Reading New York Times Co. v. U.S. Decision Excerpts | A Primary Source Close Read w/ BRI

0:05 Hello, and welcome to another edition of Bill of Rights Institute’s Close Reads. My name is Kirk Higgins and I’m the Director of Content here at the Bill of Rights Institute. For those of you who are new to the channel, every other week on Thursdays we take a look look at different primary sources and Supreme Court cases from throughout American history. In unpack, I’m looking for important constitutional and perennial questions that we can continue to use to learn about the world that surround us today.

0:29 This week we’re looking at an important Supreme Court decision called New York Times Company versus US from 1971. To help me with unpacking this case, I am fortunate to be joined by my colleague Josh Schmid. Hello, Josh. Hi Kirk so Josh, this court case gets at a lot of really important Supreme Court questions when it comes to sort of liberty and security, right?

0:52 And this in particular has to do with the free press. So could you just tell me what is it? You work with these current events all the time. You’re always thinking about these constitutional questions. What is it about this case that kind of makes us think about our constitutional order and sort of the role of government within society? Sure. So the core question of this case is how should the United States balance between

1:18 the freedom of the press and national security? So we have these two really important principles that basically every American holds true in their heart. It’s the founding principles of the US. Freedom of depressed alongside national security. Of course, we all want to stay safe.

1:39 We all need national security in order to protect our other rights. So the question is what happens if those two come in conflict with each other? And there’s nothing new about that. There’s nothing unique about that that’s been happening throughout our history. We grapple with that question even in the modern day.

2:00 We have examples like Edward Snowden and WikiLeaks, things like that, where there’s information that some people think should be released to the public and they argue it’s press freedom, while others argue know that actually threatens our national security. So it’s really important constitutional

2:24 questions that come up that need to be grappled with. Yeah, absolutely. And so we’re thinking about free press. I think the phrase it gets thrown around a lot. But what we’re really talking about is the ability for the press. And that doesn’t just mean newspapers, it really means anyone to have this idea that you are

2:44 investigating and looking at these different issues. Quick aside, I always think this is interesting. I always thought of free press is in newspapers, but I realized that free press actually means the technology of the press, right. It’s dissemination of information which is really interesting. And I think in this case, what we’re looking at is the ability for that information to be distributed

3:04 and talked about freely being balanced with this concern over national security. Right. There are certain things that our government, certain information that our government wants to protect in order to protect us as a nation. And those two things, this desire for information and the need for that information to be able to hold the government accountable conflicts a lot of the time

3:27 with that desire for the government to keep something secret so that those who would do harm to the nation or those who may not have our best interests at heart don’t get a hold of that information. Right. And it’s this push and pull that gets sorted out in our government and our society through this dialogue. But that balance is something that’s really tricky.

3:48 So what do you say, Josh, we take a look at this case and find out more of what we’re talking about with this balance? Sounds good. So the case is New York Times Company v. US. So we’re talking about press freedom, and we’re talking about balancing national security. So New York Times Company is the New York Times Newspaper, right? And talking about national security because it’s in the late 60s,

4:10 early seventy s, and the United States is involved in the Vietnam war. So Josh, could you just, by way of historical context, let us know what’s going on? What brought this case about? What are these things called the Pentagon Papers that are sort of at the heart of this case? And what’s really the question that’s at hand here? Sure. So the US. Has been involved in the Vietnam War

4:33 for really since the late 50s or so, in some form or another. So by the end of the 1960s, things are really escalating. They’re actually sending in us. Troops, ground forces, things like that. And the secretary of defense, Robert McNamara, he commissioned a report to basically study the history of US

5:01 strategy and policy in Vietnam to kind of track how things have been going, are we meeting our goals? Things like that. And informally, these papers become known as the Pentagon Papers. This report now, there’s a man named Daniel Ellsberg who works for the Rand corporation,

5:22 and they’re a think tank, and they do a lot of studies for national security. And he helped put together this report for the secretary of Defense. Now Ellsberg, as he works on this report, he becomes disillusioned with the Vietnam war, and he thinks that the war is unwinnable.

5:47 He thinks that American leaders have been lying to the people when they say that the US. Is actually winning the war. So he actually makes copies of the Pentagon papers illegally. Of course, this is a very top secret project that very few people know about. It was definitely not planned to be released to the public.

6:07 So he illegally makes photocopies of this, and then after a bit of time, he gets in contact with the New York Times. A reporter there. Neil Shehen. And Neil. Shehen actually makes copies of Ellsberg’s copy.

6:30 And she then proceeds to publish this with The New York Times. Great. So then the question of this case is over whether or not that was a violation. Obviously, the Pentagon Papers were a classified set of documents, classified meaning that the government has deemed them to be of an importance

6:50 to national security, and so therefore the publication of them is prohibited, and here was seen as a criminal act. And so when the newspapers published these documents, the Nixon administration essentially comes out and says, no, you can’t do that. Or I guess it wasn’t the administration, it was the court.

7:11 They sought out an injunction against the newspaper to prevent those papers from being published. Is that correct? Yes. So the term here is prior restraint. So that’s basically when the government seeks a court order to prevent the publication of information prior to it being published.

7:36 So normally the government might look at something that already has been published and say, you need to redact that. That’s dangerous to security, or it’s untruthful, whatever. But prior restraints specifically is even prior to it being published, the government is restraining it.

7:57 And there’s a lot of questions around how constitutional prior restraint is. The Supreme Court has generally said prior to this case, they said basically prior restraint is really never acceptable. Granted, that could mean there may be some cases, like very extreme cases, where they would allow it.

8:20 But in general, the Supreme Court has always very strongly ruled against prior restraint. And this case is actually going to deal with it again because the government’s going to say, actually, no, this is justified here because this is one of those extreme examples of national security requiring it.

8:42 Great. The question typically for this case is we have it on the screen. Did the Nixon administration efforts to prevent the publication of what the term classified information violates the First Amendment right? So, again, this broader constitutional question of how are we balancing free press and national security needs is, in this case, expressed this way.

9:02 And it’s interesting talking about freedom of the press. Again, first Amendment Congress shall make no law abridging freedom of the press. Pretty straightforward. Obviously, what’s happening here is a challenge to that principle. And you noted earlier prior restraint. So that is a form of censorship that allows the government to review the content of materials and prevent the publication can be seen as a challenge to that because it’s essentially the government

9:27 intervening and saying, no, we can’t have that. And here in this instance, obviously, I always think it’s important, too, to understand what’s going on with the Vietnam War. So there’s been a transition in administrations. Right. So Richard Nixon is elected and becomes president around this time. Previous to that, you’d had the Tet Offensive and sort of increasing involvement in Vietnam in 68

9:51 and at home in the United States, you have this large and growing frustration with the war, people being confused about what’s happening there. You have tensions, you have people on both sides. Many people are strongly in favor of our fighting in Vietnam and fighting against Communism. Others think that this isn’t the appropriate way to contest communism, that there is an unwinnable war in Vietnam and that we’re spending lots of money

10:15 and lives and we’re not really doing anything that’s effective and that’s resulting in protest movements across the nation. So tensions are high. And so it’s into that sort of mix that this case gets dropped and that the administration makes this proclamation. And so how does the Court find in this case, Josh?

10:37 So it’s a six to three decision. The Court rules in favor of the New York Times that the prior restraint that the government is seeking is unconstitutional, that the courts cannot. So actually there were some lower courts that had ruled that they could grant

10:59 an injunction against the Times in order to stop the publication. And so the Supreme Court is actually reviewing those lower court decisions and they rule that in Junction is actually unconstitutional and they release a per curium opinion. So a per curium is an unsigned opinion.

11:21 It’s usually brief and it’s designed to reflect unity in the decision. So even though it is six to three, so it’s not unanimous by any means. But the reason why they did this I think, is to show a stronger sense of unity. And we have just a quick quote from here.

11:42 Again, it’s very short and actually the vast majority of it is just quoting previous opinions. So any system of prior restraints of expression comes to this Court during a heavy presumption against its constitutional validity. So as we mentioned before, the Court in general has said no prior

12:03 restraint is unacceptable and the government needs to make an extremely strong case to show why it’s going to be used. And then they go on and quote, the government carries a heavy burden of showing justification for the imposition of such restraint. And it’s interesting how they seem to really only quote previous cases in this perturium opinion.

12:27 And I think really they’re hesitant to try and act like this is anything new. They’re just saying, look, we’re going to quote other opinions that have already settled this question, we don’t really need to settle anything new. Prior restraint is unconstitutional, basically always.

12:48 And we’re going to continue to uphold that. Yeah, and I think this is really interesting because again, we’re thinking about this bigger conversation about how we balance national security and freedom of the press, right, but you could also see that as free speech. You could see it we talked a couple of weeks ago about the case of Wisconsin. v. Yoder, thinking about religious liberty,

13:09 it’s interesting to see here that this idea of precedent is sort of this slow building of understanding around how these things are adjudicated. Right? So our constitutional system is one in which things aren’t prescribed for every case. Which means that as we move through time.

13:31 It’s up to us both to legislate. To figure out how we want to handle these things and then for the court to adjudicate whether or not those are holding within sort of the ideals and the principles and the things that are outlined within the Constitution. Which is interesting. So I think calling that out as what precedent is doing here, I think is great because we’re seeing that as they’re according to other cases,

13:51 but also this phrase of the government thus carries a heavy burden of showing justification for the imposition of such a restraint is interesting. So Joshua kind of tongue in cheek said, well, it’s almost basically always illegal. Well. I think what the court is saying here is yes. That the government has to prove that there is something really substantively important. Meaning that the release of this kind

14:12 of information is going to cause some kind of direct problem or harm. And that it’s on the government to show that it’s not on the Citizenry or the New York Times in this case to prove that whatever they’re releasing isn’t going to be a problem. It’s on the government to prove the opposite. The government has to prove that they’re going to prevent these things from being published.

14:32 They have to have a very strong case as to why they’re doing that. Otherwise, freedom of the press are thinking about like a scale. Otherwise, the freedom of the press continues to outweigh any concerns that the government may have. And I think we begin to see that in some of these concurring opinions. So justice Hugo Black wrote one of them.

14:55 And just to read it quickly, to find that the president has inherent power to halt the publication of views 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 in junctions like those sought here that Madison and his collaborators

15:18 intended to outlaw in his nation for all time. So here he’s citing James Madison, who famously introduced the amendments that became the bill of Rights to the first Congress in order to be ratified. And what they’re talking about there is the spirit of this idea of what it means to have a free press, which is newspapers should be able to publish the information that they want to without the government coming in before

15:41 it’s even published and letting it out there. Which isn’t to say that once a newspaper publishes something that they’re not either culpable or that the reaction to it isn’t on them or whatever else, but it’s just saying that the government cannot come in before it’s published and prevent that from happening, except for extreme cases.

16:03 Yeah. Yeah. And what I find interesting is how he’s citing history as well. He’s not saying this is my interpretation. He’s saying this is what Madison intended. So you kind of have to. Have an original, intense theory of reading the constitution here.

16:23 And I think that’s important to keep in mind is Justice Black’s way of reading the constitution might not be the same as the other justices read the constitution. And we need to keep that in mind as we look at each opinion and see how are they approaching that document and why are they approaching it in that way.

16:47 Because they obviously are not all approaching it in that same way. Otherwise there would only be one opinion and they would all be unanimous in that opinion. That doesn’t necessarily mean that justice black is objectively correct or objectively wrong. It’s just we see that they’re basically having a conversation with each other in a way, very respectful conversation

17:12 of just presenting the different ways they’re viewing the constitution. Yeah, no, I think that’s really important, and I think it speaks to why we continue to have these conversations and look at these court cases, because it’s up to us to continue to think about these questions, to continue to think about, obviously the discrete context of these cases. But then as we move again forward through

17:34 history, how these same questions are coming up in different ways. And sometimes those differences can be really slight, but sometimes they’re significant, and we have to be able to weigh what we think about these cases and apply it as we’re moving forward and looking at new information. So then we have another concurring opinion here from justice potter Stewart,

17:55 and I should say, as always, unfortunately, we can only look at a few excerpts from these cases and these documents. We do this every other Thursday. I wish we had time to go through the entirety, but we encourage you to go out and read it on your own. I promise you you’ll get a lot out of it. But looking at this next section, Justice Potter says,

18:15 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 Mayline and 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,

18:38 most vitally serves the basic purpose of the first amendment. For without an informed and free press, there cannot be an enlightened people. And when I read the section, I immediately think again of James Madison, who called the amendments and called the other pieces of the constitution mere parchment barriers, right?

18:58 And by that he meant that, look, you can have written down that congress shall make no law that abridges the right to free press, but the only reason that ideal is upheld is if we as a citizenry value that thing. And of course, you saw that early on with the Alien and Sedition Acts in the 1790s immediately after the Constitution is ratified,

19:21 you have these questions coming up about, okay, well, we’re in a war. We’re on a war footing. We don’t want anti government papers being published. And this is under the Adams administration. I believe that they then shut down those newspapers and that at the time was seen differently than it is now. But it’s just this idea that, look, it’s on us.

19:44 It doesn’t matter that the law is written down. What matters is an enlightened citizenry, meaning a knowledgeable and awake and aware citizenry is paying attention to holding the government accountable for the actions that it’s committing. Yeah, I don’t want to say utilitarian, but it’s kind of that argument here.

20:05 It’s not just a theory. Here are some concrete examples of why freedom of the press is necessary and effective in a free society because it helps people make the best decision. When you have a variety of ideas that are able to be expressed, people are going to be able to look

20:28 at them, think about them, analyze them, and then come to the best conclusion. And Justice Stewart argues that that’s why the First Amendment was created. Yeah absolutely. We didn’t have a unanimous opinion, though it was that precarious decision. And here we have

20:49 Chief Justice Warren Burger coming out and providing his descent opinion. He says, There is therefore little variation among the members of the Court in terms of resistance to prior restraint against publication. Adherence to this basic constitutional principle, however, does not make these cases simple ones. In these cases, the imperative of a free and unfettered press comes into collusion with another imperative the effective

21:13 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 of you I respect, but reject, can find such cases as these to be simple or easy. So what I hear Chief Justice Warren Burger

21:33 saying here is, look, this right to a free press isn’t absolute. There are rational times when they ought to be limited, and you have to look at the context of each individual case to make that determination. And in this case, I think he’s saying this does reach a threshold where the publication of these papers is going to be damaging to the United States national security

21:57 to the extent that they should be prohibited from publishing. Is that how you read it too, Josh? Yeah exactly. So he even recognizes, look, we all have this common ground. We all are very resistant to prior restraint, so they’re all speaking a common language. We can see, however, there is some differences.

22:18 And he’s actually specifically calling out Justice Black indirectly because Justice Black was well known for having an absolute literalist interpretation of the First Amendment. And he says, I respect that, but I reject that. So again, he’s being very civil without this. Even though he’s dissenting, he’s lost the case.

22:42 He’s still being very civil towards the Justice Black and the majority and that really stands out to me. But he’s saying, look, there are some times where prior restraint may be necessary. The First Amendment is not an absolute. So he would actually be more in line

23:05 with Justice Holmes and his famous opinion in another well known case, Schenck v. US where he says, you can’t shout fire in a crowded theater. The First Amendment doesn’t protect that speech. And allowing that would if you take a literal interpretation of the First Amendment homes and Burger

23:30 website venture, I guess you can allow people to do that. Who cares about national security is how Burger would approach this. Yeah, it’s interesting, again, comes back on this theme. This is a balance, right? And that means a balance means there’s going to be people that view things in different ways. And so I think that’s what’s both interesting and sometimes it can be frustrating about these Supreme Court cases

23:52 is, look, there is no singular right answer, right? You have really smart people coming to very different conclusions and all of us working together as a society trying to figure out what’s best in each one of these cases. And so we have one other decent opinion here. We have Justice John Marshall Harland who says the time which has been available

24:17 to us, to the lower court and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve. It is a reflection on the stability of the judicial process that these great issues, as important as any that have arisen during my time in the court, should have been decided under the pressures engendered by the torrent of publicity that has attended these litigations from their inception.

24:41 So this is interesting to me because it seems like he’s taking a different kind of tact. His frustration seems to be a sort of a timeline on which this case was heard, argued and decided, which, if I’m remembering correctly, was pretty quick. Is that right, Josh? Yeah, it was incredibly quick, far quicker than I think most, if any,

25:03 other court cases of this magnitude were decided. And the reason so was the New York Times and the Washington Post had an injunction against them. And so the majority of the court reason we need to move through this quick because any moment of restraining the press is a gross violation of the First Amendment.

25:27 So we need to get through this quick. That’s how the majority viewed it. Now Justice Harley, however, is actually approaching it the opposite way and he’s saying, well, if this is so important, we actually want to take our time and make sure that we get it right because he says it’s not certain that prior

25:48 restraint in this case is unconstitutional. So we shouldn’t just rush into lifting that injunction, we should get it right. And he’s kind of referencing the rule of law here reflection on the stability of the judicial process. So he’s saying what makes America so great is that we do have a stable judiciary.

26:09 And one thing that comes along with that is having a slow eating field process where we don’t rush into things. We make sure we take our time and think them through before we hand down a decision that is going to establish precedent for a long time to come. Yeah, I think that speaks to another inherent tension that’s built into the constitutional framework, which is this sort of balance between

26:33 passion and reason, deliberation and action. Right. And this can be frustrating. I mean, it’s politicians throughout American history, particularly in the 20th century. I’m thinking here of Woodrow Wilson getting very frustrated with this, like, slow, deliberative, thoughtful process. Obviously, that’s on the legislative side. But here on the judicial side, you see it too.

26:55 There’s this desire to come to a correct decision. There’s this desire to come to a well reasoned decision and that these decisions have long lasting consequences. And that’s all balanced against the need for this to happen rapidly in order for it to be just because you can imagine a scenario in which this injunction stays. And by injunction,

27:15 we just mean that The New York Times and Washington Post who is also a part of this lawsuit in slightly different manner but not to go too much into that, but that they’re unable to publish these things that they want to publish because the Court has ordered them to stop. And so there’s this need for the Court to move rapidly to resolve this so that it’s not something that is unduly

27:42 punitive against these papers who are just wanting to publish this information. And I think that’s almost another constitutional question around what you could consider this entire case because it’s an important principle. And that stability of judiciary, I think, is what gives weight to all of these court cases and makes us believe that they have the authority that they have is

28:04 that they are well reasoned and thought out. And I think John Marshall Harlan here is calling out, saying, hey, let’s be careful. This is really fast. It was pushed on us. We decided on really quickly. Let’s make sure that that doesn’t come at the cost of the Court losing some of its legitimacy in the eyes of the public or trust in the eyes of the public, I think, yeah.

28:27 Definitely what he’s talking about here. It becomes tricky. Like, what is an adequate amount of time? It really kind of comes down to each justice’s, individual subjective opinion on that. And so the Court here is always just deciding, like, objective constitutional questions.

28:51 They’re kind of having to use their own interpretations on what seem like minor details. How long should a case beyond the docket, how long should oral arguments last? Things like that. But those things are very much on their minds as they’re considering these questions. Yeah absolutely. And so to conclude, Josh,

29:12 let’s go back to this big constitutional question that we have, right? So how should the United States balance freedom of the press and national security? So from this case, what I take away is, look, the balance is really that we have a free press unless there is a very clear and very

29:33 strong compelling reason that the government needs to prevent the publication of something or stop the publication of something. And in this particular case, it doesn’t reach that level of interest for the government. Right? Yeah exactly. So, yeah, prior restraint, very difficult to enact.

29:55 But on the other hand, as we saw, if three justices were going to dissent, it’s obviously not just entirely clear cut, and I think even the majority actually references there may be some times where prior restraint in a very extreme situation could be used.

30:15 We’re talking the press says here’s the number of troops here’s exactly where they’re going to land at this exact time. Here’s their strategy. Maybe we could use prior restraint for that. So it’s interesting, there is definitely a balance there and the court grappled with it

30:38 a lot because they knew how important this case was. And we all know, just with the digital world information, so easy to get, so easy to release, that it’s only going to be a matter of time before this question comes up again. Absolutely. Well, Josh, thanks again for joining me.

30:59 This is a really interesting case to work through. Like you said, I can imagine this coming up again in the future as we continue to work through this digital age. In fact, recently this issue kind of came up in one of the podcasts that the Bill Rights Institute releases, the podcast called Fabric of History. We were talking about spies and national security,

31:19 and our guests on that episode had some really interesting things to say. So I encourage everybody to check out the podcast as well if you’re interested in this question. And Josh, I’m sure that you’ll have your eye on the news and any new e lessons or anything else that come out may deal with this question as well. But thank you all again for joining us. Please remember to like and subscribe. If you enjoyed this video content,

31:40 we release videos every week here at the Bill of Rights Institute, whether they’re these Primary Source Close Reads, or their conversations with scholars working in history and politics. We also release digital image post reads, so looking at different images and cartoons and art from history and unpacking those, as well as pedagogically focused materials.

32:01 And our Homework Help series, which Josh has a big help on, and in fact is coming out with a case or a video about New York Times Company versus New York. So if you’re interested in finding more about this case, more about the background of the case, how it got to the court check out that video. And as always, please feel free to reach out to us on Twitter and on Facebook. We always want to hear different topics that you may want to go into,

32:23 or if you have questions, we’re happy to answer those. But until next time, josh, thanks again. Thank you and we’ll see you all next time.