United States v. Washington Post Co.
On June 18, 1971, The Washington Post began publishing its own series of articles based upon the Pentagon Papers. That day, Assistant U.S. Attorney General William Rehnquist asked the Post to cease publication. After the paper refused, Rehnquist sought an injunction in the District Court for the District of Columbia, but Judge Gerhard Gesell rejected the government's request, as did the Court of Appeals for the DC Circuit. This inconsistency between the courts of appeal led the Supreme Court to hear the case.
Opinion
The Supreme Court heard arguments from the Executive Branch, the Times, the Post, and the Justice Department on June 25 and 26, 1971. 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, among them the "clear and present danger" test first articulated by Justice Oliver Wendell Holmes Jr. in Schenck v. United States.
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".
On June 30, with six Justices concurring and three dissenting, the Supreme Court upheld the right of the newspapers to publish the material. The Court issued a very brief per curiam opinion, stating only that the Court concurred with the decisions of the two lower courts to reject the Government's request for an injunction. 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.
New York Times v. United States is generally considered a victory for an extensive reading of the First Amendment, but as the Supreme Court ruled on whether the government had made a successful case for prior restraint, its decision did not void the Espionage Act or give the press unlimited freedom to publish classified documents.
Concurring opinions
Justice Hugo Black wrote an opinion that elaborated on his view of the absolute superiority of the First Amendment:
[T]he injunction against The New York Times should have been vacated without oral argument when the cases were first presented... . [E]very moment's continuance of the injunctions ... amounts to a flagrant, indefensible, and continuing violation of the First Amendment. ... 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. ... [W]e are asked to hold that ... the Executive Branch, the Congress, and the Judiciary can make laws ... abridging freedom of the press in the name of 'national security.' ... To find that the President has 'inherent power' to halt the publication of news ... would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make 'secure.' ... 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... . The Framers of the First Amendment, fully aware of both the need to defend a new nation and the 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.
Justice William O. Douglas largely concurred with Black, arguing that the need for a free press as a check on government prevents any governmental restraint on the press.
Justice William J. Brennan, Jr., wrote separately to explain that 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).
Justices Potter Stewart and Byron R. White agreed that it is the responsibility of the Executive to ensure national security through the protection of its information. However, in areas of national defense and international affairs, the President possesses great constitutional independence that is virtually unchecked by the Legislative and Judicial branch. "In absence of governmental checks and balances", wrote Justice Stewart, "the only effective restraint upon executive policy and power in [these two areas] may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government".
Justice Thurgood Marshall argued that the term "national security" was too broad to legitimize prior restraint, and also argued that it is not the Court's job to create laws where the Congress had not spoken.
Dissenting opinions
Chief Justice Warren E. Burger, dissenting, argued that when "the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government," 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.
Justice John M. Harlan and Justice Harry A. Blackmun joined Burger in arguing the faults in the proceedings, and the lack of attention towards national security and the rights of the Executive.
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