New York Times v. United States
403 U.S. 713 (1971)

  • The New York Times and the Washington Post came into possession of classified documents related to the Vietnam War (known as The Pentagon Papers). They decided to publish the documents.
  • The Department of Defense sued for an injunction under Espionage Act §793, claiming that the publication was a breach of national security.
    • The newspapers argued that the 1st Amendment and freedom of speech gave them the right to print whatever they wanted.
  • The Trial Courts found for the newspapers and refused to grant injunctions. The Dept. of Defense appealed.
  • The Appellate Court in DC affirmed, but the Appellate Court in New York reversed and granted an injunction. Everyone appealed.
  • The US Supreme Court found for the newspapers.
    • The US Supreme Court found that the injunctions were a prior restraint on speech.
      • A prior restraint is something that prevents speech from occurring, like forcing someone to get a license before printing a paper.
      • Alternately, there are laws that punish speech after it has occurred, like penalties for libel or slander.
      • The difference is that if there is an injunction, you can still be punished for violating the injunction, even if it is later determined that the speech was protected by the 1st Amendment.
        • Aka the Collateral Bar Rule
    • The Court found that there is a “heavy presumption” that any prior restraint law was a violation of the 1st Amendment.
      • See Near v. State of Minnesota ex rel. Olson (283 U.S. 697 (1931)).
    • In this case, the Court found that the Dept. of Defense had not shown that publication was so damaging that it justified prior restraint.
      • The Court suggested that in order to be constitutional, Dept. of Defense would have to show that the publication would definitely cause a “grave and irreparable” danger.