Case brief: New York Times Co. v. United States.

Lost in the discussion over the New York Times / SWIFT kerfuffle is the history of the Times and national security. I’m yet to hear a single radio commentary, see a single news report, or a read a single blog entry that points out that we’ve been down this legal road, with the exact same newspaper.

Famously (though not to my generation), the Times got ahold of what became known as The Pentagon Papers, a top secret 7,000 page study of the U.S.’ military intervention in Vietnam, produced by the Department of Defense. This study revealed colossal U.S. military errors and coverups in Vietnam. The Times analyzed the document and, in 1971, wrote a series of articles about the revelations contained within the piece.

President Nixon was absolutely furious, what with the war still well underway. He told Henry Kissinger to get the Times’ publisher in jail. The White House got a court injunction to stop the paper from publishing any more about the document. The paper sued. That case was New York Times Co. v. United States (also known as New York Times Co. v. Sullivan).

The Times won that case by a 6-3 margin. The court ruled overwhelmingly that the freedom of the press could not be abridged in this matter or any other. I wrote a brief about this case for a class a couple of years ago. Keep reading if you want to learn about the judges’ rationale.

A Brief Description of the Facts of the Case
In 1971, The New York Times and the Washington Post obtained copies of a 7,000 page, top-secret document, History of U.S. Decision Making Process on Viet Nam Policy. After several months of analysis, each publication began to print a series of articles about the document. President Richard Nixon, claiming that the articles could harm national security and the ongoing war in Vietnam, obtained injunctions against each publication, seeking to prevent each from publishing any further information about the document in question. With extraordinary rapidity, the case made its way to the Supreme Court, who issued a ruling just four days after hearing arguments.

Legal Question at Issue
The matter at hand differs, depending on from which perspective it is viewed.

From one side, this case questions what the limitations of the powers of the executive is, not only in times of emergency, but preemptively, ostensibly to prevent exacerbation of that emergency. May the president unilaterally suspend a civil liberty in the name of the protection of that civil liberty? Even if the civil liberty in question is the First Amendment, arguably the most fundamental American right? Or is a nation lacking free expression one no longer worthy of defense?

From the other side, this case questions how far that Americans and the American press may go in expressing themselves before prior restraint is justifiable. In this case, the government emphasizes that the national security will be endangered if the Times and the Post are permitted to continue to publish the information in question. As far as can be determined, based on the assertions of the government, there can be no question that harm will befall the United States and its interests if the plaintiffs are permitted to proceed. That genie cannot be put back into its lamp: damages awarded after the fact cannot repair the problems that are said would result from publication. At what point would that damage be so great that prior restraint would be permissible? Would otherwise-unnecessary deaths of American soldiers have to be inevitable? Deaths of non-military Americans? Governmental instability?

Viewed from either perspective, the underlying question is clear: Can the United States shoulder the burden of free expression and, if not, with what are we left?

The Court’s Ruling
The court held six to three in favor of the plaintiffs, vacating the stays and permitting publication to proceed.

The Opinion of the Court: Its Rationale
The majority’s per curiam opinion, as laconic as the collection of concurring opinions, holds that, quite simply, the government has failed to meet the burden required for the court to impose prior restraint on the plaintiffs’ expression. Several cases are cited (Bantam Books v. Sullivan, Near v. Minnesota ex rel Olson, and Organization for a Better Austin v. Keefe) and quoted from in the brief decision, indicating that precedent is strong and clear in the matter.

Concurring Opinions
Concurring opinions were filed by all six justices who comprise the majority.

Justice Hugo Black, with whom Justice William O. Douglas joins, argues that the injunctions constitute a “flagrant, indefensible, and continuing violation of the First Amendment,” accusing the executive of having “forgotten the essential purpose and history of the First Amendment.” He can hardly contain his contempt for the president’s demands, writing:

“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 and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure’.”

Black believes that the need for security pales in comparison for the need for a free press.

Justice Douglas, with whom Justice Black reciprocally joins, writes briefly on the matter of national security, saying that “[s]ecrecy in government is fundamentally anti-democratic,” and that public debate is necessary for the purpose of the “national health.”

Justice Potter Stewart, joined by Justice Byron White, concedes that “the Executive is endowed with enormous power,” but does not believe that this power goes far enough to permit suppression of free expression in this matter. Stewart, too, believes that free expression is absolutely fundamental, saying that “without an informed and free press there cannot be an enlightened people.” He permits the need for national security, but holds that “secrecy can best be preserved only when credibility is truly maintained.” Notably, Stewart agrees with the executive on the matter of the danger of permitting publication of the documents in question, but “cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people.”

Justice White, with whom Justice Stewart reciprocally joins, agrees that the publication of the documents “will do substantial damage to public interests,” but believes that “the United States has not satisfied the very heavy burden that it must meet to warrant an injunction.” His second opposition is on the basis of the powers of the executive and judicial branch, and the chilling effect that would result from a ruling in favor of the defendant. “I am quite unable to agrees that the inherent powers of the Executive and the courts reach so far as to authorize remedies having such sweeping potential for inhibiting publications by the press.”

Justice Thurgood Marshall filed the final concurring opinion. His concern regards separation of powers. “It would, however, be utterly inconsistent with the concept of separation of powers for this Court to use its powers of contempt to prevent behavior that Congress has specifically declined to prohibit.” “The Constitution provides that Congress shall make laws, the President shall execute laws, and courts interpret laws.” It does not, writes Marshall, permit the executive to make law, no matter how convenient that it may be.

Dissenting Opinions
All three judges that dissented filed opinions: Chief Justice Warren Burger, Justice John Harlan, and Justice Harry Blackmun.

Justice Burger’s dissent is based in his frustration with the “unseemly haste” of the case. He points out that “the First Amendment right itself is not an absolute,” citing Justice Oliver Wendell Holmes’ famous statement in Schenck v. United States that the First Amendment does not guarantee the right to shout “fire” in a theater. Burger points out that the New York Times held onto the documents in question for several months while analyzing them, and puzzles over why there is now such a great hurry to publish them. “Would it have been unreasonable,” he asks, “to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication?” Burger argues that such a review is “the duty of an honorable press,” lamenting that newspapers in the days gone by would certainly have done so. Given that the Times and the Post possessed stolen government property, he writes, they ought to have returned it.

Justice Harlan, like Justice Burger, laments the rush. He lists seven questions that he should like to consider, but does actually consider them, saying that “[t]he time which has been available to us…has been wholly inadequate for giving these cases the kind of consideration they deserve.” As a nod to the president, Harlan cites John Marshall’s “sole organ” theory, but again states that proper consideration is necessary before a ruling can be properly issued.

Justice Blackmun, like the two before him, says that “[t]he country would be none the worse off were the cases tried…in the customary and properly deliberative manner,” thus dismissing any concerns about prior restraint. He argues that the First Amendment “is only one part of an entire Constitution,” and writes that he “cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions.” What is needed, writes Blackmun, is a properly deliberative trial.