New York Times Co. v. US: Supreme Court Case, Arguments, Impact

The Legal Battle Over Publication of the Pentagon Papers

Daniel Ellsberg testifying before Congress
Daniel Ellsberg testifies as a witness in a three-day before Congress concerning the Pentagon Papers.

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New York Times Company v. United States (1971) pitted First Amendment freedoms against national security interests. The case dealt with whether or not the executive branch of the United States government could request an injunction against the publication of classified material. The Supreme Court found that prior restraint carries a "heavy presumption against constitutional validity."

Fast Facts: New York Times Co. v. United States

  • Case Argued: June 26, 1971
  • Decision Issued: June 30, 1971
  • Petitioner: New York Times Company
  • Respondent: Eric Griswold, Solicitor General for the United States
  • Key Questions: Did the Nixon Administration violate freedom of the press under the First Amendment when they attempted to block publication of the Pentagon Papers?
  • Majority: Justices Black, Douglas, Brennan, Stewart, White, Marshall
  • Dissenting: Justices Burger, Harlan, Blackmun
  • Ruling: Government should not have restricted publication. There is a “heavy presumption” against prior restraint and the Nixon Administration could not overcome that presumption.

Facts of the Case

On October 1, 1969, Daniel Ellsberg unlocked a safe in his office at Rand Corporation, a prominent military contractor. He pulled out a portion of a 7,000-page study and brought it to a nearby advertising agency above a flower shop. It was there that he and a friend, Anthony Russo Jr., copied the first pages of what would later become known as the Pentagon Papers

Ellsberg eventually made a total of two copies of "History of U.S. Decision-Making Process on Vietnam Policy,” which was labeled “Top Secret - Sensitive.” Ellsberg leaked the first copy to New York Times reporter Neil Sheehan in 1971, after a year of trying to get lawmakers to publicize the study. 

The study proved that former President Lyndon B. Johnson had lied to the American people about the severity of the Vietnam War. It exposed that the government knew the war would cost more lives and more money than previously projected. By the spring of 1971, the U.S. had been officially involved in the Vietnam War for six years. Anti-war sentiment was growing, though President Richard Nixon’s administration seemed eager to continue the war effort. 

The New York Times began printing portions of the report on June 13, 1971. Legal matters escalated quickly. The government sought an injunction in the Southern District of New York. The court denied the injunction but issued a temporary restraining order to allow the government to prepare for an appeal. Circuit Judge Irving R. Kaufman continued the temporary restraining order as hearings in the U.S. Court of Appeals proceeded. 

On June 18, The Washington Post began printing portions of the Pentagon Papers.

On June 22, 1971, eight circuit court judges heard the government’s case. The following day they issued a finding: The U.S. Court of Appeals declined the injunction. The government turned to the highest court for review, filing a petition with the U.S. Supreme Court. Attorneys for both parties appeared before the Court for oral arguments on June 26, only a week and a half after the government pursued its initial injunction.

Constitutional Question

Did the Nixon administration violate the First Amendment when it sought to prevent the New York Times and the Washington Post from printing excerpts of a classified government report?

Arguments

Alexander M. Bickel argued the case for the New York Times. Freedom of the press protects the publications from government censorship and, historically speaking, any form of prior restraint has been scrutinized, Bickel argued. The government violated the First Amendment when it sought to restrain two newspapers from publishing articles in advance.

The U.S. Solicitor General, Erwin N. Griswold, argued the case for the government. Publishing the papers would cause irreparable harm to the government, Griswold argued. The papers, once made public, could hinder the administration’s relations with foreign powers or jeopardize current military endeavors. The Court should grant an injunction, allowing the government to exercise prior restraint, in order to protect national security, Griswold told the Court. Griswold noted that the papers were classified top secret. If given 45 days, he offered, the Nixon administration could appoint a joint task force to review and declassify the study. If allowed to do so, the government would no longer seek an injunction, he said.

Per Curiam Opinion

The Supreme Court issued a three-paragraph per curiam decision with a six-judge majority. "Per curiam" means "by the court." A per curiam decision is written and issued by the court as a whole, rather a single justice. The Court found in favor of the New York Times and denied any act of prior restraint. The government, “carries a heavy burden of showing justification for the imposition of such a restraint,” a majority of justices agreed. The government could not meet this burden, making a restraint on publication unconstitutional. The Court vacated all temporary restraining orders issued by lower courts.

This was all that Justices could agree on. Justice Hugo Black, in concurrence with Justice Douglas, argued that any form of prior restraint was against what the Founding Fathers intended in enacting the First Amendment. Justice Black commended the New York Times and the Washington Post for publishing the Pentagon Papers. 

Justice Black wrote:

“Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”

To ask for an injunction, Justice Black wrote, was to ask for the Supreme Court to agree that the Executive Branch and Congress could violate the First Amendment in the interest of “national security.” The concept of “security” was far too broad, Justice Black opined, to allow for such a ruling.

Justice William J. Brennan Jr. authored a concurrence that suggested prior restraint could be used in the interest of national security, but that the government would have to show inevitable, direct, and immediate negative consequences. The government could not meet this burden in terms of the Pentagon Papers, he found. Attorneys for the government had not offered the court specific examples of how releasing the Pentagon Papers could imminently harm national security.

Dissent

Justices Harry Blackmun, Warren E. Burger, and John Marshall Harlan dissented. In independent dissents, they argued that the Court should defer to the executive branch when national security is questioned. Only government officials could know the ways in which information could harm military interests. The case had been rushed, both justices argued, and the Court had not been given enough time to fully evaluate the legal complexities at play.

Impact

New York Times Co. v. U.S. was a victory for newspapers and free press advocates. The ruling set a high bar government censorship. However, the legacy of New York Times Co. v. U.S. remains uncertain. The Court presented a fractured front, producing a per curiam decision that makes it difficult for prior restraint to occur, but does not outlaw the practice entirely. The ambiguity of the Supreme Court's ruling as a whole leaves the door open to future instances of prior restraint.

Sources

  • New York Times Co. v. United States, 403 U.S. 713 (1971).
  • Martin, Douglas. “Anthony J. Russo, 71, Pentagon Papers Figure, Dies.” The New York Times, The New York Times, 9 Aug. 2008, https://www.nytimes.com/2008/08/09/us/politics/09russo.html.
  • Chokshi, Niraj. “Behind the Race to Publish the Top-Secret Pentagon Papers.” The New York Times, The New York Times, 20 Dec. 2017, https://www.nytimes.com/2017/12/20/us/pentagon-papers-post.html.