New York Times Co. v. United States, 403 U.S. 713 (1971)
The First Amendment overrides the federal government’s interest in keeping certain documents, such as the Pentagon Papers, classified.
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 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.
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.
- 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.
- 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.
- 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.)
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.Case Commentary
Prior restraints are rarely justified, even in matters of extreme government importance or national security, since they are among the most disfavored forms of restricting the freedom of speech. As noted above, the opinion has limited precedential value because of its distinctive circumstances and the absence of a majority opinion with detailed reasoning. It is mostly important as an indication of the significance accorded to the First Amendment by the Justices and an example of the wide-ranging philosophical perspectives on it.
U.S. Supreme CourtNew York Times Co. v. United States, 403 U.S. 713 (1971)
New York Times Co. v. United States
Argued June 26, 1971
Decided June 30, 1971*
403 U.S. 713
The United States, which brought these actions to enjoin publication in the New York Times and in the Washington Post of certain classified material, has not met the "heavy burden of showing justification for the enforcement of such a [prior] restraint."
No. 1873, 44 F.2d 544, reversed and remanded; No. 1885, ___ U.S.App.D.C. ___, 446 F.2d 1327, affirmed.