The New York Times and the Washington Post obtained portions of a classified Department of Defense study concerning U.S. political and military involvement in Vietnam, later known as the Pentagon Papers. After the newspapers began publishing excerpts, the federal government sought injunctions to stop further publication, arguing that release would threaten national security. Different lower courts reached different results on whether publication could be restrained. The cases were consolidated and expedited to the Supreme Court.
Did the federal government meet the heavy burden required by the First Amendment to justify a prior restraint barring the New York Times and Washington Post from publishing the Pentagon Papers?
Prior restraints on publication are presumptively unconstitutional under the First Amendment, and the government bears a heavy burden to justify such restraint. Allegations of harm to national security, without sufficient proof of direct, immediate, and irreparable injury, do not overcome that presumption.
No. The government did not satisfy the heavy burden necessary to justify a prior restraint, so the injunctions against publication could not stand.
In a brief per curiam decision, the Court emphasized the constitutional hostility to prior restraints and concluded that the government had not carried its burden of proof. Although the Justices wrote separate concurrences and dissents, the majority agreed that the requested injunctions were not supported by the showing made in these cases. Several concurring Justices stressed that a free press serves as a check on government and that vague claims of national security cannot override the First Amendment. The fragmented opinions left unresolved whether any extraordinary national-security case might justify a prior restraint, but this case did not present such a showing.
Chief Justice Burger, joined in part by Justice Harlan and Justice Blackmun, criticized the speed of the proceedings and argued the Court lacked adequate time to assess the national-security consequences. Justice Harlan, joined by Burger and Blackmun, emphasized judicial deference to the Executive in foreign affairs and national defense. Justice Blackmun separately warned that publication could cause grave harm and that the First Amendment was not absolute.
The case is the leading modern statement that prior restraints on the press are extraordinarily difficult for the government to obtain, even when it invokes national security. It reinforced the principle announced in Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), and is often read alongside Brandenburg v. Ohio, 395 U.S. 444 (1969), on the high threshold for suppressing speech. The decision also stands as a landmark press-freedom case limiting executive efforts to halt publication of truthful information on matters of public concern.
Near v. Minnesota, 283 U.S. 697 (1931) |
Abstain |
Brandenburg v. Ohio, 395 U.S. 444 (1969) |
Abstain |
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