Prior Restraint in National Security Cases
Module 9: National Security
There is a general presumption in international law against prior restraint of freedom of expression on the basis that it is unnecessary and disproportionate, and has a chilling effect on the enjoyment of this right. The European Court of Human Rights has found that the “dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court”, especially when applied to the press in view of the ‘perishable’ nature of news, which loses value when delayed.(1)
Principle 23 of the Johannesburg Principles provides: “Expression 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.”(2) This recognises that in cases of national security there may sometimes, exceptionally, be a need to prevent the dissemination of information prior to publication, but only in the very most serious public emergencies.
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 number 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)
National security is also frequently relied upon as a reason for justifying an interference with access to the internet, which is another form of prior restraint. While this may, in appropriate circumstances, be legitimate, it also has the potential to be relied upon to quell dissent and cover up state abuses and is always disproportionate when applied to an entire geographic area through an internet shutdown. (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 threats to national security, tends to exacerbate this concern.