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.