New York Times Co. v.
United States [The Pentagon Granting an injunction against the Times would
Papers Case]
Facts of the case
In what became known as the "Pentagon Papers Case,"
the Nixon Administration attempted to prevent the New
York Times and Washington Post from publishing
materials belonging to a classified Defense Department
study regarding the history of United States activities in
Vietnam. The President argued that prior restraint was
necessary to protect national security. This case was
decided together with United States v. Washington Post
Co.
Question
Did the Nixon administration's efforts to prevent the
publication of what it termed "classified information"
violate the First Amendment?
Yes. In its per curiam opinion the Court held that the
government did not overcome the "heavy presumption
against" prior restraint of the press in this case. Justices
Black and Douglas argued that the vague word "security"
should not be used "to abrogate the fundamental law
embodied in the First Amendment." Justice Brennan
reasoned that since publication would not cause an
inevitable, direct, and immediate event imperiling the
safety of American forces, prior restraint was unjustified.
Primary Holding
The First Amendment overrides the federal
government’s interest in keeping certain documents,
such as the Pentagon Papers, classified.
Facts
Secretary of Defense Robert McNamara commissioned
a classified history of the U.S. role in Indochina in 1967,
two years into the Vietnam War. The New York Times
gained access to this history three years later and started
to publish portions of its contents in articles in 1971, six
years into the war. Soon after the first article appeared,
a federal district court judge ordered the newspaper to
stop publishing the classified information. This order was
based on the federal government's pursuit of an
injunction based on irreparable harm to national security.
The war had become highly unpopular by this stage, due
to a high casualty rate, so part of its reasoning may have
been based on the damage to public morale.
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constitute a prior restraint, generally disfavored by courts
under the First Amendment. However, the government
used statements by the Secretary of State and an
affidavit from the Navy general counsel to support its
argument that serious harm would befall the nation's
interests if publication did not halt. The Times complied
with the restraining order while the judge considered the
contents of the documents, popularly known as the
Pentagon Papers. The judge eventually denied the
government's request for an injunction, but it was
granted by an appellate court.
On the other hand, the government had not been able to
secure an injunction against the Washington Post, a
similar type of newspaper, for publishing similar content.
The division between these outcomes resulted in an
appeal to the Supreme Court.
Opinions
Per Curiam
It is difficult to extract a clear precedent from this case,
since the per curiam opinion limited itself to agreeing with
the two lower courts that the government should not be
granted an injunction. No reasoning was conveyed in the
per curiam opinion to support this conclusion.
Concurrence
Hugo Lafayette Black (Author)
Taking an originalist view of the First Amendment, Black
relied on the historical views of the Framers to find that
prior restraints and other forms of government
censorship would be per se unconstitutional. This was
especially relevant in this case because the speech in
question criticized the government, which Black viewed
as one of the most important types of speech under the
First Amendment. His opinion also echoed the growing
popular distrust of the federal government amid a widely
deplored conflict that had resulted in the loss of American
lives for no apparent gain. Black was not persuaded that
broadly citing national security interests gave the
government a blank check to prohibit speech.
Concurrence
William Orville Douglas (Author)
Like Black, Douglas held an expansive view of the First
Amendment that would have prohibited virtually any
government restraint on speech, no matter how
significant the interest cited.
Concurrence
William Joseph Brennan, Jr. (Author)
Brennan pointed out that the government's action would
be valid only if the speech fell within one of the
categorical exceptions to First Amendment protection.
The Pentagon Papers did not, since they did not contain
military secrets, obscenities, or fighting words that would
be likely to directly induce unrest. (One could disagree
on the first point, but the information was several years
old and thus did not relate to the details of any ongoing
military operations such that publication would
jeopardize their success.)
Concurrence
Potter Stewart (Author)
While acknowledging the importance of national security,
Stewart felt that it was especially critical to maintain First
Amendment protections in an area such as foreign
relations, where the executive branch has immense
authority compared to the other branches of government.
He argued that the relative lack of transparency meant
that the spread of information was critical to keeping the
public informed and the democratic process intact.
Concurrence
Byron Raymond White (Author)
White essentially echoed Stewart's opinion. Their views
were somewhat counter-intuitive, considering that
protecting national security is usually considered an
especially compelling government interest that provides
a stronger rationale for regulating speech. Stewart and
White seemed to argue, on the contrary, that the
circulation of information should be especially unfettered
in this context.
Concurrence
Thurgood Marshall (Author)
Questioning whether issuing a prior restraint would
amount to legislating by the courts, Marshall raised
separation of powers concerns. He also felt that the
government was overly vague when describing how the
prior restraint was necessary for national security.
Dissent
Warren Earl Burger (Author)
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Burger would have placed greater responsibility on the
newspaper to investigate the potential impact on national
security prior to publication and reach an agreement with
the government on what parts (if any) of the Pentagon
Papers were suitable for public release. He felt that the
Court could not properly understand the contents of
these vast documents in the time within which it needed
to review the case. However, it is important to note that
Burger did not find that the prior restraint was justified,
but only that further deliberations and investigations were
needed.
Dissent
John Marshall Harlan II (Author)
Harlan felt that the Court should have showed more
deference toward the executive branch and national
security interests during wartime. He agreed with Burger
that the decision had been reached too hastily.
Dissent
Harry Andrew Blackmun (Author)
This dissent mostly agreed with Harlan, citing similar
concerns about the level of respect accorded to the
President's handling of foreign affairs.
Case Commentary
Prior restraints are rarely justified, even in matters of
extreme government importance or national security,
since they are among the most disfavored forms of
restricting the freedom of speech. As noted above, the
opinion has limited precedential value because of its
distinctive circumstances and the absence of a majority
opinion with detailed reasoning. It is mostly important as
an indication of the significance accorded to the First
Amendment by the Justices and an example of the wide-
ranging philosophical perspectives on it.
Facts
The New York Times Co., and the Washington Post
(defendants), published excerpts from a top secret study
of the Vietnam War conducted by United States
Department of Defense. The United States government
(plaintiff) brought suit against the New York Times in
district court seeking injunctions precluding publication of
these excerpts on the grounds that doing so would
jeopardize national security. The district court refused to
issue such injunctions. While the appellate trial was
taking place, the United States Supreme Court granted
certiorari.
Citation. 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822,
1971 U.S.
Brief Fact Summary. The Supreme Court of the United
States (Supreme Court) held that the Government failed
to meet the requisite burden of proof needed to justify a
prior restraint of expression when attempting to enjoin
the New York Times and Washington Post from
publishing contents of a classified study.
Synopsis of Rule of Law. Any system of prior restraints
on expression comes to the Supreme Court bearing a
heavy presumption against its invalidity. The
Government “thus creates a heavy burden of showing
justification for the enforcement of such a restraint.”
Facts. The United States sought to enjoin the New York
Times and Washington Post from publishing contents of
a confidential study about the Government’s decision
making with regards to Vietnam policy. The District Court
in the New York Times case and the District Court and
the Court of Appeals in the Washington Post case held
that the Government had not met the requisite burden
justifying such a prior restraint.
Issue. Whether the United States met the heavy burden
of showing justification for the enforcement of such a
restraint on the New York Times and Washington Post to
enjoin them from publishing contents of a classified
study?
Held. No. Judgments of the lower courts affirmed. The
order of the Court of Appeals for the Second Circuit is
reversed and remanded with directions to enter a
judgment affirming the District Court. The stays entered
June 25, 1971, by the Court are vacated. The mandates
shall issue forthwith.
Dissent. The scope of the judicial function in passing
upon activities of the Executive Branch in the field of
foreign affairs is very narrowly restricted. This view is
dictated by the doctrine of Separation of Powers. The
doctrine prohibiting prior restraints does not prevent the
courts from maintaining status quo long enough to act
responsibly.
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The First Amendment is only part of the Constitution. The
cases should be remanded to be developed
expeditiously.
Concurrence. To find that the President has “inherent
power” to halt the publication of news by resort to the
courts would wipe out the First Amendment of the United
States Constitution [Constitution].
The First Amendment of the Constitution leaves no room
for governmental restraint on the press. There is,
moreover, no statute barring the publication by the press
of the material that the Times and Post seek to publish.
The First Amendment of the Constitution tolerates no
prior judicial restraints of the press predicated upon
surmise or conjecture that untoward consequences may
result. Thus, only governmental allegation and proof that
publication must inevitably, directly and immediately
cause the occurrence of an event kindred to imperiling
the safety of a transport already at sea can support the
issuance of an interim restraining order. Unless and until
the Government has clearly made its case, the First
Amendment of the Constitution commands that no
injunction be issued.
The responsibility must be where the power is. The
Executive must have the large duty to determine and
preserve the degree of internal security necessary to
exercise its power effectively. The Executive is correct
with respect to some of the documents here, but
disclosure of any of them will not result in irreparable
danger to the public.
The United States has not met the very heavy burden,
which it must meet to warrant an injunction against
publication in these cases.
The ultimate issue in this case is whether this Court or
the Congress has the power to make this law. It is plain
that Congress has refused to grant the authority the
Government seeks from this Court.
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