INTRODUCTION TO THE COURT OPINION ON THE NEW YORK TIMES CO. V. UNITED STATES CASE
In a democracy, there is always a tension between a free press and the government, between what the government claims ought to be kept confidential and what reporters believe the public ought to know. Rarely has this conflict been clearer than in the celebrated Pentagon Papers case.
In 1967 Secretary of Defense Robert S. McNamara ordered a full-scale evaluation of how the United States became involved in the Vietnam War. A study team of thirty-six persons took more than a year to compile the report, which ran to forty-seven volumes, with some 4,000 pages of documentary evidence and 3,000 pages of analysis. Daniel Ellsberg, a former Defense Department economist who had grown disillusioned with the war, copied major portions of the study and then turned them over to the press. On June 13, 1971, the New York Times began publishing the papers, and the Nixon administration immediately sought to stop further publication.
In Near v. Minnesota, Chief Justice Hughes had noted that the rule against prior restraint would not apply in certain cases. No one would question, Hughes declared, "that a government might prevent actual obstruction to its recruiting service or the publication of the sailing days of transports or the number and location of troops." Using this theory, the Justice Department secured a temporary injunction against the Times. The Washington Post then picked up publication, and when the administration went to court against that paper, the Boston Globe began publication. In an unusual move, the Supreme Court expedited the appeals process, and heard oral argument on June 26, and four days later, on June 30 -- seventeen days after the Times ran the first installment -- handed down its decision.
The speed is noteworthy for several reasons, not least of which is the importance that both the administration and the Court gave to the necessity to decide the issue. The speed also accounts, at least in part, for the failure of a majority to form around a single opinion. Instead the Court announced a brief per curiam decision, in which it noted that the government always had a heavy burden to bear in proving why prior restraint should be permitted, and it had failed to do so in this case. The various justices then set out their views of freedom of the press.
The rationale behind the pilfering of the Pentagon documents and then providing copies to the press had been to inform the public of what Ellsberg charged was double-dealing and lying by the government regarding the Vietnam War. The people, according this theory, had a right to know what its government had done. General Maxwell Taylor, who had been ambassador to South Vietnam during the early stages of the war, condemned this idea. A citizen's right to know, he declared, is limited "to those things he needs to know to be a good citizen and discharge his functions, but not to...secrets that damage his government and indirectly the citizen himself."
Some members of the Court, notably Justice Potter Stewart, did believe in this notion of a citizen's right to know, and Stewart put forward the theory of the press serving as a surrogate for the people, ferreting out information for them and securing the material to which they had a right. Not all members of the Court endorsed this "functional" theory of the press, but Chief Justice Burger later commented that despite the split vote, the justices were "actually unanimous." In many ways, this was true. All of the justices did believe in the basic doctrine of no prior restraint, first set out in the Near case, and with the exception of Justices Black and Douglas, who took an absolutist stance against any government censorship of any issue at any time, the entire Court agreed that government should not censor the press, that no prior restraint was the rule except in very unusual circumstances.
For further reading: Martin Shapiro, ed., The Pentagon Papers and the Courts ...(1972); Archibald Cox, The Court and the Constitution (1987); S. J. Ungar, The Paper and the Papers...(1972).
NEW YORK TIMES CO. V. UNITED STATES
Per Curiam.
We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy."
"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." justification for the enforcement of such restraint."...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 that burden. We agree.
The judgement 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 judgement affirming the judgement of the District Court. The stays entered June 25, 1971, by the Court are vacated. The mandates shall issue forthwith.
So ordered.
Justice Black, with whom Justice Douglas joins, concurring.
I adhere to the view that the Government's case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment... In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment...Only a free and unrestrained press can effectively expose deception in government. 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. The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental laws embodied in the First Amendment...
Justice Douglas, with whom Justice Black joins, concurring.
[The First Amendment] leaves, in my view, no room for governmental restraint on the press. There is, moreover, no statute barring the publication by the press of the material which the Times and Post seek to use... [I]t is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.
So any power that the Government possesses must come from its "inherent power." The power to wage war is "the power to wage war successfully." But the war power stems from a declaration of war. The Constitution by Article I, Section 8, gives Congress, not the President, power "to declare War." Nowhere are presidential wars authorized. We need not decide therefore what leveling effect the war power of Congress might have.
These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press...The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental sup-pression of embarrassing information. A debate of large proportions goes on in the Nation over our posture in Vietnam. Open debate and discussion of public issues are vital to our National Health. The stays in these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment as interpreted in [Near v. Minnesota].
Justice Brennan, concurring.
The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these cases has been that publication of the material sought to be enjoyed "could," or "might," or "may" prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that unto-ward consequences may result. 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"...during which times "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."...Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature...Until the Government has clearly made out its case, the First Amendment commands that no injunction may issue.
Justice Stewart, with whom Justice White joins, concurring.
The only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is. The Executive must have largely unshared duty to determine and preserve the degree of internal security necessary to exercise...power successfully. It is the constitutional duty of the Executive -- as a matter of sovereign prerogative and not as a matter of law as the courts know law -- through the promulgation and enforcement of executive regulations to protect the confidentiality necessary to carry out its responsibilities in the fields of inter-national relations and national defense. This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact specif-ic and appropriate criminal laws to protect government property and preserve government secrets...
But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publications by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. 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. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgements of the Court.
Justice White, with whom Justice Stewart joins, concurring.
I concur in today's judgements, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system. I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about governent plans or operations. Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden which it must meet to warrant an injunction against publication in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraints in circumstances such as these...
Justice Marshall, concurring.
The ultimate issue in this case is whether this Court or the Congress has the power to make law. [I]n some situations it may be that...there is a basis for the invocation of the equity jurisdiction of this Court as an aid to prevent the publication of material damaging to "national security," however that term may be defined. 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. There would be similar damage to the basic concept of these co-equal branches of Government if when the [executive] had adequate authority granted by Congress to protect "national security" it can choose instead to invoke the contempt power of a court to enjoin the threatened conduct...It is plain that Congress has specifically refused to grant the authority the Government seeks from this Court to fling itself into every breach perceived by some Government official...
Justice Harlan, with whom the Chief Justice and Justice Blackmun join, dissenting.
[I] consider that the Court has been almost irresponsibly feverish in dealing with these cases.
Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia Circuit rendered judgment on June 23. The New York Times' petition for certiorari, its motion for accelerated consideration thereof, and its application for interim relief were filed in this Court on June 24, at about 11 A.M. The application of the United States for interim relief in the Post case was also filed here on June 24, at about 7:15 P.M. This Court's order setting a hearing before us on June 26 at 11 A.M., a course which I joined only to avoid the possibility of even more peremptory action by the Court, was issued less than 24 hours before. The record in the Post case was filed with the Clerk shortly before 1 P.M. on June 25; the record in the Times case did not arrive until 7 or 8 o'clock that same night. The briefs of the parties were received less than two hours before argument on June 26.
[The] frenzied train of events...took place in the name of the presumption against prior restraints created by the First Amendment. Due regard for the extraordinarily important and difficult questions involved in these litigations should have led the Court to shun its precipitate timetable...
These are difficult questions of fact, of law, and of judgement; the potential consequences of erroneous decision are enormous. The time which has been available to us, to lower courts, and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve. It is a reflection on the stability of the judicial process that these great issues -- as important as any that have arisen during my time on the Court -- should have been decided under the pressures engendered by the torrent of publicity that has attended these litigations from their inception.
Forced as I am to reach the merits of these cases, I dissent from the opinion and judgements of the Court. Within the severe limitations imposed by the time constraints under which I have been required to operate, I can only state my reasons in telescoped form. It is plain to me that the scope of the judicial function in passing upon the activities of the Executive Branch of the Government in the field of foreign affairs is very narrowly restricted. This view is, I think, dictated by the concept of separation of powers upon which our constitutional system rests. I agree that in performance of its duty to protect the values of the First Amendment against political pressures, the judiciary must review the initial Executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President's foreign relations power. Constitutional considerations forbid "a complete abandonment of judicial control." Moreover, the judiciary may properly insist that the determination that disclosure of the subject matter would irreparably impair the national security be made by the head of the Executive Department concerned -- here the Secretary of State or the Secretary of Defense -- after actual personal consideration by that officer. But in my judgement the judiciary may not properly go beyond these two inquiries and redetermine for itself the probable impact of disclosure on the national security...
Even if there is some room for the judiciary to override the executive determination, it is plain that the scope of review must be exceedingly narrow...[Pending] further hearings in each case conducted under the appropriate ground rules, I would continue the restraints on publication. I cannot believe that the doctrine prohibiting prior restraints reaches to the point of preventing courts from maintaining the status quo long enough to act responsibly in matters of such national importance as those involved here.
Source: 403 U.S. 713 (1971).
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