New York Times Co. v. United States

New York Times Co. v. United States, 403 U.S. 713 (1971) was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.

The Times case featured a constitutional crisis in which the U.S. President Richard Nixon had claimed executive authority to force the prominent newspaper to suspend publication of classified information in its possession. The question before the court was if the constitutional freedom of the press under the First Amendment was subordinate to a claimed Executive need to maintain the secrecy of information. The Supreme Court ruled that First Amendment did protect the New York Times' right to print said materials.

Setting

By 1971, the United States had officially been overtly at war with communist North Vietnam for six years. At this point some 45,000 American soldiers had died and the administration was facing widespread dissent from large portions of the American public. In 1967 Secretary of Defense Robert S. McNamara commissioned a “massive top-secret history of the United States role in Indochina”. The resulting 2.5 million word classified work was obtained by the New York Times within three years, who immediately began publishing articles outlining the findings.

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The Trial

The first article was printed June 13th, 1971. By the 15th, the Times received an order to cease further publication of the material from a District Court judge, at the request of the Administration. The Government claimed that it would cause “irreparable injury to the defense interests of the United States” and wanted to “enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy."” In other words, the Government wanted to enforce prior restraint upon a newspaper with regards to publishing the findings of a study that the Government itself had made. On the 19th, the District Court rejected the administration’s request for an injunction. After several battles within numerous courts with no clear victory for any party, both the Times and the Government appealed to the Supreme Court.

With the issue of how the New York Times obtained the documents being investigated by a federal grand jury, the real issue for the Supreme Court was whether there was a sufficient justification for prior restraint, which would be a suspension of the newspapers’ First Amendment rights to freedom of the press. The First Amendment states that no law can be made abridging the freedom of the press, but a few landmark cases in the 20th century have established precedents creating exceptions to that rule. The latest incarnation of the exception was the grave and probable danger rule, established in Dennis v. United States. During this case, the wording was changed to the grave and irreparable danger standard. The idea behind the numerous versions of the rule is that if a certain message will likely cause a “grave and irreparable” danger to the American public when expressed, then the message’s prior restraint could be considered an acceptable infringement of civil liberties. The Supreme Court was therefore charged with determining if the Government had sufficiently met the “burden of showing justification for the imposition of such a restraint” .

The Supreme Court heard arguments from the Executive Branch, the Times, the Post, and the Justice Department on June 25th and 26th 1971. On June 30th, with six Justices concurring and three dissenting , the Supreme Court upheld the right of the two newspapers to publish the material. In its decision, the court first established the legal question with the use of precedents. It first stated that “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” . The purpose of this statement was to make the presence of the inherent conflict between the Government’s efforts and the First Amendment clear. The decision then stated that the Government “thus carries a heavy burden of showing justification for the imposition of such a restraint” . This reinforced the idea that it was it was up to the Government to show sufficient evidence that the newspapers’ actions would cause a “grave and irreparable” danger.

The Decision

The decision finally stated that the Supreme Court agreed with the two lower courts which had originally decided that the Government had not met that burden, so the prior restraint was not justified. This final decision was not signed by any particular justice.

The Per Curiam opinion itself in this case was very brief because all the Court wanted to state was that it had concurred with the decisions of the two lower courts to reject the Government’s request for an injunction. The Justices’ opinions included different degrees of support for the clear superiority of the First Amendment and no Justice fully supported the Government’s case. Because of these factors, no clear and exclusive law appears to have come out of this case. Nevertheless, the significance of the case and the wording of the Justices’ opinions have added important statements to the history of precedents for exceptions to the First Amendment, which have been cited in 48 Supreme Court cases since .

Justice Hugo L. Black wrote an opinion that elaborated on his absolutist view of the First Amendment. He was against any interference with freedom of expression and largely found that the content of the documents immaterial . Justice William O. Douglas (1898-1980) largely concurred with Black, citing the need for a free press as a check on government.

Justice William J. Brennan, Jr. explained how the publication of the documents did not qualify as one of the three exceptions to the freedom of expression established in Near v. Minnesota (1931).

Justice Potter Stewart and Justice Byron R. White agreed that it is the responsibility of the Executive to ensure national security through the protection of its information.

Justice Thurgood Marshall established the notion that the term “national security” was too broad when legitimizing prior restraint, and also argued that it is not the Court’s job to create laws where the Congress cannot.

Justice Warren E. Berger, dissenting, argued, citing that “the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government” , that there should be a detailed study on the effects of these actions. He argued that in the haste of the proceedings, and given the size of the documents, the Court was able to gather enough information to make the decision. He also argued that the Times should have discussed the possible societal repercussions with the Government prior to publication of the material. The Chief Justice did not argue that the Government had met the aforementioned standard, but rather that the decision should not have been made so hastily.

Justice John M. Harlan and Justice Harry A. Blackmun joined the Chief Justice in arguing the faults in the proceedings, and the lack of attention towards national security and the rights of the Executive.

Implications

The broader implications of this case at the time were that the people of the United States were exposed to a history of inner operations of the Executive with regards to the war, putting the Government under a level of public scrutiny it had not known before. The Times’ victory strengthened the notion that it was not only the right of but also a central purpose of the free press to scrutinize government. This notion has been kept strong since and is still evident today within all the criticism the Bush Administration has faced. The status of the debate in recent years has focused on criminal technicalities relating to First Amendment rights , as well as prior restraints against information that has the potential to harm people economically . It is still contended that the freedom of the press cannot be abridged through vague speculations of harm.

Research Resources

Sheehan, Neil and others. The Pentagon Papers. New York: New York Times Co., 1971

Shapiro, Martin (ed.). The Pentagon Papers and the Courts. Toronto: Chandler Publishing Company, 1972

Schmidt, Steffen, Mack Shelley, and Barbara Bardes. American Government and Politics Today. Toronto: Thompson Wadsworth, 2005

Bernard Schwartz, Freedom of the Press. New York: Facts on File, 1992

External links

• Text of the decision, 403 US 713

• FindLaw for Legal Professionals (2005-copyright) FindLaw: NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971)

• First Amendment Library entry for New York Times Co. v. United States