Real Crime/Paranormal/Conspiracy Theories Book III

New York Times Co. v. United States Part II

Opinion

The Supreme Court heard arguments fromthe Executive Branch, the Times, the Post, and the Justice Departmenton June 25 and 26, 1971. Along with the issue of how the Timesobtained the documents (which was being investigated by a federalgrand jury elsewhere) the real issue for the Court was whether therewas a sufficient justification for prior restraint, which would be asuspension of the newspapers' First Amendment rights to freedom ofthe press. The First Amendment states that no federal law can be madeabridging the freedom of the press, but a few landmark cases in the20th century had established precedents creating exceptions to thatrule, among them the "clear and present danger" testfirst articulated by Justice Oliver Wendell Holmes Jr. in Schenckv. United States.

The most recent incarnation of theexception was the grave and probable danger rule, established inDennis v. United States, 341 U.S. 494 (1951). During thiscase, the wording was changed to the grave and irreparable dangerstandard. The idea behind the numerous versions of the rule is thatif a certain message will likely cause a "grave andirreparable" danger to the American public when expressed,then the message's prior restraint could be considered an acceptableinfringement of civil liberties. The Supreme Court was thereforecharged with determining if the Government had sufficiently met the"burden of showing justification for the imposition of such arestraint".

On June 30, with six Justicesconcurring and three dissenting, the Supreme Court upheld the rightof the newspapers to publish the material. The Court issued a verybrief per curiam opinion, stating only that the Court concurred withthe decisions of the two lower courts to reject the Government'srequest for an injunction. In its decision, the court firstestablished the legal question with the use of precedents. It firststated that "Any system of prior restraints of expressioncomes to this Court bearing a heavy presumption against itsconstitutional validity". The purpose of this statement wasto make the presence of the inherent conflict between theGovernment's efforts and the First Amendment clear. The decision thenstated that the government "thus carries a heavy burden ofshowing justification for the imposition of such a restraint".This reinforced the idea that it was the Nixon Administration'sresponsibility to show sufficient evidence that the newspapers'actions would cause a "grave and irreparable" danger.

New York Times v. United Statesis generally considered a victory for an extensive reading of theFirst Amendment, but as the Supreme Court ruled on whether thegovernment had made a successful case for prior restraint, itsdecision did not void the Espionage Act or give the press unlimitedfreedom to publish classified documents.

Concurring opinions

Justice Hugo Black wrote an opinionthat elaborated on his view of the absolute superiority of the FirstAmendment:

[T]he injunction against The NewYork Times should have been vacated without oral argument when thecases were first presented... . [E]very moment's continuance of theinjunctions ... amounts to a flagrant, indefensible, and continuingviolation of the First Amendment. ... The press was to serve thegoverned, not the governors. The Government's power to censor thepress was abolished so that the press would remain forever free tocensure the Government. The press was protected so that it could barethe secrets of government and inform the people. Only a free andunrestrained press can effectively expose deception in government.And paramount among the responsibilities of a free press is the dutyto prevent any part of the government from deceiving the people andsending them off to distant lands to die of foreign fevers andforeign shot and shell. ... [W]e are asked to hold that ... theExecutive Branch, the Congress, and the Judiciary can make laws ...abridging freedom of the press in the name of 'national security.'... To find that the President has 'inherent power' to halt thepublication of news ... would wipe out the First Amendment anddestroy the fundamental liberty and security of the very people theGovernment hopes to make 'secure.' ... The word 'security' is abroad, vague generality whose contours should not be invoked toabrogate the fundamental law embodied in the First Amendment. Theguarding of military and diplomatic secrets at the expense ofinformed representative government provides no real security... . TheFramers of the First Amendment, fully aware of both the need todefend a new nation and the abuses of the English and Colonialgovernments, sought to give this new society strength and security byproviding that freedom of speech, press, religion, and assemblyshould not be abridged.

Justice William O. Douglas largelyconcurred with Black, arguing that the need for a free press as acheck on government prevents any governmental restraint on the press.

Justice William J. Brennan, Jr., wroteseparately to explain that the publication of the documents did notqualify as one of the three exceptions to the freedom of expressionestablished in Near v. Minnesota (1931).

Justices Potter Stewart and Byron R.White agreed that it is the responsibility of the Executive to ensurenational security through the protection of its information. However,in areas of national defense and international affairs, the Presidentpossesses great constitutional independence that is virtuallyunchecked by the Legislative and Judicial branch. "In absence ofgovernmental checks and balances", wrote Justice Stewart, "theonly effective restraint upon executive policy and power in [thesetwo areas] may lie in an enlightened citizenry – in an informed andcritical public opinion which alone can here protect the values ofdemocratic government".

Justice Thurgood Marshall argued thatthe term "national security" was too broad tolegitimize prior restraint, and also argued that it is not theCourt's job to create laws where the Congress had not spoken.

Dissenting opinions

Chief Justice Warren E. Burger,dissenting, argued that when "the imperative of a free andunfettered press comes into collision with another imperative, theeffective functioning of a complex modern government," thereshould be a detailed study on the effects of these actions. He arguedthat in the haste of the proceedings, and given the size of thedocuments, the Court was unable to gather enough information to makea decision. He also argued that the Times should have discussed thepossible societal repercussions with the Government prior topublication of the material. The Chief Justice did not argue that theGovernment had met the aforementioned standard, but rather that thedecision should not have been made so hastily.

Justice John M. Harlan and JusticeHarry A. Blackmun joined Burger in arguing the faults in theproceedings, and the lack of attention towards national security andthe rights of the Executive.