1. Case Name New York Times Company v.

United States (1971)

2. Facts Beginning June 13, 1971, the New York Times published a series of
extracts from a classified forty-seven volume report called History of U.S. Decision-
Making Process on Vietnam Policy. The Department of Justice, at the urging of the
Nixon administration, sought an injunction against the articles’ publication and obtained a
temporary restraining order until June 19th. The Washington Post published similar
excerpts on June 18th and received a similar restraining order. On June 19th, the request
for an injunction was denied by a district court, but later that day a circuit court judge
extended the restraining order until June 21 pending a circuit panel review. On June 22,
the panel remanded the case to a lower court and extended the restraining order until June
25. The Times appealed to the high court and was granted certiorari. Four days later, the
Court issued no less than ten opinions.

3. Questions Presented Did the prior restraint exercised by the DoJ violate the First
Amendment protections granted to the Times?

4. Holding In a 6-3 vote, the Court affirmed the district court’s verdict denying the
injunction.

5. Rationale The per curiam opinion issued by the Court is a simple statement of the
Court’s affirmation with a list of relevant case citations.
Justice Black, with Justice Douglas concurring, stated in strong terms that
the restraining orders and the requests for injunction were “flagrant, indefensible, and
continuing violations of the First Amendment.” They deny that any branch of
government may make laws binding the press from reporting the news for reasons of
“national security.” Black insists that the intention of Madison and the Framers in adding
a Bill of Rights was to outlaw precisely what the government was attempting to do in this
case. Black argues that “guarding[…] military and diplomatic secrets at the expense of
informed representative government” does nothing beneficial for society. Black
attributes the safety and strength of the country to the absolute primacy of First
Amendment.
Justice Douglas, with Justice Black concurring, wrote that the government
has no inherent power obtain injunctions against the press. It is debate, not secrecy, he
argues, that is the foundation and the continuance of America’s representative democracy.
He calls for “uninhibited, robust, and wide-open debate” on public issues.
Justice Brennan writes to make clear that these opinions may in no way be
construed to endorse future temporary stays on publishing. No future court should
interpret any part of this decision as allowing such restraints under certain circumstances.
Although it is possible to infer on the Court’s part an assumption that the prior restraints
could have been proper, this is not a precedent to be relied upon for future attempts to
bind the press.
Justice Stewart, with Justice White concurring, extols the press as a check
on the power of the executive. He cites an enlightened citizenry as the best protection of
democracy, and calls a free and protected press the basis of this protection. However,
Justice Stewart does recognize the need for secrecy in diplomatic affairs and in the
creation and evolution of policy. He declares that the responsibility of balancing these
two interests falls on the Executive. As the Executive is charged with “a large degree of
unshared power in[…] foreign affairs and[…] national defense,” he is likewise charged to
balance that interests with the Constitutional demands of the First Amendment. But as
neither the Legislature nor the Executive has passed a law restricting these publications, it
is inappropriate for the Judiciary to perform the duties of the Executive by enacting, in
effect, a law restraining the media. Although Justice Stewart personally agreed with the
Executive’s stating that these articles should not be published, he could find no
Constitutional capacity for the Court to do so.
Justice White, with Justice Stewart concurring, writes that he is certain
that the publication of the papers will wreak “substantial damage to public interests.”
However, he notes that the government has not satisfied the requirements to obtain an
injunction (requirements that he calls “concededly extraordinary.” He rejects those parts
of the government’s argument predicated on a supposed inherent ability of the Executive
to gag any newspaper that he can convince a court threatens “grave and irreparable”
injury to the country. Justice White writes that in the absence of legislation to that effect,
there is no Constitutional grounding for the assumption of such a power. Although he
suggests that a “responsible press” would not publish these documents, he is loathe to
hand to the government such a broad and sweeping power over a free press.
Justice Marshall rejects the idea that the Court may, at the request of the
Executive, prohibit such behavior. He likens it to usurping the power of Congress to
make law for reasons of convenience or political palatability.

6. Other Opinions Chief Justice Burger writes a short dissent decrying the haste with
which the case has moved through the system, stating that adequate time has not been
given for consideration and blaming the “frenetic haste” on the actions of the Times.
Justice Harlan’s opinion, with Chief Justice Burger and Justice Blackmun
concurring, constitutes the bulk of the dissents. He opens with an examination of the
hurried events leading to the granting of certiorari and subsequent opinions. He proposes
that this “frenzied train of events” was precipitated by presuming a total rejection of prior
restraint by the First Amendment. He is not declaring that such a rejection does not exist,
merely that some inherent questions were brushed aside without adequate consideration.
He provides his own list of questions to be considered, including whether the attorney
general is authorized to bring suit; whether the courts may enjoin publication; whether
the threat to publish secret documents is sufficient, regardless of the documents’ content;
whether these documents would impair national security; how much influence the
opinion of the Executive has; whether the newspapers may keep the documents in the
first place, as they were stolen. These, he contends, are the questions that the Court
should have given careful deliberation but instead ignored or peremptorily answered,
urged on by the storm of publicity surrounding the case. Harlan considers the Judiciary
to have little jurisdiction in matters of Executive foreign affairs, citing the separation of
powers and a generally accepted opinion on the subject written by Chief Justice John
Marshall. Harlan accepts that the Court must review the president to ensure that he is
acting with the scope of his power, but he asserts that, in this instance, he is. He does
suggest that the determination as to what constitutes damaging information be made by
the head of the department threatened—sec. or state, sec. of defense, etc.—so as to
prevent the Executive from gaining too broad a power over the press.
Chief Justice Blackmun questions the resounding condemnation of the
restraining orders, noting that the information is three years old and that the Times itself
waited three months before publishing the material. He warns that the Court may be
overemphasizing the First Amendment to the detriment of other sections of the
Constitution. “Article II,” he reminds us “vests in the Executive Branch primary power
over the conduct of foreign affairs and places in that branch responsibility for the nation’s
safety.”

7. Questions and Personal Reactions I am most persuaded by Justice Stewart’s

characterization of the press as a check on the government. While they may not always
act as if they are under such high charge, I agree that the press is key to an informed
citizenry and a functioning democracy. I note that two of the Justices sound decidedly
uncertain about their choice to side with the majority opinion and wonder what effect
would have been wrought upon future free speech cases by their voting to reverse the
decision of the Court of Appeals.