New York Times Co vs.

United States
403 U.S. 713, June 30, 1971
Condensed FACTS:
In year 1967, a classified history of the U.S. role in Vietnam war was commissioned by
Secretary of Defense, Robert Mcnamara. Later on, in 1971, The New York Times released
several portions of the said classified information through its newspapers. Eventually, The
Washington Post soon did the same. Since this government document entails information on
economic, political and military involvement of the United States in the said war, the executive
branch of the government, through its Justice Department blocked these publications through a
temporary restraining order from further publicizing the said information as it was said to have
adverse effects on national security.
These documents were later on termed as the Pentagon Papers. Later on, an appellate
court granted the injunction for New York Times. On the other hand, despite the same nature
of published contents, the same injunction was not secured for the Washington Post on a
separate court. This disparity allowed the case to be appealed to the Supreme Court.

ISSUES:
Whether or not the attempt of the US government to impose prior restraints on the
publications is constitutional, given that it overrides the first amendment
Whether or not the unauthorized disclosure of the press of the said classified information is
truly a threat to national defense and security
(Whether or not the abridgement of press freedom to protect national security is
constitutional)

RULING:
The per curiam decision of 6 – 3 in favor of the publications thereby denied the
government’s attempt to prior restraints. It can be regarded that the nature of this injunction is
highly condemned as it contradicts the protection granted by the state to its people. With this,
the primary consideration for the Court was the First Amendment guarantee against the
imposition of prior restraints on expression. Such ammendment states that: “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”
 Likewise, the per curiam also emphasized the separation of powers, and that the court
despite being sought help by the executive branch of the government, cannot in any way, craft
laws as this is within the scope of power bestowed upon the legislature.
In addition, the per curiam opinion asserted that "any system of prior restraints of
expression bears a heavy presumption against its constitutional validity. And that prior
restraints are not unconstitutional "under all circumstances" Therefore, the government must
overcome the presumptive unconstitutionality of prior restraints. Having not met the heavy
burden of showing justification for the imposition of such a restraint" strengthened the
court’s majority to veer towards upholding the 1st amendment.
Concurrence: Justices Black, Brennan, Douglas, Marshall, Stewart, and White
Dissent – Chief Justice Burger, Justices Blackmun and Harlan

FACTS:
On Sunday, June 13, 1971, the New York Times newspaper began publishing a classified
government document which narrated the recent economic, political and military involvement
of the United States in Indochina.
After the first three daily installments of the "History of U.S. Decision-Making Process
on Viet Nam Policy" appeared in the newspaper, the Executive Branch of the Government,
acting through the Justice Department, sought and obtained a temporary restraining order
prohibiting the further publication of the materials on the ground that continued publication
would endanger the national security. The Washington post did the same and was also
restrained from publication.
The court made a decision on June 30, 1971 – only 15 days after the issue entered a
judicial process.
The First Amendment to the United States Constitution provides that: “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”
This is the first instance where the Executive branch of the government directly petitioned the
Judiciary for help in preventing the publication of material by the press, without any legislative
authorization.
The Executive says (refusing to follow the 1st amendment)
[t]he authority of the Executive Department to protect the nation against publication of
information whose disclosure would endanger the national security stems from two
interrelated sources: the constitutional power of the President over the conduct of foreign
affairs and his authority as Commander-in-Chief.'
 The government further argues - In other words, we are asked to hold that, despite the First
Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws
enjoining publication of current news and abridging freedom of the press in the name of "national
security."

WHY CAN’T PRIOR RESTRAINT BE IMPOSED?

This petition is aimed at expanding the Executive’s scope of authority. The latter disregards
other factors such as other sanctions to hinder the publication, but instead focused on the
issuance of an injunction once the claim to a national threat is proven.
The abovementioned did not resound well with the per curiam opinion arguing that the
government, instead of urging punishment of these newspapers for their violations of criminal
statute, sought an injunction to restrain the further publication of the materials. (fishy) It
further attempted to restrain future publication of materials with the same nature - that is
adversary to national security.
With this, the primary consideration for the Court was the First Amendment guarantee against
the imposition of prior restraints on expression.'
In short, if the Executive were perceived as possessing the power to affect the freedoms of
speech, religion, and the press co-extensively with Congress, then a basis would exist for
possible future expansion of Executive authority beyond that particularized in the provisions
of the original Constitution.
All of the Justices who concurred in the majority result, except Justice Marshall, referred
specifically, but without acceptable explanation, to the application of the First Amendment as
a limitation upon Executive power.
The First Amendment, which expressly purports only to direct Congress in its capacity as a
legislative entity, has now been clearly given an interpretation which limits the powers of both
the Executive and Judicial Branches.
Justice Marshall relied on the concept of separation of powers as earlier expressed by Justice
Jackson. He emphasized the Legislative action aimed at protecting the national security from
disclosure of harmful information, and more significantly, he stressed the congressional refusal
to delegate the exact power the Executive sought to exercise here

In the present case, however, while Congress had enacted restricted legislation which imposed
criminal sanctions for the publication of certain materials,' it had never authorized a system of
prior restraints comparable to what the Executive sought.
Neither the congressional failure to impose criminal sanctions expressly encompassing
publications such as those in the instant case nor Congress' specific refusal to delegate any
Executive censorial power with respect to those publications may have been indicative of the
will of Congress. The inaction could very well have resulted from Congress' cognizance of its
own constitutional inability to authorize or delegate this type of power since Congress is
expressly prohibited by the First Amendment from imposing any restraints on freedom of the
press. Awareness of this limitation could forestall any attempt by Congress to delegate power
which might be exercised in derogation of that Amendment
The Solicitor General does not even mention in his brief whether the Government
considers that there is probable cause to believe a crime has been committed, or whether there
is a conspiracy to commit future crimes
In Youngstown, Justice Black denied the existence of Executive authority as Commander in
Chief other than in the "theater of war"; moreover, he emphasized the pre-eminence of the
Nation's lawmakers over its military leaders in the area of domestic affairs.
RE: Inherent Power
The Constitution by Art. I, § 8, gives Congress, not the President, power "[t]o declare War."
Nowhere are presidential wars authorized.
The Commission on Government Security proposed that Congress enact a law “making it
a crime for any person willfully to disclose without proper authorization, for any purpose
whatever, information classified 'secret' or 'top secret,' knowing, or having reasonable grounds
to believe, such information to have been so classified." The court cannot exercise the power of
the Congress if it refuses to enact a law criminalizing certain activities.

In 1957 Congress rejected a proposal which suggested that; Congress enact legislation making
it a crime for any person willfully to disclose without proper authorization, for any purpose
whatever, information classified "secret" or "top secret," knowing, or having reasonable
grounds to believe, such information to have been so classified
In 1917 Congress rejected a proposal which provided that: During any national emergency
resulting from a war to which the United States is a party, or from threat of such a war, the
President may, by proclamation, declare the existence of such emergency and, by
proclamation, prohibit the publishing or communicating of, or the attempting to publish or
communicate any information relating to the national defense which, in his judgment, is of such
character that it is or might be useful to the enemy. (US Code Section 793)
"Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or
in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution
of the United States and no regulation shall be promulgated hereunder having that effect." (US Code
Section 793 1b)

18 U.S.C. § 798 is clear. Both the House and Senate Reports on the bill, in identical terms, speak of
furthering the security of the United States by preventing disclosure of information concerning the
cryptographic systems and the communication intelligence systems of the United States
Section 793(e) of 18 U.S.C. Whoever having unauthorized possession of…. or note relating to the national
defense or information relating to the national defense which information the possessor has reason to
believe could be used to the injury of the United States or to the advantage of any foreign nation,
willfully communicates, is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both..

RELATED TO RULING
The per curiam opinion in New York Times held that "[a]ny system of prior restraints of
expression . . . [bears] a heavy presumption against its constitutional validity."(Organization for
a Better Austin v. Keefe)
The Court concluded that the government had not met the "heavy burden of showing
justification for the imposition of such a restraint."
Accordingly, the question for future litigation, since the Court has recognized that prior
restraints are not unconstitutional "under all circumstances," "' is what burden must the
government meet to overcome the presumptive unconstitutionality of prior restraints.
RE: Setting Near v. Minnesota as the guiding precedent.
In Near, a state legislature had established a procedure whereby publication of materials of a
"malicious, scandalous and defamatory" nature could be declared a nuisance and be
perpetually enjoined from further publication. A complaint was filed against a newspaper
publisher who, after denying that the materials published were of a "malicious, scandalous and
defamatory" nature, asserted his constitutional guarantee of "freedom of the press." However,
the SC concluded that the Minnesota procedure was constitutionally defective since it
established an invalid system of prior restraints.

LIMITATION TO THE IMMUNITY OF PREVIOUS RESTRAINT:

"When a nation is at war many things that might be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long as men fight and that no Court could regard them
as protected by any constitutional right." (Schenck v. United States, 249 U.S. 47, 52)

JUSTICE BRENNAN said

Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the
First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated
that such cases may arise only when the Nation "is at war," (Schenck v. United States)

No one would question but that a government might prevent actual obstruction to its recruiting service
or the publication of the sailing dates of transports or the number and location of troops. On similar
grounds, the primary requirements of decency may be enforced against obscene publications. The
security of the community life may be protected against incitements to acts of violence and the
overthrow by force of orderly government.

Schenck v. United States offered by the Court in Near as an example of an exception to absolute
constitutional prohibition of prior restraints. A case called upon to decide the validity of a conviction
under the Espionage Act of 1917 which prohibited the distribution of documents deemed to be
"calculated to cause . . . insubordination and obstruction" of recruitment and enlistment into the armed
forces.

However, this did not appear to be a censorial system of authorizing prior restraints for national security
but rather providing criminal sanctions to those who were distributing subversive materials.

PER CURIAM DECISION – 6 TO 3

Concurrence: Justices Black, Brennan, Douglas, Marshall, Stewart, and White
The Justices who concurred in the Court's opinion did so either by proclaiming that the First
Amendment made no provision for governmental restraint on the press or by applying
individualized and opaque concepts of separation of powers which in general rejected the
means with which the Executive sought to effect its self-proposed prerogative. This guarantee is
to deny the ability of the Executive to constrain freedom of expression by any means.
Justice Hugo Lafayette Black (Court’s staunch 1st amendment absolutist)
[E]very moment's continuance of the injunctions against these newspapers amounts to a flagrant,
indefensible, and continuing violation of the First Amendment.

I believe the Federal Government is without any power whatever under the Constitution to put any type
of burden on speech and expression of ideas of any kind

Applied the freedom of press guarantee of the First Amendment to absolutely deny the Executive the
power to restrain expression.

Placed reliance on one of the Constitution's original framers, James Madison, for explanation and
corroboration:

Madison proposed what later became the First Amendment in three parts, two of which are set out
below, and one of which proclaimed: "The people shall not be deprived or abridged of their right to
speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great
bulwarks of liberty, shall be inviolable." The amendments were offered to curtail and restrict the
general powers granted to the Executive, Legislative, and Judicial Branches two years before in the
original Constitution. The Bill of Rights changed the original Constitution into a new charter under which
no branch of government could abridge the people's freedoms of press, speech, religion, and assembly.

Justice William Joseph Brennan, Jr

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.)

In no event may mere conclusions be sufficient: for if the Executive Branch seeks judicial aid in
preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by
the judiciary. And therefore, every restraint issued in this case, whatever its form, has violated the First
Amendment.

It is possible to abrogate the dictates of the First Amendment in order to protect the national security.
However, the Justice's belief that the Government must meet a heavy burden of proof to justify this is
evidenced by the example he gave of a justifying national security interest

Justice William Orville Douglas (absolute First Amendment protection to any expression which
does not constitute an "overt act")
The Executive has no inherent power to obtain injunctive relief to restrain publications deemed harmful
to national security; that, in any event, no statute proscribes publication of the suspect material; and
that because Congress has not declared the existence of any war, the war power may not be
employed to justify a prior restraint.

Justice Potter Stewart

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

The present case the Government had not met the heavy burden of justification to such instances that
prior restraints can be deemed permissible. “I am convinced that the Executive is correct with respect to
some of the documents involved. But I cannot say that disclosure of any of them will surely result in
direct, immediate, and irreparable damage to our Nation or its people.

Justice Byron Raymond White

Protecting national security is usually considered an especially compelling government interest that
provides a stronger rationale for regulating speech.

Expressing his hope that a "responsible press" would not publish materials which imperil national
security, Justice White observed that Congress had addressed the problem of potential threats to
national security only through the deterrence of criminal sanctions, and not through any injunctive
remedy.

Justice Thurgood Marshall

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.
The Justice pointed out the continuing refusal of Congress to "enact legislation that would have made
the conduct engaged in . . . unlawful and given the President the power that he seeks."

Denied the supremacy of this power in the present situation, stating: It would, however, be utterly
inconsistent with the concept of separation of powers for this Court to use its power of contempt to
prevent behavior that Congress has specifically declined to prohibit.

The Constitution provides that Congress shall make laws, the President execute laws, and courts
interpret laws. It did not provide for government by injunction in which the courts and the Executive
Branch can "make law" without regard to the action of Congress.

Dissent – Chief Justice Burger, Justices Blackmun and Harlan

The dissenting Justices, in showing a special regard for Executive power, placed no definitive
limitation upon the Executive as the Commander-in-Chief and "sole organ" of the nation in the
area of foreign affairs.
Chief Justice Warren Earl Burger
Burger did not find that the prior restraint was justified, but only that further deliberations and
investigations were needed.

The major portion of his opinion was dedicated to castigating the Times for its defensive assertion that
the First Amendment guaranteed the "public's right to know" the information in the newspaper's
possession and, therefore, the government could not prevent their publication.

He further noted that the Times had concealed the contents of classified papers from the public for a
period of three to four months while editing them for publication, implied that there was justification for
the imposition of a prior restraint under the circumstances.

Unseemly haste with which the litigation was conducted and with the inadequate record.

Justice John Marshall Harlan II

Condemned the "feverish" speed with which the Court decided the case; received insufficient
consideration due to the time pressures involved.

He voted against the newspapers due to the potential effect the historical revelations might have on
national security.

Justice Blackmun
Lamenting the haste with which the cases had been adjudicated. “Thus, maintenance of the status quo
in order to ensure proper judicial review would not, in Justice Blackmun's view, be abhorrent to the
values of the First Amendment.”
 THOROUGH PROCEDURAL FLOW
In this case, a temporary restraining order was granted. However, preliminary injunction was
denied since the government has not sufficiently justified their imposition of prior restraints on
expression. TRO lasts until June 25, 1971 with the specific items filed with the court.

The District Court for the Southern District of New York, in the New York Times case, and the District
Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in the
Washington Post case, held that the Government had not met that burden.

We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The
order of the Court of Appeals for the Second Circuit is reversed, and the case is remanded with
directions to enter a judgment affirming the judgment of the District Court for the Southern District of
New York.

The government appealed to the Court of Appeals for the 2 nd circuit. The CA remanded to the lower
courts to determine whether the subject items pose danger to national security as to warrant an
injunction against their publications.

The government filed a motion for a restraining order against Washington Post pending at the hearing
on the application for a preliminary injunction; but this was denied. However, after an appeal, the
decision was reversed. On remand, the district court denied the Government’s application for
preliminary injunction which was then affirmed by the CA for the district of Colombia Circuit.

The SC will now hear the appeal while placing the Post under the same restraints imposed upon Times.

The Writ of certiorari to the Times was granted. And the restraint posed upon the times by the CA for
the 2nd circuit continued pending argument and decision by the SC. The government’s petition for
certiorari was also granted and both cases were consolidated for purposes of argument.

Per curiam decision – 6 to 3

Concurrence: Justices Black, Brennan, Douglas, Marshall, Stewart, and White

Dissent – Chief Justice Burger, Justices Black and Harlan

WHAT DID THE PENTAGON PAPERS DISCLOSE?

United States-Vietnam Relations, 1945–1967 was a comprehensive documentary and analytical record
from the end of World War II through the aftermath of the Tet Offensive of early 1968. Most important,
however, the highly classified study revealed that administrations from Harry S. Truman's through
Lyndon B. Johnson's had willingly deceived the American people about the nation's involvement in
Vietnam.

[The Pentagon Papers represented] a body of authoritative information, of inside government

deliberations, that demonstrated beyond questioning the criticisms that antiwar activists had been
making for years not only were not wrong but, in fact, were not materially different from things that
had been argued inside the US government. (Historian John Prados)
Top secret about US involvement in Vietnam War; military miscalculations; lies which Elsberg thinks that
the public must know about; it revealed that the govt has been involved in the Vietname war through
several presidencies – Truman administration (1950); President Eisenhower (1954); President Kennedy;
President Johnson – President Nixon (Injunction 1971)

DEFINITIONS:

RE: Per curiam

An opinion from an appellate court that does not identify any specific judge who may have written the
opinion. A per curiam decision is a court opinion issued in the name of the Court rather than specific
judges. Most decisions on the merits by the courts take the form of one or more opinions written and
signed by individual justices.

Also, (from 03-B) a per curiam decision is the opinion of the whole Court in situations where the issues
are so defined that the opinion is not supplemented by extended discussion of supporting reasons.

Prior restraint - judicial suppression of material that would be published or broadcast, on the grounds
that it is libelous or harmful. In US law, the First Amendment severely limits the ability of the
government to do this.

Dicta - The part of a judicial opinion which is merely a judge's editorializing and does not directly address
the specifics of the case at bar; extraneous material which is merely informative or explanatory. Dicta
are judicial opinions expressed by the judges on points that do not necessarily arise in the case.

Injunctive relief is a discretionary power of the court, in which the court balances the irreparability of
harm and inadequacy of damages if an injunction were not granted against the damages that would
result if an injunction was granted.

The Smith Act (54 Stat. 670) of 1940 proscribed, among other things, the advocacy of the forcible or
violent overthrow of the government.

PROVISIONS:

The Espionage Act of 1917 prohibited obtaining information, recording pictures, or copying
descriptions of any information relating to the national defense with intent or reason to believe that the
information may be used for the injury of the United States or to the advantage of any foreign nation.
The act also created criminal penalties for anyone obstructing enlistment in the armed forces or causing
insubordination or disloyalty in military or naval forces.

PRECEDENCE:

RE: Setting Near v. Minnesota as the guiding precedent.

In Near, a state legislature had established a procedure whereby publication of materials of a "malicious,
scandalous and defamatory" nature could be declared a nuisance and be perpetually enjoined from
further publication. A complaint was filed against a newspaper publisher who, after denying that the
materials published were of a "malicious, scandalous and defamatory" nature, asserted his
constitutional guarantee of "freedom of the press." However, the SC concluded that the Minnesota
procedure was constitutionally defective since it established an invalid system of prior restraints.

“The dominant purpose of the First Amendment was to prohibit the widespread practice of
governmental suppression of embarrassing information”