403 U.S. 713 New York Times v.

US June 30, 1971

Per Curiam

FACTS:
In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the
New York Times and Washington Post from publishing materials belonging to a classified Defense Department
study regarding the history of United States activities in Vietnam. The President argued that prior restraint was
necessary to protect national security. This case was decided together with United States v. Washington Post
Co.

ISSUE(s):
Whether or not Nixon Administration's efforts to prevent the publication of what it termed "classified
information" violates the First Amendment. YES

HELD:
In its per curiam opinion the Court held that the government did not overcome the "heavy presumption
against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word
"security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice
Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event
imperiling the safety of American forces, prior restraint was unjustified.
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.
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.

DOCTRINE(s)/KEY POINT(s):
- Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its
constitutional validity. The Government "thus carries a heavy burden of showing justification for the
imposition of such a restraint."