Dissent

There would three dissenting opinions on this case, from Chief Justice Burger, Justice Blackmun, and Justice Harlan. From each of these three justices we see that they felt that there was not enough time to really decide on this case. You see in each of their arguments of dissent that this case passed through the courts far too quickly. As Justice Blackmun put it, “Two federal district courts, two United States courts of appeals, and this Court -- within a period of less than three weeks from inception until today -- have been pressed into hurried decision of profound constitutional issues on inadequately developed and largely assumed facts without the careful deliberation that, one would hope, should characterize the American judicial process.” (http://www.lectlaw.com/)
Beside the issue of the case being rushed, there was also the argument of whether or not the First Amendment should be viewed as absolute. Many of the consenting Justices, and previous precedent has usually ruled in favor of the First Amendment being an absolute, but should this continue? Chief Justice Burger, in his dissenting statement said “In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective 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 -- a view I respect, but reject -- can find such cases as these to be simple or easy.” (http://www.lectlaw.com/) Should we maintain the First Amendment as absolute or should we look at it differently now that things have progressed? Especially as we look today to television and the internet. Did the Founding Father’s ever imagine that information could travel so far so fast?

My Argument

I agree with the ruling of this case. I feel that the government should not have the power to limit the press unless they can show that it would be extremely damaging to the American people. And I especially agree that the Executive branch, the President, should not be allowed to attempt to do so when the other branches of the government deem that it is wrong. When we begin to allow a President’s administration to cover up what they want, just because they feel it would be embarrassing, then we have to wonder where it would end. Would they start telling the press they can’t publish articles because they write the government in a poor light? Will they start being able to say that protesting, even peaceful, would no longer be protected because their opinions would embarrass the US government? I think issues like these can be very dangerous, and I’m glad that the Supreme Court deemed that the First Amendment should be preserved. It’s there to keep people from being afraid to give their opinion, and as Americans we should be able to feel we can criticize our leaders. It is our duty to question their policies, and the First Amendment allows us to do so without worrying about the government retaliating against us.

Rule of Law

Rule of Law:
“In New York Times Company v. U.S., the Supreme Court held that the government must meet a heavy burden of justification before it can restrain the press from exercising its First Amendment right to publish.” (http://law.jrank.org/) Basically, the implied powers of the President and the Executive branch do not give him the power override the First Amendment unless it can be proved that it is absolutely necessary to the safety of the American people.

Reasoning of the Court

Justice Brown and Justice Douglas opinion was in concurrence. They believed that the First Amendment was put into place to stop the government from laying restrictions on the people and the press from spreading information that might be found embarrassing. The Nixon Administration argued that the framers of the Constitution did not intend the First Amendment to make it impossible for the Executive branch to protect the security of the United States. The Administration felt that the government should be allowed to pass laws that would allow them to limit publication and abridge the freedom of the press in the name of “national security”. Justice Brown however stated “To find that the President has ‘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.’ No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.” (http://www.law.cornell.edu/) Justice Douglas added, citing from New York Times v. Sullivan that Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be ‘uninhibited, robust, and wide-open’ debate.

Justice Brennan was also in concurrence, but felt it necessary to express his views separately. He stated that any previous precedent set for the government to halt publication was for during times of war and only if the information told the enemy about our current military strategy or about the current locations of our troops, which are obviously very damaging to war-time efforts and can put our soldiers in extreme danger. Also, he stated that if the Executive branch had wanted an injunction placed on the paper to keep it from publishing the information, they have to give the courts enough time to decide if this was what they felt to be a threat to national security. However, in this case, the Nixon Administration had pushed that the injunctions be put in place first and then the case decided while the papers were blocked from publishing the information. “And, therefore, every restraint issued in this case, whatever its form, has violated the First Amendment -- and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands that no injunction may issue.” (http://www.law.cornell.edu/)

Justice Stewart in concurrence. His opinion was that since it recent years the Executive branch had been granted many powers higher than that of the other branches, especially in regards to foreign affairs, that a strong press was needed to keep the people informed, so they that they can act as a check for the government. “For, without an informed and free press, there cannot be an enlightened people.” (http://www.law.cornell.edu/) He also understood that the foreign governments needed to feel that they could conduct business with our government with some sense of confidentiality, but that this case was not about that, but about what power the Executive branch had over the power of free speech.

Justice White share much of his opinion with Justice Stewart stating that despite the fact that he believes that these papers could have some negative effect on how the Administration would viewed, he felt that it was their duty to protect the rights held under the First Amendment and that the press has always had extraordinary protection under said rights in previous precedent, and that the Executive branch could only halt publication if the information threatens "grave and irreparable" injury to the public interest, which he felt these papers did not.

The final Justice that was in concurrence was Justice Marshall. He stated that while it may be implied that the President's power to conduct foreign affairs and his position as Commander in Chief give him authority to impose censorship on the press to protect his ability to deal effectively with foreign nations and to conduct the military affairs of the country, that it would be unconstitutional for the courts to impose such a ban when Congress itself had refused to pass such a law.

Decision of the Court

The Supreme Court ruled 6-3 in favor of the New York Times and the Washington Post, which was the second paper that the “Pentagon Papers” had been leaked to. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Near v. Minnesota (1931). (http://www.law.umkc.edu/)“The Court held that there was a heavy burden on the government in that all prior restraint on publication are unconstitutional under the First Amendment, and that the government had not overcome this burden.” (www.studyworld.com) There was a great division of opinions among the Justices, even the ones that ruled in favor of the papers had differing reasons why.

The Naked Nymphomaniac

Today in class we watched a film that was based around Justices debating the First Amendment and pornographic material. In the film, the main argument was between a very liberal Justice, and a very conservative Justice who also happened to be the first female Justice. I have to admit, I usually stick to the side of freedom of speech as protected under the First Amendment, so in many ways, I agreed more with the liberal Justice (though not so much his attitude). I think the First Amendment is a tricky one, and issues regarding it can get pretty controversial. Generally the idea is it does not protect against something that can cause harm to another, but where do we start drawing that line? I think in many ways, that’s where the bulk of the issues come from. Like the Conservative Justice was trying to say, that is harms people in the psychological sense. That it harms the way of life of the American People. But who is the one that ultimately decides what is right or wrong in that sense? Is pornography wrong because it’s truly harmful or do we only see it as such because our Puritan background deems that nudity and sex is shameful and needs to be hidden away? I think ultimately it comes down to the individual, or in the case of a child, the parent or guardian to determine what is right or wrong for them.

As far as the issue of a woman on the Supreme Court, is because of the issue of woman’s rights. By allowing a woman on the Supreme Court, in a way can make the American people feel that they many different views and beliefs are being drawn upon for these decisions. While it does seem kind of unfair that they are only allowing woman candidates to take the place of the female Justice, I can understand it from the view that they want to let the American people feel that there isn’t a sexist issue. If a case that may have more bearing on a woman than a man, such as abortion, were to come to the Supreme Court, having a woman there would mean that it isn’t being decided by people who have no connection to its implications.

Illicit

Today we watched a video on the illicit trade problem that is affecting the world today. Whereas some types of it may seem more “harmless” than others, the video seemed to have the idea that you can’t draw that line when it comes to this type of illegal activity. Many people, weather they realize it or not, have probably been involved in some sort of illicit trade. Many times, it’s because it’s cheaper than the name brand product or easier to obtain. After watching the film, I am more aware of just how dangerous this sort of thing can be and just how widespread. I’ve never been the type to lend any credence to a deal that just seems “too good” or to pay any attention to those online advertisements for things like cheap meds, etc , etc. However, it seems like no matter how cautious I might be personally, it’s a little scary to know that the choice may not always be in my control. Like the case of the cough medicine in Panama. The medicine was distributed to the people by their government. People should be able to trust in something of that nature, given to them by the people who should know better, will be safe. But because all down the line, people accepted and transported the goods in “good faith”, many people lost their lives. Unfortunately, this seems future is pretty bleak as far as solving this problem. Illicit trade has been with us since trade itself, I’m sure, and as the film said, the only real way to solve this problem is to end it at the demand level, but there will always be a demand for something someone can get cheap and easy.

Issues of the Case

The issue of the case, in short, was “Did the Nixon administration's efforts to prevent the publication of what it termed ‘classified information’ violate the First Amendment?” (www.oyez.org) Was allowing the New York Times to publish the “Pentagon Papers” a matter of national security? Is the First Amendment absolute or does National security over ride that right? The “Pentagon Papers” were actually a Top Secret document known formally as "History of U.S. Decision-Making Process on Vietnam Policy." They were stolen by a former US Department of Defense employee, Daniel Ellsberg, and his friend, Anthony Russo, Jr. “Ellsberg and Russo passed these studies on to two newspapers, the New York Times in New York City and the Washington Post in Washington, D.C. Neither paper was involved in the theft of government documents.” (http://law.jrank.org/) The US had marked these documents as Top Secret because “that publication would threaten national security because other nations would be reluctant to deal with the U. S. if their dealings couldn't be kept secret.” (http://www.law.umkc.edu/) This really does become a complicated matter. How far does the First Amendment reach? Is this really a matter of National security? And even if it is, isn’t the First Amendment in place to prevent the government from controlling what the media is allowed to print or say about the government in general?

This was also happening during the Viet Nam war, when much of America was angry with how the government was conducting itself. Originally, Nixon just wanted to ignore the papers, believing they were only embarrassing to previous administrations, “but with National Security Adviser Henry Kissinger, Nixon also realized that publication imperiled his own policies, his patterns of secrecy, and his credibility. Most important, Nixon feared that future presidents would lose control over classified documents and thus potentially embarrass their predecessors.” (www.answers.com)That is the point in which the administration was able to obtain a lower court order to temporarily refrain publication. They were unable to obtain a permanent injunction, but the papers were stopped from further publication until the government could file their appeal. Ten days after the initial restraining order was put in place, the Supreme Court agreed to take an expedited appeal, bypassing the intermediate court all together

Progress on the Case thus far

I’ve done a bit of research so far on my case, The New York Times v. United States (1971). I’ve found about 10 sources that I think contain a lot of good information, including the actual statements of concurrence or dissent from the justices. I find this case quite interesting, really, and it does have a lot of relevance even today. It seems to be an example of the American people winning over the big government. It shows how once, the media actually acted as a bit of a “watch dog” on the dealings of the government, and wasn’t afraid of publishing things that showed the government in a not so great light. Of course, much of this happened during the Vietnam War, when the American people were already pretty upset about how things were going and with the Nixon Administration in general. It relates to recent events and the “War on Terror” and how right after 9/11 the media didn’t dare print anything bad about the US government and the president. When did the media become so scared?