Decided on June 30, 1971; 403 US 713
The Court lifted a temporary injunction enjoining the publication of the so-called “Pentagon Papers,” holding that their publication was within the protection of the First Amendment and would not endanger the safety of American forces.
A. Issues Discussed: Freedom of the press, free speech
B. Legal Question Presented:
Does the government have “inherent power” to halt the publication of news in the name of “national security?”
|II. CASE SUMMARY:
The New York Times and the Washington Post obtained stolen copies of a classified study conducted by the Department of Defense. Both newspapers began publishing the “History of US Decision-Making Process on Viet Nam Policy,” or the Pentagon Papers, as they were popularly called.
The Department of Justice sought injunctions from federal courts in New York and in the District of Columbia to prevent both newspapers from publishing the rest of the classified document.
On certiorari the US Supreme Court reversed the order of the Court of Appeals for the Second Circuit and affirmed the judgment of the court of Appeals for the District of Columbia Circuit.
|B. Counsel of Record:
|C. The Arguments:
|III. AMICI CURIAE:
|Brief of amici curiae urging reversal in NY Times case and affirmance in the Washington Post case, were filed by Bob Eckhardt and Thomas I. Emerson for Twenty-Seven Members of Congress; by Norman Dorsen, Melvin L. Wulf, Burt Neuborne, Bruce J. Ennis, Osmond K. Fraenkel, and Marvin M. Karpatkin for the American Civil Liberties Union; and by Victor Rabinowitz for the National Emergency Civil Liberties Committee
Alexander M. Bickel argued the cause for petitioner in No. 1873. With him on the brief were William E. Hegarty and Lawrence J. McKay and William R. Glendon argued the cause for respondents in No. 1885. With him on the brief were Roger A. Clark, Anthony F. Essaye, Leo P. Larkin, Jr., and Stanley Godofsky.
|Solicitor General Griswold argued the cause for the United States in both cases. With him on the brief were Assistant Attorney General Mardian and Daniel M. Friedman.
|IV. THE SUPREME COURT’S DECISION:
“‘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…’ The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree.
The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed. ”
|Justice Vote: 5 Pro vs. 3 Con
- Black, H. Pro (Wrote majority opinion)
- Douglas, W. Pro (Wrote concurring opinion)
- Brennan, W. Pro (Wrote concurring opinion)
- Stewart, P. Pro (Wrote concurring opinion)
- White, B. Pro (Wrote concurring opinion)
- Burger, W. Con (Wrote dissenting opinion)
- Harlan, J. Con (Wrote dissenting opinion)
- Blackmun, H. Con (Wrote dissenting opinion)
|V. A WIN OR LOSS FOR THE ACLU?
The ACLU, as amicus curiae, urged reversal of the judgment of the court of Appeals for the Second Circuit and affirmance of the judgment of the Court of Appeals for the District of Columbia Circuit; the Supreme Court reversed and affirmed in a 5-3 vote, giving the ACLU an apparent win.