Summary of New York Times Co. v. United States
403 U.S. 670, 91 S.Ct. 2140 (1971)
Facts: In 1971, during rising tensions over the undeclared Vietnam War, the New York Times attained top-secret articles based on the 1968 study, “History of U.S. Decision Making Process on Viet Nam Policy." The New York Times analyzed the articles for several months, and on June 13, 1971, it began publication. After the third set of articles was published, the Department of Justice sought an injunction to halt any further publication. The next day, the United States obtained a restraining order prohibiting further publication until June 19.
Shortly after, the District Court denied the government’s request for a preliminary injunction, but a Circuit Court judge prolonged the restraining order to give the Court of Appeals for the District of Columbia adequate time to consider the government’s case. On June 22, the Circuit Court remanded the case to the trial court for determination of whether any of the future publications “posed such grave and immediate danger to the security of the country as to warrant prior restraint and a continued stay of publication." The New York Times appealed the Circuit Court’s decision to the Supreme Court.
Issue: Is the First Amendment violated when the United States, during wartime, prohibits a newspaper from publishing sensitive articles which may cause security concerns for the United States?
Holding: Yes. [6-3; Majority: J. Black, J. Douglas, J. Brennan, J. Stewart, J. White, J. Marshall. Minority: C.J. Burger, J. Harlan, J. Blackman]
Per Curiam Decision: The decision of the Court stated that the government “carries a heavy burden" of providing justification for restraining the freedom of expression granted by the Constitution. The lower courts held that the government had not met that burden, with which the Supreme Court agreed. Thus, the order of the Court of Appeals for the District of Columbia was affirmed and the stays entered on June 25, 1971, were vacated.
Majority Opinions: Justices Black and Douglas wrote joint concurring opinions in which they condemned the government’s actions, calling it a “flagrant, indefensible, and continuing violation of the First Amendment." Black and Douglas stated that the language of the First Amendment is clear and supports the view that “the press must be left free to publish news, whatever the source, without censorship, injunctions or prior restraints." They further concluded that to give the President the power to withhold certain articles from the press would “wipe out the First Amendment and destroy the fundamental liberty and security of the very people the government hopes to make secure." Lastly, Black and Douglas discussed the issue of governmental secrecy, calling it anti-democratic, and noted that, “open debate and discussion of public issues are vital to our nation’s health."
Justices Stewart and White joined in concurring opinions. They held that an “alert, aware, and free" press most critically serves the purpose of the First Amendment. Further, they reasoned that in the absence of an informed and free press, there cannot be “enlightened" people. Finally, Stewart and White argued that while a need for secrecy exists in many national defense issues “the responsibility must be where the power is." Since the Executive is given a large, unshared power in foreign affairs and national security, its duty must be to “determine and preserve the degree of internal security necessary to exercise that power successfully."
The majority clearly frowned on the actions of the Executive. The six concurring Justices in this case agreed that issuing an injunction, a prior restraint, would be a harsh violation of the First Amendment regardless of the “secret" nature of the proposed publishings.
Dissenting Opinions: Chief Justice Burger wrote the first dissent, stating, “the First Amendment right itself is not an absolute.” He argued that the First Amendment does not protect situations where secret, stolen articles are published by a newspaper. He concluded that since First Amendment absolutism had never commanded a majority of the Supreme Court, it need not protect these types of cases involving stolen materials.
Burger continued his opinion scorning the New York Times for its lack of responsibility in dealing with the “illegally acquired” materials. Burger contended that it would have not been unreasonable or inconvenient for the New York Times to consult with the government before publishing, especially since the newspaper could have easily anticipated the government's reaction. Burger found it “hardly believable” that a respected newspaper would fail to act upon one of the “basic and simple duties of every citizen” in regard to the discovery of possession of stolen property.
Following Burger, Justices Harlan and Blackmun dissented, stating that Article II of the Constitution grants the Executive narrowly restricted powers in foreign affairs. Quoting John Marshall that, “the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” Harlan and Blackmun concluded that disabling the Executive from enjoining the publication of stolen government documents would be a violation of the powers granted to it by the Constitution.