New York Times Co. v. United States Supreme Court of the United States Argued June 26, 1971 Decided June 30, 1971 Full case name: New York Times Co. v. United States, Citations: 403 U.S. 713 Subsequent history: 444 F.2d 544, reversed and remanded. Holding In order to exercise prior restraint, the Government must show sufficient evidence that the publication would cause a “grave and irreparable” danger. Court membership Chief Justice: Warren E. Burger Associate Justices: Hugo Black, William O. Douglas, John Marshall Harlan II, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun Case opinions Per curiam. Concurrence by: Black Joined by: Douglas Concurrence by: Douglas Joined by: Black Concurrence by: Brennan Concurrence by: Stewart Joined by: White Concurrence by: White Joined by: Stewart Concurrence by: Marshall Dissent by: Burger Dissent by: Harlan Joined by: Burger, Blackmun Dissent by: Blackmun Laws applied U.S. Const. amend. I

Watergate (timeline) Events Pentagon Papers Watergate burglaries Watergate tapes Saturday Night Massacre United States v. Nixon New York Times Co. v. United States Image File history File links Seal_of_the_United_States_Supreme_Court. ... Federal courts Supreme Court Chief Justice Associate Justices Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Counties, Cities, and Towns Other countries Politics Portal      The Supreme Court of the United States (SCOTUS) is the highest judicial body in the... Warren Earl Burger (September 17, 1907 – June 25, 1995) was Chief Justice of the United States from 1969 to 1986. ... Hugo Black Hugo LaFayette Black (February 27, 1886 – September 25, 1971) was a Justice of the Supreme Court of the United States (1937 - 1971). ... 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Floyd Abrams, counsel to the New York Times

New York Times Co. v. United States, 403 U.S. 713 (1971), was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure. Image File history File linksMetadata Download high-resolution version (1903x1671, 599 KB) The author of this image is me, David Shankbone. ... Image File history File linksMetadata Download high-resolution version (1903x1671, 599 KB) The author of this image is me, David Shankbone. ... Floyd Abrams is a famous First Amendment lawyer. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... Year 1971 (MCMLXXI) was a common year starting on Friday (link will display full calendar) of the 1971 Gregorian calendar. ... Federal courts Supreme Court Chief Justice Associate Justices Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Counties, Cities, and Towns Other countries Politics Portal      The Supreme Court of the United States (SCOTUS) is the highest judicial body in the... A per curiam decision (or opinion) is a ruling handed down by a court with multiple judges in which the decision was made by the court acting as a whole, as opposed to statements made by individual judges. ... The New York Times is an internationally known daily newspaper published in New York City and distributed in the United States and many other nations worldwide. ... ... An example of a U.S. classified document; page 13 of a U.S. National Security Agency report[1] on the USS Liberty incident, partially declassified and released to the public in July 2003. ... The Pentagon Papers is the colloquial term for United States-Vietnam Relations, 1945-1967: A Study Prepared by the Department of Defense, a 47 volume, 7,000-page, top-secret United States Department of Defense history of the United States political and military involvement in the Vietnam War from 1945...

The U.S. President Richard Nixon had claimed executive authority to force the Times to suspend publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press under the First Amendment was subordinate to a claimed Executive need to maintain the secrecy of information. The Supreme Court ruled that First Amendment did protect the New York Times' right to print said materials. The presidential seal is a well-known symbol of the presidency. ... Richard Milhous Nixon (January 9, 1913 – April 22, 1994) was the 37th President of the United States, serving from 1969 to 1974. ... A publication ban is a court order which prohibits the public or media from disseminating certain details of an otherwise public judicial procedure. ... Freedom Freedom of the press (or press freedom) is the guarantee by a government of free public press for its citizens and their associations, extended to members of news gathering organizations, and their published reporting. ... The Bill of Rights in the National Archives The First Amendment to the United States Constitution is a part of the United States Bill of Rights. ...

Setting

By 1971, the US had been overtly at war with North Vietnam for six years. At this point, 45,000 American soldiers had died and the administration was facing widespread dissent from large portions of the American public. In 1967 Secretary of Defense Robert S. McNamara commissioned a “massive top-secret history of the United States role in Indochina”. The resulting 2.5 million word classified work was obtained by the New York Times within three years, which immediately began publishing articles outlining the findings. Combatants Republic of Vietnam United States Republic of Korea Thailand Australia New Zealand The Philippines National Front for the Liberation of South Vietnam Democratic Republic of Vietnam People’s Republic of China Democratic Peoples Republic of Korea Strength US 1,000,000 South Korea 300,000 Australia 48,000... The Democratic Republic of Vietnam (DRVN), or less commonly, Vietnamese Democratic Republic (Vietnamese: Việt Nam Dân Chủ Cá»™ng Hòa), also known as North Vietnam, was proclaimed by Ho Chi Minh in Hanoi, September 2nd1945 and was recognized by the Peoples Republic of China and the... Robert McNamara in 1964 Robert Strange McNamara (born June 9, 1916), American businessman and politician, was United States Secretary of Defense from 1961 to 1968. ...

The first article appeared in the Times' Sunday edition, June 13th, 1971. By the following Tuesday, the Times received an order to cease further publication from a District Court judge, at the request of the Administration. The Government claimed it would cause "irreparable injury to the defense interests of the United States" and wanted to "enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled History of U.S. Decision-Making Process on the Vietnam Policy.” Seen from a constitutional perspective, the Government was expressing its intent to enforce prior restraint upon a newspaper with regards to publishing the findings of a study that the Government itself had made.

On the 19th, the District Court rejected the administration’s request for an injunction. After several battles within numerous courts with no clear victory for any party, both the Times and the Government appealed to the Supreme Court.

Along with the issue of how the Times obtained the documents (which was being investigated by a federal grand jury elsewhere) the real issue for the Court was whether there was a sufficient justification for prior restraint, which would be a suspension of the newspapers’ First Amendment rights to freedom of the press. The First Amendment states that no federal law can be made abridging the freedom of the press, but a few landmark cases in the 20th century had established precedents creating exceptions to that rule. The first ten Amendments to the U.S. Constitution make up the Bill of Rights. ...

The most recent incarnation of the exception was the grave and probable danger rule, established in Dennis v. United States, 341 U.S. 494 (1951). During this case, the wording was changed to the grave and irreparable danger standard. The idea behind the numerous versions of the rule is that if a certain message will likely cause a “grave and irreparable” danger to the American public when expressed, then the message’s prior restraint could be considered an acceptable infringement of civil liberties. The Supreme Court was therefore charged with determining if the Government had sufficiently met the “burden of showing justification for the imposition of such a restraint” . Holding Defendants convictions for conspiring, through their participation in the Communist Party, to overthrow the U.S. government by force were not prohibited by the First Amendment. ... Year 1951 (MCMLI) was a common year starting on Monday (link will display the full calendar) of the Gregorian calendar. ...

The Supreme Court heard arguments from the Executive Branch, the Times, the Post, and the Justice Department on June 25th and 26th 1971. On June 30th, with six Justices concurring and three dissenting, the Supreme Court upheld the right of the two newspapers to publish the material.

In its decision, the court first established the legal question with the use of precedents. It first stated that “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity”. The purpose of this statement was to make the presence of the inherent conflict between the Government’s efforts and the First Amendment clear. The decision then stated that the Government “thus carries a heavy burden of showing justification for the imposition of such a restraint”. This reinforced the idea that it was the Nixon Administration's responsibility to show sufficient evidence that the newspapers’ actions would cause a “grave and irreparable” danger.

Decision

The decision finally stated that the Supreme Court agreed with the two lower courts which had originally decided that the Government had not met that burden, so the prior restraint was not justified. This final decision was not signed by any particular justice.

The Per Curiam opinion itself in this case was very brief because all the Court wanted to state was that it had concurred with the decisions of the two lower courts to reject the Government’s request for an injunction. The Justices’ opinions included different degrees of support for the clear superiority of the First Amendment and no Justice fully supported the Government’s case. Because of these factors, no clear and exclusive law appears to have come out of this case. Nevertheless, the significance of the case and the wording of the Justices’ opinions have added important statements to the history of precedents for exceptions to the First Amendment, which have been cited in numerous Supreme Court cases since . A per curiam decision (or opinion) is a ruling handed down by a court with multiple judges in which the decision was made by the court acting as a whole, as opposed to statements made by individual judges. ...

Justice Hugo Black wrote an opinion that elaborated on his absolutist view of the First Amendment. He was against any interference with freedom of expression and largely found the content of the documents to be immaterial. Justice William O. Douglas (1898-1980) largely concurred with Black, citing the need for a free press as a check on government. Hugo Black Hugo LaFayette Black (February 27, 1886 – September 25, 1971) was a Justice of the Supreme Court of the United States (1937 - 1971). ... William Orville Douglas (October 16, 1898 – January 19, 1980) was a United States Supreme Court Associate Justice. ...

Justice William J. Brennan, Jr. explained how the publication of the documents did not qualify as one of the three exceptions to the freedom of expression established in Near v. Minnesota (1931). William J. Brennan, official portrait, 1976. ... Holding A Minnesota law that imposed permanent injunctions against the publication of newspapers with malicious, scandalous, and defamatory content violated the First Amendment, as applied to the states by the Fourteenth. ...

Justice Potter Stewart and Justice Byron R. White agreed that it is the responsibility of the Executive to ensure national security through the protection of its information. Potter Stewart (January 23, 1915 – December 7, 1985) was an Associate Justice of the United States Supreme Court. ... Byron Raymond White (June 8, 1917 - April 15, 2002) won fame both as a bruising running back and as an associate justice of the Supreme Court of the United States. ...

Justice Thurgood Marshall established the notion that the term “national security” was too broad when legitimizing prior restraint, and also argued that it is not the Court’s job to create laws where the Congress cannot. This article or section does not cite any references or sources. ...

Justice Warren E. Burger, dissenting, argued that “the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government," that there should be a detailed study on the effects of these actions. He argued that in the haste of the proceedings, and given the size of the documents, the Court was unable to gather enough information to make a decision. He also argued that the Times should have discussed the possible societal repercussions with the Government prior to publication of the material. The Chief Justice did not argue that the Government had met the aforementioned standard, but rather that the decision should not have been made so hastily. Warren Earl Burger (September 17, 1907 – June 25, 1995) was Chief Justice of the United States from 1969 to 1986. ...

Justice John M. Harlan and Justice Harry A. Blackmun joined the Chief Justice in arguing the faults in the proceedings, and the lack of attention towards national security and the rights of the Executive. See also Harlans grandson John Marshall Harlan II, who was also an American Supreme Court associate justice. ... Harold Andrew Blackmun (November 12, 1908 - March 4, 1999) was an Associate Justice of the Supreme Court of the United States from 1970 to 1994. ...

Implications

The broader implications of this case at the time were that the people of the United States were exposed to a history of inner operations of the Executive with regards to the war, putting the Government under a level of public scrutiny it had not known before. The Times’ victory strengthened the notion that it was not only the right of but also a central purpose of the free press to scrutinize government. This notion has been kept strong since and is still evident today in public criticism of the Bush Administration. The status of the debate in recent years has focused on criminal technicalities relating to First Amendment rights, as well as prior restraints against information that has the potential to harm people economically. It is still contended that the freedom of the press cannot be abridged through vague speculations of harm. The Bush administration includes President George W. Bush, Vice President Richard Cheney, Bushs Cabinet, and other select officials and advisors. ...

See also

• Floyd Abrams
• History and background of New York Times Co. v. United States
• Alexander Bickel
• James Goodale
• Pentagon Papers

Floyd Abrams is a famous First Amendment lawyer. ... Floyd Abrams This article reviews the history and background of . ... Alexander Mordecai Bickel (December 17, 1924 – November 8, 1974) was a law professor and expert on the United States Constitution. ... James Goodale is the former General Counsel and Vice Chairman of The New York Times. ... The Pentagon Papers is the colloquial term for United States-Vietnam Relations, 1945-1967: A Study Prepared by the Department of Defense, a 47 volume, 7,000-page, top-secret United States Department of Defense history of the United States political and military involvement in the Vietnam War from 1945...

Research resources

• Sheehan, Neil and others. The Pentagon Papers. New York: New York Times Co., 1971
• Shapiro, Martin (ed.). The Pentagon Papers and the Courts. Toronto: Chandler Publishing Company, 1972
• Schmidt, Steffen, Mack Shelley, and Barbara Bardes. American Government and Politics Today. Toronto: Thompson Wadsworth, 2005
• Bernard Schwartz, Freedom of the Press. New York: Facts on File, 1992

External links

• Text of the decision, 403 US 713
• FindLaw for Legal Professionals (2005-copyright) FindLaw: NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971)
• First Amendment Library entry for New York Times Co. v. United States