ABSTRACT
122 In the early 1980s, Burke Marshall was commissioned by the United States Information Service to put together a collection of essays that would introduce audiences abroad to the work of the Supreme Court. He invited me to join the project and I decided to focus on the Pentagon Papers case—one of the most celebrated encounters between the Supreme Court and the First Amendment. The choice of topic in part reflected the fact that I was immersed in the editing of the Kalven manuscript that later became A Worthy Tradition. Also, a few years back, I had begun to examine the doctrine that figured so prominently in the case—the rule prohibiting prior restraints—as part of a more comprehensive treatment of remedies (see The Civil Rights Injunction (1978)).
This essay does not explore the theme so central to all the others in this volume—the impact of social and economic inequalities on political liberties. It does, however, provide an important prelude to the issue to be explored in the next chapter—the needs of a free press. It also represents the first time I had to reflect systematically and critically on the work of my dear friend, Harry Kalven, who had, at a time when we were colleagues at the University of Chicago, commented on the Pentagon Papers case in the Foreword in the November 1971 Harvard Law Review. In distancing myselffrom Kalven s hearty endorsement of the Courts decision in the case, I began to develop the critical disposition that would soon enough erupt in Free Speech and Social Structure (Chapter 1). The Marshall collection was published in 1982 under the title The Supreme Court and Human Rights.
