Citation. 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822, 1971 U.S.
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The Petitioner, the New York Times (Petitioner), printed an excerpt from a top secret Defense Department document. The Respondent, the United States (Respondent), sought to enjoin further publications on the grounds that national security was jeopardized.
Synopsis of Rule of Law.
There is a heavy presumption against the validity of any system of prior restraint of expression that can only be overcome by a significant governmental justification.
Facts.
The Petitioner published excerpts from top-secret Defense Department documents that chronicled some of the decision-making that occurred during the Vietnam War. The documents were referred to as the Pentagon Papers. The Respondent immediately sought an injunction from further publications citing the compromise of national security as justification for the restraint.
Issue.
Is this request for a prior restraint constitutional?
Held.
No. The government failed to show sufficient justification for this restraint on expression by the press.
Dissent.
Prior restraints are appropriate because of the sensitive nature of the reports.
Justice Warren Burger (J. Burger): The danger to national security is a determination that the Executive branch makes. It is not for the judiciary to overrule this decision.
Justice Harry Blackmun (J. Blackmun): A balancing test should be developed for such circumstances that weighs the right of the press against the Executive considerations.
Concurrence. The government has no right to prohibit the reporting of news.
Justice Hugo Black (J. Black): The press must be free to publish the news without censorship, injunctions or prior restraints.
Justice William Douglas (J. Douglas): The purpose of the First Amendment of the United States Constitution (Constitution) is to prevent the government from suppressing embarrassing information. Secrecy in the government is anti-democratic.
Justice William Brennan (J. Brennan): Prior restraint is allowed when the nation is at war. But, even then, it may not rest on the conclusion that the release of information “may or might” compromise security.
Justice Potter Stewart (J. Stewart): Some of the documents probably should be censored, but there is no evidence that harm will result to the nation if the reports are published.
Justice Byron White (J. White): The government has not met its burden of proof. It might be able to pursue other avenues to prevent future publications.
Justice Thurgood Marshall (J. Marshall): It would be a disruption of the separation of powers for the courts to prohibit activities that the Congress has not.
Discussion.
The majority simply relies on the holdings of the lower courts which prohibit governmental censorship unless the information will compromise national security at a time of war.
