NEW YORK TIMES CO. V. UNITED STATES

New York Times Co. v. United States, (per curiam) 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971), often referred to as the Pentagon Papers case, concerned the government's attempt to prohibit the New York Times and the Washington Post from publishing portions of a secret government study on the vietnam war. The documents in the study became known as the Pentagon Papers. The United States contended that publication of the Pentagon Papers could prolong the Vietnam War and hinder efforts to return U.S. prisoners held in Vietnam. The Times and the Post claimed that the government was engaging in censorship. Thus, the case pitted the rights of the newspapers under the first amendment against the duty of the executive branch to protect the nation. The case drew significant national attention as it went through the judicial system and the public wondered what the Pentagon Papers contained.

The Pentagon Papers case addressed whether a prior restraint on the press can be justified under the First Amendment. A "prior restraint" is the imposition of a restraint on the publication of information before the information is published. There are two basic types of prior restraints. One consists of a government order or court injunction that prohibits a person from communicating certain information. The other basic type of prior restraint occurs when a license or permit is required before a particular type of expression may be used. New York Times v. United States involved the first type of prior restraint, since the government sought a court injunction prohibiting the newspapers from publishing portions of the Pentagon Papers. Other than the Pentagon Papers case, the most important Supreme Court case discussing prior restraints is near v. minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), which held that under the First Amendment, prior restraints on free speech are justified only in "exceptional cases," such as when the information to be published would include "the sailing dates of transports or the number and location of troops."

In the Pentagon Papers case a divided Supreme Court, in a decision that contains a separate opinion from each of the nine justices, refused to enjoin publication of the Pentagon Papers, emphasizing the First Amendment's strong presumption against any prior restraint on free speech. The justices' reasons for their decisions varied widely. Two justices believed that any prior restraint on the press amounts to censorship in clear violation of the First Amendment, whereas three justices believed that publication of the Pentagon Papers should have been delayed until the courts had more time to evaluate the impact of publication on national security. Because the case sped through the judicial system and the justices' opinions varied widely, it does not provide a clear statement of First Amendment law on prior restraint. For example, the Court failed to specify when, if ever, a prior restraint on the press might be allowed. The case is of great significance, however, as a statement that a prior restraint on the freedom of speech is almost never justified.

From June 12 to 14, 1971, the New York Times published a series of articles about the origins of the Vietnam War. The articles were based on a 47-volume defense department study covering the years 1945 to 1968, which had been leaked to the Times by Daniel Ellsberg, a former Defense Department analyst. Although the study contained only information regarding events that occurred before 1968, the government contended that the study contained "secret" and "top secret" information. Further, the government alleged that publication of the information could prolong the Vietnam War and threaten the safe return of U.S. prisoners of war. On June 15, 1971, the government sued in New York federal district court, seeking an injunction prohibiting the Times from continuing to publish information from the Pentagon Papers. Soon after, the Washington Post began publishing material from the study; accordingly, the government sought a similar injunction against the Post in the District of Columbia.

The actions against the Times and the Post were rushed through the courts because of the unique national importance of the issues and the widespread national public attention the cases were receiving. Although the federal district courts both refused to issue a permanent injunction against publication of the Pentagon Papers, publication was temporarily enjoined pending appeals by the United States. Less than two weeks after the Times published its first articles, the Supreme Court heard arguments on the cases, and five days later, on June 30, 1971, issued its decision.

The Supreme Court decided on a 6–3 vote that a prior restraint could not be imposed on publication of the Pentagon Papers. In a brief opinion the whole Court noted that the government "carries a heavy burden of showing justification for the imposition of such a restraint" and stated that the government had failed to meet that burden. The brief opinion reflected the widely varying views of the nine justices. The Court could not agree on a precise standard for determining when the government may impose a prior restraint on free speech or even whether the government could ever impose a prior restraint.

In concurring opinions Justices hugo l. black and william o. douglas both stated, in very strong language, that prior restraints on the freedom of expression are never justified, no matter what the circumstances. Black, commenting on the government's argument that prior restraints might be justified in certain circumstances, stated, "I can imagine no greater perversion of history…. Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions or prior restraints." Black and Douglas both believed that "every moment's continuance of the injunctions … amounts to a flagrant, indefensible, and continuing violation of the First Amendment."

The other four justices who concurred in the judgment, Justices william j. brennan jr., potter stewart, byron r. white, and thur-good marshall, each believed that the government could impose a prior restraint in certain extraordinary circumstances, such as where the publication of information could endanger U.S. soldiers, but that those circumstances were not present in the Pentagon Papers case. Stewart was the only justice who offered a standard for determining when a prior restraint could be imposed, stating that a prior restraint would be appropriate only where publication "will surely result in direct, immediate, and irreparable damage to our Nation or its people." White, while agreeing that the circumstances did not warrant a prior restraint on the publication of the Pentagon Papers, opined that the newspapers might be criminally liable under espionage laws if they published sensitive national secrets. Marshall based his argument on the separate powers of the three branches of the government. He believed that, because Congress had declined to pass a statute authorizing the courts to enjoin publication of sensitive national secrets, the Supreme Court lacked authority to enjoin publication of the Pentagon Papers.

Chief Justice warren e. burger, Justices john marshall harlan, and harry a. black-mun dissented, all strongly objecting to the "unseemly haste" with which the courts heard and decided the case. Harlan stated, "With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases." Blackmun commented:

[T]his, in my opinion, is not the way to try a lawsuit of this magnitude and asserted importance. It is not the way for federal courts to adjudicate, and be required to adjudicate, issues that allegedly concern the Nation's vital welfare. The country would be none the worse off were the cases tried quickly to be sure, but in the customary and properly deliberative manner.

The dissenting justices thus believed that the publication of the Pentagon Papers should have been enjoined until the courts had adequate time to evaluate carefully the legal issues and the impact of publication of the documents on the interests of the United States.

The decision was hailed as a great victory for advocates of freedom of the press. For the first time in the nation's history, the government had succeeded, if only during the appeals of the case, in precluding the press from publishing news in its possession. At least in the circumstances presented by the case, however, the Supreme Court held that such a prior restraint on freedom of speech violates the First Amendment. The practical effect of the decision, which carefully avoided any mention of the contents of the Pentagon Papers, was far less dramatic than suggested by the attention it received. The newspapers never did publish the portions of the Pentagon Papers that the government claimed were the most sensitive. In addition, further publication of the Pentagon Papers by newspapers around the country did not attract a great deal of attention or significantly affect the United States' policy on Vietnam. The Pentagon Papers case remains, however, an important precedent in support of freedom of the press under the First Amendment.

further readings

Glendon, William R. 1993. "Fifteen Days in June That Shook the First Amendment: A First Person Account of the Pentagon Papers Case." New York State Bar Journal 65 (November).

Godofsky, Stanley, and Howard M. Rogatnick. 1988. "Prior Restraints: The Pentagon Papers Case Revisited." Cumberland Law Review 18 (spring).

Gora, Joel M. 1998."The Pentagon Papers Case and the Path Not Taken: A Personal Memoir on the First Amendment and the Separation of Powers." Cardozo Law Review 19 (March).

Practicing Law Institute (PLI). 1996. The Pentagon Papers: Excerpts from the Record, by William R. Glendon. Patents, Copyrights, Trademarks, and Literary Property Course Handbook series, PLI order no. G4-3963.

Rudenstine, David. 1998. The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley: Univ. of California Press.

Salisbury, Harrison E. 1980. Without Fear or Favor: The New York Times and Its Times. New York: Times Books.

Seymour, Whitney North, Jr. 1994. "Press Paranoia—Delusions of Persecution in the Pentagon Papers Case." New York State Bar Journal 66 (February).

cross-references

Executive Branch; First Amendment; Precedent; Prior Restraint.

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