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current court trail

March 24, 2016 | Author: | Posted in history

Prior Restraint

2006

Answer to Question 1

Memorandum

TO : Secretary of Defense

FROM : xxx-xxx

DATE : October 2 , 2006

SUBJECT : Constitutionality of proposed prior restraint of publication

Question Presented

Is it constitutional for the government to prohibit the publication of a classified Senate Committee Report based on information concerning CIA intelligence-gathering in Iran

Short Answer

Yes . Prior restraint may be allowed when the information to be disseminated is detrimental to national security . Publication of these intelligence reports will give enemy-states and enemy-non-state-parties access to information [banner_entry_middle]

that would otherwise be classified . Analogous to the exceptional situations presented in Near v . Minnesota , 283 U .S . 697 that warrant prior restraint , the information involved in this case will greatly prejudice the defense efforts of the United States . For obvious public purposes , this publication cannot be allowed

Statement of Facts

On September 25 , 2006 , the Los Angeles Times was able to somehow obtain a copy of a classified Senate Committee Report without the government ‘s consent . The said report contains CIA-gathered information regarding Iran and the Middle East , particularly the following

Evidence shows that Iran is beginning a nuclear weapons program but it still lacks the necessary components to build and deploy a nuclear bomb

The U .S . is conducting intelligence-gathering operations in several countries including Saudi Arabia , Syria and Iraq . It also lists the names of three CIA agents who are acting as spies in Iraq

That Osama bin Laden enjoyed watching Friends ‘ and frequently dresses like Jennifer Aniston

Discussion

Prior restraint is an official government restriction on the press or any other form of expression in advance of actual publication or dissemination . Prior restraint is generally presumed to be unconstitutional because they amount to censorship , which is against the First Amendment to the U .S . Constitution . Prior restraint is considered worse than subsequent punishment because the latter offers the protection of substantial and procedural due process while the former does not . In Nebraska Press Association v . Stuart , 427 U .S . 539 (1976 the Supreme Court said . A criminal penalty or a judgment . is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted . Only after judgment has become final , correct or otherwise does the law ‘s sanction become fully operative . A prior restraint , by contrast and by definition , has an immediate and irreversible sanction If it can be said that a threat of criminal or civil sanctions after publication `chills ‘ speech , prior restraint `freezes ‘ it at least for the time ‘ Subsequent punishment penalizes persons who choose to engage in harmful speech but only after the circumstances have been heard in a court of law . Prior restraint forbids the speech and destroys it even before it is uttered . Prior restraint paralyzes the speech even before fairly evaluating its content . On the other hand , subsequent punishment allows all types of speech to be uttered without prejudice to any consequences the government might impose on those who choose to use their… [banner_entry_footer]

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