New York Times Co. v. United States
New York Times Co. v. United States, 403 U.S. 713
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

 (1971), was a United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 per curiam
Per curiam decision
In law, a per curiam decision is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court acting collectively and anonymously...

 decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified
Classified information in the United States
The United States government classification system is currently established under Executive Order 13526, the latest in a long series of executive orders on the topic. Issued by President Barack Obama in 2009, Executive Order 13526 replaced earlier executive orders on the topic and modified the...

 Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...

 without risk of government censure.

President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

 had claimed executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...

 authority to force the Times to suspend publication
Publication ban
A publication ban is a court order which prohibits the public or media from disseminating certain details of an otherwise public judicial procedure. In Canada, publication bans are most commonly issued when the safety or reputation of a victim or witness may be hindered by having their identity...

 of classified information in its possession. The question before the court was whether the constitutional freedom of the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...

, guaranteed by the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

, was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. The Supreme Court ruled that the First Amendment did protect the right of the New York Times to print the materials.

Section 793 of the Espionage Act

Section 793 of the Espionage Act was cited by Attorney General John N. Mitchell
John N. Mitchell
John Newton Mitchell was the Attorney General of the United States from 1969 to 1972 under President Richard Nixon...

 as cause for the United States to sue to bar further publication of stories based upon the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...

. The statute was spread over three pages of the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...

 Annotated and the only part that appeared to apply to the Times was 793(e), which made it criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.

Based on this language, Alexander Bickel
Alexander Bickel
Alexander Mordecai Bickel was a law professor and expert on the United States Constitution. One of the most influential constitutional commentators of the twentieth century, his writings emphasize judicial restraint....

 and Floyd Abrams
Floyd Abrams
Floyd Abrams is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law, and many arguments in the briefs he has written before the United States Supreme Court have been adopted as United States Constitutional interpretative law as it relates to the First Amendment...

 felt there were three preliminary arguments to raise. First, the wording of the statute was very broad. Was each article about foreign policy one "relating to the national defense"? What was the significance of "reason to believe" that the Pentagon Papers "could be used to the injury of the United States or the advantage of any foreign nation"? If the motivation was to educate the public, was that a defense that served to help, not hinder, the country? Would the public be "a person not entitled to receive" the information? Of equal import was what the statute did not say: No references to "publication" (as Attorney General Mitchell's cease-and-desist order referenced), no reference to classified information, and no support for Mitchell's reliance on the top secret classification to justify restraint on publication. Additionally, there was no statutory language providing authority for prior restraint on publication at all.

Second, was the relevance of Mitchell's reliance on a criminal statute in a civil proceeding seeking prior restraint. There was Supreme Court precedent that lent support to the idea that bans on the publication of information by the press to be unconstitutional. In 1907 Oliver Wendell Holmes wrote the "main purpose" of the First Amendment" was "to prevent all such previous restraints upon publications as had been practiced by other governments." In 1931 the Court wrote that only the narrowest circumstances—such as publication of the dates of departure of ships during wartime—were permissible. In 1969 John Marshall Harlan II
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...

 wrote the Supreme Court "rejected all manner of prior restraint on publication." This second line of reasoning made it seem the statute should only be dealt with in passing, making the case a First Amendment one and the relief the government wanted—a bar on publication—unavailable.

The third possible approach was a very broad view of the First Amendment, one not focused on the impact of a government victory on the life of a democratic society if prior restraint were granted; but that the publication of just these sorts of materials—governmental misjudgments and misconducts of high import—is exactly why the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...


Restraining order sought

The government filed a restraining order
Restraining order
A restraining order or order of protection is a form of legal injunction that requires a party to do, or to refrain from doing, certain acts. A party that refuses to comply with an order faces criminal or civil penalties and may have to pay damages or accept sanctions...

 that barred the Times from publishing any further articles based upon the Pentagon Papers. In addition to The New York Times Company
The New York Times Company
The New York Times Company is an American media company best known as the publisher of its namesake, The New York Times. Arthur Ochs Sulzberger, Jr. has served as Chairman of the Board since 1997. It is headquartered in Midtown Manhattan, New York City....

, the Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...

 named the following defendants: Arthur Ochs Sulzberger
Arthur Ochs Sulzberger
Arthur Ochs "Punch" Sulzberger, Sr. to a prominent media and publishing family, is himself an American publisher and businessman. He succeeded his father, Arthur Hays Sulzberger, and maternal grandfather as publisher and chairman of the New York Times in 1963, passing the positions to his son...

, president and publisher; Harding Bancroft and Ivan Veit, executive vice presidents; Francis Cox, James Goodale
James Goodale
James Goodale is a leading First Amendment lawyer currently at the law firm of Debevoise & Plimpton. He is the former General Counsel and Vice Chairman of The New York Times and has represented the Times in all four of its cases that have reached the United States Supreme Court...

, Sydney Gruson, Walter Mattson, John McCabe
John McCabe
John McCabe may refer to:*John McCabe , British composer and classical pianist*John McCabe , Shakespearean scholar and biographer*John McCabe , author and geneticist...

, John Mortimer
John Mortimer
Sir John Clifford Mortimer, CBE, QC was a British barrister, dramatist, screenwriter and author.-Early life:...

 and James Reston
James Reston
James Barrett Reston , nicknamed "Scotty," was an American journalist whose career spanned the mid 1930s to the early 1990s. He was associated for many years with the New York Times.-Life:...

, vice presidents; John B. Oakes, editorial page editor; A. M. Rosenthal
A. M. Rosenthal
Abraham Michael "A.M." Rosenthal , born in Sault Ste. Marie, Ontario, Canada, was a New York Times executive editor and columnist and New York Daily News columnist . He joined the New York Times in 1943 and worked for the Times for 56 years - from 1943 to 1999...

, managing editor; Daniel Schwarz
Daniel Schwarz
Daniel R. Schwarz is Frederick J. Whiton Professor of English Literature and Stephen H. Weiss Presidential Fellow at Cornell University in the USA where he has taught since 1968. He is the author of fifteen significant books and numerous article, many of which have appeared in prestigious...

, Sunday editor; Clifton Daniel
Clifton Daniel
Elbert Clifton Daniel Jr. was managing editor of the New York Times from 1964 to 1969. Before assuming the top editorial job at the paper, he served as the paper's London and Moscow bureau chief....

 and Tom Wicker
Tom Wicker
Thomas Grey "Tom" Wicker was an American journalist. He was best known as a political reporter and columnist for The New York Times.-Background and education:...

, associate editors; Gerald Gold and Allan Siegal, assistant foreign editors; Neil Sheehan
Neil Sheehan
Cornelius Mahoney "Neil" Sheehan is an American journalist. As a reporter for The New York Times in 1971, Sheehan obtained the classified Pentagon Papers from Daniel Ellsberg. His series in the Times revealed a secret U.S. Department of Defense history of the Vietnam War and resulted in government...

, Hedrick Smith
Hedrick Smith
Hedrick Smith is a Pulitzer Prize-winning former reporter and editor for The New York Times, an Emmy Award-winning producer/correspondent for the PBS show Frontline, and author of several books....

, E. W. Kenworthy and Fox Butterfield
Fox Butterfield
Fox Butterfield is an American journalist who spent much of his 30-year career reporting for The New York Times....

, reporters; and Samuel Abt, a foreign desk copy editor.

Federal judge Murray Gurfein
Murray Gurfein
Murray Irwin Gurfein was a federal judge in the United States.Born in New York City, Gurfein attended Columbia College and Harvard Law School. After graduating, he served as a law clerk to Judge Julian Mack and then as an Assistant United States Attorney in New York. He also served as an...

 heard arguments. Michael Hess, chief of the Civil Division of the United States Attorneys Office, argued "serious injuries are being inflicted on our foreign relations, to the benefit of other nations opposed to our foreign relations, to the benefit of other nations opposed to our form of government." Hess relied on Secretary of State William P. Rogers
William P. Rogers
William Pierce Rogers was an American politician, who served as a Cabinet officer in the administrations of two U.S. Presidents in the third quarter of the 20th century.-Early Life :...

's statement reported earlier that day that a number of nations were concerned about the Papers publication and an affidavit from general counsel of the Navy that alleged irreparable injury if publication did not cease. Hess asked for a temporary restraining order.

Bickel argued that the separation of powers barred the court from issuing the restraining order, since there was no statute authorizing such relief. He further argued that there was no exception to the general unavailability of prior restraint that applied in this case. Gurfein called all counsel to his chambers and asked Bickel and Abrams to have the Times cease publication of the Papers until he could review them. Bickel responded that Gurfein would be the first judge in American history to enter a prior restraint enjoining publication of news if he granted the government's request. The Times refused to cease publication. Gurfein granted the request and set a hearing for June 18.

The New York Times agreed to abide by the restraining order.

By 1971, the US had been overtly at war
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...

 with North Vietnam
North Vietnam
The Democratic Republic of Vietnam , was a communist state that ruled the northern half of Vietnam from 1954 until 1976 following the Geneva Conference and laid claim to all of Vietnam from 1945 to 1954 during the First Indochina War, during which they controlled pockets of territory throughout...

 for six years. At this point, 59,000 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, which immediately began publishing articles outlining the findings.

The first article appeared in the Times' Sunday edition, June 13, 1971. By the following Tuesday, the Times received an order to cease further publication from a District Court judge, at the request of the Administration. The Government claimed 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 the Vietnam Policy.” Seen from a constitutional perspective, the Government was expressing its intent to enforce prior restraint
Prior restraint
Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...

 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.

Along with the issue of how the Times obtained the documents (which was being investigated by a federal grand jury elsewhere) the real issue for the 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 federal law can be made abridging the freedom of the press, but a few landmark cases in the 20th century had established precedents creating exceptions to that rule.

The most recent incarnation of the exception was the grave and probable danger rule, established in Dennis v. United States
Dennis v. United States
Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

, . 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 25 and 26 1971. On June 30, 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 the Nixon Administration's responsibility to show sufficient evidence that the newspapers’ actions would cause a “grave and irreparable” danger.


In a 6-3 decision, the Supreme Court agreed with the two lower courts which had originally decided that the government had not met its "heavy burden" of showing a justification for a prior restraint. The Court issued a very brief per curiam opinion, stating only that the Court 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 verdict 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 numerous Supreme Court cases since.

Concurring opinions

Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

 wrote an opinion that elaborated on his view of the absolute superiority of the First Amendment. He was against any interference with freedom of expression and largely found the content and source of the documents to be immaterial. Justice William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...

 largely concurred with Black, arguing that the need for a free press as a check on government prevents any governmental restraint on the press.

Justice William J. Brennan, Jr. wrote separately to explain that the publication of the documents did not qualify as one of the three exceptions to the freedom of expression established in Near v. Minnesota
Near v. Minnesota
Near v. Minnesota, 283 U.S. 697 , was a United States Supreme Court decision that recognized the freedom of the press by roundly rejecting prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence...


Justice Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...

 and Justice Byron R. White agreed that it is the responsibility of the Executive to ensure national security through the protection of its information. However, in areas of national defense and international affairs, the President of United States possesses great constitutional independence that is virtually unchecked by the Legislative and Judicial branch. "In absence of governmental checks and balances", per Justice Stewart, "the only effective restraint upon executive policy and power in [these two areas] may lie in an enlightened citizenry - in an informed and critical public opinion which alone can here protect the values of democratic government."

Justice Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...

 argued that the term "national security" was too broad to legitimize prior restraint, and also argued that it is not the Court’s job to create laws where the Congress had not spoken.

Dissenting opinions

Chief Justice Warren E. Burger
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...

, dissenting, argued 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 unable to gather enough information to make a 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
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...

 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.

See also

  • List of United States Supreme Court cases, volume 403
  • Judith Miller
    Judith Miller (journalist)
    Judith Miller is a Pulitzer Prize-winning American journalist, formerly of the New York Times Washington bureau. Her coverage of Iraq's alleged Weapons of Mass Destruction program both before and after the 2003 invasion generated much controversy...

  • Valerie Plame affair
  • Spiegel scandal
    Spiegel scandal
    The Spiegel Affair of 1962 was one of the major political scandals in Germany in the era following World War II.The scandal involved a conflict between Franz Josef Strauss, then Federal Minister of Defense, and Rudolf Augstein, owner and editor-in-chief of Der Spiegel magazine, Germany's leading...

    a similar case in West Germany.

Further reading

→ Abrams is quoted as saying the book is the "most complete, incisive, and persuasive study of those documents yet published."

External links

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.