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Journal Three: New York Times Company v. United States

Southern New Hampshire University

COM-530 Law & Ethics

March 14, 2021

Journal Three: New York Times Company v. United States

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The case involving the New York Times v. United States is one that set an example on

the topic of limitations and the First Amendment. A study on the involvement America had in

the conflict of the Vietnam war. Known as the “Pentagon Papers” and compiled of thousands of

pages that included classified data and analysis. Daniel Ellsburg a political and military analyst

decided after reading the information contained in the Pentagon Papers that Americans should be

entitled to the information (Moore, Murray, Farrell, and Youm, 2018). Ellsburg did make

attempts to make this information public through high-ranking officials but his efforts were

ignored. He felt the information would be without doubt highly explosive (Moore et al., 2018).

With no success going through proper channels Ellsburg made the decision to deliver many of

the volumes of information to a journalist at the New York Times and at this point there was no

turning back the public was going to know.

The New York Times released the first article after three months and spending hours

interpreting the information. This would be the first of a planned series detailing key points for

the American people to see. The U.S. Attorney General John Mitchell reached out to the New

York Times requesting they discontinue publication of the series and the Times declined. At this

time, the legal battle began, the Attorney General argued continued publication would endanger

national security because American soldiers were still fighting the war in Vietnam (Britannica

Editors, 2020, Moore et al., 2018). The series anticipated a total of ten articles but after the third

article was printed the Times was issued a temporary restraining order banning them from

printing anymore publications until a hearing was scheduled on the matter (Moore et al., 2018).

Once the Times was prohibited from printing the information The Washington Post acted

and obtained photocopies of the documents. Again, the Attorney General went into action and

tried to receive a second restraining order this time against the Post, but his efforts failed. At this
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time Mitchell also filed a permanent injunction banning the Times from publishing the series.

This was also a failed effort being denied allowed the paper to release the story. This was a

victory for Journalist and the First Amendment (Britannica Editors, 2020, Moore et al., 2018).

Unfortunately, this victory, did not last long. Mitchell went to the U.S. court of appeals

who overturned the decision and “reinstated the injunction” (Moore et al., 2018) pending a

hearing. The public was still going to receive their story though, because the New York Times

was the only publication that received the restraining order other news was able to publish the

story. This case was fought all the way to the supreme court and in the end the verdict was in

favor of the publication and the restraining order was lifted. When it came down to the court’s

decision the ruling was not based on the First Amendment but the government being unable to

meet the burden of proof. Then Pentagon Papers became public knowledge

(Moore et al., 2018).

In the aftermath of the New York Times Company v. United States case, legislators and

journalists pondered the impact on the First Amendment. Supreme Court Justices who opposed

the decision were concerned with national security. It was their view that it was the

government’s decision what the newspaper would be allowed to print from the Pentagon Papers

or what parts were safe to publish. The rushing of the court proceedings was another concern,

and the justices who disagreed would have preferred more time to decide on the secrecy of the

documents (Moore et al., 2018). Justice Potter Stewart elaborated his concurring opinion saying,

prior restraint is permitted only when publications result in direct, immediate, and irreparable

damage to our Nation or its people’” (Lee, 2002). Court Justice Hugo Black consider the

ongoing injunction a “continuing violation of the First Amendment” and professed the

newspapers did exactly what needed to be done (Moore et al., 2018). While this was not a First
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Amendment win the Times was able to publish the Pentagon Papers article series. This case

shows that the government is not immune to inspection of their secrets and the truth will come

out. According to Justice William O. Douglas, “secrecy in government is fundamentally

antidemocratic, perpetuating bureaucratic errors. Open debate and discussion on public issues are

vital to our national health” (Moore et al., 2018). This country is what it is because then First

Amendment allows journalist to publish what Americans need to know.

The effects of this historic publication show what the First Amendments right to freedom

of speech mean. The court system still debates on the impact of leaking potentially harmful

information. It would be easier to suggest journalist should not publish anything that would lead

to harm. But who makes that determination?

References
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Britannica Editors. (2020). Pentagon papers. Encyclopedia Britannica.

https://www.britannica.com/topic/Pentagon-Papers.

Lee, D. (2002). Prior restraint. Freedom Forum Institute.

https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-the-
press/prior-restraint/.

Moore, R. L., Murray, M. D., Farrell, J. M., & Youm, K. H. (2018). Media law and ethics
(ninth). Routledge.