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NY Times vs. U.S. (Pentagon Papers) 403 U.S.

713 (1971)

Any system of prior restraint comes to this court bears a heavy presumption AGAINST its
constitutional validity. The government thus carry a heavy burden of showing a justification for
the imposition of such a restraint.

Over the years the Supreme Court has disagreed on the limits that can be placed on the 1st
Amendment guarantees of freedom of speech and press.

In 1971, the Court faced these issues again in a case brought by the New York Times. The
newspaper had obtained a copy of documents known as "The Pentagon Papers"an internal
Defense Department report that detailed government deception with regard to the Vietnam War.

The Pentagon Papers surfaced at a time when the American people were deeply divided on the
question of United States involvement in the war.

The New York Times fought for the right to publish the papers under the umbrella of the 1st

The Pentagon Papers, officially known as "History of U.S. Decision-Making Process on Vietnam
Policy," were illegally copied and then leaked to the press.

The New York Times and the Washington Post had obtained the documents. Acting at the
Government's request, the United States district court in New York issued a temporary
injunctiona court orderthat directed the New York Times not to publish the documents.

The Government claimed that the publication of the papers would endanger the security of the
United States. The New York Times appealed the order to the United States Supreme Court,
arguing that prior restraint preventing publicationviolated the 1st Amendment.
From June 12 to 14, 1971, the New York Times published a series of articles about the origins of
the Vietnam War. The articles were based on a FORTY-SEVEN-VOLUME Defense Department
study covering the years 1945 to 1968, which had been leaked to the Times by Daniel Ellsberg, a
former Defense Department analyst.

Although the study contained only information regarding events that occurred before 1968, the
government contended that the study contained "secret" and "top secret" information. Further, the
government alleged that publication of the information could prolong the Vietnam War and
threaten the safe return of U.S. prisoners of war.

On June 15, 1971, the government sued in New York federal district court, seeking an injunction
prohibiting the Times from continuing to publish information from the Pentagon Papers.

Soon after, the Washington Post began publishing material from the study; accordingly, the
government sought a similar injunction against the Post in the District of Columbia.
It was the NIXON ADMINISTRATION that attempted to prevent the New York Times and
Washington Post from publishing materials. The President argued that prior restraint was
necessary to protect national security.

FOR THE NEW YORK TIMES: The 1st Amendment's guarantee of freedom of the press protects
the newspaper in the publication of these documents. One of the few restraints on executive power
in matters of national defense is a knowledgeable population. The press must be free to inform the
American people. In addition, the Government has failed to show that publication of the Pentagon
Papers would endanger national security.

FOR THE UNITED STATES: The 1st Amendment does not guarantee an absolute freedom of the
press, especially when the nation's security is involved. The Court must strike a balance between
the fundamentally important right to a free press and the equally important duty of the Government
to protect the nation. Allowing the publication of these documents would establish a dangerous
precedent for future cases involving national security.

WON prior restraint of publication constitutes violation of the first amendment

HELD: Yes.
Any system of prior restraint comes to this court bearing a heavy presumption AGAINST its
constitutionality. The government, thus carry a heavy burden of showing a justification for the
imposition of such a restraint. In this case, the government has NOT MET that burden.

The Supreme Court decided on a 6-3 vote that a prior restraint could not be imposed on publication
of the Pentagon Papers. The whole Court noted that the government "carries a heavy burden of
showing justification for the imposition of such a restraint" and stated that the government had
failed to meet that burden. The Court could not agree on a precise standard for determining when
the government may impose a prior restraint on free speech, or even whether the government could
ever impose a prior restraint.

Dissent on Separation of Powers:

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. The First Amendment is only part of the Constitution.
The cases should be remanded to be developed expeditiously.

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.