Prior Restraint in National Security Cases

There is a general presumption in international law against prior restraint of freedom of expression as unnecessary and disproportionate, on the grounds that it has a chilling effect on the enjoyment of the right to freedom of expression. Principle 23 of the Johannesburg Principles provides that: “[e]xpression shall not be subject to prior censorship in the interest of protecting national security, except in time of public emergency which threatens the life of the country.”(1) It is notable that this principle explicitly acknowledges that in cases of national security interests, there may be a strong argument for the need to step in to stop the dissemination of information prior to publication.

In a landmark judgment in June 2020, the Economic Community of West African States (ECOWAS) Court of Justice ruled that the September 2017 internet shutdown ordered by the Togolese government during ongoing protests in that country was illegal and an affront to the applicants’ right to freedom of expression.(2)

This was also the question that the United States Supreme Court confronted in New York Times Co. v United States(3) — better known as the “Pentagon Papers” case.  The government sought prior restraint on publication of a large stash of documents — 47 volumes of them — labelled “top secret” and leaked from the Department of Defense.

The documents detailed the decision-making leading to the United States’ involvement in the Vietnam war and the government sought to prevent publication because of alleged damage to national security and relations with other countries.

In a brief judgment rejecting the request for prior restraint, the Court drew on earlier judgments to note that prior restraint can only be allowed in extreme circumstances:

“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” …  The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.”(4)

Individual opinions by the judges elaborated on this reasoning. Justice Hugo Black argued:

“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…” (5)

National security is also frequently relied upon as a reason for justifying an interference with access to the internet, which is seen as a form of prior restraint. While this may, in appropriate circumstances, be a legitimate aim, it also has the potential to be relied upon to quell dissent and cover up state abuses. (For more on this, see Module 3 of this series on access to the internet.)

The covert nature of many national security laws, policies and practices, as well as the refusal by states to disclose complete information about the national security threat, tends to exacerbate this concern.