13. NEW YORK TIMES CO. V.

UNITED STATES

Brief Fact Summary. The New York Times and the Washington Post published excerpts
from a top secret Defense Department study of the Vietnam War. The study revealed in
great detail United States military policy toward Indochina. The government filed suit
seeking to enjoin the further publication of the materials.

Synopsis of Rule of Law. The Government bears the heavy burden of showing sufficient
justification for the imposition of a prior restraint on speech.

Facts.

 The New York Times and the Washington Post published excerpts from a top
secret Defense Department study of the Vietnam War.
 The study revealed in great detail United States policy toward Indochina
including information about military operations and secret diplomatic
negotiations.
 The government filed suit in the federal district courts and obtained an injunction
in some instances, prohibiting the further publication of the materials, on the
grounds that further publication would endanger the lives of United States troops
and interfere with national security.

Issue. Was the restraining order barring the further publication of the Defense
Department Study in violation of the First Amendment of the United States Constitution
(Constitution)?

Held:

Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy
presumption against" prior restraint of the press in this case. Justices Black and Douglas argued
that the vague word "security" should not be used "to abrogate the fundamental law embodied in
the First Amendment." Justice Brennan reasoned that since publication would not cause an
inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint
was unjustified.

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.