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New York Times Co. v. United States [The Pentagon Papers Case]

Matthew Steinberg

InstructorMatthew Steinberg

CaseCast "What you need to know"

CaseCast –  "What you need to know"

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Citation. 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822, 1971 U.S.
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Brief Fact Summary.

The Supreme Court of the United States (Supreme Court) held that the Government failed to meet the requisite burden of proof needed to justify a prior restraint of expression when attempting to enjoin the New York Times and Washington Post from publishing contents of a classified study.

Synopsis of Rule of Law.

Any system of prior restraints on expression comes to the Supreme Court bearing a heavy presumption against its invalidity. The Government “thus creates a heavy burden of showing justification for the enforcement of such a restraint.”


The United States sought to enjoin the New York Times and Washington Post from publishing contents of a confidential study about the Government’s decision making with regards to Vietnam policy. The District Court in the New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the Government had not met the requisite burden justifying such a prior restraint.


Whether the United States met the heavy burden of showing justification for the enforcement of such a restraint on the New York Times and Washington Post to enjoin them from publishing contents of a classified study?


No. Judgments of the lower courts affirmed. The order of the Court of Appeals for the Second Circuit is reversed and remanded with directions to enter a judgment affirming the District Court. The stays entered June 25, 1971, by the Court are vacated. The mandates shall issue forthwith.


The scope of the judicial function in passing upon activities of the Executive Branch in the field of foreign affairs is very narrowly restricted. This view is dictated by the doctrine of Separation of Powers. The doctrine prohibiting prior restraints does not prevent the courts from maintaining status quo long enough to act responsibly.  The First Amendment is only part of the Constitution. The cases should be remanded to be developed expeditiously.

Concurrence. To find that the President has “inherent power” to halt the publication of news by resort to the courts would wipe out the First Amendment of the United States Constitution [Constitution].  The First Amendment of the Constitution leaves no room for governmental restraint on the press. There is, moreover, no statute barring the publication by the press of the material that the Times and Post seek to publish.

The First Amendment of the Constitution tolerates no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result. Thus, only governmental allegation and proof that publication must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support the issuance of an interim restraining order. Unless and until the Government has clearly made its case, the First Amendment of the Constitution commands that no injunction be issued.

The responsibility must be where the power is. The Executive must have the large duty to determine and preserve the degree of internal security necessary to exercise its power effectively. The Executive is correct with respect to some of the documents here, but disclosure of any of them will not result in irreparable danger to the public.  The United States has not met the very heavy burden, which it must meet to warrant an injunction against publication in these cases.  The ultimate issue in this case is whether this Court or the Congress has the power to make this law. It is plain that Congress has refused to grant the authority the Government seeks from this Court.


This very divided opinion shows how heavy the Government’s burden is to justify a prior restraint of expression.

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