Essay, Research Paper
The Supreme Court of the United States is the highest court of the judic
ial branch of the United States government. Many of the cases that make it to
the supreme court are based on rights set forth by the Bill of Rights. The Bil
l of Rights is comprised of the first ten amendments to the United States Consti
tution, and is what this nation was founded upon. The first of these amendment
s deals with freedoms given to the people, one of these freedoms being Freedom o
f the Press. This freedom gives organizations the right to print and publish
what they want without being told what they can and can’t publish by the governm
ent. There are of course restrictions to this such as “prior restraint” which i
s the government’s right to censor material beforehand that it does not want pub
lished, because it would compromise national security (Bender, 136). Prior rest
raint was found unconstitutional in the Near v. Minnesota case of 1931. In this
case the court ruled that an injunction to stop publication of a newspaper with
objectionable material was an example of prior restraint and therefore unconsti
tutional (Bender, 136). This became known as the due process clause of the 14th
amendment to the constitution. Another part of Freedom of the Press is the rig
ht for people to be able to read books, and not have books removed from a public
place because certain people feel they are inappropriate (Cantwell, 34).
There are two cases that clearly show these two points, and how the Supr
eme Court used its power to solve them. One of these cases is New York Times Co
mpany v. United States in 1971 which is also k This case shows how the Supreme Court used its position as
the top court to rul
e against the United States executive branch (Bender, 137). Another case is Boa
rd of Education, Island Trees School District v. Pico in 1982. This case had to
do with book censorship in a public high school library by the school board of
that school (Gold, 17).
The Supreme Court has had many cases dealing with free speech, and how t
he government has tried to prevent the people from seeing certain pieces of info
rmation. One such example of the Supreme Court dealing was the New York Times v
. United States case which took place in 1971. This case was brought up by the
United States after top secret documents from the Pentagon, known as the Pentago
n Papers, were leaked to the New York Times and Washington Post (Bender, 132).
These documents contained information about the military presence in Vietnam tha
t the U.S. government felt was a risk to national security if known by its enemi
es, and therefore only 15 copies of these documents were produced. Daniel Ellsb
erg, was a high level Pentagon researcher who had legal access to the documents
because he was involved in compiling and editing the Pentagon Papers. Ellsberg
made a photocopy of these documents and gave them to Neil Sheehan of the New Yor
k Times. Once the Times had these papers, they set a team of reporters to write
articles about the U.S. involvement in Vietnam based on the information contain
ed in the documents. A short time later, the same Daniel Ellsberg gave parts of
the Pentagon Papers to the Washington Post, and that paper wrote articles about
nown as the Pentagon Papers case.
The federal government objected to the publication in daily newspapers o
f these documents which it had deemed top secret. The government claimed that d
istribution of the material in the Pentagon Papers would be damaging to the nati
onal security of the United States and to its soldiers in Vietnam. Therefore th
e government brought legal action against the New York Times and the Washington
Post to stop them from publishing articles about this sensitive material (ACLU).
Representatives of the Times said the federal government’s attempt to st
op the publication of these articles about the Pentagon Papers was an example of
prior restraint. The Times contended that this would be a violation of freedom
of the press, which is guaranteed in the first Amendment. The federal governme
nt’s side of the argument was that the publication of this top secret informatio
n would put the lives of soldiers in danger, and give assistance during wartime
to enemies of the United States (Bender, 139).
This case was argued in front of the Supreme Court on June 26, 1971, a r
ecord of only 17 days after the conflict first arose with the publication of thi
s material, and only 15 days after the first judge heard the case (Zeinert, 43).
The verdict came four days later on June 30, 1971, when the court ruled 6-3 in
The justices in the majority were, Justice Black, Justice Douglas, Justi
ce Brennan, Justice Stewart, Justice White, and Justice Marshall. Each of these
Justices felt that for one reason or another freedom of speech was more importa
nt than national security in this case, although leaving open the option that in
other cases, national security could end up being more important than freedom o
f speech. Justice Douglas wrote “The First Amendment provides that ‘Congress sh
all make no law… abridging the freedom of speech or of the press.’ That leave
s, in my view, no room for governmental restraint on the press.” (Findlaw) Just
ice Brennan thought the government might properly restrain the press in certain
clear emergencies. But the circumstances of this case did not present such an e
mergency, Brennan argued, that there should have been no injunctive restraint.
The government sought the injunction on the grounds that the publication ‘could,
‘ ‘might,’ or ‘may’ damage national security (Findlaw).
The dissenters, Chief Justice Burger, Justice Harlan, and Justice Blackm
un, all lamented the haste with which the case had been decided. They contested
that the press did not deserve absolute protection from prior restraint. Burge
r said that the exception which might permit prior restraint “may be lurking in
these cases and would have been flushed had they been properly considered in the
trial courts, free from the unwarranted deadlaw) Justice Harlan still had many questions which he wanted
answered and woul
d have sent this case back to the lower courts for further hearings, during whic
h time he would have continued the temporary restraining order on the publicatio
n of these materials to remain in effect. Harlan said “he could not believe that
the doctrine prohibiting prior restraints reaches to the point of preventing co
urts from maintaining the status quo long enough to act responsibly in matters o
f such national importance.” (Findlaw)
The Supreme Court decision in this case was a clear defeat for advocates of prio
r restraint under conditions of wartime or other national crisis. The decision
also encouraged the media in their efforts to check federal government officials
or hold them accountable by obtaining and publishing information that the gover
nment wants to keep away from the public’s view.
The debate over freedom of the press is brought up again in the Supreme
Court case of Board of Education, Island Trees v. Pico. This case deals with th
e issue of banned books in a public high school library, and the right to censor
what people can and cannot read. This case began on the night of November 7, 1
975 when two members of the district’s school board walked out of the meeting an
d into the school library. These two school board members, Frank Martin, and th
e school board president Richard Ahrens, went and removed a total of 11 books fr
om the library and other rooms in the school (Gold, 17).
dlines and frenetic pressures.” (Fin
Three months later after a regularly scheduled school board meeting certain scho
ol board members met with the superintendent of the school district, Richard Mor
row. The school board members demanded that these books, which had since been r
eplaced back in the school, be removed again so that the school board members ca
n read them and decide weather they should be kept off the shelves or not. Morr
ow told them that he did not agree with their action, and told them to follow a
policy they had previously agreed upon for reviewing books in times like this.
Nonetheless the books were removed and brought to Morrow’s office, as he still h
oped to get the board members to allow the books to be placed back on the shelve
s (Gold, 22).
The eleven books that had been removed from the school were Slaughterhouse Five
by Kurt Vonnegut; The Fixer by Bernard Malamud; The Naked Ape bye Desmond Morris
; Down These Mean Streets by Piri Thomas; Best Short Stories by Negro Writers, e
dited by Langston Hughes; A Hero Ain’t Nothing but a Sandwich by Alice Childress
; Soul on Ice bye Eldridge Cleaver; A Reader for Writers, edited by Jerome Arche
r; Go Ask Alice, author anonymous; Laughing Boy by Oliver LaFarge; and Black Boy
by Richard Wright (Gold, 13)
These books remained banned, and this issue ballooned in the amount of p
ublicity over it. It got to the point where on January 4, 1977 five students ba
cked by the NYCLU filed a lawsuit against the school board in New York State Sup
reme Court. The five students that filed the suit against the school board were
Steven A. Pico, the president of the senior class; Jacqueline Gold; Russell Rie
ger; Glenn Yarris; as well as Paul Sochinski from the junior high school. Pico,
Rieger, and Gold were on the staff of the school newspaper, the Bulldog (Gold,
37).
In their lawsuit, the students claimed the school board members removed
the nine books because particular passages in the books “offended their social,
political, and moral tastes.” (Zeinert, 67). They said this was not a lawful re
ason for banning the books. The lawsuit went on to claim that the board had vio
lated the students’ First Amendment rights. It asked the court to declare the b
ook removal unconstitutional. It also asked the judge to order the board to ret
urn the books to school, where they had been before the removal (Gold, 40).
After this case made its way through the State court level, which the sc
hool board won, and the federal court level, which the students won, the school
board appealed its case to the Supreme Court. The Supreme Court heard the case
on March 2, 1982 at their building in Washington D.C. Their decision came in on
June 25, 1982 when they voted 5-4 that the school board must replace the books i
t had removed nearly 7 years earlier (Findlaw).
The majority opinion for this case was written by Justice Brennan, who s
aid that there were two questions that needed to be answered in this case. Firs
t, did the First Amendment impose limitations on the school board’s authority to
remove these books? And if it did, did the book ban exceed those imitations? H
is stance was that the First Amendment does limit the school board’s authority t
o remove books from the school. He also argued that although school boards have
control over school curriculum and educational policy, that control must not vi
olate constitutional rights, in this case, the First Amendment. He noted this p
recedent was set in the Barnette case. Along with him, Justices Blackmun, White
, Stevens, and Marshall agreed with the Pico side of this case (Findlaw).
In the dissenting opinion written by Justice Burger he argued that becau
se the books could be found outside the school library, the school board ban did
not prevent the students from reading them. Burger also said that the school w
as also not obligated to provide access to the books, and that there was no diff
erence between removing a book and not acquiring one. The school board has the
full right not to acquire a book for its school’s library, and therefore should
have the full right to remove one. His feeling that the school board should hav
e been victorious was shared by Justices Powell, Rehnquist, and O’Connor (Findla
w).
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