New York Times Co. v. United States

Justice Black, joined by Justice Douglas, treated the injunctions as an immediate and continuing violation of the First Amendment. In his view, the command that Congress make “no law” abridging freedom of the press leaves no room for censorship, injunctions, or other prior restraints on publication of news.

He rejected the Government's claim that the President's foreign-affairs and Commander-in-Chief powers supplied an inherent authority to suppress publication in the name of national security. Permitting the Executive to obtain such relief from courts, without congressional authorization, would invert the Constitution by allowing general governmental powers to override the Bill of Rights.

For Justice Black, the press exists to serve the governed rather than the governors. Publication of information revealing how the Government made decisions leading to the Vietnam War was precisely the kind of reporting the First Amendment was designed to protect.

Justice Douglas, joined by Justice Black, concluded that the First Amendment itself leaves no room for governmental restraint of the press. He also emphasized that Congress had enacted no statute clearly forbidding these newspapers from publishing the documents at issue.

He read the Espionage Act as significant evidence of congressional choice. Congress had expressly used the term “publish” in some provisions while omitting it from 18 U.S.C. § 793(e), and it had rejected a proposed provision that would have authorized presidential censorship of national-defense information during wartime or national emergency.

Douglas further noted that Congress had declared in the 1950 amendments to the Espionage Act that nothing in the Act should authorize censorship or limit freedom of the press. Thus, he reasoned, the Government's request depended entirely on a claimed inherent executive power that Near had rejected.

Although disclosure might have serious consequences, Douglas concluded that secrecy in government perpetuates bureaucratic error and impairs democratic debate. The Pentagon Papers concerned historical government decisionmaking and were directly relevant to the ongoing public debate over Vietnam.

Justice Brennan wrote to make clear that the temporary restraining orders and stays issued during this litigation should not be understood as a precedent approving similar restraints in future cases. The novelty and speed of these cases might explain some interim measures, but they did not diminish the First Amendment's protection.

He maintained that the Government had relied on speculation that publication “could,” “might,” or “may” harm national interests. The First Amendment does not permit prior restraints based on conjectural harms.

Brennan recognized only an exceedingly narrow possible exception: the Government would have to prove that publication must inevitably, directly, and immediately cause an event comparable to imperiling a transport already at sea. The Government neither alleged nor established a danger of that immediate and inevitable kind here.

Justice Stewart, joined by Justice White, acknowledged the Executive's broad constitutional authority over national defense and foreign relations. Effective diplomacy and defense often require secrecy, and the Executive has a serious responsibility to protect confidential information within its own operations.

At the same time, he stressed that the Executive's relative independence in these fields makes an informed public especially important. A free and alert press is essential because informed public opinion may be the principal democratic check on executive policy in foreign affairs and national defense.

Stewart believed that some of the documents could harm national interests if disclosed. But the Government had not shown that publication of any particular document would surely cause direct, immediate, and irreparable damage to the Nation or its people. On that record, the First Amendment required denial of the injunction.

Justice White, joined by Justice Stewart, agreed that the Government had not carried the extraordinary burden necessary to secure a prior restraint. He did not accept, however, an absolute rule that the First Amendment could never permit an injunction against publishing government information.

He found the Government's proposed “grave and irreparable danger” standard too broad, especially because the Government sought an injunction without express congressional authorization. Allowing courts to suppress publication under such an open-ended standard would create a sweeping and hazardous censorship power.

White emphasized the difference between prior restraint and criminal punishment after publication. The Government's inability to obtain an injunction did not mean that the press was free from possible criminal liability under applicable statutes, including provisions addressing national-defense information and classified communications intelligence.

Congress had enacted criminal laws in this area but had not authorized the injunctive remedy the Government sought. White would not create that remedy from generalized executive and equitable powers, particularly where the practical effectiveness of an injunction was doubtful after broad dissemination of the documents.

Justice Marshall framed the dispute as a separation-of-powers problem as well as a First Amendment case. In his view, the Executive asked the Judiciary to create, through an injunction enforceable by contempt, a censorship power that Congress had not enacted.

Congress had considered and rejected proposals that would have given the President broad authority to prohibit publication of national-defense information. It had instead enacted specific criminal statutes governing particular disclosures. Courts could interpret and apply those statutes in an appropriate criminal case, but they could not use equity to override Congress's decision not to authorize prior restraints.

Marshall also observed that equity traditionally does not enjoin crimes absent a showing that ordinary criminal remedies are inadequate. The Government had not shown that existing statutes were unavailable or ineffective, and it could not bypass the legislative process merely because an injunction would be more convenient.

Justice Harlan, joined by Chief Justice Burger and Justice Blackmun, objected first to the Court's accelerated process. The lower courts and the Supreme Court had acted within days, on incomplete factual records and under intense public pressure, despite the exceptional stakes of the claimed national-security harms.

He believed the Court should have allowed further proceedings to resolve several difficult questions, including the Attorney General's authority to sue, the meaning of the Espionage Act, the actual harms from disclosure, the effect of the documents' alleged theft, and the extent to which courts should defer to executive national-security judgments.

On the merits, Harlan maintained that foreign affairs and national security are areas in which the Executive has constitutional primacy. A court should verify that the matter genuinely falls within executive foreign-relations authority and require a responsible department head personally to determine that disclosure would irreparably impair national security.

Once those safeguards were satisfied, however, Harlan would not have permitted courts to independently reassess the likely national-security consequences of disclosure. He would have continued the restraints while the district courts developed the facts under a more deliberate process.

Justice Blackmun joined Justice Harlan's dissent and agreed substantially with Justice White's warning that publication might expose the newspapers to criminal consequences. He regarded the rushed litigation as an unsuitable vehicle for establishing the constitutional standards governing national-security restraints.

He rejected First Amendment absolutism. In his view, the First Amendment must be weighed against Article II responsibilities assigned to the Executive, including responsibility for the Nation's safety and foreign affairs.

Blackmun would have remanded for an expedited but orderly factual development, including evidence and, if needed, discovery. He believed that a fuller record could show whether publication of the limited set of documents identified by the Government would cause grave harms, such as risks to soldiers, alliances, diplomatic negotiations, prisoners of war, or the duration of the conflict.

Chief Justice Burger agreed that prior restraints on news reporting are ordinarily constitutionally suspect, but he rejected the proposition that the First Amendment is absolute in every circumstance. In his view, this case required a careful accommodation between press freedom and the Executive's constitutional responsibilities for national security and foreign affairs.

He criticized the speed with which the Times had published and the courts had been forced to decide. The Times had possessed and reviewed the documents for months, yet the Government and the courts were given virtually no time to examine the materials or develop an evidentiary record.

Burger believed that the Court did not know enough about the documents or their possible consequences to decide the merits responsibly. He would have allowed the Times district court to complete its proceedings, preserved the status quo in the Post case, and avoided arbitrary deadlines that distorted the judicial process.