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Case No.

13
New York Times Co. v. United States, 403 U.S. 713, June 30, 1971

The United States (Nixon Administration) 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.

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 (classified information) 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.
 Granting an injunction against the Times would 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.

Issue:
Whether or not the United States (Nixon’s Administration) efforts to prevent the publication of
what it termed "classified information" violates the First Amendment of the United States Constitution
[Constitution].
United States contention: publication of the classified information would jeopardize national
security.

Held:
Yes, it violates the First Amendment of the United States Constitution [Constitution].

The First Amendment of the Constitution leaves no room for governmental restraint on the press.
The First Amendment of the Constitution tolerates no prior judicial restraints of the press
predicated upon surmise (speculation) or conjecture (assumption) that untoward consequences may
result.
In this case, there is no statute barring the publication by the press of the material that the Times
and Post seek to publish. 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.

 In its per curiam (by the court) 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.
 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.
 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.

Notes:
 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.”
 The First Amendment overrides the federal government’s interest in keeping certain documents,
such as the Pentagon Papers, classified
 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.

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)
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.