New York Times Co. v. United States

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Not to be confused with New York Times Co. v. Sullivan .

1971 United States Supreme Court case

New York Times Co. v. United States, 403 U.S. 713 (1971), often referred to as The Pentagon Papers Case, is a landmark decision of the Supreme Court of the United States on the First Amendment right to freedom of the press . The ruling made it possible for _The New York Times _ and _The Washington Post _ newspapers to publish the then-classified _Pentagon Papers _ without risk of government censorship or punishment.

President Richard Nixon had claimed executive authority to force the Times to suspend publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press , guaranteed by the First Amendment, was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. The Supreme Court ruled that the First Amendment did protect the right of The New York Times to print the materials.

Background

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Further information: Pentagon Papers

The New York Times Washington Bureau Chief Max Frankel stated in 1971, during the organization's ongoing fight to publish the Pentagon Papers, that secrets are often leaked to the press as a means of "testing policy ideas and government initiatives." Frankel recounted, for example, that presidents John F. Kennedy and Lyndon B. Johnson revealed Cold War secrets for political and communication purposes. In contrast, the Pentagon Papers were released outside the unspoken rules of this framework by originating from a source at the lower levels of government. By 1971, the United States had been engaged in an undeclared war with North Vietnam for six years. At this point, about 58,000 American soldiers had died and the government was facing widespread dissent from large portions of the American public. In 1967, Secretary of Defense Robert S. McNamara commissioned a "massive top-secret history of the United States role in Indochina". Daniel Ellsberg , who had helped to produce the report, allowed 43 volumes of the 47-volume, 7,000-page report to be viewed by reporter Neil Sheehan of The New York Times in Boston on March 2, 1971, then Sheehan surreptitiously copied them against Ellsberg's wishes and took them by plane to The Jefferson hotel in Washington for initial reading, then mailed them to New York for final organization, and the paper began publishing articles outlining the findings.

Restraining order sought

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The black article appeared in the Times' Sunday edition, on June 13, 1971. By the following Tuesday, the Times received an order to cease further publication from a District Court judge, at the request of the administration. The government claimed it would cause "irreparable injury to the defense interests of the United States" and wanted to "enjoin The New York Times and The Washington Post from publishing the contents of a classified study entitled History of U.S. Decision-Making Process on the Vietnam Policy."

The government sought a restraining order that prevented the Times from posting any further articles based upon the Pentagon Papers. In addition to The New York Times Company , the Justice Department named the following defendants: Arthur Ochs Sulzberger , president and publisher; Harding Bancroft and Ivan Veit , executive vice presidents; Francis Cox, James Goodale , Sydney Gruson, Walter Mattson, John McCabe, John H. Mortimer and James Reston , vice presidents; John B. Oakes , editorial page editor; A. M. Rosenthal , managing editor; Daniel Schwarz , Sunday editor; Clifton Daniel and Tom Wicker , associate editors; Gerald Gold and Allan M. Siegal , assistant foreign editors; Neil Sheehan , Hedrick Smith , E. W. Kenworthy and Fox Butterfield , reporters; and Samuel Abt , a foreign desk copy editor.

Section 793 of the Espionage Act

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Section 793 of the Espionage Act was cited by Attorney General John N. Mitchell as cause for the United States to bar further publication of stories based upon the _Pentagon Papers _. The statute was spread over three pages of the United States Code Annotated and the only part that appeared to apply to the Times was 793(e), which made it criminal for:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it [shall be fined under this title or imprisoned not more than ten years, or both].

Floyd Abrams , counsel to The New York Times

Based on this language, Alexander Bickel and Floyd Abrams felt there were three preliminary arguments to raise. First, the wording of the statute was very broad. Was each article about foreign policy one "relating to the national defense"? What was the significance of "reason to believe" that the Pentagon Papers "could be used to the injury of the United States or the advantage of any foreign nation"? If the motivation was to educate the public, was that a defense that served to help, not hinder, the country? Would the public be "a person not entitled to receive" the information? Of equal importance was what the statute did not say: No references to "publication" (as Attorney General Mitchell's cease-and-desist order referenced), no reference to classified information, and no support for Mitchell's reliance on the top secret classification to justify restraint on publication. Additionally, there was no statutory language providing authority for prior restraint on publication at all.

A secondary issue was the relevance of Mitchell's reliance on a criminal statute in a civil proceeding seeking prior restraint. There was a Supreme Court precedent that lent support to the idea that bans on the publication of information by the press were unconstitutional. I

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