is otherwise advisable.”

I would hardly deny that the Department of Justice has good grounds for prosecuting attempts to export weapons and military technology illegally to foreign actors. Previous prosecutions have targeted defendants, e.g., who attempted to deliver WMD materials to North Korea, who sought to distribute drone and missile schematics to China, and who attempted to license chemical purchasing software to companies owned by the Iranian government. Defense Distributed agrees, moreover, that the Government may prosecute individuals who email classified technical data to foreign individuals or directly assist foreign actors with technical military advice. Yet, as plaintiff points out, at the time that DDTC stifled Defense Distributed’s online posting, there were no publicly known enforcement actions in which the State Department purported to require export licenses or prior approval for the domestic posting of lawful, unclassified, not-otherwise-restricted information on the Internet.

While Defense Distributed has been mired in this thicket of regulation, the CAD files that it published continue to be available to the international public to this day on websites such as the Pirate Bay. Moreover, technology has not stood still: design files are now available on the Internet for six- and eight-shot handguns that can be produced with 3D printing largely out of plastic materials.

B. Discussion

As applied to Defense Distributed’s publication of technical data, the State Department’s prepublication approval and license scheme invades the plaintiff’s First Amendment rights because it is both a content-based regulation that fails strict scrutiny and an unconstitutional prior restraint on protected speech.

1. The First Amendment—Content-based speech restriction.

[The Supreme Court has held that] content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves they are narrowly tailored to serve compelling state interests. [The Supreme Court has explained that] a government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed.  A speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter:  consequently, even a viewpoint-neutral law can be content-based. Strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based.

The prepublication review scheme at issue here would require government approval and/or licensing of any domestic publication on the Internet of lawful, non-classified “technical information” related to “firearms” solely because a foreign national might view the posting. As applied to the publication of Defense Distributed’s files, this process is a content-based restriction on the petitioners’ domestic speech because of the topic discussed.

The State Department barely disputes that computer-related files and other technical data are speech protected by the First Amendment. There are CAD files on the Internet and designs, drawings, and technical information about myriad items—jewelry, kitchen supplies, model airplanes, or clothing, for example—that are of no interest to the State Department. Only because Defense Distributed posted technical data referring to firearms covered generically by the USML does the government purport to require prepublication approval or licensing. This is pure content-based regulation.

The Government’s argument that its regulatory scheme is content-neutral because it is focused on curbing harmful secondary effects rather than Defense Distributed’s primary speech is unpersuasive. The Supreme Court explained this distinction in Boos v. Barry, which overturned an ordinance restricting criticism of foreign governments near their embassies because it “focus[es] on the direct impact of speech on its audience.” Secondary effects of speech, as the Court understood, include “congestion, interference with ingress or egress, visual clutter, or the need to protect the security of embassies.” Similarly, the regulation of speech here is focused on the “direct impact of speech on its audience” because the government seeks to prevent certain listeners—foreign nationals—from using the speech about firearms to create guns.

Because the regulation of Defense Distributed’s speech is content-based, it is necessary to apply strict scrutiny. The district court erred in applying the lower intermediate scrutiny standard. I would not dispute that the government has a compelling interest in enforcing the AECA to regulate the export of arms and technical data governed by the USML. The critical issue is instead whether the government’s prepublication approval scheme is narrowly tailored to achieve that end. A regulation is not narrowly tailored if it is “significantly overinclusive.”

“[S]ignificantly overinclusive,” however, aptly describes the Government’s breathtaking assertion of prepublication review and licensing authority as applied in this case. To prevent foreign nationals from accessing technical data relating to USML-covered firearms, the government seeks to require all domestic posting on the Internet of “technical data” to be pre-approved or licensed by the DDTC. No matter that citizens have no intention of assisting foreign enemies directly, communications about firearms on webpages or blogs must be subject to prior approval on the theory that a foreign national might come across the speech. The State Department’s ITAR regulations, as sought to be applied here, plainly sweep in and would control a vast amount of perfectly lawful speech.

The State Department also asserts that, somehow, the information published by Defense Distributed would have survived regulatory scrutiny (query before or after submission to DDTC?) if the company had “verified the citizenship of those interested in the files, or by any other means adequate to ensure that the files are not disseminated to foreign nationals.” Whatever this means, it is a ludicrous attempt to narrow the ambit of its regulation of Internet publications. Everyone knows that personally identifying information can be fabricated on electronic media. Equally troubling, if the State Department truly means what it says in brief about screening out foreign nationals, then the “public domain” exception becomes useless when applied to media like print publications and TV or to gatherings open to the public.

In sum, it is not at all clear that the State Department has any concern for the First Amendment rights of the American public and press. Indeed, the State Department turns freedom of speech on its head by asserting, “The possibility that an Internet site could also be used to distribute the technical data domestically does not alter the analysis. . . .” The Government bears the burden to show that its regulation is narrowly tailored to suit a compelling interest. It is not the public’s burden to prove their right to discuss lawful, non-classified, non-restricted technical data. As applied to Defense Distributed’s online publication, these overinclusive regulations cannot be narrowly tailored and fail strict scrutiny.

2. The First Amendment—Prior Restraint.

The Government’s prepublication approval and licensing scheme also fails to pass constitutional muster because it effects a prior restraint on speech. The classic description of a prior restraint is an “administrative [or] judicial order forbidding certain communications when issued in advance of the time that such communications are to occur.” The State Department’s prepublication review scheme easily fits the mold.

Though not unconstitutional per se, any system of prior restraint bears a heavy presumption of unconstitutionality. Generally, speech licensing schemes must avoid two pitfalls. First the licensors must not exercise excessive discretion. Narrowly drawn, reasonable and definite standards should guide the licensor in order to avoid unbridled discretion that might permit the official to encourage some views and discourage others through the arbitrary application of the regulation.

Second, content-based prior restraints must contain adequate procedural protections. The Supreme Court has required three procedural safeguards against suppression of protected speech by a censorship board: (1) any restraint before judicial review occurs can be imposed for only a specified brief period of time during which the status quo is maintained; (2) prompt judicial review of a decision must be available; and (3) the censor must bear the burdens of going to court and providing the basis to suppress the speech. In sum, a court reviewing a system of prior restraint should examine both the law’s procedural guarantees and the discretion given to law enforcement officials.

To the extent it embraces publication of non-classified, non-transactional, lawful technical data on the Internet, the Government’s scheme vests broad, unbridled discretion to make licensing decisions and lacks the requisite procedural protections. First, as explained above, the “export” regulations’ virtually unbounded coverage of USML-related technical data posted to the Internet, combined with the State Department’s deliberate ambiguity in what constitutes the “public domain,” renders application of ITAR regulations anything but “narrow, objective, and definite.” The stated standards do not guide the licensors to prevent unconstitutional prior restraints.

In City of Lakewood v. Plain Dealer Publishing Co., for example, the Supreme Court held that a city ordinance [giving] the Mayor discretion to issue newspaper rack permits was insufficiently tailored because “the ordinance itself contains no explicit limits on the mayor’s discretion” and “nothing in the law as written requires the mayor to do more than make the statement ‘it is not in the public interest’ when denying a permit application.” Like the “illusory constraints” in Lakewood, the ITAR prepublication review scheme offers nothing but regulatory (or prosecutorial) discretion, as applied to the technical data at issue here, in lieu of objective standards. Reliance on the censor’s good faith alone, however, “is the very presumption that the doctrine forbidding unbridled discretion disallows.” Id. at 770.

Just as troubling is the stark lack of the three required procedural protections in prior restraint cases. Where a commodity jurisdiction application is necessary, the alleged 45-day regulatory deadline for such determinations seems to be disregarded in practice; nearly two years elapsed between Defense Distributed’s initial request and a response from the DDTC. Further, the prescribed time limit on licensing decisions, 60 days, is not particularly brief.

More fundamentally, Congress has withheld judicial review of the State Department’s designation of items as defense articles or services. The withholding of judicial review alone should be fatal to the constitutionality of this prior restraint scheme insofar as it involves the publication of unclassified, lawful technical data to the Internet. And where judicial review is thwarted, it can hardly be said that DDTC, as the would-be censor, can bear its burden to go to court and support its actions.

C. The Government’s Interest, Balancing the Interests

A brief discussion is necessary on the balancing of interests as it should have been done in light of the facts of this case. No one doubts the federal government’s paramount duty to protect the security of our nation or the Executive Branch’s expertise in matters of foreign relations. Yet the Executive’s mere incantation of “national security” and “foreign affairs” interests do not suffice to override constitutional rights. The Supreme Court has long declined to permit the unsupported invocation of “national security” to cloud the First Amendment implications of prior restraints. See New York Times Co. v. United States, 403 U.S. 713 (1971) (reversing the grant of an injunction precluding the New York Times and the Washington Post from publishing the Pentagon Papers, a classified study of United States involvement in Vietnam from 1945–1967); id. at 730 (Stewart, J., concurring) (noting that because he cannot say that disclosure of the Pentagon Papers “will surely result in direct, immediate, and irreparable damage to our Nation or its people,” publication may not be enjoined consonant with the First Amendment). Indeed, only the most exceptional and immediate of national security concerns allow a prior restraint on speech to remain in place:

“The protection as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. . . . [n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of sailing dates of transports or the number and location of troops. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.”  Near v. Minnesota.

No such exceptional circumstances have been presented in this case. Indeed, all that the majority can muster to support the government’s position here is that

the State Department’s stated interest in preventing foreign nationals—including all manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.

Neither the district court nor the State Department offers anything else.16

Without any evidence to the contrary, the court should have held that the domestic Internet publication of CAD files and other technical data for a 3D printer-enabled making of gun parts and the Liberator pistol presents no immediate danger to national security, especially in light of the fact that many of these files are now widely available over the Internet and that the world is awash with small arms.

Further, the government’s pro-censorship position in this case contradicts the express position held within the Executive Branch for the nearly forty-year existence of the AECA. The State Department’s sudden turnabout severely undercuts its argument that prepublication review and licensing for the publication of unclassified technical data is justified by pressing national security concerns. Indeed, in the late 1970s and early 1980s, at the height of the Cold War, the Department of Justice’s Office of Legal Counsel repeatedly offered written advice that a prepublication review process would raise significant constitutional questions and would likely constitute an impermissible prior restraint, particularly when applied to unclassified technical data disseminated by individuals who do not possess specific intent to deliver it to particular foreign nationals. Further, in a 1997 “Report on the Availability of Bombmaking Information,” the Department of Justice observed the widespread availability of bombmaking instructions on the Internet, in libraries, and in magazines. The Department of Justice then argued against government censorship, concluding that despite the distinct possibility that third parties can use bombmaking instructions to engage in illegal conduct, a statute “proscrib[ing] indiscriminately the dissemination of bombmaking information” would face First Amendment problems because the government may rarely prevent the dissemination of truthful information.

* * *

By refusing to address the plaintiffs’ likelihood of success on the merits and relying solely on the Government’s vague invocation of national security interests, the majority leave in place a preliminary injunction that degrades First Amendment protections and implicitly sanctions the State Department’s tenuous and aggressive invasion of citizens’ rights. The majority’s non-decision here encourages case-by-case adjudication of prepublication review “requests” by the State Department that will chill the free exchange of ideas about whatever USML-related technical data the government chooses to call “novel,” “functional,” or “not within the public domain.” It will foster further standardless exercises of discretion by DDTC censors.

Today’s target is unclassified, lawful technical data about guns, which will impair discussion about a large swath of unclassified information about firearms and inhibit amateur gunsmiths as well as journalists. Tomorrow’s targets may be drones, cybersecurity, or robotic devices, technical data for all of which may be implicated on the USML. This abdication of our decisionmaking responsibility toward the First Freedom is highly regrettable. I earnestly hope that the district court, on remand, will take the foregoing discussion to heart and relieve Defense Distributed of this censorship.

Notes and Questions:

In U.S. v. The Progressive Inc. 467 F.Supp 990 (W.D. Wisc. 1979), the federal government sought an injunction prohibiting The Progressive Magazine from publishing an article entitled The H-Bomb Secret; How We Got It, Why We're Telling It.  The government contended that the article contained sufficient technical information regarding how nuclear weapons worked that it could enable other countries to build nuclear weapons. Despite acknowledging that “any prior restraint on publication comes into court under a heavy presumption against its constitutional validity” (citing The Pentagon Papers), the district court nonetheless granted the injunction prohibiting the article’s publication. The district court distinguished this case on its facts of the Pentagon Papers, noting that history had shown that what was at issue in that case was generalized government concerns that publication would cause “some embarrassment to the United States,” whereas in this case:

“A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot. What is involved here is information dealing with the most destructive weapon in the history of mankind, information of sufficient destructive potential to nullify the right to free speech and to endanger the right to life itself.” The court continued: “While it may be true in the long-run, as Patrick Henry instructs us, that one would prefer death to life without liberty, nonetheless, in the short-run, one cannot enjoy [freedom of speech] unless one first enjoys the freedom to live.”

Was the district court’s ruling in The Progressive consistent with Near and The Pentagon Papers?