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New York Times Co. v. United States [the Cases of the Pentagon Papers.]

Citation. 22 Ill.403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822, 1 Med. L. Rptr. 1031 (1971)
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Brief Fact Summary.

The Supreme Court of the United States (Supreme Court) granted certiorari, to consider the whether the United States could enjoin both the New York Times and the Washington Post from printing the Pentagon Papers.

Synopsis of Rule of Law.

The First Amendment freedom of the press should be afforded the greatest protection. An injunction that seeks to proactively quash speech is impermissible, unless imminent harm can be proven.


The Petitioners, the New York Times and The Washington Post (Petitioners), sought to print the Pentagon Papers in their newspapers. Arguing that insurrection may arise from the publishing, the Respondent, the United States government (Respondent), sought to enjoin the publication of the Papers. The District Courts for New York and the District of Columbia, along with the D.C. Circuit Court of Appeals all held that the government did not meet the burden of showing justification for the imposition of an injunction.


The facial issue is whether the government, under the guise of national security, can seek to regulate the activities of the press.


In a pure plurality, the Supreme Court held that the government could not justify a proactive injunction, under the impermissible doctrine of prior restraint.
Prior restraint stands for the principal that an action cannot be restrained prior to its happening, on the theory that it may cause harm.


Justice John Harlan (J. Harlan) dissented, agreeing that it is a judiciary function to protect the First Amendment freedom of the press, but disagreeing that the government had not met its burden of proving the injunction was necessary.
Concurrence. As this was a plurality opinion, there were several concurrences:
Justice Hugo Black (J. Black) concurred in the judgment of the Supreme Court, holding that the injunctions were invalid and advising that any injunction was a flagrant disregard for the freedom of the press, in violation of the First Amendment of the Constitution.
Justice William Douglas (J. Douglas) concurred, noting that by its plain language, the First Amendment of the Constitution leaves no room for any restraint on the function of the press.
Justice William Brennan (J. Brennan) concurred, highlighting the doctrine of prior restraint and noting that the mere fact that material could, might or may prejudice national interest does not meet the burden of proving the validity of an injunction.
Justice Potter Stewart (J. Stewart) concurred, noting that the freedom of the press should not be abrogated and that an injunction was improper, but he also noted that the Executive could promulgate an executive regulation in carrying out national objectives.
Justice Byron White (J. White) concurred, also considering the extraordinary protection against all prior restraints of constitutionally protected speech.
Justice Thurgood Marshall (J. Marshall) concurred, also noting that the Executive should not abuse the separation of powers, in attempting to use the Supreme Court as a weapon to allow injunction in abrogation of the freedom of the press.


This case strikes at the heart of freedom of the press, as it is outlined in the First Amendment of the Constitution. Any prior restraint of information is necessarily an abrogation of the constitutionally protected rights of the press.

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