New York Times Co. v. United States Part I

 

New York Times Co. v. United States, 403 U.S. 713 (1971), was a landmark decision of the US Supreme Court on the First Amendment. The ruling made it possible for The New York Times and The Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment.

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, guaranteed by the First Amendment, was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. The Supreme Court ruled that the First Amendment did protect the right of The New York Times to print the materials.

Background

The New York Times Washington Bureau Chief Max Frankel stated in a 1971 deposition, while the New York Times was fighting to publish the Pentagon Papers, that secrets can be considered the currency on which Washington runs and that "leaks were an unofficial back channel for testing policy ideas and government initiatives." Frankel recounted for example that the Presidents John F. Kennedy and Lyndon B. Johnson used and revealed secrets purposefully. The Pentagon Papers, however, came to light not by a high-ranking government official. By 1971, the United States had been engaged in an undeclared war with North Vietnam for six years. At this point, about 58,000 American soldiers had died and the government 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". Daniel Ellsberg, who had helped to produce the report, leaked 43 volumes of the 47-volume, 7,000-page report to reporter Neil Sheehan of The New York Times in March 1971 and the paper began publishing articles outlining the findings.

Restraining order sought

The black article appeared in the Times' Sunday edition, on June 13, 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."

The government sought a restraining order that prevented the Times from posting any further articles based upon the Pentagon Papers. In addition to The New York Times Company, the Justice Department named the following defendants: Arthur Ochs Sulzberger, president and publisher; Harding Bancroft and Ivan Veit, executive vice presidents; Francis Cox, James Goodale, Sydney Gruson, Walter Mattson, John McCabe, John Mortimer and James Reston, vice presidents; John B. Oakes, editorial page editor; A. M. Rosenthal, managing editor; Daniel Schwarz, Sunday editor; Clifton Daniel and Tom Wicker, associate editors; Gerald Gold and Allan M. Siegal, assistant foreign editors; Neil Sheehan, Hedrick Smith, E. W. Kenworthy and Fox Butterfield, reporters; and Samuel Abt, a foreign desk copy editor.

Section 793 of the Espionage Act

Section 793 of the Espionage Act was cited by Attorney General John N. Mitchell as cause for the United States to bar further publication of stories based upon the Pentagon Papers. The statute was spread over three pages of the United States Code Annotated and the only part that appeared to apply to the Times was 793(e), which made it criminal for:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it [shall be fined under this title or imprisoned not more than ten years, or both].

Based on this language, Alexander Bickel and Floyd Abrams felt there were three preliminary arguments to raise. First, the wording of the statute was very broad. Was each article about foreign policy one "relating to the national defense"? What was the significance of "reason to believe" that the Pentagon Papers "could be used to the injury of the United States or the advantage of any foreign nation"? If the motivation was to educate the public, was that a defense that served to help, not hinder, the country? Would the public be "a person not entitled to receive" the information? Of equal importance was what the statute did not say: No references to "publication" (as Attorney General Mitchell's cease-and-desist order referenced), no reference to classified information, and no support for Mitchell's reliance on the top secret classification to justify restraint on publication. Additionally, there was no statutory language providing authority for prior restraint on publication at all.

Second, was the relevance of Mitchell's reliance on a criminal statute in a civil proceeding seeking prior restraint. There was Supreme Court precedent that lent support to the idea that bans on the publication of information by the press to be unconstitutional. In 1907 Oliver Wendell Holmes wrote the "main purpose" of the First Amendment was "to prevent all such previous restraints upon publications as had been practiced by other governments." In 1931 the Court wrote that only the narrowest circumstances—such as publication of the dates of departure of ships during wartime—were permissibly restrained. In 1969 John Marshall Harlan II wrote that the Supreme Court "rejected all manner of prior restraint on publication." This second line of reasoning made it seem the statute should only be dealt with in passing, making the case a First Amendment one and the relief the government wanted—a bar on publication—unavailable.

The third possible approach was a very broad view of the First Amendment, one not focused on the impact of a government victory on the life of a democratic society if prior restraint were granted; but that the publication of just these sorts of materials—governmental misjudgments and misconducts of high import—is exactly why the First Amendment exists.

Federal judge Murray Gurfein heard arguments in the District Court for the Southern District of New York. Michael Hess, chief of the Civil Division of the United States Attorneys Office, argued "serious injuries are being inflicted on our foreign relations, to the benefit of other nations opposed to our foreign relations, to the benefit of other nations opposed to our form of government." Hess relied on Secretary of State William P. Rogers's statement reported earlier that day that a number of nations were concerned about the Papers publication and an affidavit from the general counsel of the Navy that alleged irreparable injury if publication did not cease. Hess asked for a temporary restraining order.

Bickel argued that the separation of powers barred the court from issuing the restraining order since there was no statute authorizing such relief. He further argued that there was no exception to the general unavailability of prior restraint that applied in this case. Gurfein called all counsel to his chambers and asked Bickel and Abrams to have the Times cease publication of the Papers until he could review them. Bickel responded that Gurfein would be the first judge in American history to enter a prior restraint enjoining publication of news if he granted the government's request. The Times refused to cease publication. Gurfein granted the request and set a hearing for June 18.

The New York Times agreed to abide by the restraining order and on June 19, Judge Gurfein rejected the administration's request for an injunction, writing that "[t]he security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know." However, the Court of Appeals, after an en banc hearing, granted an injunction until June 25.