New York Times Co. v. United States 403 U.S. 713 (1971)

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New York Times Co. v. United States, more commonly known as the Pentagon Papers case, is one of the landmarks of contemporary prior restraint doctrine. Only near v. minnesota (1931) rivals it as a case of central importance in establishing the first amendment's particular and extreme aversion to any form of official restriction applied prior to the act of speaking or the act of publication.

The dramatic facts of the case served to keep it before the public eye even as it was being litigated and decided. On June 12, 1971, the New York Times commenced publication of selected portions of a 1968 forty-seven-volume classified Defense Department study entitled "History of United States Decision Making Process on Vietnam Policy" and a 1965 classified Defense Department study entitled "The Command and Control Study of the Tonkin Gulf Incident Done by the Defense Department's Weapons Systems Evaluation Group in 1965." Collectively these documents came to be known as the Pentagon Papers. Within a few days other major newspapers, including the Washington Post, the Los Angeles Times, the Detroit Free Press, the Philadelphia Inquirer, and the Miami Herald also commenced publication of the Pentagon Papers. The papers had been provided to the New York Times by Daniel Ellsberg, a former Defense Department official and former government consultant. Ellsberg had no official authority to take the Pentagon Papers; his turning over the papers to the New York Times was similarly unauthorized.

When the newspapers commenced publication, the United States was still engaged in fighting the vietnam war. Claiming that the publication of the Pentagon Papers jeopardized national security, the government sought an injunction against any further publication of the papers, including publication of scheduled installments yet to appear. In the United States District Court for the Southern District of New York, Judge Murray Gurfein issued a temporary restraining order against the New York Times, but then denied the government's request for a preliminary injunction against publication, finding that, in light of the extremely high hurdle necessary to justify a prior restraint against a newspaper, "the publication of these historical documents would [not] seriously breach the national security." (See prior restraint and censorship.) The United States immediately appealed, and the Court of Appeals for the Second Circuit, on June 23, 1971, remanded the case for further consideration in light of documents filed by the United States indicating that publication might pose "grave and immediate danger to the security of the United States." The Second Circuit continued to enforce the stay it had previously issued, in effect keeping the Times under the restraint of the temporary restraining order. On the same day, however, the United States Court of Appeals for the District of Columbia Circuit, in a case involving the Washington Post's publication of the Pentagon Papers, affirmed a decision of the district court refusing to enjoin further publication. On June 24, the New York Times filed a petition for a writ of certiorari and motion for expedited consideration in the Supreme Court, and on the same day the United States asked that Court for a stay of the District of Columbia circuit's ruling in the Washington Post case. The two cases were consolidated and accelerated, with briefs filed on June 26, oral argument the same day, and a decision of the Supreme Court on June 30, only seventeen days after the first publication of the papers in the New York Times.

In a brief per curiam opinion, the Supreme Court affirmed the District of Columbia Circuit, reversed the Second Circuit, and vacated the restraints. Noting the "heavy presumption" against prior restraints, and the consequent "heavy burden of … justification" necessary to support a prior restraint, the Court found that the United States had not met that especially heavy burden.

The Court's per curiam opinion was accompanied by a number of important separate opinions by individual Justices. Justices hugo l. black and william o. douglas made it clear that in their view prior restraints were never permissible. Justice william j. brennan would not go this far, but found it noteworthy that "never before has the United States sought to enjoin a newspaper from publishing information in its possession." For him "only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an evil kindred to imperiling the safety of a transport already at sea [citing Near v. Minnesota ] can support even the issuance of an interim restraining order." In agreeing that the restraint was improper, Justice thurgood marshall emphasized the absence of statutory authorization for governmental action to enjoin a newspaper. And Justice john marshall harlan, joined by Chief Justice warren e. burger and Justice harry a. blackmun, dissented. The dissenters were disturbed by the alacrity of the proceedings, and in addition thought that the executive's "constitutional primacy in the field of foreign affairs " justified a restraint at least long enough to allow the executive to present its complete case for the necessity of restriction. The most doctrinally illuminating opinions, however, were those of Justices potter j. stewart and byron r. white. For them only the specific nature of the restriction rendered it constitutionally impermissible. Had the case involved criminal or civil sanctions imposed after publication—subsequent punishment rather than prior restraint—they indicated that the First Amendment would not have stood in the way.

As highlighted by the opinions of Justices Stewart and White, therefore, the Pentagon Papers case presents the problem of prior restraint in purest form. The judges had the disputed materials in front of them, and thus there was no question of a restraint on materials not before a court, or not yet published. And the evaluation of the likely effect of the materials was made by the judiciary, rather than by a censorship board, other administrative agency, or police officer. Under these circumstances, why might a prior restraint be unconstitutional when a subsequent punishment for publishing the same materials would be upheld? What justifies a constitutional standard higher for injunctions than for criminal sanctions? It cannot be that prior restraints in fact "prevent" more things from being published, for the deterrent effect of a criminal sanction is likely to inhibit publication at least as much as an injunction. Someone who is willing knowingly to violate the criminal law, in order to publish out of conscience, may also be willing to violate an injunction. Is the special aversion against prior restraint, visible in the Pentagon Papers case, based on principle, or is it little more than an anachronism inherited from john milton and william blackstone, and transferred from a milieu in which prior restraint was synonymous with unreviewable determinations of an administrative censorship board?

The result in the Pentagon Papers case was not inconsistent with prior cases. The case did, however, present more clearly the puzzling nature of the virtually absolute prohibition against prior restraints under circumstances in which subsequent punishment of the very same material would have been permissible. Yet the case is also significant for reasons that transcend the doctrine of prior restraint. When confronted with a constitutional objection to a governmental policy, a court typically must evaluate the justification for the policy, and assess the likelihood of some consequences that the policy is designed to prevent. When that consequence and the governmental attempt to forestall it relates to war, national security, or national defense, judicial deference to governmental assertions of likely consequences has traditionally been greatest, even if the putative restriction implicates activities otherwise protected by the Constitution. When national security has been invoked, constitutional protection has often been more illusory than real. At every level in the Pentagon Papers case the courts conducted their own independent assessments of the likely dangers to national security and to troops overseas. The Supreme Court's decision was at least partly a function of the Justices' unwillingness to accept governmental incantation of the phrase "national security" as dispositive. Certainly executive determinations concerning the effect of publications on national security still receive greater deference than do other executive predictions about the effect of publications. But the Pentagon Papers case stands for the proposition that even when national security is claimed the courts will scrutinize for themselves the necessity of restriction. The decision, therefore, speaks not only to prior restraint but also, and more pervasively, to the courts' willingness to protect constitutional rights even against wartime governmental restrictions imposed in the name of national security.

Frederick Schauer


Henkin, Louis 1971 The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers. University of Pennsylvania Law Review 120:271–280.

Junger, Peter 1971 Down Memory Lane: The Case of the Pentagon Papers. Case Western Reserve Law Review 23:3–75.

Kalven, Harry, Jr. 1971 Foreword: Even When a Nation Is at War. Harvard Law Review 85:3–36.

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New York Times Co. v. United States 403 U.S. 713 (1971)

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New York Times Co. v. United States 403 U.S. 713 (1971)