NEW YORK TIMES CO. v. UNITED STATES
(The Pentagon Papers Case)
403 U.S. 713 (1971)

PER CURIAM

We granted certiorari in these cases in which the 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."

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption
against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see
also Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of
showing justification for the imposition of such a restraint." Organization for a Better Austin v.
Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the
New York Times case and the District Court for the District of Columbia and the Court of
Appeals for the District of Columbia Circuit in the Washington Post case held that the
Government had not met that burden. We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed.
The order of the Court of Appeals for the Second Circuit is reversed and the case is remanded
with directions to enter a judgment affirming the judgment of the District Court for the Southern
District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments
shall issue forthwith.

So ordered.
 

CONCUR: MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.

* * * * I believe that every moment's continuance of the injunctions against these newspapers
amounts to a flagrant, indefensible, and continuing violation of the First Amendment. * * * * * In
my view it is unfortunate that some of my Brethren are apparently willing to hold that the
publication of news may sometimes be enjoined. Such a holding would make a shambles of the
First Amendment.

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights,
including the First Amendment, followed in 1791. Now, for the first time in the 182 years since
the founding of the Republic, the federal courts are asked to hold that the First Amendment does
not mean what it says, but rather means that the Government can halt the publication of current
news of vital importance to the people of this country.

In seeking injunctions against these newspapers and in its presentation to the Court, the Executive
Branch seems to have forgotten the essential purpose and history of the First Amendment. 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. * * * * * Yet the Solicitor General argues
and some members of the Court appear to agree that the general powers of the Government
adopted in the original Constitution should be interpreted to limit and restrict the specific and
emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of
history.

In the First Amendment the Founding Fathers gave the free press the protection it must have to
fulfill its essential role in our democracy. 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.

* * * * *
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. The Framers of the First Amendment, fully aware of both the need to defend a
new nation and the abuses of the English and Colonial governments, sought to give this new
society strength and security by providing that freedom of speech, press, religion, and assembly
should not be abridged.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.

While I join the opinion of the Court I believe it necessary to express my views more fully.

It should be noted at the outset that the First Amendment provides that "Congress shall make no
law . . . abridging the freedom of speech, or of the press." That leaves, in my view, no room for
governmental restraint on the press. * * * *

There is, moreover, no statute barring the publication by the press of the material which the Times
and the Post seek to use. * * * *

These disclosures may have a serious impact. But that is no basis for sanctioning a previous
restraint on the press. * * * * *

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 repudiated that expansive doctrine in no uncertain terms.

The dominant purpose of the First Amendment was to prohibit the widespread practice of
governmental suppression of embarrassing information. It is common knowledge that the First
Amendment was adopted against the widespread use of the common law of seditious libel to
punish the dissemination of material that is embarrassing to the powers-that-be. The present cases
will, I think, go down in history as the most dramatic illustration of that principle. A debate of
large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the
disclosure of the contents of the present documents. The latter are highly relevant to the debate in
progress.

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, 376
U.S. 254, 269-270.

MR. JUSTICE BRENNAN, concurring.

I

I write separately in these cases only to emphasize what should be apparent: that our judgments in
the present cases may not be taken to indicate the propriety, in the future, of issuing temporary
stays and restraining orders to block the publication of material sought to be suppressed by the
Government. * * * * *

II

The error that has pervaded these cases from the outset was the granting of any injunctive relief
whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these
cases has been that publication of the material sought to be enjoined "could," or "might," or "may"
prejudice the national interest in various ways. But the First Amendment tolerates absolutely no
prior judicial restraints of the press predicated upon surmise or conjecture that untoward
consequences may result. Our cases, it is true, have indicated that there is a single, extremely
narrow class of cases in which the First Amendment's ban on prior judicial restraint may be
overridden. Our cases have thus far indicated that such cases may arise only when the Nation "is
at war," Schenck v. United States, 249 U.S. 47, 52 (1919), during which times "no one would
question but that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops." Near v.
Minnesota, 283 U.S. 697, 716 (1931). Even if the present world situation were assumed to be
tantamount to a time of war, or if the power of presently available armaments would justify even
in peacetime the suppression of information that would set in motion a nuclear holocaust, in
neither of these actions has the Government presented or even alleged that publication of items
from or based upon the material at issue would cause the happening of an event of that nature.
"The chief purpose of [the First Amendment's] guaranty [is] to prevent previous restraints upon
publication." Near v. Minnesota, supra, at 713. Thus, only governmental allegation and proof that
publication must inevitably, directly, and immediately cause the occurrence of an event kindred to
imperiling the safety of a transport already at sea can support even the issuance of an interim
restraining order. In no event may mere conclusions be sufficient: for if the Executive Branch
seeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid
is sought to scrutiny by the judiciary. And therefore, every restraint issued in this case, whatever
its form, has violated the First Amendment -- and not less so because that restraint was justified as
necessary to afford the courts an opportunity to examine the claim more thoroughly. Unless and
until the Government has clearly made out its case, the First Amendment commands that no
injunction may issue.

MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.

In the governmental structure created by our Constitution, the Executive is endowed with
enormous power in the two related areas of national defense and international relations. This
power, largely unchecked by the Legislative and Judicial branches, has been pressed to the very
hilt since the advent of the nuclear missile age. For better or for worse, the simple fact is that a
President of the United States possesses vastly greater constitutional independence in these two
vital areas of power than does, say, a prime minister of a country with a parliamentary form of
government.

In the absence of the governmental checks and balances present in other areas of our national life,
the only effective restraint upon executive policy and power in the areas of national defense and
international affairs may lie in an enlightened citizenry -- in an informed and critical public opinion
which alone can here protect the values of democratic government. For this reason, it is perhaps
here that a press that is alert, aware, and free most vitally serves the basic purpose of the First
Amendment. For without an informed and free press there cannot be an enlightened people.

Yet it is elementary that the successful conduct of international diplomacy and the maintenance of
an effective national defense require both confidentiality and secrecy. Other nations can hardly
deal with this Nation in an atmosphere of mutual trust unless they can be assured that their
confidences will be kept. And within our own executive departments, the development of
considered and intelligent international policies would be impossible if those charged with their
formulation could not communicate with each other freely, frankly, and in confidence. In the area
of basic national defense the frequent need for absolute secrecy is, of course, self-evident.

I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be
where the power is. If the Constitution gives the Executive a large degree of unshared power in
the conduct of foreign affairs and the maintenance of our national defense, then under the
Constitution the Executive must have the largely unshared duty to determine and preserve the
degree of internal security necessary to exercise that power successfully. It is an awesome
responsibility, requiring judgment and wisdom of a high order. I should suppose that moral,
political, and practical considerations would dictate that a very first principle of that wisdom
would be an insistence upon avoiding secrecy for its own sake. For when everything is classified,
then nothing is classified, and the system becomes one to be disregarded by the cynical or the
careless, and to be manipulated by those intent on self-protection or self-promotion. I should
suppose, in short, that the hallmark of a truly effective internal security system would be the
maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility
is truly maintained. But be that as it may, it is clear to me that it is the constitutional duty of the
Executive -- as a matter of sovereign prerogative and not as a matter of law as the courts know
law -- through the promulgation and enforcement of executive regulations, to protect the
confidentiality necessary to carry out its responsibilities in the fields of international relations and
national defense.

This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has
the power to enact specific and appropriate criminal laws to protect government property and
preserve government secrets. Congress has passed such laws, and several of them are of very
colorable relevance to the apparent circumstances of these cases. And if a criminal prosecution is
instituted, it will be the responsibility of the courts to decide the applicability of the criminal law
under which the charge is brought. Moreover, if Congress should pass a specific law authorizing
civil proceedings in this field, the courts would likewise have the duty to decide the
constitutionality of such a law as well as its applicability to the facts proved.

But in the cases before us we are asked neither to construe specific regulations nor to apply
specific laws. We are asked, instead, to perform a function that the Constitution gave to the
Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two
newspapers of material that the Executive Branch insists should not, in the national interest, be
published. I am convinced that the Executive is correct with respect to some of the documents
involved. But I cannot say that disclosure of any of them will surely result in direct, immediate,
and irreparable damage to our Nation or its people. That being so, there can under the First
Amendment be but one judicial resolution of the issues before us. I join the judgments of the
Court.

MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.

I concur in today's judgments, but only because of the concededly extraordinary protection
against prior restraints enjoyed by the press under our constitutional system. I do not say that in
no circumstances would the First Amendment permit an injunction against publishing information
about government plans or operations. Nor, after examining the materials the Government
characterizes as the most sensitive and destructive, can I deny that revelation of these documents
will do substantial damage to public interests. Indeed, I am confident that their disclosure will
have that result. But I nevertheless agree that the United States has not satisfied the very heavy
burden that it must meet to warrant an injunction against publication in these cases, at least in the
absence of express and appropriately limited congressional authorization for prior restraints in
circumstances such as these.

The Government's position is simply stated: The responsibility of the Executive for the conduct of
the foreign affairs and for the security of the Nation is so basic that the President is entitled to an
injunction against publication of a newspaper story whenever he can convince a court that the
information to be revealed threatens "grave and irreparable" injury to the public interest; and the
injunction should issue whether or not the material to be published is classified, whether or not
publication would be lawful under relevant criminal statutes enacted by Congress, and regardless
of the circumstances by which the newspaper came into possession of the information.

At least in the absence of legislation by Congress, based on its own investigations and findings, I
am quite unable to agree that the inherent powers of the Executive and the courts reach so far as
to authorize remedies having such sweeping potential for inhibiting publications by the press.
Much of the difficulty inheres in the "grave and irreparable danger" standard suggested by the
United States. If the United States were to have judgment under such a standard in these cases,
our decision would be of little guidance to other courts in other cases, for the material at issue
here would not be available from the Court's opinion or from public records, nor would it be
published by the press. Indeed, even today where we hold that the United States has not met its
burden, the material remains sealed in court records and it is properly not discussed in today's
opinions. Moreover, because the material poses substantial dangers to national interests and
because of the hazards of criminal sanctions, a responsible press may choose never to publish the
more sensitive materials. To sustain the Government in these cases would start the courts down a
long and hazardous road that I am not willing to travel, at least without congressional guidance
and direction.
* * * *
Prior restraints require an unusually heavy justification under the First Amendment; but failure by
the Government to justify prior restraints does not measure its constitutional entitlement to a
conviction for criminal publication. That the Government mistakenly chose to proceed by
injunction does not mean that it could not successfully proceed in another way.

* * * * *

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797
makes it a crime to publish certain photographs or drawings of military installations. Section 798
also in precise language, proscribes knowing and willful publication of any classified information
concerning the cryptographic systems or communication intelligence activities of the United
States as well as any information obtained from communication intelligence operations. If any of
the material here at issue is of this nature, the newspapers are presumably now on full notice of
the position of the United States and must face the consequences if they publish. I would have no
difficulty in sustaining convictions under these sections on facts that would not justify the
intervention of equity and the imposition of a prior restraint. * * * * *

It is thus clear that Congress has addressed itself to the problems of protecting the security of the
country and the national defense from unauthorized disclosure of potentially damaging
information. It has not, however, authorized the injunctive remedy against threatened
publication. * * * * *

MR. JUSTICE MARSHALL, concurring.

* * * * With all due respect, I believe the ultimate issue in these cases is even more basic than the
one posed by the Solicitor General. The issue is whether this Court or the Congress has the power
to make law.
* * * * * The problem here is whether in these particular cases the Executive Branch has
authority to invoke the equity jurisdiction of the courts to protect what it believes to be the
national interest. The Government argues that in addition to the inherent power of any
government to protect itself, the President's power to conduct foreign affairs and his position as
Commander in Chief give him authority to impose censorship on the press to protect his ability to
deal effectively with foreign nations and to conduct the military affairs of the country.

It would, however, be utterly inconsistent with the concept of separation of powers for this Court
to use its power of contempt to prevent behavior that Congress has specifically declined to
prohibit.* * * * * The Constitution provides that Congress shall make laws, the President execute
laws, and courts interpret laws. It did not provide for government by injunction in which the
courts and the Executive Branch can "make law" without regard to the action of Congress. It may
be more convenient for the Executive Branch if it need only convince a judge to prohibit conduct
rather than ask the Congress to pass a law, and it may be more convenient to enforce a contempt
order than to seek a criminal conviction in a jury trial. Moreover, it may be considered politically
wise to get a court to share the responsibility for arresting those who the Executive Branch has
probable cause to believe are violating the law. But convenience and political considerations of
the moment do not justify a basic departure from the principles of our system of government.

* * * * *

[I]t is clear that Congress has specifically rejected passing legislation that would have clearly
given the President the power he seeks here and made the current activity of the newspapers
unlawful. When Congress specifically declines to make conduct unlawful it is not for this Court to
redecide those issues -- to overrule Congress.

DISSENT: MR. CHIEF JUSTICE BURGER, dissenting.

So clear are the constitutional limitations on prior restraint against expression, that from the time
of Near v. Minnesota, 283 U.S. 697 (1931), until recently in Organization for a Better Austin v.
Keefe, 402 U.S. 415 (1971), we have had little occasion to be concerned with cases involving
prior restraints against news reporting on matters of public interest. There is, therefore, little
variation among the members of the Court in terms of resistance to prior restraints against
publication. Adherence to this basic constitutional principle, however, does not make these cases
simple. In these cases, the imperative of a free and unfettered press comes into collision with
another imperative, the effective functioning of a complex modern government and specifically the
effective exercise of certain constitutional powers of the Executive. Only those who view the First
Amendment as an absolute in all circumstances -- a view I respect, but reject -- can find such
cases as these to be simple or easy.

These cases are not simple for another and more immediate reason. We do not know the facts of
the cases. No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No
member of this Court knows all the facts.

Why are we in this posture, in which only those judges to whom the First Amendment is absolute
and permits of no restraint in any circumstances or for any reason, are really in a position to act?

I suggest we are in this posture because these cases have been conducted in unseemly haste. * * *
* *

Here, moreover, the frenetic haste is due in large part to the manner in which the Times
proceeded from the date it obtained the purloined documents. It seems reasonably clear now that
the haste precluded reasonable and deliberate judicial treatment of these cases and was not
warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of
judicial conduct that ought to attend the disposition of a great issue.

* * * * * An issue of this importance should be tried and heard in a judicial atmosphere
conducive to thoughtful, reflective deliberation, especially when haste, in terms of hours, is
unwarranted in light of the long period the Times, by its own choice, deferred publication. As
noted elsewhere the Times conducted its analysis of the 47 volumes of Government documents
over a period of several months and did so with a degree of security that a government might
envy. Such security was essential, of course, to protect the enterprise from others. Meanwhile the
Times has copyrighted its material and there were strong intimations in the oral argument that the
Times contemplated enjoining its use by any other publisher in violation of its copyright.
Paradoxically this would afford it a protection, analogous to prior restraint, against all others -- a
protection the Times denies the Government of the United States.

It is not disputed that the Times has had unauthorized possession of the documents for three to
four months, during which it has had its expert analysts studying them, presumably digesting them
and preparing the material for publication. During all of this time, the Times, presumably in its
capacity as trustee of the public's "right to know," has held up publication for purposes it
considered proper and thus public knowledge was delayed. No doubt this was for a good reason;
the analysis of 7,000 pages of complex material drawn from a vastly greater volume of material
would inevitably take time and the writing of good news stories takes time. But why should the
United States Government, from whom this information was illegally acquired by someone, along
with all the counsel, trial judges, and appellate judges be placed under needless pressure? After
these months of deferral, the alleged "right to know" has somehow and suddenly become a right
that must be vindicated instanter.

Would it have been unreasonable, since the newspaper could anticipate the Government's
objections to release of secret material, to give the Government an opportunity to review the
entire collection and determine whether agreement could be reached on publication? Stolen or
not, if security was not in fact jeopardized, much of the material could no doubt have been
declassified, since it spans a period ending in 1968. With such an approach -- one that great
newspapers have in the past practiced and stated editorially to be the duty of an honorable press --
the newspapers and Government might well have narrowed the area of disagreement as to what
was and was not publishable, leaving the remainder to be resolved in orderly litigation, if
necessary. To me it is hardly believable that a newspaper long regarded as a great institution in
American life would fail to perform one of the basic and simple duties of every citizen with
respect to the discovery or possession of stolen property or secret government documents. That
duty, I had thought -- perhaps naively -- was to report forthwith, to responsible public officers.
This duty rests on taxi drivers, Justices, and the New York Times. The course followed by the
Times, whether so calculated or not, removed any possibility of orderly litigation of the issues.* *
* *

The consequence of all this melancholy series of events is that we literally do not know what we
are acting on. As I see it, we have been forced to deal with litigation concerning rights of great
magnitude without an adequate record, and surely without time for adequate treatment either in
the prior proceedings or in this Court. * * * * *

MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN
join, dissenting.

These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting in
Northern Securities Co. v. United States, 193 U.S. 197, 400-401 (1904):

"Great cases like hard cases make bad law. For great cases are called great, not by reason of their
real importance in shaping the law of the future, but because of some accident of immediate
overwhelming interest which appeals to the feelings and distorts the judgment. These immediate
interests exercise a kind of hydraulic pressure which makes what previously was clear seem
doubtful, and before which even well settled principles of law will bend."

With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with
these cases.* * * *

* * * * *
The power to evaluate the "pernicious influence" of premature disclosure is not, however, lodged
in the Executive alone. I agree that, in performance of its duty to protect the values of the First
Amendment against political pressures, the judiciary must review the initial Executive
determination to the point of satisfying itself that the subject matter of the dispute does lie within
the proper compass of the President's foreign relations power. Constitutional considerations
forbid "a complete abandonment of judicial control." Moreover, the judiciary may properly insist
that the determination that disclosure of the subject matter would irreparably impair the national
security be made by the head of the Executive Department concerned -- here the Secretary of
State or the Secretary of Defense -- after actual personal consideration by that officer. * * * *

But in my judgment the judiciary may not properly go beyond these two inquiries and redetermine
for itself the probable impact of disclosure on the national security.

"The very nature of executive decisions as to foreign policy is political, not judicial. Such
decisions are wholly confided by our Constitution to the political departments of the government,
Executive and Legislative. * * * * They are decisions of a kind for which the Judiciary has neither
aptitude, facilities nor responsibility and which has long been held to belong in the domain of
political power not subject to judicial intrusion or inquiry."

MR. JUSTICE BLACKMUN, dissenting.

* * * * *
At this point the focus is on only the comparatively few documents specified by the Government
as critical. So far as the other material -- vast in amount -- is concerned, let it be published and
published forthwith if the newspapers, once the strain is gone and the sensationalism is eased, still
feel the urge so to do.

* * * * *
The New York Times clandestinely devoted a period of three months to examining the 47
volumes that came into its unauthorized possession. Once it had begun publication of material
from those volumes, the New York case now before us emerged. It immediately assumed, and
ever since has maintained, a frenetic pace and character. Seemingly, once publication started, the
material could not be made public fast enough. Seemingly, from then on, every deferral or delay,
by restraint or otherwise, was abhorrent and was to be deemed violative of the First Amendment
and of the public's "right immediately to know." Yet that newspaper stood before us at oral
argument and professed criticism of the Government for not lodging its protest earlier than by a
Monday telegram following the initial Sunday publication.

* * * * *

With such respect as may be due to the contrary view, this, in my opinion, is not the way to try a
lawsuit of this magnitude and asserted importance. * * * * * The country would be none the
worse off were the cases tried quickly, to be sure, but in the customary and properly deliberative
manner. The most recent of the material, it is said, dates no later than 1968, already about three
years ago, and the Times itself took three months to formulate its plan of procedure and, thus,
deprived its public for that period.

The First Amendment, after all, is only one part of an entire Constitution. Article II of the great
document vests in the Executive Branch primary power over the conduct of foreign affairs and
places in that branch the responsibility for the Nation's safety. Each provision of the Constitution
is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment
at the cost of downgrading other provisions. * * * * *

* * * *

I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate
responsibilities to the United States of America. * * * * * I hope that damage has not already
been done. If, however, damage has been done, and if, with the Court's action today, these
newspapers proceed to publish the critical documents and there results therefrom "the death of
soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our
enemies, the inability of our diplomats to negotiate," to which list I might add the factors of
prolongation of the war and of further delay in the freeing of United States prisoners, then the
Nation's people will know where the responsibility for these sad consequences rests.