Supreme Court decision
By: Hugo L. Black and Warren Burger
Date: June 30, 1971
Source: Black, Hugo L. and Warren Burger. New York Times Co. v. United States. 403 U.S. 713 (1971). Available online at http://laws.findlaw.com/us/403/713.html; website home page: http://www.findlaw.com (accessed April 16, 2003).
About the Authors: Hugo L. Black (1886–1971) graduated from the University of Alabama Law School in 1906. After serving two terms in the U.S. Senate, he was appointed to the U.S. Supreme Court in 1937. His term was distinguished by his support of civil rights.
Warren Burger (1907–1995) had a private practice for over twenty years before he became a U.S. assistant attorney general and then a judge in the U.S. Court of Appeals. In 1969, he was named by President Richard Nixon (served 1969–1974) as chief justice of the U.S. Supreme Court.
The First Amendment, which went into effect in 1791, enshrines freedom of the press into our Constitution, along with several other freedoms. However, the exact meaning of the freedom of the press was not tested in the courts for most of the next one hundred years. One reason for this is that the whole Bill of Rights, including the First Amendment, was held to apply only against the federal government. The federal government's main infringement on the freedom of the press was during the Civil War (1861–1865), but this censorship was never tested in the Supreme Court.
In the twentieth century, this all began to change. First, the First Amendment was held to apply against both the federal government and the states. Second, the press began to increase in importance and so came to be involved in more court cases. Third, the courts began to take a wider view of exactly what the First Amendment meant.
Some initially argued that the First Amendment's freedom of the press only meant a ban on prior restraints, but courts soon moved beyond this idea. In 1931, the Supreme Court struck down a state law that allowed the suppression of any scandalous newspaper, as the Court held that the law violated the First Amendment.
Freedom of the press continued to grow as the twentieth century progressed. In the 1960s, as part of the Cold War, the United States became involved in the Vietnam War (1964–1975). By the late 1960s, even though the U.S. government had been regularly announcing that it was winning the war, it was facing growing opposition to the conflict. In 1971, the New York Times wanted to publish the Pentagon Papers, a collection of classified documents that presented a history of the Vietnam War. The U.S. government's opposition to this resulted in New York Times Co. v. U.S.
The Supreme Court, in its main opinion, rejected the government's contention that the publication of the papers should be banned. The government had argued that irreparable injury would be caused and that the papers contained information that would help the enemy and harm the war effort. The Court stated that any government wanting a prior restraint to ban publication of an item had to meet a very heavy burden—the first time this standard was articulated. The Court concluded that this burden had not been met.
Justice Hugo L. Black, in his concurrence, stated that no prior restraints were allowable, but he did not carry the court. Chief Justice Warren Burger, in his dissent, argued that this decision (on whether or not publication is allowable) had been taken too quickly. He did not argue that publication should be banned, however. Six justices, in a variety of opinions, also argued that criminal sanctions could be undertaken against the paper if the publication of these documents proved damaging to the nation's security, even though most of them did not think that a ban on publication was proven to be necessary.
Ultimately, the papers did not prove damaging to the nation's security, but only to the government's honor. What the Pentagon Papers showed was that many in the military believed, as early as 1965, the same year that the United States committed large numbers of ground troops, that the war was lost. The fact that the United States continued to fight and to claim that it was winning, lowered most people's faith in their government. The Pentagon Papers, along with Watergate in the early 1970s, combined to severely weaken the government's credibility. Since that time, prior restraints have not been used, but the government's credibility has not been fully returned either.
Primary Source: New York Times Co. v. U.S. [excerpt]
SYNOPSIS: Justice Black argues that that First Amendment creates absolute freedom of the press and that censorship is never justified. He contends that the revelations of the Pentagon Papers clearly prove that the press is doing its job. Justice Burger comments that there was an undue rush to judgment, that more time should have been taken, and that the First Amendment was not absolute. He also noted that those who possessed stolen government documents could be prosecuted.
Mr. Justice Black, with whom Mr. Justice Douglas joins, concurring.
… I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit.…In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.
In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts.… The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law … abridging the freedom … of the press.…" Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.
The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment.… [T]he Gov ernment argues in its brief that in spite of the First Amendment, "[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief."
In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.… To find that the President has "in herent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.
The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation andthe abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.…
Mr. Chief Justice Burger, dissenting.
… There is, therefore, little variation among the members of the Court in terms of resistance to prior restraints against publication. Adherence to this basic constitutional principle, however, does not make these cases simple. In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances—a view I respect, but reject—can find such cases as these to be simple or easy.
These cases are not simple for another and more immediate reason. We do not know the facts of the cases. No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member of this Court knows all the facts.
Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are really in a position to act?
I suggest we are in this posture because these cases have been conducted in unseemly haste.…The prompt setting of these cases reflects our universal abhorrence of prior restraint. But prompt judicial action does not mean unjudicial haste.
Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date it obtained the purloined documents. It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue.
The newspapers make a derivative claim under the First Amendment; they denominate this right as the public "right to know"; by implication, the Times asserts a sole trusteeship of that right by virtue of its journalistic "scoop." The right is asserted as an absolute. Of course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout "fire" in a crowded theater if there was no fire.… There are no doubt other exceptions no one has had occasion to describe or discuss. Conceivably such exceptions may be lurking in these cases and would have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures. An issue of this importance should be tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice, deferred publication.
It is not disputed that the Times has had unauthorized possession of the documents for three to four months, during which it has had its expert analysts studying them, presumably digesting them and preparing the material for publication. During all of this time, the Times, presumably in its capacity as trustee of the public's "right to know," has held up publication for purposes it considered proper and thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7,000 pages of complex material drawn from a vastly greater volume of material would inevitably take time and the writing of good news stories takes time. But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure? After these months of deferral, the alleged "right to know" has somehow and suddenly become a right that must be vindicated instanter.
Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could no doubt have been declassified, since it spans a period ending in 1968. With such an approach—one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press—the newspapers and Government might well have narrowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary. To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought—perhaps naively—was to report forthwith, to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The course followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the issues. If the action of the judges up to now has been correct, that result is sheer happenstance.
Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the District Court before it had made a complete record pursuant to the mandate of the Court of Appeals for the Second Circuit.
The consequence of all this melancholy series of events is that we literally do not know what we are acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude without an adequate record, and surely without time for adequate treatment either in the prior proceedings or in this Court. It is interesting to note that counsel on both sides, in oral argument before this Court, were frequently unable to respond to questions on factual points. Not surprisingly they pointed out that they had been working literally "around the clock" and simply were unable to review the documents that give rise to these cases and were not familiar with them. This Court is in no better posture.…
I would affirm the Court of Appeals for the Second Circuit and allow the District Court to complete the trial aborted by our grant of certiorari, meanwhile preserving the status quo in the Post case. I would direct that the District Court on remand give priority to the Times case to the exclusion of all other business of that court but I would not set arbitrary deadlines.
I should add that I am in general agreement with much of what Mr. Justice White has expressed with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense.
We all crave speedier judicial processes but when judges are pressured as in these cases the result is a parody of the judicial function.
Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers. New York: Viking, 2002.
Herda, D. J. "New York Times v. United States": National Security and Censorship. Hillside, N.J.: Enslow, 1994.
Hockett, Jeffrey D. New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, Md.: Rowman and Littlefield Publishers, 1996.
Maltz, Earl M. The Chief Justiceship of Warren Burger,
1969–1986. Columbia: University of South Carolina Press, 2000.
Rudenstine, David. The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley: University of California Press, 1996.
Schwartz, Bernard. The Ascent of Pragmatism: The Burger
Court in Action. Reading, Mass.: Addison-Wesley, 1990.
Ungar, Sanford J. The Papers and the Papers: An Account of the Legal and Political Battle Over the Pentagon Papers. New York: Columbia University Press, 1989.
Schmuhl, Robert. "Government Accountability and ExternalWatchdogs." Issues of Democracy 5, no. 2, August 2000. Available online at ; website home page: http://usinfo.state.gov/journals/ (accessed April 16, 2003).