New York Times Co. v. United States

New York Times Co. v. United States, 403 U.S. 713 (1971), argued 26 June 1971, decided 30 June 1971 by vote of 6 to 3; Douglas, Stewart, White, Marshall, black, and Brennan writing separately, Burger, Blackmun, and Harlan in dissent. On 13 June 1971 the New York Times published the first installment of the “Pentagon Papers,” a classified, seven thousand page document commissioned by President Lyndon Johnson's secretary of defense, Robert McNamara. It revealed that secrecy had been the handmaiden of deception. Other newspapers quickly serialized the documents, leaked by Daniel Ellsberg, a dissident former bureaucrat in the national security apparatus.

Nixon administration officials initially regarded the documents as embarrassing only to previous administrations. President Richard Nixon himself thought that the “opposition” had an interest in forgetting the papers, but “ours is to play it up.” But with National Security Adviser Henry Kissinger, Nixon also realized that publication imperiled his own policies, his patterns of secrecy, and his credibility. Most important, Nixon feared that future presidents would lose control over classified documents and thus potentially embarrass their predecessors.

The administration secured a lower court order on 15 June temporarily restraining publication. Three days later, the judge denied a permanent injunction, but a circuit judge blocked further publication pending the government's appeal. On 25 June the Supreme Court agreed to take an expedited appeal, bypassing the intermediate court, yet did not lift the restraining order. Justices Hugo Black, William Brennan, William O. Douglas, and Thurgood Marshall protested the maintenance of the prior restraint. Arguments were heard the next day, and in conference, the justices voted 6 to 3 to deny the government's request for a permanent order. The Court issued a brief per curiam decision on 30 June, stating that the government had not met the burden of proving a need for prior restraint.

The government had contended that publication would endanger lives, the release of prisoners of war, and the peace process—arguments that most of the justices readily dismissed as transparent. Solicitor General Erwin Griswold himself had serious doubts about the argument the Administration insisted on making; later, he said that the decision “came out exactly as it should.”

The haste of hearing arguments and deciding inevitably led to fragmentation among the justices. Black, Brennan, and Douglas insisted that any injunction constituted prior restraint, and the Court never should have allowed any halt to publication. Justices Byron White, Marshall, and Potter Stewart agreed that prior restraint was unnecessary in this case but rejected the absolutist position of their majority colleagues. Chief Justice Warren Burger and Justices Harry Blackmun and John M. Harlan dissented, each objecting to the rush of the proceedings. Burger also emphasized his belief that publishers could be prosecuted for criminal violations of security statutes for printing classified information, but only after publication.

The Court, however divided, largely agreed that prior restraint was extraordinary. Nevertheless, the Burger Court soon allowed the Central Intelligence Agency to require former employees to submit proposed writings to review (Marchetti v. United States, 1968; Snepp v. United States, 1980). Criminal statutes abounded for dealing with security breaches; indeed Daniel Ellsberg, who had leaked the documents, eventually was indicted and tried for his role in the case. Ironically, the administration's own illegal behavior resulted in a mistrial and, eventually, the dropping of the indictment.

The Supreme Court's decision legitimated the media's assaults against governmental secrecy and its self‐assumed status as the people's paladin against official wrongdoing. The incident intensified an already sharpened adversarial relationship between the press and the administration, a relationship that was to deteriorate even more, and with devastating results for Nixon.

See also First Amendment; Speech and the Press; Vietnam War.

Stanley I. Kutler