I've been doing some research into New York Times Co. v. United States recently, and I'm a bit unclear as to what was the outcome of that case.

I understand that Near v. Minnesota established that prior restraint is illegal in the United States, with certain exceptions:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not "protect a man from an injunction against uttering words that may have all the effect of force."

What I'm confused about is how New York Times Co. v. United States fits into this. As Near v. Minnesota allows for prior restraint if publishing would obstruct military secrets, was the question of the Pentagon Papers one of whether that fits into this exception, and the ruling is that it doesn't? Or was it a question of general national security, posing an additional exception to prior restraint, which the Court denied? Does the Court's ruling overrule Near v. Minnesota entirely, giving absolute Freedom of the Press (at least ahead of time), or did it reestablish the same exceptions to prior restraint?

What makes this all the more confusing is that while a majority of the Justices agreed that the Times and the Post could resume publication, there's no majority opinion as to why. On the one hand, you have Justice Black declaring,

The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

and likewise Justice Douglass, who writes that the First Amendment

leaves, in my view, no room for governmental restraint on the press.

Their views seem to indicate that Near v. Minnesota was entirely overturned, and there's no more prior restraint.

On the other hand, Justice Brennan says that

Only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufficient.

and likewise Justice Stewart's opinion that

disclosure of any of [the Pentagon Papers] will surely result in direct, immediate, and irreparable damage to our Nation or its people.

which seem to narrow Near v. Minnesota to direct harm, rather than any resulting harm, but not entirely overturning it.

So, which is it? Does New York Times Co. v. United States overturn Near v. Minnesota, or does it simply limit it?

I'm further confused by Frank Snepp v. United States, where Snepp was forced to turn over all profits from his books and cease publishing further copies. Why? Didn't both Near v. Minnesota and New York Times Co. v. United States establish at least some form of revoking prior restraint? Why does it suddenly apply here?

In summary: In the aftermath of the above cases, is prior restraint legal in the United States, and if so, to what extent?

1 Answer 1


So, which is it? Does New York Times Co. v. United States overturn Near v. Minnesota, or does it simply limit it?

Neither - it affirms it.

Justice William J. Brennan, Jr. specifically stated that the publication of the Pentagon papers did not fall within any of the three exemptions that Near v. Minnesota identified. These exemptions are that it reveals crucial military information, contains obscenity, or may directly incite "acts of violence". These are and remain the limits, however, these will be interpreted very narrowly.

There was no real dissent between the justices on the veracity of the law established by Near v Minnesota, just on whether the Pentagon papers revealed crucial military information - 3 justices thought they did, 6 thought they didn't. They split on the facts, not the law.

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    1. I already quoted Brennan in my question. All you're doing is changing the question from "overturn or limit" to "overturn, limit, or affirm." You're still not addressing the broader question, where the Justices don't seem to agree on why the injunction should be lifted. 2. What about Snepp v. US, where these same Justices rule in favor of the CIA?
    – DonielF
    Commented Jan 6, 2019 at 22:23
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    Said differently, I suppose: "They split on the facts, not the law" - that's exactly my problem. How they split on the facts could greatly impact later cases. Let's say that someone comes later with a question of immediate national security issues that led to prior restraint. According to Black, the 1st Amendment is absolute and the paper is allowed to print; according to Brennan, a risk to national security will be a direct result of publication and prior restraint is exercised.
    – DonielF
    Commented Jan 7, 2019 at 15:18
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    @DonielF it will depend on the facts in that case - the Pentagon Papers are one (very big) document, any future case would be about revealing different government secrets
    – Dale M
    Commented Jan 7, 2019 at 20:38

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