New York Times Co. v. United States
403 U.S. 670, 91 S. Ct. 2140 (1971)

Background:

In 1971, Daniel Ellsberg copied a series of articles arising from a classified top secret forty-seven-volume study called History of U.S. Decision Making Process on Viet Nam Policy (1968). When he could not get leading politicians to publicize the study he passed them on to The New York Times After reviewing the documents for several months The New York Times started printing them in installments, the first on June 13, 1971.

After the third installment the Department of Justice obtained a temporary restraining order prohibiting further publications until June 19. On June 18 after the Washington Post printed two articles based on the study a similar injunction was filed against them.

The temporary restraining order was extended until noon June 21 by a circuit court judge so the Court of Appeals for the District of Columbia could hear the governments request for a preliminary injunction. On the 22nd the circuit court remanded the case to district court to determine whether the information that the Times and Post wanted to publish might cause “such grave and immediate danger” to national security as to warrant prior restraint. The court also continued the stay of publication till the 25th. The New York Times appealed to the Supreme Court calling for them to end the stay. The court held arguments on the 26th and four day later came out with 10 opinions: one per curiam opinion, six concurring and three dissenting.

Per Curiam Opinion:

In this opinion the Court first stated that in granted certiorari in the case. (Certiorari meaning it took over the case from a lower court in order to speed justice.)

The Court than went on to explain that in cases of prior restraints on expression there is a heavy presumption against the restraint being constitutional. Therefore the Government carries a heavy legal burden when trying to justify such a restraint. The Court does not think the Government met such a burden and struck down any stays on publication.

First majority opinion written by Justice Black with Justice Douglas concurring.

Black, who is known as a textualist points directly to the constitution and the First Amendment, “Congress shall make no law . . . abridging the freedom . . . of press,” which he feels makes it quite clear that such a restraint would be unconstitutional. He dismisses the Governments claim that in spite of the first amendment the governments power to protect national security allows such an breach of the clearly outlined prohibition on censorship.

Second majority opinion written by Justice Douglaswith Justice Black concurring.

Douglas comments that secrecy in government is “fundamentally anti-democratic” since it allows for government abuse and limits debate.

Third majority opinion written by Justice Brennan

Basically he thinks that not only should there be no more stays on publication, but that the previous ones should not have been allowed either. Further he wants to make it clear that the previous issued restraints should not be taken as precedents for future calls for restraints on speech.

Fourth majority opinion written by Justice Stewart with Justice White concurring.

Perhaps the most interesting of the majority opinions. Stewart argues that since the Executive Branch has almost unlimited power in the areas of national defense and international relations. Power that the other two branches can do very little about other than in extreme cases impeachment, it is crucial that some sort of check on his power be in place. Stewart argues the real check on the presidents power is an “enlightened citizenry” and so it is crucial for them to have access to information and for there to be a free press to keep them enlightened. While Stewart agrees some classified information is necessary to national security, he feels that “maximum possible disclosure” is ideal.

Fifth majority opinion written by Justice White with Justice Stewart concurring.

White seems somewhat reluctant in his agreement with the judgement of the court. He agrees that the government did not meet his burden, but also agrees that the material in question is likely to cause harm to national interests. There is not enough harm to out way the importance of protecting freedom of press, but White hopes the press will be responsible and not print everything it possess.

Sixth majority opinion written by Justice Marshall.

Thurgood thinks that granting an injunction forbidding the publication of the material would violate the separation of powers. The Judicial and Executive Branches would then be making law together, something that is supposed to be left up to the Congress and the Legislative Branch. Clearly getting a judge to outlaw something is not nearly as hard as getting the Congress to pass a law, and is also less democratic.

The Dissenting Opinions

The three dissenting opinions all basically question the sudden haste that the decision in the case was made under. The point out that the material in question in from 1968, and that the New York Times had it in the possession for three months before publishing any of it. If they could wait that long why could not they have waited for the normal court process to go through, or consulted more closely with the Government before publishing. The dissenting justices were Chief Justice Burger, Justice Blackmun and Justice Harlen

Interestingly when Nixon first heard about the publication of the materials in question he was all for it, since after all it was the Democrats under President Johnson who had gotten into the country into the “war” in the first place. Only after Kissinger convinced him that there was stuff that might reflect badly on his party as well did Nixon act to try and stop the publication.

Sources: Sources: Volume I: Constitiution Law and Politics, David M. O'Brien. 1991
New York Times Co. v. United States

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