403 U.S. 713 (1971)
The United States brought suit against the New York Times Company and the Washington Post Company seeking to enjoin publication of material from a classified government study on the history of United States decision-making regarding Vietnam policy.1
The newspapers had come into possession of the classified documents and had already begun publishing excerpts from the study in their respective newspapers before the government filed for injunctive relief.2 The District Court for the Southern District of New York ruled in the New York Times case that the government had not satisfied the requirements for imposing a prior restraint.3
In the parallel Washington Post litigation, the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit both determined that the government had not met its burden.4 The Supreme Court granted certiorari to review the matters on an expedited schedule.5
Stays had been entered by the Court of Appeals for the Second Circuit on June 23, 1971, and by the Court of Appeals for the District of Columbia Circuit on June 24, 1971.6
Whether the United States may 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"?7
Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity, and the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.8
No. The established facts demonstrate that 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.9 The Supreme Court agreed after reviewing the procedural history in which the newspapers had come into possession of the classified documents and already begun publishing excerpts before injunctive relief was sought.10
The United States may not enjoin the New York Times and the Washington Post from publishing the contents of the classified study.11
Related opinions on this issue
Joined by Justice Douglas
Justice Black adhered to the view that the Government's case against the Washington Post should have been dismissed. He believed the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. Every moment's continuance of the injunctions against these newspapers amounted to a flagrant, indefensible, and continuing violation of the First Amendment.
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.12 The press was to serve the governed, not the governors.13 The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government.14 In his 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 fulfilled the purpose of the First Amendment.15
Joined by Justice Black
Justice Douglas stated that the Government has not met its burden of showing that the prior restraint was justified.16 The affidavits and testimony in the cases before the Court did not sustain the Government's claim that disclosure of the Pentagon Papers will surely result in direct, immediate, and irreparable damage to our Nation and its people. The stays that were granted pending the hearing in this Court were granted on the representation that the Government had a reasonable likelihood of success on the merits.
That representation was not accurate.17 For the reasons stated in his dissenting opinion in the Washington Post case, he would affirm the judgment of the Court of Appeals for the District of Columbia Circuit. For the reasons stated in his dissenting opinion in the New York Times case, he would reverse the judgment of the Court of Appeals for the Second Circuit.
Justice Brennan explained that the entire thrust of the Government's claim is that publication of the Pentagon Papers could or might prejudice the national interest.18 Invocation of the national security label does not automatically end the inquiry.19 The Court has rejected similar claims in the past.20
He would affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit.21 The First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.22
Joined by Justice White
Justice Stewart agreed with the result reached by the Court in these cases. However, he could not share the Court's apparent willingness to sustain prior restraints in some circumstances. He would hold that the Government has not met the heavy burden of showing justification for the imposition of a prior restraint.
The responsibility must be where the power is.23 The Executive Branch has the responsibility to classify and protect national security information.24 But when it seeks to use the courts to suppress publication, it must meet constitutional standards. It has not done so here.25
Joined by Justice Stewart
Justice White concurred in the judgments of the Court.26 He did not believe that the Government has met its heavy burden in these cases.27 The injunctions should be vacated and the cases remanded with directions to dismiss the complaints.28
He added that he was in substantial accord with much that Justice White has said in his separate opinion in the New York Times case.29 He is confident that revelation of these documents will do substantial damage to public interests. Yet the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication.
Justice Marshall reasoned that the Constitution entrusts the duty of protecting national security to the Executive and Legislative branches.30 It does not grant the Executive the power to seek judicial enforcement of its own prior restraints on publication.31 The Court has no power to grant the relief sought by the Government in these cases.32
For these reasons, he concurred in the judgments of the Court.33 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.34
Chief Justice Burger dissented on the ground that the Court has been asked to deliver its ultimate interpretation of the First Amendment in the context of a case that presents none of the issues that have historically been thought to call for such an extreme measure.35 The newspapers have had the documents for weeks.36 They have published some.37
The Government has not sought to punish them for what they have published.38 It has sought only to prevent publication of material that could endanger lives and ongoing negotiations.39 He would grant the injunctions and allow the lower courts to conduct a full hearing on the merits.40 The haste with which this Court has acted is unseemly and undermines the rule of law.41
Joined by Chief Justice Burger And Justice Blackmun
Justice Harlan dissented because with all respect he believed the Court has been almost irresponsibly feverish in dealing with these cases.42 The lower courts have not had adequate time to consider the complex factual and legal issues presented.43 The Government has made a sufficient showing to warrant continued temporary restraints while the cases are properly litigated.44
The Court should not act as a Supreme Board of Censors but should allow the judicial process to work in an orderly fashion.45 He would vacate the judgment of the Court of Appeals for the District of Columbia Circuit on this ground and remand the case for further proceedings in the District Court.46
Justice Blackmun joined the dissenting opinions of Chief Justice Burger and Justice Harlan.47 The cases have been conducted in unseemly haste.48 The national interest requires that the status quo be maintained until the lower courts can give these matters the careful consideration they deserve.49
The First Amendment is not absolute, and the Government has made a prima facie showing that disclosure of the specified materials could cause grave harm to the nation.50 He would remand these cases to be developed expeditiously on a schedule permitting the orderly presentation of evidence from both sides.51
Whether the Government has carried its heavy burden of showing justification for the imposition of a prior restraint on publication by the press?52
Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity, and the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.
No. Applying the rule to the established facts, the District Court for the Southern District of New York and the District Court for the District of Columbia along with the Court of Appeals for the District of Columbia Circuit all determined that the Government had not met its burden despite the newspapers possessing the classified study and beginning publication.53 The Supreme Court affirmed that conclusion on the expedited record.54
The Government has not carried its heavy burden of showing justification for the imposition of a prior restraint on publication by the press.55