Thursday, September 6, 2007

New York Times Co. v. United States Setting
The decision finally stated that the Supreme Court agreed with the two lower courts which had originally decided that the Government had not met that burden, so the prior restraint was not justified. This final decision was not signed by any particular justice.
The Per Curiam opinion itself in this case was very brief because all the Court wanted to state was that it had concurred with the decisions of the two lower courts to reject the Government's request for an injunction. The Justices' opinions included different degrees of support for the clear superiority of the First Amendment and no Justice fully supported the Government's case. Because of these factors, no clear and exclusive law appears to have come out of this case. Nevertheless, the significance of the case and the wording of the Justices' opinions have added important statements to the history of precedents for exceptions to the First Amendment, which have been cited in numerous Supreme Court cases since .
Justice Hugo Black wrote an opinion that elaborated on his absolutist view of the First Amendment. He was against any interference with freedom of expression and largely found the content of the documents to be immaterial. Justice William O. Douglas (1898-1980) largely concurred with Black, citing the need for a free press as a check on government.
Justice William J. Brennan, Jr. explained how the publication of the documents did not qualify as one of the three exceptions to the freedom of expression established in Near v. Minnesota (1931).
Justice Potter Stewart and Justice Byron R. White agreed that it is the responsibility of the Executive to ensure national security through the protection of its information.
Justice Thurgood Marshall established the notion that the term "national security" was too broad when legitimizing prior restraint, and also argued that it is not the Court's job to create laws where the Congress cannot.
Justice Warren E. Burger, dissenting, argued that "the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government," that there should be a detailed study on the effects of these actions. He argued that in the haste of the proceedings, and given the size of the documents, the Court was unable to gather enough information to make a decision. He also argued that the Times should have discussed the possible societal repercussions with the Government prior to publication of the material. The Chief Justice did not argue that the Government had met the aforementioned standard, but rather that the decision should not have been made so hastily.
Justice John M. Harlan and Justice Harry A. Blackmun joined the Chief Justice in arguing the faults in the proceedings, and the lack of attention towards national security and the rights of the Executive.

The broader implications of this case at the time were that the people of the United States were exposed to a history of inner operations of the Executive with regards to the war, putting the Government under a level of public scrutiny it had not known before. The Times' victory strengthened the notion that it was not only the right of but also a central purpose of the free press to scrutinize government. This notion has been kept strong since and is still evident today in public criticism of the Bush Administration. The status of the debate in recent years has focused on criminal technicalities relating to First Amendment rights, as well as prior restraints against information that has the potential to harm people economically. It is still contended that the freedom of the press cannot be abridged through vague speculations of harm.

New York Times Co. v. United States See also

Sheehan, Neil and others. The Pentagon Papers. New York: New York Times Co., 1971
Shapiro, Martin (ed.). The Pentagon Papers and the Courts. Toronto: Chandler Publishing Company, 1972
Schmidt, Steffen, Mack Shelley, and Barbara Bardes. American Government and Politics Today. Toronto: Thompson Wadsworth, 2005
Bernard Schwartz, Freedom of the Press. New York: Facts on File, 1992

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