New York Times v. The United States (1971)

This is a case that speaks directly to the balance between having a free and independent press and ensuring national security. If we find out that a sitting president tried to, say, overturn an election, it is reasonable to expect journalists to investigate and newspapers to publish. But if someone in the government leaked a copy of the location of U.S. weapons systems, publishing that in the press would put us in significant risk.

Case Specific Understandings

-Vietnam “conflict”/war

-President Nixon’s war investigation: what was it, what happened to it, and how did he react? 

-Balance between a free press vs. national security

Major Term(s)

-prior restraint: what is it, when is it justified?

-“heavy presumption against constitutional validity”

What you need to learn from a court case

Facts of the Case:
A general summary of the events & individuals
Constitutional Principle:
What part(s) of the constitution apply, and what is the constitutional question posed by the case facts?
Arguments & Relevant Precedent:
Summary of arguments presented & any relevant past precedent applicable.
Holding/Decision:
Summarize how the court answered the constitutional principle in question.
Case Legacy:
Why is this case considered a landmark case?

Background

The United States’ involvement in the Vietnam War became increasingly controversial and unpopular among Americans as the conflict persisted over a decade. This case weighs national security with the freedoms of a free press.

Facts of the case

Daniel Ellsberg, a former military analyst, was disillusioned with the Unites States’ continued role in the Vietnam War. He felt so strongly that the U.S. should not be in Vietnam that in 1971, he illegally copied over 7,000 pages of classified reports kept at the RAND Corporation, a research institution where he worked. These pages would come to be known as the “Pentagon Papers.” Some of these documents were leaked to major publications, such as the New York Times and the Washington Post. These documents contained intimate details about the decision-making plans behind the United States’ intervention in the Vietnam conflict, as well as details that revealed contradictions between President Lyndon Johnson’s motivations in Southeast Asia and his public remarks. 

Neil Sheehan, the New York Times reporter who received the lead from Ellsberg, knew he had the story of the year, but the paper ran the risk of violating the Espionage Act if it published the papers. After printing two stories about the Pentagon Papers, President Nixon directed his attorney general to order the Times to stop, claiming the publications would cause “irreparable injury to the defense interests of the United States.” The Times refused and the U.S. government sued the newspaper for violating the Espionage Act.

A federal judge issued a restraining order to stop further publication until trial. However, during that time, the Washington Post also printed portions of Ellsberg’s papers. The government asked a federal court to stop the Post from publishing future stories about the papers, citing again the Espionage Act. Both newspapers argued that the First Amendment protected their right to publish. Two different federal courts heard the Times and Post cases. Both newspapers won at the trial court, and the government appealed. The Court of Appeals for the D.C. Circuit ruled for the Washington Post, while the Court of Appeals for the Second Circuit ruled for the government (against the New York Times). The U.S. Supreme Court agreed to hear both cases, combining them and holding oral argument just one day after the justices agreed to take the cases.

Issue/question before the court

Did the government’s efforts to prevent two newspapers from publishing classified information given to them by a government leaker violate the First Amendment protection of freedom of the press? 

Supreme Court Precedents 

Near v. Minnesota (1931)

  • −J.M. Near published the Saturday Press in Minneapolis, Minnesota; the paper was widely viewed as anti-Semitic, anti-labor, and anti-Catholic. Minnesota’s “public nuisance” law prohibited the publication of scandalous, defamatory, or malicious newspapers. Near was sued under this law by someone the paper had frequently targeted. In a 5-4 decision, the U.S. Supreme Court decided that the state’s statute was an infringement of the First Amendment. The Court held that, except in rare cases, censorship is unconstitutional. This case made the freedom of press protection applicable to the states, through the 14th Amendment, and emphasized that prior restraint (preventing the publication of something in advance) is almost always unconstitutional. 
  • Dennis v. United States (1951)−The Supreme Court upheld the Smith Act, which made it a criminal offense for a person or group to advocate the violent overthrow of the government or to be a member of any group that supports such advocacy. This case involved members of the American Communist Party, which petitioned for socialist reforms. The Court said speech from a person or group so grave it poses a vital threat to the security of the nation is not protected under the First Amendment.

Arguments for the New York Times (petitioner)

  • −In the First Amendment, the Framers gave the press the protection it must have to fulfill its essential role in democracy. People must have access to uncensored information in order to make decisions and choose leaders. The press was created to serve the governed, not the government.
  • −Congress has not made laws that abridge the freedom of the press in the name of national security and presidential power. The courts should not take it upon themselves to make law that would do so simply because the executive branch requests it. 
  • −The newspaper did not publish the information in order to hurt the United States. Instead, it published the information to help the country by informing citizens about their government’s actions on an important public issue. 
  • −Secrecy in government is fundamentally anti-democratic and perpetuates government misdeeds or errors. Open, robust debate of public issues is vital to national health. Publishing materials that reveal misjudgments, miscalculations, or mistakes made by government officials is exactly why it is important to have a free press with unrestrained publishing authority. 

Arguments for the United States (respondent)

  • −During times of war, the executive branch must be given broad authority to restrict publication of sensitive information that could harm U.S. national security. 
  • −The judicial branch and the executive branch are co-equal branches of government. The courts should refrain from passing judgment on the executive branch’s assessment of national security and foreign affairs. The U.S. system of government rests on the concept of separation of powers, and the Constitution assigns decisions about foreign affairs to the political departments of the government—the executive and legislative branches. 
  • −The newspapers knew the Pentagon Papers contained sensitive information that was obtained illegally. Both media outlets could certainly anticipate that the government would object to publication. It would have been reasonable to give the government an opportunity to review the entire collection and determine whether agreement could be reached on which sections of the papers could be published.
  • −One of the basic duties of every citizen is to report to police the discovery or possession of stolen property or secret government documents. This duty applies to everyone equally—from regular citizens to high officials and certainly also to the New York Times and the Washington Post.

Decision

The Court reaffirmed its longstanding rule that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”“The Government thus carries a heavy burden of showing justification for the imposition of such a restraint.”The per curiam opinion concluded, without analysis, that that “the Government had not met that burden” in these cases. 

Concurrences

Justice Black, in an opinion joined by Justice Douglas, expressed the view that a court can never enjoin the publication of news consistent with the First Amendment.In his view, the First Amendment’s freedom of the press is absolute, and “the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”This freedom is part of the basic constitutional structure: when creating the federal government, “the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy,” in which “[t]he press was to serve the governed, not the governors.”When the First Amendment says that Congress shall pass “no law” abridging freedom of the press, it means “no law” not “some laws.”And the government cannot evade this absolute command by invoking national security concerns: “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.” 

Justice Douglas, joined by Justice Black, wrote that the executive branch does not have any “inherent power” to protect “national security” sufficient to overcome the heavy presumption against the constitutionality of a prior restraint on publication. 

Justice Brennan concurred to emphasize that the cases represented the first time in American history that the government sought to enjoin a newspaper from publishing information in its possession, and that none of the lower courts should ever have ruled for the government.Justice Brennan recognized that there is only “a single, extremely narrow” exception to the prior restraint doctrine, involving an imminent threat in a time of war, and that exception did not apply here. 

Justice Stewart, joined by Justice White, recognized the government’s interest in “confidentiality and secrecy,” but emphasized that it is primarily the executive branch’s obligation to protect its own secrets.Because “I cannot say that the disclosure of any of [the documents] will surely result in direct, immediate, and irreparable damage to our Nation or its people,” prohibiting publication would violate the First Amendment. 

Justice White, joined by Justice Stewart, emphasized that “I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations.”He noted that the government had tools to punish leakers and drew a fundamental distinction between such permissible punishment and an injunction against the publication of the information by the press.He suggested that the government might even be able to charge the newspapers with a crime for having published the information but held that this possibility did not justify a prior restraint on the publication. 

Justice Marshall concluded that no statute authorized the executive or judicial branch to enjoin the publication of information on national security grounds, and that neither branch had the “inherent power” to issue such an injunction.Congress’ authorization of criminal punishment for certain disclosures is not tantamount to authorization to enjoin such disclosures.

Impact

The Supreme Court’s decision in this case lifted the restraining order and allowed the New York Times and the Washington Post to continue publishing the Pentagon Papers. These documents revealed that the U.S. military was more involved in the wars in Southeast Asia than the public had previously known. Ultimately, only about 5% of the documents were published in the New York Times. The Pentagon Papers were declassified and made fully available to the public in 2011. 

In 1973, Ellsberg was criminally charged with espionage, conspiracy, and theft for his role in publishing the Pentagon Papers. However, the judge dismissed the case because the government illegally obtained evidence against Ellsberg.

New York Times Co. v. United States is considered a victory for the First Amendment’s protections of the free press against government censorship. The per curiam opinion shows that there is a “heavy presumption against prior restraint,” meaning that it is very difficult for the government to prevent information from being published, even in situations where national security may be at issue. However, because there was no majority opinion in this case, some argue that the decision did not protect the press enough and that there are remaining ways for the government to impose prior restraints in the future.