We live in an information age where we can google just about anything we want and see results, even if the results are critical of the government. Imagine opening a newspaper, reading a magazine, or scrolling on your phone and everything you read has been approved by the government.
In that case, the press becomes the mouthpiece of the government, and journalists who print information that is deemed as investigative or critical are at risk of being harassed or even killed. That’s the reality for many citizens around the world. In the United States, the press enjoys broad freedom to publish information without censorship. That freedom was solidified in the landmark Supreme Court case, New York Times v. United States.
New York Times v. United States 1971
New York Times v. United States was a Supreme Court case that was argued and decided in 1971. Let's frame the issue:
The preamble to the Constitution states that the United States has a responsibility to provide for the common defense. To achieve that goal, the government has claimed the right to keep some military information secret. This case deals with the First Amendment’s freedom of the press clause and what happens when issues regarding national security come into conflict with the freedom of the press.
Pentagon Papers
Throughout the 1960s and 70s, the United States was embroiled in the controversial Vietnam War. The war had grown increasingly unpopular because it had dragged on for a decade and there were many casualties. Many Americans doubted that the country’s involvement was justified. In 1967 Robert McNamara, the Secretary of Defense, ordered a secret history of the United States' activities in the area. Daniels Ellsberg, a military analyst, helped produce the secret report.
By 1971, Ellsberg had grown frustrated with the direction of the conflict and considered himself an anti-war activist. That year, Ellsberg unlawfully copied over 7,000 pages of classified documents kept at the RAND corporation's research facility where he was employed. He first leaked the papers to Neil Sheehan, a reporter at the New York Times, and later to the Washington Post.
Classified documents: information that the government had deemed sensitive and needs to be protected from access to individuals who do not have the proper security clearance.
These reports contained details about the Vietnam War and information regarding decisions made by United States officials. The papers became known as the “Pentagon Papers”
The Pentagon Papers consisted of communication, war strategy, and plans. Many of the documents revealed American incompetence and South Vietnamese deception.
Fig. 1, A CIA map of dissident activity in Indochina published as part of the Pentagon Papers, Wikipedia
New York Times v. United States Summary
The Espionage Act was passed during World War I, and it made it a crime to obtain information regarding national security and national defense with the intent to harm the United States or to aid a foreign country. During wartime, many Americans were charged with violating the Espionage Act for such crimes as spying or leaking information regarding military operations. Not only could you be punished for illegally obtaining sensitive information, but you could also suffer repercussions for receiving such information if you didn’t alert authorities.
Daniel Ellsberg leaked the Pentagon Papers to major publications such as The New York Times and The Washington Post. The newspapers knew that printing any of the information contained in the documents would risk violating the Espionage Act.
Fig. 2, Daniel Ellsberg at a press conference, Wikimedia Commons
The New York Times published two stories with information from the Pentagon Papers anyway, and President Richard Nixon ordered the attorney general to issue an injunction against the New York Times to stop printing anything in the Pentagon Papers. He claimed that the documents were stolen and that their publication would cause harm to the United States defense. The Times refused, and the government sued the newspaper. The New York Times claimed that their freedom to publish, protected by the First Amendment, would be violated by the injunction.
While a federal judge issued a restraining order for the Times to cease further publication, The Washington Post began to print portions of the Pentagon Papers. The government once again asked a federal court to stop a newspaper from printing the documents. The Washington Post also sued. The Supreme Court agreed to hear both cases and combined them into one case: New York Times v. United States.
The question that the court had to resolve was “Did the government’s efforts to prevent two newspapers from publishing leaked classified documents violate the First Amendment protection of freedom of the press?”
Arguments for the New York Times:
Prior restraint: government censorship of the press. It is usually prohibited in the United States.
Arguments for the U.S. Government:
New York Times v. United States Ruling
In a 6-3 decision, the Supreme Court ruled for the newspapers. They agreed that stopping publication would have been prior restraint.
Their decision was rooted in the First Amendment’s Freedom of Speech clause, “Congress shall make no law……abridging the freedom of speech, or of the press”
The Court also relied on the precedent of Near v. Minnesota.
J.M. Near published The Saturday Press in Minnesota, and it was widely viewed as being offensive to many groups. In Minnesota, a public nuisance law prohibited the publication of malicious or defamatory content in newspapers, and Near was sued by a citizen who had been targeted with derogatory remarks using the public nuisance law as justification. In a 5-4 ruling, the Court determined the Minnesota law to be in violation of the First Amendment, holding that in most cases, prior restraint is a violation of the First Amendment.
The Court did not issue a typical majority opinion authored by a single justice. Instead, the Court offered a per curium opinion.
Per curium opinion: a judgement that reflects a unanimous Court decision or the Court’s majority without being attributed to a particular justice.
In a concurring opinion, Justice Hugo L. Black argued that,
Only a free and unrestrained press can effectively expose deception in government”
Concurring opinion: an opinion written by a justice who agrees with the majority but for different reasons.
In his dissent, Chief Justice Burger argued that the justices didn’t know the facts, that the case was rushed, and that,
“First Amendment rights are not absolute.”
Dissenting opinion: an opinion written by justices who are in the minority in a decision.
New York Times v. United States Significance
What is most significant about New York Times v. United States is that the case defended the First Amendment’s freedom of the press against government prior restraint. It is held as a powerful example of a victory for freedom of the press in America.
New York Times v. United States - Key takeaways
- New York Times v. United States deals with the First Amendment’s freedom of the press clause and what happens when issues regarding national security come into conflict with the freedom of the press.
- The Pentagon Papers were over 7000 government documents stolen from the RAND corporation containing sensitive information about the U.S. involvement in the Vietnam War.
- New York Times v. United States is significant because the case defended the First Amendment’s freedom of the press clause against government prior restraint.
- In a 6-3 decision, the Supreme Court ruled for the newspapers. They agreed that stopping publication would have been prior restraint.
- Their decision was rooted in the First Amendment’s Freedom of Speech clause, “Congress shall make no law……abridging the freedom of speech, or of the press."
References
- Fig. 1, CIA map of dissident activity in Indochina published as part of the Pentagon Papers (https://en.wikipedia.org/wiki/Pentagon_Papers) by Central Intelligence Agency - Page 8 of the Pentagon Papers, originally from the CIA NIE-5 Map Supplement, In Public Domain
- Fig. 2 Daniel Ellsberg at a press conference (https://commons.wikimedia.org/wiki/File:Daniel_Ellsberg_at_1972_press_conference.jpg) by Gotfryd, Bernard, photographer (https://catalog.loc.gov/vwebv/search?searchCode=LCCN&searchArg=2010650142&searchType=1&permalink=y), In Public Domain
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