Brief Fact Summary. The New York Times and the Washington Post published excerpts from a top secret Defense Department study of the Vietnam War. The study revealed in great detail United States military policy toward Indochina. The government filed suit seeking to enjoin the further publication of the materials.
Synopsis of Rule of Law. The Government bears the heavy burden of showing sufficient justification for the imposition of a prior restraint on speech.
Issue. Was the restraining order barring the further publication of the Defense Department Study in violation of the First Amendment of the United States Constitution (Constitution)?
(Per Curiam) Any prior restraint on speech comes before the Supreme Court of the United States (Supreme Court) under a heavy presumption of unconstitutionality. The government bears the burden of showing that such a restraint is justified. The government did not meet its burden here.
Chief Justice Warren Burger (J. Burger) stated that the imperative of a having an unfettered free press has come into collision with another weighty imperative: the effective functioning of the government, in particular the exercise of certain constitutional powers of the Executive. We do not know all the facts of this case, nor did any of the lowers courts. Therefore, the Supreme Court should not have aborted the trials below (by granting Certiorari before the trials were completed) that should have been conducted when a matter of the magnitude of these before us are at stake.
Justice John Harlan stated that the Supreme Court granted Certiorari too quickly. The extraordinarily important and difficult questions involved in this case should have led the Supreme Court to avoid using such a precipitate timetable. As to the merits, he dissented from the Supreme Court because this case involves activities of the Executive Branch in the field of foreign affairs. The scope of the judicial function with regard to such matters is very limited.
Justice Harry Blackmun (J. Blackmun) First Amendment rights are not absolute. This case required a proper balancing between the broad rights of the press to print and of the very narrow right of the Government to prevent publications. The cases had not developed to an extent in the courts below to allow for the necessary weighing of interests.
Justice Hugo Black (J. Black) argued that a free press was established to bear the secrets of the Government and thereby keep the public informed. Only a free and unrestrained press can effectively accomplish this purpose. The guarding of military and diplomatic secrets at the expense of an informed representative style government provides no real security.
Justice William Douglas (J. Douglas) argued that although the disclosures at issue may have a serious impact, that is no reason for sanctioning a prior restraint. The primary purpose of the First Amendment of the Constitution was to prohibit the practice of governmental suppression of embarrassing information.
Justice William Brennan (J. Brennan) stated that the primary purpose of the First Amendment of the Constitution was to prevent prior restraints. Therefore, only governmental proof that a certain publication will inevitably, directly, and immediately cause the occurrence of an event of a considerably high degree of danger, can support the issuance of even an interim prior restraint.
Justice Potter Stewart (J. Stewart) said that in the absence of the governmental checks and balances, the only effective restraint upon executive policy in the area of national defense is an informed citizenry.
Justice Byron White (J. White) concurred in the judgment only because of the extraordinary protection against prior restraints the First Amendment of the Constitution confers. He did not say, however, that the First Amendment of the Constitution would never permit an injunction against publishing government information. The government has simply not satisfied its burden here.
Justice Thurgood Marshall (J. Marshall) argued it is clear that Congress has refused to give the Executive Branch the power it seeks here (by making the publication of the materials illegal). When Congress specifically declines to make conduct illegal, it’s not the job of the courts to overrule Congress.
Discussion. The Supreme Court resolves this case by weighing two competing dangers. On the one hand, is the deleterious effect on our democratic style of government that will result from the denying the public information about its government. On the other hand, are the dangers that may result, in terms of the lives of troops and of military strategy, if military and diplomatic secrets are made public. The Supreme Court thought that the greater danger was the former here. The minority of the Supreme Court did not think sufficient time was given by the courts below to fully weigh which interest was more pressing.