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New York Co. v. United States [The Pentagon Papers Case] News publisher (D) v. Federal government (P)

Citation. 403 U.S. 713 (1971)
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Brief Fact Summary.

The Government sought an injunction on the New York Times and the Washington Post to refrain from publishing the Pentagon Papers

Synopsis of Rule of Law.

The Court presumes any system of beforehand control laid on expression coming for judgment before it to be constitutionally invalid.


The U.S. Government (P) sought an injunction by the Court restraining the New York Times (D) and the Washington Post (D) from publishing a classified document on the “History of U.S. Decision-Making Process on Vietnam Policy” (also called The Pentagon Papers). The actions for temporary restraint and injunction were appealed through two district courts and two appellate courts. The Supreme Court granted a review of the material evidence.


To seek a restraint on expression prior to the occurrence, is a heavy burden of evidence necessary to justify the placing of the restraint?


(Per curiam) Yes. Any proposal for placing restraint on expression prior to the occurrence requires a heavy burden of proof justifying the restraint. The Court views all such with a heavy presumption against their constitutional validity. Since this burden was not met by the United States, the earlier verdict refusing injunctive relief is affirmed.


(Harlan, J.) The principle that prior restraint is generally unconstitutional does not deprive the courts of the power to maintain the situation as it is till it can take responsible action. The separation of powers means that there is a restriction on the power of the court to decide upon the activities of the executive arm of government. If the judiciary has the right to disagree with and overrule the executive perception of the risk of negative consequences on national security in the event of disclosure, even then the field afforded for review is restricted. In this case, the court has not shown deference due even to an administrative branch, much less one which is equal to itself in government.
(Blackmun, J.) The First Amendment is not absolute, in that if publication of certain material would cost the lives of soldiers, breaking of pact partnerships, a real increase in the difficulty of negotiating with the nation’s enemies, protraction of the fighting and prolonged imprisonment of U.S. soldiers, the constitution would justify its being set aside.


(Black, J.) At first presentation the cases deserved dismissal and denial of relief. The continuance of the injunctive restraint on the freedom of expression of the newspapers is an open and unjustifiable violation of First Amendment rights. If the Court were to conclude that the President does indeed have power by virtue of his office to prevent news from being published by moving court, the First Amendment would be rendered null and void.
(Douglas, J.) The First Amendment does not allow any kind of government inhibition to be laid on the press, since its main objective was to wipe out the general tendency of government to suppress the publication of news which brought embarrassment to it.
(Brennan, J.) The wide-ranging error of these cases was in allowing any injunctive relief at all since the only claim of the U.S. Government was a possible damage to national interest, conveyed in terms no stronger than “may”, “might” or “could”. To issue even a temporary restraining injunction would require proof tantamount to asserting that  such damage would follow upon publication inevitably, without fail, immediately, and as a direct consequence of publication, of a sort which can be likened to risking the safety of a ship already launched.
(Stewart, J.) The Government could not prove direct, immediate and irreversible detriment to national welfare as a result of this publication, so that injunctive relief is not appropriate.
(White, J.) While the public interest will suffer real harm due to this publication, the U.S. has not fulfilled its heavy burden of proof. Its choosing to seek injunctive relief was a mistake but does not bar its successfully winning its case by another route. Moreover, not being able to prove that prior restraints in this case are essential does not mean it is not entitled to have the publication declared criminal.
(Marshall, J.) The question which is to be settled is whether lawmaking is the function of the Court or the Congress. Congress has clearly rejected certain laws from being passed which would have given the President the power to veto publication, as he desired, and criminalize the act of publication by the New York Times. This Court should not attempt to re-examine and produce a fresh decision, and overrule the clearly expressed decision of Congress not to make such conduct violation of the law, and so has no power to grant relief as sought.


On June 13, 1971, the New York Times started to publish some extracts from The Pentagon Papers. On June 18, the Washington Post also followed suit. The government brought action to restrain the newspapers from publication. From June 15 to June 28 the case for prior restraint was considered in two district courts and two appellate courts. On June 25 the Supreme Court granted review, and allowed restraining orders to continue till the judgment was made, which occurred on June 30. Justices Brennan, Marshall, Douglas and Black dissented from the decision to grant review, their view being that summary action was appropriate and that on their part they would not continue the ban on publication by the newspape

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