New York Times vs. United States, 403 U.S. 713, June 30, 1971

In New York Times vs. U.S., 403 U.S. 713, June 30, 1971, the federal government of the U.S. sought to enjoin the New York Times and the Washington Post from publishing the contents of a classified Pentagon paper entitled “History of U.S. Decision-Making Process on Viet Nam Policy.” In a terse per curiam resolution, the U.S. Supreme Court declared that “‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ The Government ‘thus carries a heavy burden of showing justification for the imposition of such a [prior] restraint.’ The Court held that in this particular case the Government had not met that burden. Thus, it lifted the injunction it preliminarily issued previously against the newspapers. 

In his concurrence, Justice Black, who was known for his absolutist view in free speech cases, concurred in the decision but assailed the previous issuance of temporary injunctions against the newspapers before the oral argument. He was of 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.”

Justice Douglas likewise espoused the absolutist view that the First Amendment of the U.S. Constitution, which provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” leaves 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 the Post seek to use. These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press. He added:

The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress.

Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be “uninhibited, robust, and wide-open” debate. (Citations omitted.)

Justice Brennan likewise concurred in the resolution, but not without warning that “[the Court’s] judgments in the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed by the Government.” He further averred:

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 enjoined “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 untoward 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,” Schenck v. United States, 249 U. S. 47, 249 U. S. 52 (1919), during which times “[n]o 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.”

Justices White and Stewart concurred “only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system” and because “the United States has not satisfied the very heavy burden that 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.”

Meanwhile, Justice Marshall framed the issue differently by asking whether it is the Court or the Congress that has the power to make law. On the government’s argument that, in addition to its inherent power to protect itself, the President’s power to conduct foreign affairs and his position as Commander-in-Chief give him authority to impose censorship on the press to protect his ability to deal effectively with foreign nations and to conduct the military affairs of the country. In effect, Justice Marshall argued that censorship by judicial injunction of the publications would violate the concepts of separation of powers and co-equality of the branches of government. He noted:

Either the Government has the power under statutory grant to use traditional criminal law to protect the country or, if there is no basis for arguing that Congress has made the activity a crime, it is plain that Congress has specifically refused to grant the authority the Government seeks from this Court. In either case, this Court does not have authority to grant the requested relief [to enjoin the publications]. It is not for this Court to fling itself into every breach perceived by some Government official, nor is it for this Court to take on itself the burden of enacting law, especially a law that Congress has refused to pass.

On the other hand, the dissenters lamented the haste by which the Court decided the cases. Chief Justice Burger asserted that since the First Amendment is not absolute, exceptions may be lurking in these cases and, would have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures. An issue of this importance should have been tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice, deferred publication.

Justice Harlan also dissented and characterized the disposition of these cases by the Court as “irresponsibly feverish.” He remarked that “[t]his 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 such a precipitate timetable.”

Finally, Justice Blackmun rued that it was not the way to try a lawsuit of that magnitude and importance. He explained that the First Amendment is only one part of an entire Constitution and that each provision of the Constitution is important. He refused to subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. What is needed here, he said, is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed. The parties here are in disagreement as to what those standards should be. But even the newspapers concede that there are situations where restraint is in order and is constitutional. Justice Blackmun thus quoted the suggestion of Justice Holmes in Schenck, “It is a question of proximity and degree. 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.”