New York Times Company v. United States

PETITIONER: New York Times Company
RESPONDENT: United States
LOCATION: Former New York Times Headquarters

DOCKET NO.: 1873
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 403 US 713 (1971)
ARGUED: Jun 26, 1971
DECIDED: Jun 30, 1971

Facts of the case

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.


Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?

Media for New York Times Company v. United States

Audio Transcription for Oral Argument - June 26, 1971 in New York Times Company v. United States

Warren E. Burger:

Mr. Solicitor General, the Government’s motion to conduct part of the oral arguments involving security matters in-camera, as has been done in the District Court’s of New York and in Washington and in the Courts of Appeals, in the Second Circuit and the District of Columbia Circuit is denied for the Court.

Mr. Justice Harlan, Mr. Justice Blackmun and I would grant a limited in-camera argument as has been done in all the hearings in these cases until now.

Under the order, granting the writ yesterday, counsel may, if they wish, submit arguments in writing under seal in lieu of the in-camera oral argument.

Mr. Solicitor General you may proceed.

Erwin N. Griswold:

Mr. Chief Justice, may I say in respect of the announcement just made that all three parties have filed a closed brief as well as the open brief and in addition, I have filed just within minutes, two statements, one prepared by the state department and one prepared by the department of defense, giving more detail about some of the items which are discussed in my closed brief and I believe that those will all be before the Court.

Warren E. Burger:

Are you suggesting that these matters last filed are security matters or they merely supplement and explain --

Erwin N. Griswold:

The only ones that are security matters that I have filed are all marked top secret.

Warren E. Burger:

I see, thank you very much.

I just wanted to be sure as to these last documents.

Erwin N. Griswold:

The items filed by the Post and the Times, I do not believe are marked top secret, but they are marked in-camera in the caption of the items.

I repeat, all three have also filed regular briefs except not printed, only the American Civil Liberties Union seem to have the resources to produce a printed brief for this case.

I am told that the law students of today are indignantly opposed to final examinations because they say that no lawyer has asked to work under such pressure that he as to get things out in three or four hours.

I can only say that I think it’s perhaps fortunate that Mr. Glendon and Mr. Bickel and I went to law school under earlier dispensation.

It is important I think to get this case in perspective.

The case of course raises important and difficult problems about the constitutional right of free speech and of the free press and we’ve heard much about that from the press in the last two weeks.

But it also raises important questions of the equally fundamental and important right of the government to function.

Great emphasis has been put on the First Amendment and rightly so.

But there is also involved here a fundamental question of separation of powers in the sense of the power and authority which the Constitution allocates to the President as Chief Executive and as Commander-in-Chief of the army and navy and involved in that, there is also the question of the integrity of the institution of the presidency whether that institution, one of the three great powers under the separation of powers, can function effectively.

The problem lies on a wide spectrum and like all questions of constitutional law, involves the resolution of competing principles.

In the first place it seems to me that it will be helpful to make some preliminary observations.

If we start out with the assumption that never under any circumstances can the press be subjected to prior restraints, never under any circumstances can the press be enjoined from publications, of course, we come out with the conclusion that there can be no injunction here.

But I suggest, not as necessarily conclusive in this case, but I suggest that there is no such constitutional rule and never has been such a constitutional rule.

We have for example the copyright laws and my son was in trial earlier this week and he sent me copies of the Globe & Mail of Toronto, ten series of the story that Pentagon is trying to kill, each one added copyright New York Times service.

I have no objection to that, but I -- these stories which had then published have been copyrighted by the New York Times and I believe by the portion imposed and I have no doubt that perhaps in other cases because these have already attracted much attention, the New York Times and the Washington Post would seek to enforce their copyright.

I suppose it is very likely that in one form or another, they have obtained royalties because of their copyright on this matter, but let us also consider other fields of the law.

There is a well known branch of the law that goes under the heading of “Literary Property.”

In the Court of Appeals, I gave the example of a manuscript written by Earnest Hemingway, let’s assume while he is still living, unpublished, perhaps incomplete, subject to revision.

In some way the press gets hold of it.

Perhaps it’s stolen, perhaps it’s bought from a secretary through breech of fiduciary responsibility or perhaps it’s filed on the segue and if the New York Times sought to print that, I have no doubt that Mr. Hemingway or now his heirs next to kin, could obtain from the Courts an injunction against the press printing.

Only this morning, I see in the paper that a New York Publisher is bringing a suit against Newsday, a New York news paper because Newsday has violated what the New York publisher consists says considers to be it’s copyright in the forthcoming memoirs of President Johnson.