New York Times Company v. United States, 403 U.S. 713; 91 S. Ct. 2140; 29 L. Ed. 2d 820 (1971)

Facts—The U.S. went to district court to enjoin publication of the Pentagon Papers by the New York Times and the Washington Post. Daniel Ellsberg, a Pentagon employee who had grown disaffected with the war in Vietnam, had turned these documents, which detailed the history of U.S. involvement in Vietnam, over to the newspapers. One Court of Appeals had affirmed a district denial of an injunction and another had remanded the case for further hearings.

Question—Can the judiciary prevent the publication of material that the government deems harmful to the national interest in the absence of a statute on the matter?

Decision—No.

Reasons—Per Curiam (6–3). “The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the freedom of press, speech, religion, and assembly.        Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunction, or prior restraint.  To find that the president has the ‘inherent power’ to halt the publication of news 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’ the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

Dissenters led by C.J. Burger and J. Harlan noted that the New York Times had plenty of time to review the documents (and consult with the government) prior to publication. The dissenters also thought that the president was entitled to greater deference in matters involving foreign affairs.