In a democracy, there is always a tension between a free press and thegovernment, between what the government claims ought to be kept confidentialand what reporters believe the public ought to know. Rarely has this conflictbeen clearer than in the celebrated Pentagon Papers case.
In 1967 Secretary of Defense Robert S. McNamara ordered a full-scaleevaluation of how the United States became involved in the Vietnam War.A study team of thirty-six persons took more than a year to compile thereport, which ran to forty-seven volumes, with some 4,000 pages of documentaryevidence and 3,000 pages of analysis. Daniel Ellsberg, a former DefenseDepartment economist who had grown disillusioned with the war, copied majorportions of the study and then turned them over to the press. On June 13,1971, the New York Times began publishing the papers, and the Nixon administrationimmediately sought to stop further publication.
In Near v. Minnesota, Chief Justice Hughes had noted that the rule againstprior restraint would not apply in certain cases. No one would question,Hughes declared, "that a government might prevent actual obstructionto its recruiting service or the publication of the sailing days of transportsor the number and location of troops." Using this theory, the JusticeDepartment secured a temporary injunction against the Times. The WashingtonPost then picked up publication, and when the administration went to courtagainst that paper, the Boston Globe began publication. In an unusual move,the Supreme Court expedited the appeals process, and heard oral argumenton June 26, and four days later, on June 30 -- seventeen days after theTimes ran the first installment -- handed down its decision.
The speed is noteworthy for several reasons, not least of which is theimportance that both the administration and the Court gave to the necessityto decide the issue. The speed also accounts, at least in part, for thefailure of a majority to form around a single opinion. Instead the Courtannounced a brief per curiam decision, in which it noted that the governmentalways had a heavy burden to bear in proving why prior restraint shouldbe permitted, and it had failed to do so in this case. The various justicesthen set out their views of freedom of the press.
The rationale behind the pilfering of the Pentagon documents and thenproviding copies to the press had been to inform the public of what Ellsbergcharged was double-dealing and lying by the government regarding the VietnamWar. The people, according this theory, had a right to know what its governmenthad done. General Maxwell Taylor, who had been ambassador to South Vietnamduring the early stages of the war, condemned this idea. A citizen's rightto know, he declared, is limited "to those things he needs to knowto be a good citizen and discharge his functions, but not to...secretsthat damage his government and indirectly the citizen himself."
Some members of the Court, notably Justice Potter Stewart, did believein this notion of a citizen's right to know, and Stewart put forward thetheory of the press serving as a surrogate for the people, ferreting outinformation for them and securing the material to which they had a right.Not all members of the Court endorsed this "functional" theoryof the press, but Chief Justice Burger later commented that despite thesplit vote, the justices were "actually unanimous." In many ways,this was true. All of the justices did believe in the basic doctrine ofno prior restraint, first set out in the Near case, and with the exceptionof Justices Black and Douglas, who took an absolutist stance against anygovernment censorship of any issue at any time, the entire Court agreedthat government should not censor the press, that no prior restraint wasthe rule except in very unusual circ*mstances.
For further reading: Martin Shapiro, ed., The Pentagon Papers and theCourts ...(1972); Archibald Cox, The Court and the Constitution (1987);S. J. Ungar, The Paper and the Papers...(1972).
NEW YORK TIMES CO. V. UNITED STATES
Per Curiam.
We granted certiorari in these cases in which the United States seeksto enjoin the New York Times and the Washington Post from publishing thecontents of a classified study entitled "History of U.S. Decision-MakingProcess on Viet Nam Policy."
"Any system of prior restraints of expression comes to this Courtbearing a heavy presumption against its constitutional validity."justification for the enforcement of such restraint."...The DistrictCourt in the New York Times case and the District Court and the Court ofAppeals in the Washington Post case held that the Government had not metthat burden. We agree.
The judgement of the Court of Appeals for the District of Columbia Circuitis therefore affirmed. The order of the Court of Appeals for the SecondCircuit is reversed and the case is remanded with directions to enter ajudgement affirming the judgement of the District Court. The stays enteredJune 25, 1971, by the Court are vacated. The mandates shall issue forthwith.
So ordered.
Justice Black, with whom Justice Douglas joins, concurring.
I adhere to the view that the Government's case against the WashingtonPost should have been dismissed and that the injunction against the NewYork Times should have been vacated without oral argument when the caseswere first presented to this Court. I believe that every moment's continuanceof the injunctions against these newspapers amounts to a flagrant, indefensible,and continuing violation of the First Amendment... In my view it is unfortunatethat some of my Brethren are apparently willing to hold that the publicationof news may sometimes be enjoined. Such a holding would make a shamblesof the First Amendment...Only a free and unrestrained press can effectivelyexpose deception in government. To find that the President has "inherentpower" to halt the publication of news by resort to the courts wouldwipe out the First Amendment. The word "security" is a broad,vague generality whose contours should not be invoked to abrogate the fundamentallaws embodied in the First Amendment...
Justice Douglas, with whom Justice Black joins, concurring.
[The First Amendment] leaves, in my view, no room for governmental restrainton the press. There is, moreover, no statute barring the publication bythe press of the material which the Times and Post seek to use... [I]tis apparent that Congress was capable of and did distinguish between publishingand communication in the various sections of the Espionage Act.
So any power that the Government possesses must come from its "inherentpower." The power to wage war is "the power to wage war successfully."But the war power stems from a declaration of war. The Constitution byArticle I, Section 8, gives Congress, not the President, power "todeclare War." Nowhere are presidential wars authorized. We need notdecide therefore what leveling effect the war power of Congress might have.
These disclosures may have a serious impact. But that is no basis forsanctioning a previous restraint on the press...The dominant purpose ofthe First Amendment was to prohibit the widespread practice of governmentalsup-pression of embarrassing information. A debate of large proportionsgoes on in the Nation over our posture in Vietnam. Open debate and discussionof public issues are vital to our National Health. The stays in these casesthat have been in effect for more than a week constitute a flouting ofthe principles of the First Amendment as interpreted in [Near v. Minnesota].
Justice Brennan, concurring.
The error that has pervaded these cases from the outset was the grantingof any injunctive relief whatsoever, interim or otherwise. The entire thrustof the Government's claim throughout these cases has been that publicationof the material sought to be enjoyed "could," or "might,"or "may" prejudice the national interest in various ways. Butthe First Amendment tolerates absolutely no prior judicial restraints ofthe press predicated upon surmise or conjecture that unto-ward consequencesmay result. Our cases, it is true, have indicated that there is a single,extremely narrow class of cases in which the First Amendment's ban on priorjudicial restraint may be overridden. Our cases have thus far indicatedthat such cases may arise only when the Nation "is at war"...duringwhich times "no one would question but that a government might preventactual obstruction to its recruiting service or the publication of thesailing dates of transports or the number and location of troops."...Evenif the present world situation were assumed to be tantamount to a timeof war, or if the power of presently available armaments would justifyeven in peacetime the suppression of information that would set in motiona nuclear holocaust, in neither of these actions has the Government presentedor even alleged that publication of items from or based upon the materialat issue would cause the happening of an event of that nature...Until theGovernment has clearly made out its case, the First Amendment commandsthat no injunction may issue.
Justice Stewart, with whom Justice White joins, concurring.
The only effective restraint upon executive policy and power in theareas of national defense and international affairs may lie in an enlightenedcitizenry. For this reason, it is perhaps here that a press that is alert,aware, and free most vitally serves the basic purpose of the First Amendment.Yet it is elementary that the successful conduct of international diplomacyand the maintenance of an effective national defense require both confidentialityand secrecy. I think there can be but one answer to this dilemma, if dilemmait be. The responsibility must be where the power is. The Executive musthave largely unshared duty to determine and preserve the degree of internalsecurity necessary to exercise...power successfully. It is the constitutionalduty of the Executive -- as a matter of sovereign prerogative and not asa matter of law as the courts know law -- through the promulgation andenforcement of executive regulations to protect the confidentiality necessaryto carry out its responsibilities in the fields of inter-national relationsand national defense. This is not to say that Congress and the courts haveno role to play. Undoubtedly Congress has the power to enact specif-icand appropriate criminal laws to protect government property and preservegovernment secrets...
But in the cases before us we are asked neither to construe specificregulations nor to apply specific laws. We are asked, instead, to performa function that the Constitution gave to the Executive, not the Judiciary.We are asked, quite simply, to prevent the publications by two newspapersof material that the Executive Branch insists should not, in the nationalinterest, be published. I am convinced that the Executive is correct withrespect to some of the documents involved. But I cannot say that disclosureof any of them will surely result in direct, immediate, and irreparabledamage to our Nation or its people. That being so, there can under theFirst Amendment be but one judicial resolution of the issues before us.I join the judgements of the Court.
Justice White, with whom Justice Stewart joins, concurring.
I concur in today's judgements, but only because of the concededly extraordinaryprotection against prior restraints enjoyed by the press under our constitutionalsystem. I do not say that in no circ*mstances would the First Amendmentpermit an injunction against publishing information about governent plansor operations. Nor, after examining the materials the Government characterizesas the most sensitive and destructive, can I deny that revelation of thesedocuments will do substantial damage to public interests. Indeed, I amconfident that their disclosure will have that result. But I neverthelessagree that the United States has not satisfied the very heavy burden whichit must meet to warrant an injunction against publication in these cases,at least in the absence of express and appropriately limited congressionalauthorization for prior restraints in circ*mstances such as these...
Justice Marshall, concurring.
The ultimate issue in this case is whether this Court or the Congresshas the power to make law. [I]n some situations it may be that...thereis a basis for the invocation of the equity jurisdiction of this Courtas an aid to prevent the publication of material damaging to "nationalsecurity," however that term may be defined. It would, however, beutterly inconsistent with the concept of separation of powers for thisCourt to use its power of contempt to prevent behavior that Congress hasspecifically declined to prohibit. There would be similar damage to thebasic concept of these co-equal branches of Government if when the [executive]had adequate authority granted by Congress to protect "national security"it can choose instead to invoke the contempt power of a court to enjointhe threatened conduct...It is plain that Congress has specifically refusedto grant the authority the Government seeks from this Court to fling itselfinto every breach perceived by some Government official...
Justice Harlan, with whom the Chief Justice and Justice Blackmun join,dissenting.
[I] consider that the Court has been almost irresponsibly feverish indealing with these cases.
Both the Court of Appeals for the Second Circuit and the Court of Appealsfor the District of Columbia Circuit rendered judgment on June 23. TheNew York Times' petition for certiorari, its motion for accelerated considerationthereof, and its application for interim relief were filed in this Courton June 24, at about 11 A.M. The application of the United States for interimrelief in the Post case was also filed here on June 24, at about 7:15 P.M.This Court's order setting a hearing before us on June 26 at 11 A.M., acourse which I joined only to avoid the possibility of even more peremptoryaction by the Court, was issued less than 24 hours before. The record inthe Post case was filed with the Clerk shortly before 1 P.M. on June 25;the record in the Times case did not arrive until 7 or 8 o'clock that samenight. The briefs of the parties were received less than two hours beforeargument on June 26.
[The] frenzied train of events...took place in the name of the presumptionagainst prior restraints created by the First Amendment. Due regard forthe extraordinarily important and difficult questions involved in theselitigations should have led the Court to shun its precipitate timetable...
These are difficult questions of fact, of law, and of judgement; thepotential consequences of erroneous decision are enormous. The time whichhas been available to us, to lower courts, and to the parties has beenwholly inadequate for giving these cases the kind of consideration theydeserve. It is a reflection on the stability of the judicial process thatthese great issues -- as important as any that have arisen during my timeon the Court -- should have been decided under the pressures engenderedby the torrent of publicity that has attended these litigations from theirinception.
Forced as I am to reach the merits of these cases, I dissent from theopinion and judgements of the Court. Within the severe limitations imposedby the time constraints under which I have been required to operate, Ican only state my reasons in telescoped form. It is plain to me that thescope of the judicial function in passing upon the activities of the ExecutiveBranch of the Government in the field of foreign affairs is very narrowlyrestricted. This view is, I think, dictated by the concept of separationof powers upon which our constitutional system rests. I agree that in performanceof its duty to protect the values of the First Amendment against politicalpressures, the judiciary must review the initial Executive determinationto the point of satisfying itself that the subject matter of the disputedoes lie within the proper compass of the President's foreign relationspower. Constitutional considerations forbid "a complete abandonmentof judicial control." Moreover, the judiciary may properly insistthat the determination that disclosure of the subject matter would irreparablyimpair the national security be made by the head of the Executive Departmentconcerned -- here the Secretary of State or the Secretary of Defense --after actual personal consideration by that officer. But in my judgementthe judiciary may not properly go beyond these two inquiries and redeterminefor itself the probable impact of disclosure on the national security...
Even if there is some room for the judiciary to override the executivedetermination, it is plain that the scope of review must be exceedinglynarrow...[Pending] further hearings in each case conducted under the appropriateground rules, I would continue the restraints on publication. I cannotbelieve that the doctrine prohibiting prior restraints reaches to the pointof preventing courts from maintaining the status quo long enough to actresponsibly in matters of such national importance as those involved here.
Source: 403 U.S. 713 (1971).
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