The Burden Before Publication
Article by Ayman Fouad Abdelgawad
New York Times Co. v. United States
The case
The federal government sought injunctions preventing The New York Times and The Washington Post from publishing classified documents concerning the history of United States involvement in Vietnam. The question was whether the government had justified stopping publication in advance.
What the Court decided
The Court, in a short per curiam opinion accompanied by multiple separate opinions, held that the government had not met the heavy burden required for prior restraint. The injunctions were lifted.
The ruling did not create an unlimited privilege to publish every classified document or decide all possible consequences after publication. Its immediate significance lay in the government's failure to justify the extraordinary remedy of advance censorship on the record presented.
Why it is worth thinking about
Stopping speech before anyone can read it gives government a power different in kind from answering illegality afterwards. The public loses not only particular information but the opportunity to judge the government's reasons for withholding it.
My reflection is that claims of necessity deserve their most careful examination when secrecy prevents ordinary scrutiny. National security can be compelling; it can also be invoked at a level of generality that makes challenge impossible.
The heavy burden is therefore a rule about institutional trust. It does not assume officials always exaggerate or newspapers always act wisely. It refuses to let either assumption replace evidence when the state asks a court to silence publication in advance.
Read the decision
New York Times Co. v. United States — archived U.S. Reports scan (PDF)
403 U.S. 713 (1971). Reading reference: pp. 714–748 in the printed report. Archive: Library of Congress, United States Reports collection.