For additional background material on the facts of the case, here is a documentary entitled “The Pentagon Papers”, used here non-commercially for academic purposes. This is followed by excerpts of the case below (after the video, please scroll down)
CASE:Per Curiam Opinionxxxthe United States seeks 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 Viet Nam Policy.”xxx
“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, Near v. Minnesota, xxx. The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” xxx The District Court xxx in the New York Times case, and the District Court xxx and Court of Appeals xxx in the Washington Post case, held that the Government had not met that burden. We agree.xxxThe judgment of the Court of Appeals (in Washington Post) is affirmed xxx Court of Appeals (in New York Times) is reversed xxx So ordered.
J. Black with whom J. Douglas joins, concurring.”xxx(E)very moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment xxx
“When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
xxx Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.xxx
The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.xxx
The Solicitor General has carefully and emphatically stated: “Now, Mr. Justice (Black), your construction of . . . (the First Amendment) is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that “no law” does not mean “no law,” and I would seek to persuade the Court that that is true. . .(T)here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.xxx
And the Government argues in its brief that, in spite of the First Amendment,”[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief.”xxx
In other words, we are asked to hold that, despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of “national security.” The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to “make” a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.xxx 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.” No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.
The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. xxx
J. Douglas, with whom J. Black joins, concurring:xxx Congress has been faithful to the command of the First Amendment in this area. xxxSo any power that the Government possesses must come from its “inherent power.”xxx The power to wage war is “the power to wage war successfully.” See Hirabayashi v. United Statesxxx. But the war power stems from a declaration of war. The Constitution xxx gives Congress, not the President, power “(t)o declare War.” Nowhere are presidential wars authorized.
The Government says that it has inherent powers to go into court and obtain an injunction to protect the national interest, which, in this case, is alleged to be national security.
Near v. Minnesota, xxx, repudiated that expansive doctrine in no uncertain terms.xxx
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be “uninhibited, robust, and wide-open” debate. New York Times Co. v. Sullivan