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New York Times Co. v. United States (1971)

LOR‑2.C (LO)
LOR‑2.C.4 (EK)
New York Times Co. v. United States was a 1971 Supreme Court case concerning freedom of the press. 

Key points

  • In 1971, the administration of President Richard Nixon attempted to suppress the publication of a top-secret history of US military involvement in Vietnam, claiming that its publication endangered national security.
  • In the resulting case, the Supreme Court found that this injunction against publication was a violation of the First Amendment’s guarantee of freedom of the press.

Background of the case

By the late 1960s and early 1970s, the American public had become increasingly hostile to the ongoing US military intervention in Vietnam. In 1970, analyst Daniel Ellsberg leaked a top-secret history of US involvement in Vietnam to the New York Times. This document, known as the Pentagon Papers, showed that President Lyndon Johnson (who had left office in 1969) had lied to Congress and the American people about the extent of US military action in Southeast Asia.
Cover of the published Pentagon Papers book.
Cover of the published Pentagon Papers. Source: Flickr Creative Commons
In 1971, the New York Times published the first chapter of the Pentagon Papers. The administration of President Richard Nixon then issued federal injunctions against publishing the remainder of the Pentagon Papers to both the New York Times and the Washington Post. The federal government argued that the publication of the top-secret history would imperil national security. The case reached the Supreme Court in June 1971.
The Supreme Court has, at times, ruled that the government can restrict speech that presents a “clear and present danger.” For example, in the 1919 case Schenck v. United States, the Court upheld the conviction of two socialists who distributed pamphlets urging men to resist the military draft during World War I.
One important point about the New York Times case, however, was that the federal government was seeking to prevent publication of a document, as opposed to seeking legal consequences after its publication. This is known as “prior restraint,” or government censorship of materials before publication takes place.

The Constitutional question at stake

Did the Nixon administration violate the First Amendment by attempting to prevent the publication of the Pentagon Papers?


Yes, the Nixon administration did violate the First Amendment. In a 6-3 decision, the Court ruled that the US government had not met “the heavy burden of showing justification for the enforcement” of prior restraint. The Court ordered the immediate end of the injunctions against publication.
The Court offered two explanations for its ruling. First, that “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.” Second, that the publication of a history of US action in Vietnam would not endanger current military personnel by revealing their location or movements.

Why does New York Times Co. v. United States matter?

In this ruling, the Court established a “heavy presumption against prior restraint,” even in cases involving national security. This means that the Court is very likely to find cases of government censorship unconstitutional.
New York Times Co. v. United States was a major victory for freedom of the press.

What do you think?

Why do you think the Court ruled differently in New York Times Co. v. United States (1971) than it did in Schenck v. United States (1919)? Consider differences in the ideological composition of the Court and public opinion towards the wars.
Under what circumstances, if any, should the government have the ability to restrict the freedom of the press?

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