New York Times Co. v. United States
403 U.S. 713 (1971)
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Rule of Law:
Any system of prior restraint on expression comes to the court with a heavy presumption against its constitutional validity. The government carries a heavy burden to show justification for such a restraint, which requires proving that publication will result in direct, immediate, and irreparable damage to the nation or its people.
Facts:
- The United States Department of Defense commissioned a top-secret historical study on U.S. involvement in Vietnam, titled 'History of U. S. Decision-Making Process on Viet Nam Policy,' which became known as the Pentagon Papers.
- Daniel Ellsberg, a former military analyst with access to the study, photocopied large portions of the classified documents without authorization.
- Ellsberg provided copies of these documents to The New York Times.
- The New York Times began publishing a series of articles based on the contents of the Pentagon Papers.
- After the first articles were published, the U.S. government, through the Attorney General, requested that The New York Times cease further publication, citing national security concerns.
- The Washington Post also obtained portions of the Pentagon Papers and began publishing its own articles about the study's findings.
Procedural Posture:
- The United States sued The New York Times Co. in the U.S. District Court for the Southern District of New York, a federal trial court, seeking to enjoin publication of the Pentagon Papers.
- The District Court denied the injunction.
- The United States appealed to the U.S. Court of Appeals for the Second Circuit, an intermediate federal appellate court, which reversed the District Court's decision and remanded the case for further hearings.
- In a parallel case, the United States sued The Washington Post Co. in the U.S. District Court for the District of Columbia, another federal trial court.
- That District Court also denied the government's request for an injunction.
- The United States appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which affirmed the trial court's denial of the injunction.
- Due to the conflicting appellate court rulings and the urgency of the matter, the Supreme Court of the United States granted certiorari for both cases on an expedited basis.
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Issue:
Does the First Amendment's freedom of the press protect a newspaper's right to publish classified government documents, thereby barring the government from obtaining a court order to enjoin (or stop) their publication?
Opinions:
Majority - Per Curiam
Yes. Any prior restraint on expression bears a heavy presumption against its constitutional validity, and the government has not met its heavy burden of showing a justification for imposing such a restraint on The New York Times and The Washington Post. Citing Bantam Books, Inc. v. Sullivan, the Court holds that the government failed to overcome the strong constitutional protection for the press.
Concurring - Black, J.
Yes. The First Amendment's command that 'Congress shall make no law...abridging the freedom...of the press' is absolute and permits no judicial restraint on the press. The press must be left free to publish news, whatever the source, without censorship or prior restraints, as its essential role is to serve the governed by exposing deception in government. The vague concept of 'national security' cannot be used to abrogate this fundamental right.
Concurring - Douglas, J.
Yes. The First Amendment leaves no room for governmental restraint on the press, and there is no statutory authority for the injunction sought. The Espionage Act distinguishes between 'communication' and 'publication,' and its legislative history shows Congress specifically rejected giving the President the power to prohibit publishing information. Secrecy in government is fundamentally anti-democratic, and open debate is vital to national health.
Concurring - Brennan, J.
Yes. The First Amendment tolerates no prior judicial restraints predicated on surmise or conjecture. To justify a restraint, the government must prove that publication would 'inevitably, directly, and immediately' cause a catastrophe of the magnitude of imperiling a troop transport at sea during wartime. The government did not meet, or even allege it could meet, this high burden.
Concurring - Stewart, J.
Yes. While the Executive has great power in national defense and foreign relations that requires confidentiality, the only effective restraint on that power is an informed public, which depends on a free press. A prior restraint is only justifiable if the government can prove that disclosure will 'surely result in direct, immediate, and irreparable damage to our Nation or its people.' Although he believed some documents could cause harm, he could not conclude that they met this high constitutional standard.
Concurring - White, J.
Yes. The government has not satisfied the very heavy burden required to warrant a prior restraint, at least in the absence of a specific congressional statute authorizing it. However, the refusal to grant an injunction does not mean the newspapers are immune from subsequent criminal prosecution under the Espionage Act. Failure to justify a prior restraint does not prevent the government from pursuing a criminal conviction for the act of publication.
Concurring - Marshall, J.
Yes. The central issue is one of separation of powers, as the Executive is asking the Court to use its contempt power to prohibit conduct that Congress has specifically declined to prohibit. Congress has enacted numerous statutes concerning the protection of national secrets but has explicitly rejected legislation that would grant the President the power to enjoin publication. It is not the Court's role to grant the Executive a power that the legislative branch has refused to provide.
Dissenting - Burger, C.J.
No. The cases were conducted with 'unseemly haste,' which prevented a thorough and deliberate judicial review of the facts and the enormous national security issues at stake. The First Amendment is not absolute and must be balanced against the imperative of the effective functioning of government, particularly the Executive's constitutional powers in foreign affairs. The Court's precipitate action aborted trials not yet completed and was not the kind of judicial conduct appropriate for such a great issue.
Dissenting - Harlan, J.
No. The Court has been 'irresponsibly feverish' in its handling of the case, failing to give proper consideration to the complex legal and factual questions. The judiciary's scope of review over the Executive's determination of national security in foreign affairs is very narrow. The Court overstepped its authority by second-guessing the Executive's assessment of potential harm, a function for which the judiciary has 'neither aptitude, facilities nor responsibility.'
Dissenting - Blackmun, J.
No. The cases were decided with an inadequately developed record and without the careful deliberation required for such profound issues. The First Amendment is only one part of the Constitution and should not be treated as an absolute at the expense of other provisions, such as the Executive's power to ensure the nation's safety. The Court should have remanded the cases for a full trial, during which a proper weighing of the press's rights against the government's national security interests could occur.
Analysis:
This landmark decision established an exceptionally strong precedent against prior restraint, making it nearly impossible for the government to prevent the press from publishing information on national security grounds. By setting the justification bar to a level of 'direct, immediate, and irreparable damage,' the Court affirmed the media's role as a vital check on government power, even in sensitive areas. However, the concurring opinions of Justices like White leave the door open for post-publication criminal prosecutions, creating a distinction between preventing publication (censorship) and punishing it after the fact.
